Ferguson discussion thread (FERGUDISHU)

[DiscipulusArmorum]

I don't know that this bit of information adds anything new. It was known fairly early on (PD's admission) that some of the shots were fired from inside the vehicle, and every witness whose account has gone public gave some version of "there was a struggle at the car." The only real difference here is the person giving the account.

The critical issue (what happened after that struggle, when there was some distance between the two) has yet to be spoken for in a conclusive manner. Some say that Brown had his hands up when shot. Others say he was shot at while running. Others state he was shot as he turned towards the officer. Still others claim that Brown charged the officer.

While Wilson may well have been justified in firing during the initial struggle, it's entirely possible that the subsequent shots were not justified. At the same time, it's entirely possible that the shots were justified. But, it's important to note that having legal authorization to use deadly force at one point in an encounter doesn't automatically mean that the authorization is present throughout the entire encounter. Authorization to use deadly force can emerge in an otherwise "normal" encounter; it can disappear, too -- and it can re-emerge after that disappearance. Whether or not it does so is entirely dependent on the actions of the assailant.

I'm not sure I'd jump to any conclusions at this point.

Not trying to argue directly with you and only picking your post because it's something you touch on, but one thing I do want to interject because I haven't seen it mentioned much in the Brown shooting discussions (except occasionally by some of our LE members on this and other forums I read) is that even if Brown was running away, shooting him could well be legally justified. Many aren't aware of the relevant case law such as Tennessee v. Garner, which held that police couldn't shoot a suspected fleeing felon "unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others," a burden which I'd argue was met if there was an altercation inside the cop car that included blows to the officer and a struggle over his gun.

[HCM]

I don't know that this bit of information adds anything new. It was known fairly early on (PD's admission) that some of the shots were fired from inside the vehicle, and every witness whose account has gone public gave some version of "there was a struggle at the car." The only real difference here is the person giving the account.

The critical issue (what happened after that struggle, when there was some distance between the two) has yet to be spoken for in a conclusive manner. Some say that Brown had his hands up when shot. Others say he was shot at while running. Others state he was shot as he turned towards the officer. Still others claim that Brown charged the officer.

While Wilson may well have been justified in firing during the initial struggle, it's entirely possible that the subsequent shots were not justified. At the same time, it's entirely possible that the shots were justified. But, it's important to note that having legal authorization to use deadly force at one point in an encounter doesn't automatically mean that the authorization is present throughout the entire encounter. Authorization to use deadly force can emerge in an otherwise "normal" encounter; it can disappear, too -- and it can re-emerge after that disappearance. Whether or not it does so is entirely dependent on the actions of the assailant.

I'm not sure I'd jump to any conclusions at this point.

Everyone comes from their own frame of reference and witness descriptions are subjective at best. For example - "had his hands up" for one person can be " had his hands up in a surrender postion" vs. another person seeing the same EXACT thing but they perceive it as " had his hands up in a fighting stance".

Take a look at Graham vs. Conner and totality of circumstances. While circumstances can certainly change during the course of an encounter, the first shots in the car are part of the calculus of reasonableness for judging the subsequent shots. They aren't two isolated incidents.

[John Hearne]

The critical issue (what happened after that struggle, when there was some distance between the two) has yet to be spoken for in a conclusive manner. Some say that Brown had his hands up when shot. Others say he was shot at while running. Others state he was shot as he turned towards the officer. Still others claim that Brown charged the officer.

At this point in time we know that he was not shot in the back and the autopsy results strongly suggest that his hands were not raised.

This will probably come down to whose story matches the forensic evidence and a lot of the "witness" accounts do not.


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[HCM]

Pretty sure the "rules of engagement" are spelled out by the Fourth Amendment and other relevant use of force case law - primarily TN. v. Garner, Graham v. Connor, and Scott v. Harris.

Officers may select a reasonable force option based primarily on:

• Seriousness of the crime
• Whether the criminal poses an immediate threat
• Resistance by the criminal
• Flight by the criminal

Secondary factors include:

• The number of suspects and officers involved.
• The size, age, and condition of the officer and suspect.
• The duration of the action.
• Whether the force applied resulted in injury.
• Previous violent history of the suspect, known by the officer at the time.
• The use of alcohol or drugs by the suspect.
• The suspect‘s mental or psychiatric history, known by the officer at the time.
• The presence of innocent bystanders.
• The availability of other weapons (sprays, batons, tasers).

Check out the Supreme Court cases cited by John.

Particularly Graham vs. Connor http://caselaw.lp.findlaw.com/script...=490&invol=386

Scott vs. Harris is also interesting given SCOTUS discussion of relative culpability.

[ssb]

Everyone comes from their own frame of reference and witness descriptions are subjective at best. For example - "had his hands up" for one person can be " had his hands up in a surrender postion" vs. another person seeing the same EXACT thing but they perceive it as " had his hands up in a fighting stance".

Take a look at Graham vs. Conner and totality of circumstances. While circumstances can certainly change during the course of an encounter, the first shots in the car are part of the calculus of reasonableness for judging the subsequent shots. They aren't two isolated incidents.

I'm well aware that different people can perceive the same events quite differently depending on their perspective. Somebody posted two videos here a while back from two police dash cruisers. From one angle, it looks like the police gunned down a man as he fled; the other clearly showed the man slashing at the officer with something.

I'm not stating that the car and what came later are two unrelated incidents. But, Wilson still had to reasonably believe that Brown presented a threat of imminent death/GBH at the time those later shots were fired. Brown may have presented such a threat in the car, if the gun grab version of events is to be believed. But, Brown couldn't have presented a weapon at the time he was shot because he didn't have one on his person, nor was he holding anything in his hands (i.e. didn't present something which could have been perceived as a weapon); that means the first Gardner factor (threatened w/ weapon) is out. I doubt Wilson'd argue that Brown's flight constituted a serious threat of death/injury to a third person, which is the third Gardner factor, as the crimes he was suspected of involved assaulting the officer, flight, and (maybe?) robbery.

That leaves us with the second Gardner factor, which is reasonable belief that the suspect presents a threat of death/GBH to the officer. Brown's actions at the car almost certainly colored Wilson's interpretation of anything Brown may have done just as, even if Wilson didn't know he was stopping a robbery suspect, Brown's prior robbery would have colored his interaction with Wilson -- which explains the early question I had (why in the world would somebody assault an officer over being told to get out of the street)? But, having that preconceived "he's already tried to hurt me before" notion doesn't automatically make an interpretation of Brown's actions reasonable -- regardless of how many times Graham v. O'Conner is invoked. Under Gardner, Brown still has to do something in order to give rise to a set of circumstances which justify shooting at him. Under O'Conner, it doesn't have to objectively be something which is threatening, but it does have to be something which can reasonably be perceived as so.

In such a situation, those witness accounts are going to come into play. In the event that this goes to trial, it'll come down to what the jury wants to believe occurred. Testimony will likely come from not only Wilson, but from those claiming to have seen this go down. I do think it's foolish to discount what the witnesses have said without evidence to contradict them.

At this point in time we know that he was not shot in the back and the autopsy results strongly suggest that his hands were not raised.

This will probably come down to whose story matches the forensic evidence and a lot of the "witness" accounts do not.

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Actually, we know that none of the shots hit him in the back. The six rounds which struck Brown were not the only ones fired.

Also, while I agree with you that based on the autopsy results I saw, my not-a-medical-professional opinion is that it doesn't look like Brown's arms are raised, Brown's attorneys and their examiners have argued otherwise. You can call them biased if you wish (because they are), but the same conclusion could easily be drawn about Wilson's side -- and, perhaps, his agency's. The law enforcement side is just as much of an interested party here as Brown's side.

[Chuck Haggard]

Part of the factors here is also going to be how hard Officer Wilson's bell was rung in the car. To say that being violently assaulted, including an attempted gun grab placing him in what is obviously reasonable fear of death, has nothing to do with what happened in the next few seconds is complete bullshit.

I'm not saying the officer in this case was right, because WE DO NOT KNOW YET one way or the other, but to expect perfect MMQB/Robocop performance from cops and ignoring that they are human beings is completely asinine.

"Detached reflection cannot be demanded in the presence of an uplifted knife." is part of the court record for good reason.

[BaiHu]

Part of the factors here is also going to be how hard Officer Wilson's bell was rung in the car. To say that being violently assaulted, including an attempted gun grab placing him in what is obviously reasonable fear of death, has nothing to do with what happened in the next few seconds is complete bullshit.

I'm not saying the officer in this case was right, because WE DO NOT KNOW YET one way or the other, but to expect perfect MMQB/Robocop performance from cops and ignoring that they are human beings is completely asinine.

"Detached reflection cannot be demanded in the presence of an uplifted knife." is part of the court record for good reason.

Love that final quote. Context matters.

[cclaxton]

I will wait until all facts and testimony are available before assessing guilt, if any. There are a hundred different "what-if's".
My concern is related to the Grand Jury and the Prosecutor. If no indictment, then the impartiality of the Prosecutor's office will be called into question, whether he is impartial or not. An independent prosecutor would help to restore confidence in the process. This prosecutor has too much history with that community for THEM to consider him impartial.
Cody

[JV_]

for THEM to consider him impartial.

The people who are getting all of the air time aren't looking for an impartial process, they've decided his guilt and want "justice."

[cclaxton]

The people who are getting all of the air time aren't looking for an impartial process, they've decided his guilt and want "justice."

My take on it is that the issue is really about a pattern of excessive use of force as they perceive it. Michael Brown was just the flashpoint that brought the whole community into protesting. Whether or not the officer will be punished seems less important than wholesale changes they are seeking to how policing is done in their community. If policy and behavioral changes are made, and better transparency and better public messaging...and if the policing pattern changes, that would go further to reduce the protests and the discontent. That will not satisfy everyone, but that is my take on what is going on with Ferguson protests.
Cody