There are two sets of standards investigators use to determine if deadly force was necessary in an officer-involved killing. One is state law—as informed by Supreme Court precedents—and the other is the rules determined by the officer's police department on the use of force. If the investigators determine state law was broken, the officer will be prosecuted by the state. If they don't, the officer could still be fired from his or her job, if the internal investigation in the department shows they broke the rules. (In this case, there's another investigation by the FBI, but it can only determine a civil rights case, not homicide.) Lind's article clearly lays out the Supreme Court precedents and the process of these investigations through the eyes of two experts on use of force, David Klinger, a University of Missouri-St. Louis professor, and Walter Katz, a California attorney. What it all boils down to in this case in Ferguson is this:
"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, or thought Brown was fleeing, 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, or a threat to flee, whether he actually was or not.So how relevant is the fact (assuming for the moment that it is fact) that Wilson was pursuing Brown as a suspect in a robbery? That's basically up to the prosecutors, who will determine if this alleged "strong-arm robbery," a physically violent robbery that doesn't involve a weapon, is a violent felony. If it is, it could help provide a legal justification for Wilson's actions, but that could still be limited, because "Wilson would only be able to claim that he was justified if Brown was fleeing—which eyewitnesses say he wasn't."
"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.'"
There are plenty of other questions to answer if Wilson was approaching Brown and his companion Darion Johnson as robbery suspects. For instance, why didn't he immediately apprehend them as robbery suspects? From witness reports, including Johnson's, he initially told the two to get out of the street and onto the sidewalk, then the confrontation escalated. That's not the way an arrest for suspicion of robbery should go down. And finally, why did Wilson continue to shoot—as witnesses have attested—as Brown had his empty hands in the air?
Ultimately, whether or not Michael Brown was a robber isn't the issue, even as Ferguson police are trying to make it be. The shooting of Michael Brown is. Whether or not he took those cigars from the convenience story, he didn't deserve the death penalty.