MORE THOUGHTS ON THE DOJ REPORT ON FERGUSON

In August of last year a very unfortunate incident occurred. A young man by the name of Michael Brown was shot and killed by Ferguson MO police officer Darren Wilson. The incident touched off a firestorm of anger throughout the nation, as garbled accounts of the incident made headline news. Everyone drew their own conclusions about the incident, and some of those conclusions became set in stone before all the facts emerged.

The general storyline trumpeted by the media seemed to say that this incident was a symptom of the endemic racism among police officers throughout the nation. People chanted “hands up, don’t shoot,” and protests against police officers swept the nation. When a local grand jury heard the case and declined to file charges against Wilson riots broke out and buildings burned. It was seen as just another example of a prosecutor who was in bed with the police manipulating a gullible grand jury. Adding to the furor, one of the grand jurors complained that he felt he had been misled by the prosecutor. This complaint got widespread publicity.

Then Attorney General Eric Holder came to the rescue. He was going to have his Department of Justice (DOJ) go in there and do what should have been done in the first place. After a lengthy investigation, the DOJ made its decision. In an 86 page report, the DOJ begrudgingly exonerated Darren Wilson. Here are a few excerpts from that report, which can be read in its entirety at this site: [http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown.pdf]

On the issue of “hands up, don’t shoot” the DOJ’s investigation came to this conclusion:

Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson. As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness's own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time. Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media. Prosecutors did not rely on those accounts when making a prosecutive decision.

[DOJ Report, page 8].

 

In other words, the DOJ decided that those witnesses supportive of the “hands up, don’t shoot” scenario were unworthy of belief.

On the “he shot him in the back” scenario, the DOJ's investigation came to this conclusion:

As detailed throughout this report, the evidence does not establish that the shots fired by Wilson were objectively unreasonable under federal law. The physical evidence establishes that Wilson shot Brown once in the hand, at close range, while Wilson sat in his police SUV, struggling with Brown for control of Wilson' gun. Wilson then shot Brown several more times from a distance of at least two feet after Brown ran away from Wilson and then turned and faced him. There are no witness accounts that federal prosecutors, and likewise a jury, would credit to support the conclusion that Wilson fired at Brown from behind. With the exception of the two wounds to Brown's right arm, which indicate neither bullet trajectory nor the direction in which Brown was moving when he was struck, the medical examiners' reports are in agreement that the entry wounds from the latter gunshots were to the front of Brown's body, establishing that Brown was facing Wilson when these shots were fired. This includes the fatal shot to the top of Brown's head. The physical evidence also establishes that Brown moved forward toward Wilson after he turned around to face him. The physical evidence is corroborated by multiple eyewitnesses.

[DOJ Report, page 10].

 

In other words, Wilson shot Brown the first time when Brown was reaching into Wilson’s patrol car and grabbing for Wilson’s gun. Wilson shot Brown again when Brown turned and resumed the attack on Wilson.

 

The report also found that “The Shootings Were Not Objectively Unreasonable Uses of Force Under 18 U.S.C. 242.” [DOJ Report, page 10]. As everyone who took English grammar knows “not objectively unreasonable” is a double negative which means “objectively reasonable.”

On whether or not Wilson told the truth about the encounter, the DOJ Report had this to say:

During Wilson's interview with federal authorities, prosecutors and agents focused on whether he was consistent with his previous statements, the motivation for his actions, and his training and experience relative to when the use of deadly force is appropriate. Federal prosecutors challenged Wilson with specificity about why he stopped Brown and whether he was aware that Brown and Witness 101 were suspects in the Ferguson Market robbery. Similarly, prosecutors challenged Wilson about his decision to use deadly force inside the SUV, to chase after Brown, and to again use deadly force on Brown in the roadway. Wilson responded to those challenges in a credible manner, offering reasonable explanations to the questions posed.

At the time of his interview, federal prosecutors and agents were aware of the autopsy, DNA, and ballistics results, as detailed below. Wilson's account was consistent with those results, and consistent with the accounts of other independent eyewitnesses, whose accounts were also consistent with the physical evidence. Wilson's statements were consistent with each other in all material ways, and would not be subject to effective impeachment for inconsistencies or deviation from the physical evidence.8 Therefore, in analyzing all of the evidence, federal prosecutors found Wilson's account to be credible.

[DOJ Report, page 16].

 

In other words, Wilson’s testimony was consistent with his previous statements, consistent with the physical evidence, consistent with the accounts of credible eyewitnesses, and reasonable. The report concluded that Wilson’s testimony was “credible.” When someone gives a statement which is consistent with previous statements, consistent with the physical evidence, consistent with other credible witnesses, reasonable, and credible, that means the person is telling the truth.

When an exonerating report comes from an agency headed by a man who has publicly declared that he is prepared to “dismantle the Ferguson Police Department,” [http://www.huffingtonpost.com/2015/03/06/eric-holder-ferguson-police_n_6819898.html], it is reasonable to believe that Darren Wilson deserved to be exonerated.

I was somewhat surprised by the DOJ findings. When the first reports came out I, too, had drawn some preliminary conclusions. I thought it likely that Wilson had done something to provoke Brown. I thought it likely that, had Wilson been more diplomatic in his dealings with Brown, he might have avoided having to use deadly force. I thought that, had Wilson been a big man, his size would probably have deterred Brown from attacking him. I thought it probable that the shooting was legally justifiable but tactically avoidable. According to the DOJ report, I was wrong on all counts.

I’m writing this blog post because the DOJ finding that Wilson was fully justified in what he did has been drowned out and almost completely ignored in the furor over a second report issued by the Department of Justice simultaneously with the exoneration of Wilson. This other report accused the Ferguson Police Department of rampant racism. The best that can be said for this second report is that it is not a model of dispassionate analysis.

If I were a suspicious person, I would suspect that Holder was embarrassed that he could not prosecute Wilson and felt that he would be subjected to ridicule for failing to prosecute the man. I would further suspect that this second, vitriolic report was issued to camouflage the first, exonerating report. I would be disinclined to give weight to the conclusions of that second report due to its timing, its tone, and its reasoning. Where the first report gave detailed reasons for crediting or discrediting testimony, the second report simply relates anecdotes about purported misbehavior by Ferguson Police Officers.

The only anecdotes about misbehavior by a Ferguson police officer which were fully analyzed were the anecdotes told about Darren Wilson’s purported misbehavior. Here’s what the first report had to say about those anecdotes:

Federal prosecutors were aware of and reviewed prior complaints against Wilson, as well as media reports, alleging Wilson engaged in misconduct. Such allegations were not substantiated, and do not contain information admissible in federal court in support of a prosecution.

[DOJ Report, page 16, note 8].

 

Now, I’m not saying that the Ferguson Police Department is a model of modern law enforcement professionalism, and I’m not saying that the Ferguson Police Department doesn’t have its share of bad apples. What I am suggesting is that a dispassionate report on the state of the Ferguson Police Department would probably have noted that there was room for improvement and possibly outlined a plan for improving the department. I’ve done a number of grand jury investigations of various agencies which did just that—pointed out the room for improvement without dramatizing the purported villainy of the members of the agency.

The DOJ had a golden opportunity to soothe racial tension with its two reports. Instead it has intensified that tension. I hope it did so out of ineptness rather than out of a desire to save the Attorney General some embarrassment.

THE DOJ REPORT ON THE SHOOTING OF MICHAEL BROWN

 

There has been a lot of media coverage of the DOJ report critical of the Ferguson Police Department. There has been less coverage of the DOJ report on the shooting of Michael Brown. The tone and tenor of the report on the Ferguson Police Department is inflammatory, while the tone and tenor of the report on the shooting of Michael Brown should allay the concerns of anyone who thinks Brown, holding his hands aloft in surrender, was brutally gunned down by a mad-dog Gestapo wannabe. In the interest of sharing this second report with as many readers as possible, I post herewith a link to the REPORT.

INTERACTIONS BETWEEN OFFICERS AND ARRESTEES

There has been a great deal of controversy lately over a series of unfortunate incidents involving law enforcement officers and arrestees. The three most discussed cases involve the Michael Brown/Darren Wilson incident, the Eric Garner case, and the John Crawford III case. None of the officers involved in any of those cases has been charged as yet, and this has reinforced a perception of racism in law enforcement. Depending on their worldviews, people will look at these cases and come away with  diametrically opposed conclusions. Regardless of who is right and who is wrong, we have three dead men who could have gone on living had things played out just a little differently.

I don’t want to talk about the wide ranging implications of these events right now. I'll have more to say on that subject in future blogs, but right now I want to talk about the mechanics of living through potentially lethal confrontations between law enforcement officers and citizens. I am certainly no expert on police practices, but during my 32 year career as both prosecutor and public defender I have been involved in the investigation, prosecution, and defense of scores, if not hundreds, of violent confrontations between officers and civilians. So, based on that experience and little else, I am going to voice some opinions which are quite possibly wrong.

Let’s talk to officers. The first thing that you need to realize as an officer is that “criminals” are human beings, many of whom are not much different than you. As a young public defender, I was shocked to learn that the major difference between my clients and my law-abiding friends was that my clients on the whole weren’t quite as intelligent as my friends. Remembering this lesson served me well in my career. Disaster is in the offing if you forget it. I know this from personal experience. Also remember that when you arrest someone you have ruined that person’s day, and you can expect him to let you know in no uncertain terms how upset he is. Words can anger you, but they cannot hurt you. Don’t let preconceptions combine with hurt feelings to produce ill-advised actions.

Second, remember the phenomenon of postural echo. If you come on to someone in an overly aggressive or insulting manner, he is going to echo your behavior. I once knew an officer who seemed to always be in court charging someone with resisting arrest with violence. He had a sharp wit and a sharp tongue, and he used them both on arrestees. They quite often objected to his behavior and the fight was on. I prosecuted several of those cases and never got more than a misdemeanor conviction. The defendants were obviously guilty, but the officer was just as obviously guilty of provoking them, and the juries returned their verdicts accordingly. Remember the Proverb, “A soft answer turns away wrath.”

“But,” you say, “You can’t handle some people any other way.” As a jailhouse philosopher once told me, violence is the universal language, and some people don’t speak any other. I realize that there are those kinds of people out there in the world, and rough handling is the only way to manage them. But if you start out polite, you can always ratchet up your behavior. If you start out aggressively, you can’t very easily ratchet that behavior down, especially after postural echo kicks in and the arrestee has responded in kind. The Institute of Police Technology and Management offers courses in Verbal Judo which teach techniques for using words as a force option. I took a short course in Verbal Judo years ago, and I highly recommend it. If you can’t take the class, read one of George Thompson’s books on the subject.

When you put on that badge, you can have a tendency to think of yourself as the hero of an epic saga of good versus evil, and you want to act the part. You never compromise with evil and you never take a step back. This attitude can get you killed. Sometimes discretion is the better part of valor. A couple of examples:

Back in the days before tasers and pepper spray I was defending a rather young man charged with multiple counts of battery on a law enforcement officer. In this particular case He had gotten into a barfight with his brother and then took on a host of police officers who responded to the call, breaking one of the officer’s arms. I was taking one officer’s deposition in the case, and he described how he was the first officer on the scene. When he arrived, he stopped just inside the door and saw my client, whom he knew from previous encounters, in the process of besting his brother in a brutal fight. The officer took no action. He stood by and watched the fight awaiting the arrival of backup. Why, I wanted to know. Because he knew the defendant and knew him to be a dangerous man who could handle himself quite well in violent situations. The officer knew if he intervened alone, he would most likely get beaten to a pulp. He said that he would not have taken any action until other officers arrived if my client hadn’t started beating up the proprietress of the establishment. When the range of hostilities widened to include beating up on women, the officer went ahead and intervened. He was getting pummeled when other officers arrived to help him subdue the defendant.  

Another officer was sitting in his patrol car in the parking lot of a local bar when he saw my future client walk up to a man leaving the bar and shoot him dead for no apparent reason. My client then made a beeline for the officer’s car and told the officer “If you try to arrest me, I’ll kill you too.” He took no action and my client made good his escape—but not for long. The officer called for backup, got his bullet proof vest out of the trunk of his car, put it on, and went to the defendant’s house where he and several other officers made the arrest. You may be thinking, “What a wimp!” You would be wrong. If he had tried to drop his fish sandwich, get out of the car, and draw his service revolver, the preacher would have been extolling his courage at his funeral. Instead, he exercised some discretion and survived to eventually retire and collect his pension.

Finally, remember that “justifiable homicide” is not always unavoidable homicide or even necessary homicide. Don’t engage in activity which provokes or facilitates the creation of lethal confrontations.

Now let’s talk to potential arrestees. The first thing you need to remember is that officers are fellow human beings who are not much different from you. There are a few jerks in any profession, and law enforcement is no different. True jerks are few and far between, and most of them are equal-opportunity jerks who dish out discourteous behavior without regard for race, religion, sexual preference, or national origin.

There is a simple way to greatly reduce the probability of violent confrontation with an officer—obey the law. If it is obvious that you are doing nothing wrong, most officers will leave you alone. If this doesn’t work, and an officer confronts you, be polite. This may be hard to do, because the officer may very well be speaking to you in a tone of voice which makes your blood boil. If you respond in kind, the situation will escalate. I vividly remember a time from my youth when an officer stopped me and accused me of running over a dog. He couldn’t seem to get it through his head that somebody else had run over the dog. I had almost sold him on the proposition that I was innocent when frustration overcame me and I made some less-than-flattering remarks to him. He called for a cage car to carry me to jail. I immediately adopted a more conciliatory tone and was able to talk him out of arresting me by the time that the cage car arrived.

If he had arrested me, I would have had an excellent lawsuit against him, but I would still have spent the night in jail. If I had continued to display my ability to think up inventive insults, I might even have collected some knots on my head. Moral: If the officer is being a jerk, don’t respond in kind, nobody ever died from hurt feelings. Just content yourself with imagining all the money you are going to win in the lawsuit. That’s a far better prospect than escalating the situation to the point that your survivors win the money in the lawsuit.

 

MORE THOUGHTS ON POLICE SHOOTINGS

When I first started working with the Public Defender’s Office back in the early 70’s, I once heard an old-time sheriff lamenting that law enforcement had been ruined by that Miranda decision. I immediately thought “What a fossil!” It seems that our elders are forever lamenting how things were back in the day when they had to walk to school uphill barefooted in the snow. When I heard the sheriff's lament, I immediately made a vow that I would never act like him. I am afraid that I am about to break that vow, because I am going to talk about how things used to be. I will qualify my remarks (and try to avoid sounding like a fossil) by stating emphatically that the good old days weren’t all that good, and that law enforcement is light years ahead of what it was when I was a young whippersnapper. But I also think that looking to the past can help us learn lessons that are applicable to the present day.

Neil Kirkman, one of the first [if not the first] directors of the Florida Highway Patrol, is supposed to have had a hiring policy for troopers which required recruits to be over six feet tall and not encumbered by excess body fat. I don’t know if Kirkman truly had such a policy, but I do know that when I was a boy, FHP troopers were all tall and athletic. When I first started working as an assistant public defender, there was a trooper in our circuit who supposedly was ordered to lose weight or be fired. The trouble was, he wasn’t fat. He lifted weights, and he had massive muscles. He saved his job without having to lose weight by getting his doctor to write a letter to Tallahassee certifying that he was not fat, he was just extremely muscular.

It seems that back in the 50’s, 60’s, and early 70’s almost all law enforcement officers were big men who carried barbaric weapons such as nightsticks and slapjacks. Arrestees usually cooperated. Those who didn’t were subdued without being shot, Tasered, or peppersprayed. A big, muscular officer who is obviously armed with a non-lethal impact weapon commands compliance.

In the mid-70’s officers began to shrink as hiring practices were made less discriminatory.  I’m in favor of non-discrimination, but I think sometimes you can have too much of a good thing, as when you hire a 5’2” 120 pound applicant because you don’t want to discriminate. I never did a scientific study of police shootings during my career, but I recall a number which I felt could have been avoided if the officer involved had been a little larger and more muscular. I do vividly recall one shooting in which the officer, a small man, said he had no choice but to fire his weapon at his physically much larger assailant. I tended to agree that if he hadn’t fired, he would have gotten a severe beating at the least and may very well have suffered death or great bodily harm. I also thought that the situation might well have been avoided and the arrestee might still be alive if the officer had only been a bigger, more muscular man.

It is improper for arrestees to factor in the size and fitness of an officer when deciding whether to violently resist, but they do. I recall a rather small officer telling me about an arrest he made in a murder case. He said that the suspect’s brothers, all big men, became so belligerent that he feared they were going to attack him. Just in the nick of time, a huge officer (who coincidentally had a reputation for being able to handle himself in a scuffle) arrived on the scene. The brothers immediately lost all their fight when he got out of his patrol car and told them that they’d better settle down.

The pictures I have seen from Ferguson suggest that Michael Brown was huge (6’+, 250+ lbs.), while Darren Wilson was rather small. I haven’t seen any vital statistics on Wilson, but from the photos I estimate his size to be around 5’9”, 160 lbs. Let’s perform a thought experiment. What might have happened if Michael Brown had been confronted by an officer with the proportions of one of Neil Kirkman’s FHP troopers? What if the officer had been armed with a slapjack? Might Brown still be alive if he had confronted a more physically formidable officer?