Denver Deputy Punches Out Inmate, DA Declines to Prosecute

A Denver sheriff’s deputy was caught on video walking up to an apparently non-aggressive inmate and violently punching the man to the ground. The inmate had said something to the officer (I know not what), and stood up when the officer walked over to him. As far as I can tell, the officer punched out the guy because he was irritated with him. If you or I acted that way, we’d almost certainly see the inside of a jail, and we’d almost certainly be prosecuted for assault. But not the cops! “DA investigators determined that an unjustified use of force could not be proven beyond a reasonable doubt,” Noelle Phillips reports for the Denver Post. But why not put the matter to a jury? Watch the video and decide for yourself.

Sowell on the Ferguson “Bullet Counters”

Image: Thomas Sowell
Image: Thomas Sowell

Thomas Sowell opens his recent article about the police shooting in Ferguson, Missouri, by pointing out that most of us “were not there, and do not know what happened when Michael Brown was shot.” Sowell then accuses governor Jay Nixon of “poisoning the jury pool” by calling for a “vigorous prosecution” prior to a discovery of the facts. I’ve made similar points in my articles about conflicting eye witness accounts and about the governor’s remarks.

Then Sowell addresses the claim that the mere fact that the officer in question shot Brown multiple times is proof that he did something wrong. It is not. Of course, if Brown was trying to surrender at the time the shots were fired, then the officer was wrong to fire even a single shot. But if Brown was charging the officer—accounts vary on this point—then the officer may well have been justified in firing multiple shots. Sowell writes, “Since the only justifiable reason for shooting in the first place is self-protection, when should you stop shooting? Obviously when there is no more danger. But there is no magic number of shots that will tell you when you are out of danger.”

People who get their firearms training from the movies or from television may mistakenly believe that a single bullet magically stops an attacker, perhaps even knocking him across the room. In the real world, attackers sometimes keep coming even after taking multiple rounds. Many factors are relevant, including the size of the attacker, his mental state, the placement of the shots, and the type of gun and ammunition involved.

I am not saying I know whether Brown was charging the officer. I do not. I am merely saying, as Sowell points out, that the mere fact that the officer shot Brown multiple times is not, by itself, reason to condemn the officer.

Related:

When May an Officer Use Potentially Deadly Force to Apprehend a Suspect in Missouri?

Image: Loaves of Bread
Image: Loaves of Bread

As I recently noted, some witnesses claim the officer who shot Michael Brown in Ferguson, Missouri, first fired at him as he was running away. Whether he did so has not, to my mind, been firmly established one way or the other.

As I observed, it is not the case that a police officer can never fire a gun at a fleeing suspect. I quoted Supreme Court Justice Byron White: “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” I wondered whether Missouri law or precedents say more on the matter. Someone on Twitter pointed out that the case Mattis v. Schnarr indeed addresses the matter.

In that 1976 case, the US. Court of Appeals, Eighth Circuit, ruled:

. . . Missouri statutes . . . permit law enforcement officers to use deadly force to effect the arrest of a person who has committed a felony if the person has been notified that he or she is under arrest and if the force used is restricted to that reasonably necessary to effect the arrest. We hold the statutes unconstitutional as applied to arrests in which an officer uses deadly force against a fleeing felon who has not used deadly force in the commission of the felony and whom the officer does not reasonably believe will use deadly force against the officer or others if not immediately apprehended.

The principle is that a police officer may use potentially deadly force against a fleeing suspect, only if the suspect is likely to endanger the lives of the officer or of others. (It would be helpful to look at current Missouri statutes on the matter.)

If the officer in Ferguson did shoot at Brown as he fled (again, I’m not sure he did), did the officer reasonably believe that Brown posed such a threat? That depends entirely on the nature of the confrontation between the officer and Brown that immediately preceded the shooting. And the facts regarding that confrontation are, as far as I can tell, entirely unclear. Still, it’s useful to at least look at the legal and moral parameters for justifiable uses of force, to see if they possibly apply.

On Evidence and Agendas in Ferguson

Image: Loaves of Bread
Image: Loaves of Bread

I guess I shouldn’t be surprised by the passion with which some people rush alternately to condemn or to vindicate the police officer who shot Michael Brown in Ferguson, Missouri. Might I suggest that we try instead to go where the evidence leads?

Part of the problem is that many of the “facts” reported about the case (and this is typical in any high-profile incident) turn out to be totally false or at least suspect. To take just one recent example, Gateway Pundit claims the officer in question suffered an “orbital blowout fracture to the eye socket.” But Charles Johnson offers pretty good reasons to doubt that account; he embeds CNN video from an eye witness that (apparently) shows the officer immediately after the shooting, and he is not obviously injured. If he had an eye injury resulting from a scuffle with Brown, it wasn’t such a “blowout” that it was obvious at a distance on camera. So did Brown injure the officer? I don’t know.

A report from yesterday’s New York Times indicates many of the problems with trying to accurately piece together what happened. “[W]itnesses have given investigators sharply conflicting accounts of the killing,” the Times summarizes. Consider some of the problems:

“Some” people claim that Brown and the officer struggled, with the officer in his vehicle and Brown reaching through the window. Apparently at that point the officer’s gun went off. Was that because the officer was reaching for it and misfired? Was that because Brown reached for it and fired it? Was that because the officer was attempting to shoot Brown at that time and missed? I don’t know.

“Many” witnesses say, “Mr. Brown ran away, the officer got out of his car and began firing toward Mr. Brown, and then Mr. Brown stopped, turned around and faced the officer.” If those witnesses are correct, then the officer shot at Brown, but did not strike him or only grazed him, while Brown’s back was turned to the officer. If that account is correct, then the question becomes: Was the officer justified in shooting at Brown as he fled?

Most people would assume that an officer may not shoot a fleeing suspect. But, according to Wikipedia, Supreme Court Justice Byron White declared that sometimes the use of potentially deadly force against a fleeing suspect may be appropriate or at least legal: “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” (Missouri may have statutes or precedents regarding this matter; it would be worth someone checking.)

If Brown attempted to murder the police officer by grabbing for the officer’s gun with the intent of then shooting the officer, then that officer might reasonably have concluded that Brown posed a “threat of serious physical harm, either to the officer or to others.” On the other hand, if Brown didn’t actually assault the officer, then for the officer to shoot Brown as he fled would have been immoral and illegal. The key question, then, is, did Brown assault the officer, and, if so, in what manner? I do not know the answer to that question.

Another possibility is that the witnesses in question are wrong, and that the officer did not shoot at Brown as he fled, but only after Brown turned around. Perhaps forensics experts can definitively nail down that point at least—but perhaps not.

Next, reports the Times, “Some witnesses say that Mr. Brown, 18, moved toward Officer [Darren] Wilson, possibly in a threatening manner, when the officer shot him dead. But others say that Mr. Brown was not moving and may even have had his hands up when he was killed.” That’s a pretty radical difference in interpretation of events by eye witnesses. So was Brown trying to attack the officer, or was he trying to surrender? I don’t know.

Unless you were there and you saw what happened with your own eyes, if you claim that, based on existing evidence, you know definitely what happened on the day of Brown’s death, I have to question your motives.

Police Video Should Be Mandatory and Public

Image: Zuzu
Image: Zuzu

I have called for all law enforcement officers at all levels to wear video cameras any time they interact with the public. But such a requirement is not adequate, as Radley Balko points out in a Washington Post article (hat tip to Paul Hsieh). Balko notes that, in San Diego, police have withheld recordings from the media and the public at large—which mostly defeats the purpose of having the cameras in the first place. He offers other similarly disturbing examples.

Legislators should require that law enforcement agents wear video cameras whenever they interact with the public, provide stiff penalties for officers who turn off their cameras or “lose” footage, and require that the footage be made publicly available on request (probably with some exceptions to protect the privacy of people recorded). Although I haven’t seen a detailed plan spelling out all the specifics, no doubt such a plan is feasible.

If the police knew their interactions with the public were being recorded, officers would be far more likely to behave responsibly. And if an officer ended up in a violent confrontation with someone, a recording very often would provide clear evidence about what happened. The only losers under such a system are violent criminals and corrupt cops. The winners are innocent people and good cops. So why would we not do this?

What Happened to the Presumption of Innocence in Ferguson?

Image: Bernard Pollack
Image: Bernard Pollack
I have often called for the prosecution of police officers who violate people’s rights. But I also believe in the presumption of innocence. It seems that Missouri Governor Jay Nixon does not. In a recent statement (cited by Fox News), Nixon says, “A police officer shot and killed Michael Brown in broad daylight. . . . A vigorous prosecution must now be pursued. The democratically elected St. Louis prosecutor and the attorney general of the United States each have a job to do.” (Fox2 has the complete video.) But if it’s the prosecutor’s job to decide whether the evidence warrants prosecution, then why is Nixon telling the prosecutor how to do his job?

I have no idea whether the police shooting of Brown was justified. And I doubt anyone else does, either—except the officer in question. If the police officer in question had been wearing a video camera—I’ve also frequently endorsed putting cameras on all officers active with the public—we would almost certainly have good evidence one way or the other. But the limited evidence I’ve seen could support very different interpretations of what happened. Nixon’s observation that the officer shot Brown “in broad daylight” is ridiculous; daylight doesn’t make someone less aggressive—if Brown was indeed acting aggressively.

We already know that the officer in question shot Brown in the front, not the back—as was frequently claimed at the outset. We also know that Brown had almost certainly just finished robbing a local store and assaulting its employee—something that demonstrates that Brown was a violent man at least sometimes. Was he charging the officer at the time of the shooting or trying to surrender? I don’t know, and anyone who claims to know I regard with suspicion.

The presumption of innocence means the officer is presumed not to have acted criminally, unless the evidence convincingly shows otherwise. The fact that a bunch of people are angry (and that some of those people are smashing and looting stores and assaulting the police) is not a reason to upend a cornerstone of American justice.

Did you say prosecution, governor, or persecution?

Related:

Was Michael Brown High on Marijuana, and Did It Matter?

Image: Cannabis Training University
Image: Cannabis Training University

Citing an anonymous “person familiar with the [St. Louis] county’s investigation,” the Washington Post reports Michael Brown “had marijuana in his system when he was shot and killed by a police officer on Aug. 9 in Ferguson,” Missouri.

Leftist David Sirota persuasively argues for the International Business Times that there’s no good reason to think marijuana contributes to violent behavior overall.

More concerning to me is that Brown apparently robbed a market just ten minutes before he was shot. Maybe consuming marijuana doesn’t make a person aggressively agitated, but robbing a store and assaulting its employees (as Brown apparently did) almost certainly does. And flashing gang signs is also probably associated with aggressive violence. The Christian Science Monitor points to a report by Pat Dollard with images showing Brown apparently flashing gang signs. (That doesn’t mean he was active in a gang, of course.)

As far as I can tell, there simply is not sufficient evidence (and there may never be sufficient evidence) to determine whether the officer who shot Brown was justified in doing so. What is clear is that Brown was no angel. Of course, the police have a responsibility to protect the rights of everyone, not just angels.

Related:

Michael Brown Shot in the Front, Not the Back

Michael Brown was shot in the front, not the back, as a New York Times article reports (hat tip to Daily Caller). The report is based on an autopsy performed by “Dr. Michael M. Baden, the former chief medical examiner for the City of New York, who flew to Missouri on Sunday at the family’s request to conduct the separate autopsy,” the Times reports. Brown appears to have been shot six times, and possibly more, with two shots entering his head and four entering his arm, according to the report. This would seem to corroborate the eye witness account that Brown first ran from police, then came “back towards” the officer who shot him.

10:52 pm Update: Lawyers for Michael Brown’s family have a very different interpretation of the data than that Brown charged the officer. “Lawyers for the family of Michael Brown said a noted former medical examiner’s autopsy backs claims the 18-year-old was trying to surrender when he was killed,” Fox News reports. At any rate, the autopsy rules out the possibility that a police officer shot Brown in the back as he ran away. The autopsy indicates that Brown was facing the officer. Now the open question is whether Brown was seeking to surrender or acting aggressively toward police. As I’ve repeatedly noted, if the officer in question had been wearing a camera, its video almost certainly would have provided definitive evidence one way or the other. As it is, we may never move beyond “he said she said” claims.

Does Eye Witness Suggest Michael Brown Charged Police?

Image: Loaves of Bread
Image: Loaves of Bread

As Fox News reports, one self-purported eye witness to the police shooting of Michael Brown in Ferguson, Missouri, seems to claim that Brown charged a police officer immediately before that officer shot him. The unnamed person in question can be heard in the background of a graphic video captured of Brown laying in the street soon after he was shot. The person holding the camera claims that the police chased after Brown and shot him again as he lay on the ground; however, the person holding the camera also explicitly says he was not an eye witness to the shooting, and that he’s repeating what he had heard others say. However, another person, who can be heard in the background, claims that he was an eye witness to the shooting, and that person claims that Brown and the officer were “over the truck,” “then he [Brown] ran, police got out and ran after him.” Then, “The next thing I know, he comes back towards them. The police had his guns drawn.” The relevant portion of the video can be seen starting at around the 6:30 minute mark (warning: graphic content). Of course, this is still not a confirmed account; there are many potential reasons why this interpretation of events may not be accurate or complete. However, to my mind this audio provides a good reason to think that Brown may well have charged police—in which case the police shooting of him, which took place soon after a local robbery in which Brown may have participated, may have been justified. (Obviously his death is tragic regardless of the details.)

As I’ve noted before, if the officer in question had been wearing a camera, we would now know definitively what happened that day. I believe that every federal, state, and local law enforcement officer should, while on duty in a public setting, wear and use an active video camera.

In related news, “Missouri governor orders National Guard to Ferguson after latest night of clashes,” Fox reports. Even if the shooting of Brown was not justified, that would hardly justify rioters smashing and looting stores and attempting to injure police, as some of have done.

Finally, Johnathan Gentry, a minister local to Ferguson, shared a YouTube video in which he condemns those perpetrating violence. Fox shows part of the video (with which I do not entirely agree) and interviews Gentry.

10:59 pm Update: See my updates elsewhere regarding claims that Brown was surrendering, not acting aggressively toward the police.

Related:

The “Unbelievably Ridiculous” Indictment of Rick Perry

Image: Gage Skidmore
Image: Gage Skidmore

Recently I wrote, “It seems to me that Perry has been indicted for acting on his authority as governor.” The alleged problem is that Perry vetoed legislation funding a bureaucracy—something fully within his legitimate powers as governor. I have seen nothing to alter my view that the indictment of Perry is absurd, unjust, and politically malicious.  Jonathan Chait has a similar view: “The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a ‘misuse’ of power or ‘coercion’ of one’s opponents. To describe the indictment as ‘frivolous’ gives it far more credence than it deserves.” The headline calls the indictment “unbelievably ridiculous.” Hopefully Texas courts will toss this monstrosity promptly.