Wednesday, March 04, 2015
No Case Against Wilson
Read the report or read every post I made on the subject: DEPARTMENT OF JUSTICE REPORT REGARDING THE CRIMINAL INVESTIGATION INTO THE SHOOTING DEATH OF MICHAEL BROWN BY FERGUSON, MISSOURI POLICE OFFICER DARREN WILSON Wilson’s Subsequent Pursuit of Brown and Shots Allegedly Fired as Brown Was Running Away The evidence does not support concluding that Wilson shot Brown while Brown’s back was toward Wilson. Witnesses, such as Witness 118, Witness 128, Witness 139 and others, who claim to have seen Wilson fire directly into Brown’s back, gave accounts that lack credibility because the physical evidence establishes that there were no entry wounds to Brown’s back, although there was a wound to the anatomical back of Brown’s right arm, and a graze wound to Brown’s right arm. Also, other witnesses who say that Wilson fired at Brown as he ran have given accounts that are not credible because significant aspects of their statements are irreconcilable with the physical evidence, such as Witness 101 and 127, whose statements are suspect for the reasons noted above. Similarly, Witness 124 claims to have seen Wilson following behind Brown while steadily firing at him. However, Witness 124 dramatically changed her accounts of what she saw between the time of her first statement to the SLCPD and second statement to the FBI. She refused to meet with the federal prosecutors to clarify her varying accounts. Also, her account was dramatically different from that of her husband, Witness 115, who was standing next to her during the incident. Witness 115 stated that he thought he saw Wilson fire once at Brown as he was running away, but other aspects of his account lack credibility for the reasons set forth above, i.e. he did not witness significant parts of the shooting and based parts of his account on assumption. Witnesses 128 and 137 initially claimed that Wilson fired at Brown while he was running away, but then acknowledged that they did not see what Wilson and Brown were doing at this point and thus do not know whether Wilson fired at Brown as he was running away. Witnesses 105 and 106 thought they saw Wilson fire at Brown as he was running, but describe seeing Brown hit in the leg and back in a manner that does not match the autopsy findings. Accordingly, there is no credible evidence that establishes that Wilson fired at or struck Brown’s back as Brown fled. Shots Fired After Brown Turned to Face Wilson The evidence establishes that the shots fired by Wilson after Brown turned around were in self-defense and thus were not objectively unreasonable under the Fourth Amendment. The physical evidence establishes that after he ran about 180 feet away from the SUV, Brown turned and faced Wilson, then moved toward Wilson until Wilson finally shot him in the head and killed him. According to Wilson, Brown balled or clenched his fists and “charged” forward, ignoring commands to stop. Knowing that Brown was much larger than him and that he had previously attempted to overpower him and take his gun, Wilson stated that he feared for his safety and fired at Brown. Again, even Witness 101’s account supports this perception. Brown then reached toward his waistband, causing Wilson to fear that Brown was reaching for a weapon. Wilson stated that he continued to fear for his safety at this point and fired at Brown again. Wilson finally shot Brown in the head as he was falling or lunging forward, after which Brown immediately fell to the ground. Wilson did not fire any additional shots. Wilson’s version of events is corroborated by the physical evidence that indicates that Brown moved forward toward Wilson after he ran from the SUV, by the fact that Brown went to the ground with his left hand at (although not inside) his waistband, and by credible eyewitness accounts. Wilson’s version is further supported by disinterested eyewitnesses Witness 102, Witness 104, Witness 105, Witness 108, and Witness 109, among others. These witnesses all agree that Brown ran or charged toward Wilson and that Wilson shot at Brown only as Brown moved toward him. Although some of the witnesses stated that Brown briefly had his hands up or out at about waist-level, none of these witnesses perceived Brown to be attempting to surrender at any point when Wilson fired upon him. To the contrary, several of these witnesses stated that they would have felt threatened by Brown and would have responded in the same way Wilson did. For example, Witness 104 stated that as Wilson ran after Brown yelling “stop, stop, stop,” Brown finally turned around and raised his hands “for a second.” However, Brown then immediately balled his hands into fists and “charged” at Wilson in a “tackle run.” Witness 104 stated that Wilson fired only when Brown moved toward him and that she “would have fired sooner.” Likewise, Witness 105 stated that Brown turned around and put his hands up “for a brief moment,” then refused a command from Wilson to “get down” and instead put his hands “in running position” and started running toward Wilson. Witness 105 stated that Wilson shot at Brown only when Brown was moving toward him. These witnesses’ accounts are consistent with prior statements they have given, consistent with the forensic and physical evidence, and consistent with each other’s accounts. Accordingly, we conclude that these accounts are credible. Furthermore, there are no witnesses who could testify credibly that Wilson shot Brown while Brown was clearly attempting to surrender. The accounts of the witnesses who have claimed that Brown raised his hands above his head to surrender and said “I don’t have a gun,” or “okay, okay, okay” are inconsistent with the physical evidence or can be challenged in other material ways, and thus cannot be relied upon to form the foundation of a federal prosecution. [Footnote 28] The two most prominent witnesses who have stated that Brown was shot with his hands up in surrender are Witness 101 and Witness 127, both of whom claim that Brown turned around with his hands raised in surrender, that he never reached for his waistband, that he never moved forward toward Wilson after turning to face him with his hands up, and that he fell to the ground with his hands raised. These and other aspects of their statements are contradicted by the physical evidence. Crime scene photographs establish that Brown fell to the ground with his left hand at his waistband and his right hand at his side. Brown’s blood in the roadway demonstrates that Brown came forward at least 21.6 feet from the time he turned around toward Wilson. Other aspects of the accounts of Witness 101 and Witness 127 would render them not credible in a prosecution of Wilson, namely their accounts of what happened at the SUV. Both claim that Wilson fired the first shot out the SUV window, Witness 101 claims that the shot hit Brown at close range in the torso, and both claim that Brown did not reach inside the vehicle. These claims are irreconcilable with the bullet in the SUV door, the close-range wound to Brown’s hand, Brown’s DNA inside Wilson’s car and on his gun, and the injuries to Wilson’s face. Footnote : [The media has widely reported that there is witness testimony that Brown said “don’t shoot” as he held his hands above his head. In fact, our investigation did not reveal any eyewitness who stated that Brown said “don’t shoot.”] Other witnesses who have suggested that Brown was shot with his hands up in surrender have either recanted their statements, such as Witnesses 119 and 125, provided inconsistent statements, such as Witness 124, or have provided accounts that are verifiably untrue, such as Witnesses 121, 139, and 132. Witness 122 recanted significant portions of his statement by acknowledging that he was not in a position to see what either Brown or Wilson were doing, and who falsely insisted that three police officers pursued Brown and that the shooter was heavy set (in contrast to the slimly-built Wilson). Similar to Witness 128, Witness 122 told Brown’s family that Brown had been shot execution-style. Witness 120 initially told law enforcement that he saw Brown shot at point-blank range as he was on his knees with his hands up. Similar to Witness 138, Witness 120 subsequently acknowledged that he did not see Brown get shot but “assumed” he had been executed while on his knees with his hands up based on “common sense” and what others “in the community told [him.]” There is no witness who has stated that Brown had his hands up in surrender whose statement is otherwise consistent with the physical evidence. For example, some witnesses say that Wilson only fired his weapon out of the SUV, (e.g. Witnesses 128, 101, and 127) or that Wilson stood next to the SUV and killed Brown right there (e.g. Witnesses 139, 132, 120). Some witnesses insist that Wilson shot Brown in the back as he lay on the ground. (e.g. Witnesses 128 and 139). Some witnesses say that Wilson shot Brown and he went to the ground immediately upon turning to face Wilson. (e.g. Witnesses 138, 101, 118, and 127). Some say Wilson went to the ground with his hands raised at right angles. (e.g. Witnesses 138, 118, and 121). Again, all of these statements are contradicted by the physical and forensic evidence, which also undermines the credibility of their accounts of other aspects of the incident, including their assertion that Brown had his hands up in a surrender position when Wilson shot him. When the shootings are viewed, as they must be, in light of all the surrounding circumstances and what Wilson knew at the time, as established by the credible physical evidence and eyewitness testimony, it was not unreasonable for Wilson to fire on Brown until he stopped moving forward and was clearly subdued. Although, with hindsight, we know that Brown was not armed with a gun or other weapon, this fact does not render Wilson’s use of deadly force objectively unreasonable. Again, the key question is whether Brown could reasonably have been perceived to pose a deadly threat to Wilson at the time he shot him regardless of whether Brown was armed. Sufficient credible evidence supports Wilson’s claim that he reasonably perceived Brown to be posing a deadly threat. First, Wilson did not know that Brown was not armed at the time he shot him, and had reason to suspect that he might be when Brown reached into the waistband of his pants as he advanced toward Wilson. See Loch v. City of Litchfield, 689 F.3d 961, 966 (8th Cir. 2012) (holding that “[e]ven if a suspect is ultimately ‘found to be unarmed, a police officer can still employ deadly force if objectively reasonable.’”) (quoting Billingsley v. City of Omaha, 277 F.3d 990, 995 (8th Cir. 2002)); Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) (“Also irrelevant is the fact that [the suspect] was actually unarmed. [The officer] did not and could not have known this.”); Smith v. Freland, 954 F.2d 343, 347 (noting that “unarmed” does not mean “harmless) (6th Cir. 1992). While Brown did not use a gun on Wilson at the SUV, his aggressive actions would have given Wilson reason to at least question whether he might be armed, as would his subsequent forward advance and reach toward his waistband. This is especially so in light of the rapidly-evolving nature of the incident. Wilson did not have time to determine whether Brown had a gun and was not required to risk being shot himself in order to make a more definitive assessment. Moreover, Wilson could present evidence that a jury likely would credit that he reasonably perceived a deadly threat from Brown even if Brown’s hands were empty and he had never reached into his waistband because of Brown’s actions in refusing to halt his forward movement toward Wilson. The Eighth Circuit Court of Appeals’ decision in Loch v. City of Litchfield is dispositive on this point. There, an officer shot a suspect eight times as he advanced toward the officer. Although the suspect’s “arms were raised above his head or extended at his sides,” the Court of Appeals held that a reasonable officer could have perceived the suspect’s forward advance in the face of the officer’s commands to stop as resistance and a threat. As the Court of Appeals explained: Although [the suspect] had by this time thrown his firearm in the snow, … [the officer] did not observe that action. Instead of complying with [the officer’s] command to get on the ground, [the suspect] turned and moved toward the officer. [Plaintiffs], noting that [the suspect’s] arms were raised above his head or extended at his sides, suggest that [the suspect] was simply trying to find a suitable place to get on the ground, because his truck sat near a tree and snowbank. But even if [the suspect’s] motives were innocent, a reasonable officer on the scene could have interpreted [the suspect’s] actions as resistance. It is undisputed that [the suspect] continued toward [the officer] despite the officer’s repeated orders to get on the ground …. Thus, a reasonable officer could believe that [the suspect’s] failure to comply was a matter of choice rather than necessity. Loch, 689 F.3d 961, 966 (8th Cir. 2012). Were the government to prosecute Wilson, the court would instruct the jury using Loch as a foundation. Given the evidence in this matter, jurors would likely conclude that Wilson had reason to be concerned that Brown was a threat to him as he continued to advance, just as did the officer in Loch. In addition, even assuming that Wilson definitively knew that Brown was not armed, Wilson was aware that Brown had already assaulted him once and attempted to gain control of his gun. Wilson could thus present evidence that he reasonably feared that, if left unimpeded, Brown would again assault Wilson, again attempt to overpower him, and again attempt to take his gun. Under the law, Wilson has a strong argument that he was justified in firing his weapon at Brown as he continued to advance toward him and refuse commands to stop, and the law does not require Wilson to wait until Brown was close enough to physically assault Wilson. Even if, with hindsight, Wilson could have done something other than shoot Brown, the Fourth Amendment does not second-guess a law enforcement officer’s decision on how to respond to an advancing threat. The law gives great deference to officers for their necessarily split-second judgments, especially in incidents such as this one that unfold over a span of less than two minutes. “Thus, under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.” Smith, 954 F.2d at 347 (6th Cir. 1992). See also Ryburn v. Huff, 132 S. Ct. 987, 991-92 (2012) (courts “should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation”); Estate of Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012) (“The Constitution … requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision.” (citing Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993)) “It may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard.” (citing Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996) (same))). Rather, where, as here, an officer points his gun at a suspect to halt his advance, that suspect should be on notice that “escalation of the situation would result in the use of the firearm.” Estate of Morgan at 498. An officer is permitted to continue firing until the threat is neutralized. See Plumhoff v. Rickard, 134 S.Ct. 2012, 2022 (2014) (“Officers need not stop shooting until the threat has ended”). For all of the reasons stated, Wilson’s conduct in shooting Brown as he advanced on Wilson, and until he fell to the ground, was not objectively unreasonable and thus not a violation of 18 U.S.C. § 242. Willfulness Even if federal prosecutors determined there were sufficient evidence to convince twelve jurors beyond a reasonable doubt that Wilson used unreasonable force, federal law requires that the government must also prove that the officer acted willfully, that is, with the purpose to violate the law. Screws v. United States, 325 U.S. 91, 101-107 (1945) (discussing willfulness element of 18 U.S.C. § 242). The Supreme Court has held that an act is done willfully if it was “committed” either “in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.” Screws, 325 U.S. at 105. The government need not show that the defendant knew a federal statute or law protected the right with which he intended to interfere. Id. at 106-07 (“[t]he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected”); United States v. Walsh, 194 F.3d 37, 52-53 (2d Cir. 1999) (holding that jury did not have to find defendant knew of the particular Constitutional provision at issue but that it had to find intent to invade interest protected by Constitution). However, we must prove that the defendant intended to engage in the conduct that violated the Constitution and that he did so knowing that it was a wrongful act. Id. “[A]ll the attendant circumstance[s]” should be considered in determining whether an act was done willfully. Screws, 325 U.S. at 107. Evidence regarding the egregiousness of the conduct, its character and duration, the weapons employed and the provocation, if any, is therefore relevant to this inquiry. Id. Willfulness may be inferred from blatantly wrongful conduct. See id. at 106; see also United States v. Reese, 2 F.3d 870, 881 (9th Cir. 1993) (“Intentionally wrongful conduct, because it contravenes a right definitely established in law, evidences a reckless disregard for that right; such reckless disregard, in turn, is the legal equivalent of willfulness.”); United States v. Dise, 763 F.2d 586, 592 (3d Cir. 1985) (holding that when defendant invades personal liberty of another, knowing that invasion is violation of state law, defendant has demonstrated bad faith and reckless disregard for federal constitutional rights). Mistake, fear, misperception, or even poor judgment do not constitute willful conduct prosecutable under the statute. See United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (inadvertence or mistake negates willfulness for purposes of 18 U.S.C. § 242). As discussed above, Darren Wilson has stated his intent in shooting Michael Brown was in response to a perceived deadly threat. The only possible basis for prosecuting Wilson under section 242 would therefore be if the government could prove that his account is not true – i.e., that Brown never assaulted Wilson at the SUV, never attempted to gain control of Wilson’s gun, and thereafter clearly surrendered in a way that no reasonable officer could have failed to perceive. Given that Wilson’s account is corroborated by physical evidence and that his perception of a threat posed by Brown is corroborated by other eyewitnesses, to include aspects of the testimony of Witness 101, there is no credible evidence that Wilson willfully shot Brown as he was attempting to surrender or was otherwise not posing a threat. Even if Wilson was mistaken in his interpretation of Brown’s conduct, the fact that others interpreted that conduct the same way as Wilson precludes a determination that he acted with a bad purpose to disobey the law. The same is true even if Wilson could be said to have acted with poor judgment in the manner in which he first interacted with Brown, or in pursuing Brown after the incident at the SUV. These are matters of policy and procedure that do not rise to the level of a Constitutional violation and thus cannot support a criminal prosecution. Cf. Gardner v. Howard, 109 F.3d 427, 430–31 (8th Cir. 1997) (violation of internal policies and procedures does not in and of itself rise to violation of Constitution). Because Wilson did not act with the requisite criminal intent, it cannot be proven beyond reasonable doubt to a jury that he violated 18 U.S.C.§ 242 when he fired his weapon at Brown. Conclusion For the reasons set forth above, this matter lacks prosecutive merit and should be closed.