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The legal reason why it matters if Mike Brown was shot with his hands up

Darren Wilson will have to justify shooting a teenager who had his arms raised.
Darren Wilson will have to justify shooting a teenager who had his arms raised.
Joe Raedle

Available eyewitness accounts of the killing of Michael Brown by Ferguson, Missouri, police officer Darren Wilson are pretty consistent on a crucial detail: after Wilson started to fire, Brown turned toward him with his hands up. The officer continued to shoot until Brown fell to the ground.

Wilson's full version of events is still unclear. The day after the shooting, St. Louis County police chief Jon Belmar relayed Wilson's description of the incident only up to the point that Wilson started shooting. We don't know exactly what Wilson told investigators Brown was doing immediately before the officer fired the final shots. And in the eyes of the law, that missing piece might be the most important part of the story.

The law allows a cop to shoot someone if the cop has a reasonable belief that his life is in danger or that the victim is a felon. But the officer is required to show that his actions were justified every single time he pulled the trigger, not just the first time. According to an independent autopsy report, Brown was shot at least six times.

As I wrote shortly after Brown was shot:

[E]ach 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 (University of Missouri-St. Louis criminologist David) 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 was 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 (police oversight attorney Walter) 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.'"

Wilson could make the case that he felt that Brown was a threat when Brown turned around — an unverified source purporting to be a friend of Wilson's told a conservative radio show that Wilson said Brown was charging at him. But in order for Brown's killing to be found "justifiable" in the eyes of the law, Wilson is going to have to make the case that he felt he was under threat when he shot a teenager who witnesses say was facing him with his arms raised. And the grand jury is going to have to decide that it was reasonable for him to feel that way.

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