Tuesday, September 30, 2014

When is it legal for a cop to shoot you?

Scott Olson

On August 15, six days after the death of Michael Brown, the Ferguson Police Department finally identified the officer who shot Brown as Darren Wilson.

The department also released documents about the circumstances of the shooting — suggesting that Brown was the primary suspect in a "strong-arm robbery" of a convenience store shortly before Wilson encountered him. However, in a later press conference that same day, the Ferguson Police Chief clarified that officer Wilson did not know about the robbery at the time of his initial contact with Brown. Rather, Wilson stopped the teenager for walking in the middle of the street.

We don't yet know if Wilson became aware of the robbery in the few minutes between when he stopped Brown and when he shot him. But even if Wilson believed that Brown was a suspect in a robbery, it's still possible that the police officer could be charged with murder or another crime for shooting Brown. And even if Wilson isn't charged with a crime, it's still possible he could be fired.

All of those things depend on the outcome of a criminal investigation currently being deliberated by a St. Louis County grand jury.

That investigation is supposed to collect all the facts about what happened: There's the story Wilson gave the St. Louis County police on the weekend of the shooting, which is that Brown initiated a violent confrontation and tried to grab his gun. There's the conflicting story told by eyewitnesses, which is that Brown was shot twice while facing the officer with his hands up. There's also forensic evidence that could show which of those stories is true.

Once all of that is taken into account, it's up to the grand jury — guided by St. Louis County prosecutor Bob McCulloch — to determine whether a crime was committed, and it's on the police department to determine whether the officer should be fired.

So what are the standards by which Wilson will be judged for killing Michael Brown? There are plenty of guidelines for use of force by police, but it often boils down to what the officer believed when the force was used — something that is notoriously difficult to quantify — regardless of how much of a threat actually existed. We talked to two experts to break down the fraught issue.

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"Hands up don't shoot" has become the motto of the Ferguson protests. (Scott Olson/Getty)

How do you determine if a police officer was justified in using deadly force?

When a police officer shoots and kills someone on the job, there's a two-track investigation. That's because there are actually two different sets of standards that govern when a police officer can use deadly force.

One set of standards is state law, informed by a couple of Supreme Court precedents that lay out the circumstances under which law enforcement officers are justified in using lethal force on suspects.

The other set of standards is the policy of the officer's police department, which tells its employees when it is and isn't appropriate for them to use force. If a police officer were to murder someone in cold blood while on the job, he wouldn't just be breaking the law — he'd be violating his equivalent of an employee handbook.

So when a cop uses deadly force in an officer-involved shooting, there's a standard criminal investigation: detectives collect evidence and present it to the local prosecutor. The prosecutor then determines whether the shooting fits the standards in state law for permissible homicide. If it doesn't, then a crime has been committed, and the prosecutor's job becomes figuring out which crime it was and whether there's enough evidence to charge the officer with it.

But there's also an internal investigation within the cop's department to evaluate whether the incident violated their use-of-force policy. Many departments' policies are stricter than state law — but an officer can't be charged with a crime just for violating the policy. He or she can, however, be fired for it.

In Ferguson, the St. Louis County Police Department conducted the criminal investigation. After collecting the facts, they passed their report to the prosecutor, McCulloch, who decided to ask a grand jury whether Wilson should be charged with a crime.

David Klinger, a University of Missouri-St. Louis professor who studies use of force, said he assumes the St. Louis County police report will also be the basis of the internal investigation within the Ferguson police department. After St. Louis County gives the Ferguson police the results of their investigation, Klinger says, "the Ferguson chief will either do it himself or convene a group to make a determination about whether the use of deadly force was consistent with Ferguson policy."

The FBI is also conducting an investigation into Brown's death and the events in Ferguson. But the FBI is evaluating whether or not the police violated civil-rights law — which is a different question from whether or not Wilson was justified in killing him.

The legal standards governing justifiable force

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Justifiable?

In the 1980s, a pair of Supreme Court decisions set up a framework for determining when deadly force by cops is reasonable. Those decisions have governed how state laws are applied. Furthermore, many agencies simply use identical standards to the Supreme Court's for their own use-of-force policies — though some departments don't let officers use deadly force even when the Court decisions say they'd be allowed to.

Constitutionally, "police officers are allowed to shoot under two circumstances," says Klinger. The first circumstance is "to protect their life or the life of another innocent party" — what departments call the "defense-of-life" standard. The second circumstance is to prevent a suspect from escaping, but only if the officer has probable cause to think the suspect's committed a serious violent felony.

The logic behind the second circumstance, says Klinger, comes from a Supreme Court decision called Tennessee vs. Garner. That case involved a pair of police officers who shot a 15-year-old boy as he fled from a burglary. (He'd stolen $10 and a purse from a house.) The Court ruled that cops couldn't shoot every felon who tried to escape. But, as Klinger says, "they basically say that the job of a cop is to protect people from violence, and if you've got a violent person who's fleeing, you can shoot them to stop their flight."

Some police departments' policies only allow deadly force in the first circumstance: defense of life. Others have policies that also allow deadly force to prevent escape in certain cases, within the limits of the Supreme Court decision.

Does the convenience store robbery matter?

Shortly after releasing the documents that identified Brown as the primary suspect in a convenience-store robbery, the Ferguson Police Department clarified that Wilson had not known that Brown was a robbery suspect when he made "initial contact" with Brown and his friend Dorian Johnson. (Instead, the department says, Wilson stopped the teenagers because they were walking in the middle of the street.)

That phrasing doesn't make it clear whether or not Wilson believed Brown to be a robbery suspect when he started to shoot at him. If he did, it might then be up to the investigators and county prosecutor McCulloch to decide whether a "strong-arm robbery," as the Ferguson Police Department described the incident, counts as a violent felony. If they decide it does, that will go some way toward a legal justification for Wilson's action. On the other hand, Wilson would only be able to claim that he was justified if Brown was fleeing — which eyewitnesses say he wasn't.

It's most likely, however, that the whole question is moot. From the Ferguson Police Department's statements on the afternoon of August 15th, it doesn't sound like Wilson even knew about the robbery at all. In that case, there's no way for him to claim that he was justified in keeping a violent felon from fleeing, because he didn't even know Brown was a suspect in a crime at all.

Wilson could instead, however, claim "defense of life" — that he feared for his life when Brown (according to his story) assaulted him in his car. In that case, the next question will be whether it was reasonable for him to be afraid of Brown.

"Objectively reasonable"

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It doesn't matter if a cop is threatened; it matters if his belief that he is is reasonable. (Scott Olson/Getty)

The key to both of the legal standards — defense-of-life and fleeing a violent felony — is that it doesn't matter whether there is an actual threat when force is used. Instead, what matters is the officer's "objectively reasonable" belief that there is a threat.

That standard comes from the other Supreme Court case that guides use-of-force decisions: Graham v. Connor. This was a civil lawsuit brought by a man who'd survived his encounter with police officers, but who'd been treated roughly, had his face shoved into the hood of a car, and broken his foot — all while he was suffering a diabetic attack. The Court didn't rule on whether the officers' treatment of him had been justified, but it did say that the officers couldn't justify their conduct just based on whether their intentions were good. They had to demonstrate that their actions were "objectively reasonable," given the circumstances and compared to what other police officers might do.

There are plenty of cases in which an officer might be legally justified in using deadly force because he feels threatened, even though there's no actual threat there. Klinger gives the example of a suspect who has is carrying a realistic-looking toy gun. That example bears a resemblance to the shooting death of John Crawford, an Ohio man who was killed by police last week while carrying a toy rifle in Wal-Mart.

Hypothetically, if the gun looked real, Klinger says, "the officer's life was not in fact in jeopardy, but that would be an appropriate use of force. Because a reasonable officer could have believed that that was a real gun." In fact, toy gun manufacturers — including the maker of the air rifle Crawford had — have started using this standard to limit their liability, putting on a warning label that tells consumers police could mistake their products for real guns.

Walter Katz, a California attorney who specializes in oversight of law enforcement agencies — particularly during use-of-force investigations — points out that it's hard to determine whether an officer's fear is reasonable because the decision to shoot is so fast.

"Officer-involved shootings happen extremely quickly. Usually, the point from where the officer believes he has to use deadly force to the point where he uses deadly force — where he pulls the trigger — is about two seconds." That can make it much harder for investigators to decide whether or not the officer was reasonable in thinking he had to shoot. (The police records indicate that three minutes after Wilson encountered Brown, Brown was dead.)

That puts a lot of weight on an officer's immediate instincts in judging who's dangerous. And those immediate instincts are where implicit bias could creep in — believing that a young black man is a threat, for example, even if he is unarmed.

But each use of deadly force does have to be evaluated separately to determine if it was justified. "The moment that you no longer present a threat, I need to stop shooting," said Klinger. According to the St. Louis County Police Department's account, Wilson fired one shot from inside the police car. But Brown was killed some 25 feet away, after several shots had been fired. To justify the shooting, Wilson would need to demonstrate that he feared for his life not just when Brown was by the car, but even after he started shooting. The officer would need to establish that, right up until the last shot was fired, he felt Brown continued to pose a threat to him — whether he actually did or not.

"There's a difference between the moment you cease to be a threat and the moment I perceive that you ceased to be a threat," says Klinger. And Katz points out that if an officer has been assaulted and the suspect runs away, the officer's threat assessment is probably going to be shaped by having just been assaulted. But, Katz says, "one can't just say, 'Because I could use deadly force ten seconds ago, that means I can use deadly force again now.'"

How to tell if an investigation is thorough and objective

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Protesters don't feel that relevant information is being released to the public. (Scott Olson/Getty)

When Katz evaluates an investigation of an officer-involved shooting, what he looks for "is really twofold. Number one, in the microscopic analysis: what happened? The more macroscopic question: how is the agency asking and answering the question of what happened? Is the investigation thorough, and is it objective?"

Katz and Klinger both run through a list of ways they'd expect investigators to gather evidence. Investigators should look for any video or still camera footage available: from a camera in the officer's car or nearby surveillance cameras.

They should also be using physical evidence to corroborate the accounts of witnesses. In cases where the eyewitness accounts contradict the officer's account, such as the Brown shooting, physical evidence can tell investigators who's telling the truth. If the victim has powder burns on his hands, for example, it means he was grabbing the officer's gun when it fired. If the bullet wounds show that the bullets hit a hard surface and bounced back into the body, that means the victim was almost certainly shot when he was on the ground.

The St. Louis County prosecutor's office announced on Tuesday that the results of the autopsy on Michael Brown's body would not be released to the public — meaning that the public won't know whether the forensic evidence validates eyewitnesses who say that Brown was killed while facing Wilson and holding his hands in the air. That's especially important if Wilson claims he shot Brown for fleeing a violent felony — the forensic evidence could establish whether Brown was still trying to flee as Wilson continued to shoot.

Even though physical evidence can prove eyewitness accounts wrong, interviewing civilian witnesses is important — and, Katz says, it's important that investigators do it "in a manner that seems the investigating agency is interested in the truth."  (Professionally, Katz would have access to recordings of interviews if he were evaluating a case; the public doesn't.)

When investigators don't have any physical evidence that tells them who's telling the truth, the trustworthiness of the witnesses becomes crucial. "If I've got Officer X and Officer X is a knucklehead, and the citizen who gives the statement has a pristine record," says Klinger, "the weight's probably going to be toward the witness. If the witness is a six-time loser who's on active parole for shooting three people and beating his wife, and the officer has a clean record," the officer will probably be seen as more credible. (Wilson is a six-year veteran of the Ferguson police with no record of misconduct.)

But both Klinger and Katz urge that it's not the job of the investigators to decide who's credible — much less to decide that someone's not credible enough to interview at all. Investigators are just supposed to present the facts and witness accounts to the prosecutor and the department, and let them make their own decisions.

So if a police department is neglecting to interview eyewitnesses, that's a reason for concern. Katz also says that the public should be looking at the public statements the police department conducting the investigation is making — whether they focus on the need to continue to interview witnesses and gather evidence, or "make it seem like they're adopting the officer's version of events."

When St. Louis County police chief Jon Belmar gave a press conference on Sunday morning, he did say that his department would be investigating what happened after Brown left the officer's car. But he maintained that Brown had assaulted the officer (later identified as  Wilson) while in the car, and grabbed the officer's gun. In fact, the only reason the public knows Wilson's version of the story at all is because it was told to the press by the head of the department conducting the investigation. And Dorian Johnson, the young man who was with Michael Brown when he was killed, told MSNBC via his attorney Monday that the police haven't asked to speak to him. (On Wednesday, Johnson finally met with police.)

According to the advice laid out by Katz, both Belmar's public statements and the fact that an eyewitness wasn't interviewed until several days after the shooting are good reasons to be less confident that it's going to be an objective investigation.

The importance of public confidence

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Protests happen when the public doesn't have faith that the investigation is objective. (Scott Olson/Getty)

Is it ever possible for cops to be objective in evaluating something a fellow officer has done? Klinger says that it is. "Police officers who are reviewing their fellows know something the average person doesn't know, and that is what it's like to be on the street and be confronted with these difficult circumstances where you have to make split-second decisions. And in that regard, the officer might be getting a break because he is being judged literally by a jury of his peers." But he says it could easily go the other way: "those other officers are in good standing to call him on his BS and go 'This is not how any reasonable officer would have behaved.'"

Katz looks at the problem a different way. The key, he says, is whether the public has confidence that the investigation is being conducted objectively. "When it comes to officer-involved shootings, confidence is the only currency which that agency has — that the public has confidence that it is going to be an objective and fair and transparent investigation. Once that confidence is lost, people will not trust the outcomes."

In Ferguson, the public reaction to Brown's death makes it pretty clear that residents don't have a great amount of trust in the investigation. They definitely don't trust the St. Louis County police, who were the most visible agency shooting tear-gas canisters and rubber bullets at them in the days of protests after Brown was killed. In fact, Missouri Governor Jay Nixon believed the county police were escalating the situation so much thst he pulled them out of Ferguson and placed state troopers in charge of responding to protesters. But the county is still running the investigation.

In such a tense environment, how the investigation unfolds, and whether the St. Louis County Police Department can conduct it objectively, will be an important factor in whether peace in Ferguson can last. Residents will continue to be angry with police, even to the point of civil unrest, if they can't be confident that the cops are trying.

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