I am an African American in my forties. I am a lawyer – a criminal defense lawyer – for more than 15 years. Before becoming a lawyer, I used to work at a prosecutor’s office. So, I know the ins and outs of how a case is prosecuted as well as the relationship between the prosecutors and the police they work with. I also used to work for a city law department – the department that defends the police when they are accused (in civil matters) of excessive force, false arrest, civil rights violations, etc.
As an employee of a city law department, I have been in rooms with police officers where they made off-color and cruel “jokes” about how badly they treated civilians, especially, African Americans. It was a nauseating and revolting experience but I had to do it as part of my job. The general public does not know how bad and how racist some police officers are or can be. The general public also does not know how good, noble, and heroic some police officers are. I have seen and dealt with both extremes. I guess the bad police officers felt comfortable telling these “jokes” despite my presence because they felt I was part of the “team” and that I would not divulge what I saw and heard. They were partly right: because of attorney-client privilege and confidentiality rules, I cannot divulge the specifics of what I saw and heard or identify specifically who said or did what (for non-lawyers reading this piece, attorney-client privilege and confidentiality rules also apply to non-lawyers working for lawyers or law firms).
Now let’s talk about the Michael Brown tragedy. Follow me below the fold as I discuss the sensible and substantive changes that would have made a difference in this case. Please be patient because this is a lengthy piece!
I will begin by saying the following: MICHAEL BROWN DID NOT DESERVE TO DIE. MICHAEL SHOULD NOT HAVE BEEN SHOT FATALLY.
I am not going to discuss the flawed grand jury presentation by the prosecutors because Lisa Bloom (MSNBC Legal Analyst) has already done a great job on that issue. It was clear from the beginning that the prosecutors did not want an indictment and their grand jury presentation reflected that viewpoint.
Moving forward, I think it is important for us as a society to be educated on the law and to focus on the right kinds of changes that would make a difference. Here are some areas that need to be changed or modified.
The fleeing felon principle: Under common law a police officer is permitted to use deadly force in the apprehension of a fleeing felon. Most jurisdictions have codified this common law rule and now have statutes mirroring this rule. These statutes need to be repealed or modified. Here are the reasons: When the common law rules were introduced, there were only a handful of crimes that were classified as felonies and they are: murder, robbery, manslaughter, rape, sodomy, larceny, arson, mayhem, and burglary. Most of the crimes on that list are indeed serious crimes; thus, it made some sense in the old days to use maximum effort (including deadly force) to apprehend anyone who committed those crimes. However, today many jurisdictions have exponentially multiplied the list of crimes that qualify as felonies. For example, in some states, fleeing from a police officer is considered a felony. This means that, even if you did not commit any underlying felony, if you begin to flee from a police officer, you are committing a felony. As such, under the common law felon apprehension rule (which has been codified in many jurisdictions), in theory, a police officer can use deadly force to prevent you from fleeing. Think about that for a moment. The point is that although felonies are generally serious crimes, a vast majority of the crimes classified as felonies are not serious enough to warrant the use of deadly force to apprehend the suspect. I would propose that the felon apprehension rule be modified as follows: “A police officer is authorized to use deadly force to apprehend a fleeing felon if the underlying felony involved death or serious bodily injury. Otherwise, the police is only permitted to use nondeadly force to apprehend a fleeing felon.”
Another important fact is that when the common law felon apprehension rule was introduced, there were very limited ways of identifying and apprehending offenders, especially felons. Thus, there was a real sense of urgency in immediately apprehending the felon, even if it required the use of deadly force. Today, with the vast array of law enforcement resources and tools, there are multiple ways of identifying and apprehending felons. Today, with the prevalence of surveillance cameras, even if the police did not apprehend a felon right away, oftentimes the felon’s image would have been captured in a store surveillance camera, a street surveillance camera, the police dash cam, the cell phone cameras of bystanders etc. Many police departments now have helicopters, drones and other military surveillance resources and can capture the image and location of the fleeing felon. If the felon is fleeing in a vehicle, the police can track the license plate number of vehicle while quietly following the fleeing vehicle without engaging in a high-speed chase. The police can shoot the tires or otherwise immobilize the fleeing vehicle. The police can also use a specialized gun to fire a GPS device onto the fleeing vehicle and track the vehicle and the felon’s whereabouts. If the felon is fleeing on foot, the police can shoot the felon with a stun gun or taser to immobilize or subdue the felon.
There are many more law enforcement tools that I cannot discuss in this article. However, the main point is that today, there should be less need to use deadly to apprehend a fleeing felon. Unfortunately, despite the available resources, the police resort to the use of deadly force much more than they should. Please join me in fighting for a modification of the fleeing felon apprehension rule. It is an unpopular cause because every politician wants to appear “tough on crime.” Thus, any call for sensible change in the law is met with ridicule and with the scarlet letter of being labeled as “soft on crime.” However, we should not be deterred. We should be a society that values life. There should be a high threshold before human life can be taken. A police officer can only use deadly force as a last resort.
Also, retreat should be an option or a requirement for the police unless the suspect has a deadly weapon that can be used at a distance. This is what I mean. If the police officer fears that a suspect (who is 50 to 100 feet away) is about to charge and tackle the officer, and if that officer can safely retreat into his police vehicle, the officer should retreat into his vehicle and avoid death or serious injury to himself. This may result in the felon getting away but all is not lost. The officer would have seen the face, clothing, height, weight, hair style of the suspect. Because of his superior training in observation, the officer would be able to describe the suspect to sketch artist, and with that drawing, an arrest warrant would be issued and the fleeing felon would most likely be apprehended.
Police Training: Another subject we should focus on is police training on the use of deadly force. Civilians should advocate (through referendum or other mechanisms) that the public should vote on and set the police policy and approve the police policy on the use of deadly force. Right now, the police policy and training on the use of deadly force are determined by each police department without input from the public and/or elected officials who can be held accountable.
As a consequence of the police setting their own policy, an officer can use deadly force if he subjectively feels that his life or safety is in danger. Thus if a police officer encounters a man with a knife in hand but the hand is by his side (and not raised in a threatening manner), the officer can use deadly force against that man if the man did not drop the knife immediately upon being commanded to do so. Under the current police deadly force policy, the officer would have the right to use deadly force even if the officer was 50 to 100 feet away from the man holding the knife by his side. This is not a far-fetched scenario and has happened on multiple occasions. This deadly force policy needs to be changed.
The police are trained to shoot to kill. They are trained to eliminate the danger. This is at the very heart of the police deadly force training. The police should be trained to shoot to immobilize or incapacitate in the right situations. If a suspect has no weapon or only has a close contact weapon (such as a knife), the police can shoot the suspect’s thighs, knees, legs, etc. to neutralize or minimize the danger.
These policy changes would have made a difference in the Michael Brown tragedy. With a change in the felon apprehension rule, the law would not have permitted Officer Wilson to use deadly force to apprehend Michael because the underlying felony which Michael allegedly committed (robbery) did not involve death or serious bodily injury.
If the retreat policy were adopted, Officer Wilson would have been required to retreat to the safety of his police vehicle if he felt Michael Brown was charging at him from 50 to 100 feet away without any weapon. Officer Wilson would have also been required to show why he could not use nondeadly force such as a taser or stun gun or pepper spray on Michael once both subjects were outside the police car.
Having said all the above, here are some tough love comments. OFFICER WILSON WAS WRONG IN KILLING MICHAEL BROWN. PERIOD.
However, Michael Brown acted in a stupid or reckless fashion in multiple instances. We need to teach our children that lesson because it is the truth. Even if Michael was shot in the leg and survived, the fact still remains that he acted in a stupid fashion. The decision to rob the store was wrong and stupid. It should not be sugarcoated. Everyone knows or should know that most stores have surveillance cameras. Michael Brown knew or should have known that the store he was about to rob had a surveillance camera. If Michael did not know this as an 18-year-old, he was stupid. If he knew this fact and still decided to rob the store, he was reckless. Another stupid or reckless move by Michael is the fact that, wearing the same clothes, he did not hide after robbing the store. That would have been the sensible thing to do. Rather than hide or go home through an alley or a side street, Michael Brown decided to walk on an open street within a few blocks of the store he had just robbed. He didn’t just walk on an open street after having committed robbery, he didn’t even bother to walk on the sidewalk. Instead, he was walking IN THE MIDDLE OF THE STREET within a few blocks of the store he had just robbed. THAT WAS SIMPLY STUPID. Then, when a police officer tells Michael Brown (in coarse language, I believe) to “get the fuck off the middle of the street,” Michael Brown still did not comply. THAT WAS STUPID. Having just robbed a store, the last thing Michael needed was to attract attention to himself. The last thing he needed was to draw the attention of the police but that was exactly what Michael Brown did. (Incidentally, this reminds of a situation in 1997 when Allen Iverson (who had marijuana and a gun in his car) was stopped for speeding on Interstate 64, 20 miles east of Richmond, Virginia for going 93 mph in a 65 mph zone. That was also STUPID! When you have contraband in your car, do not attract the attention of the police by speeding!).
The grand jury testimony of Officer Wilson and Dorian Johnson confirmed that in the middle of the scuffle with Officer Wilson, Michael Brown turned to Johnson and handed him the cigarillos he had previously stolen from the store (to free one of his hands). Michael Brown didn’t even bother to hide the proceeds of the robbery! This means that Michael Brown, wearing the same clothes, had the proceeds of the robbery (the cigarillos) in his hand as he was walking IN THE MIDDLE OF THE STREET within a few blocks of the store he had just robbed. And when a police officer told him to get off the middle of the street, he did not comply. These acts of stupidity are too monumental to ignore. MICHAEL BROWN DID NOT DESERVE TO DIE BUT HE WAS INCREDIBLY STUPID. A black man cannot afford to be that stupid in today’s America. With the type of law enforcement we have in America, and with the type deadly force policies in place, a black man cannot afford to be that stupid.
As I said in the beginning, I am an African American. I am a liberal. But I am also anti-stupid.
Let us fight for sensible changes in law and policy. Let us also teach our children and young men to be smart and to use their common sense.