Missouri, Fleeing Felons, and Present Law

by Dave Schuler on August 17, 2014

There’s an informative contribution to the discussion of the events unfolding in Ferguson, Missouri from Robert Verbruggen at RealClearPolicy. You can read the relatively brief post yourself but here’s a summary:

  • The Ferguson police officer whose killing of a young man was the spark that set off the days of demonstrations and riots was apparently acting within Missouri state law and official guidelines.
  • The state law and guidelines are an implementation of the “fleeing felon” rule.
  • The “fleeing felon” rule was deemed unconstitutional 30 years ago in Tennessee v. Garner.

The point here is that it’s quite possible that a criminal suit brought against the police officer in Missouri would fail but would prevail in the federal court of appeals.

{ 40 comments… read them below or add one }

steve August 17, 2014 at 9:49 am

Sounds kind of like the Stand Your Ground law. If the officer says he thought the suspect was a potential danger, even if unarmed, he can shoot a running unarmed person, just like a person can shoot someone if they say they felt threatened, even if that person was unarmed, under SYG. I will go out on a (short I think) limb here and predict that since this was essentially another unwitnessed killing, as was the Florida killing, it will probably result in no court case or a finding of innocence on the part of the police officer. Unless it is on camera or in front of lots of witnesses I don’t see how you can do otherwise.

Steve

... August 17, 2014 at 10:00 am

I thought I read reports of cell phone footage of the incident, but that must not exist or it would be on the news along with the location of the officer’s home.

Has anyone heard if the cop car was equipped with a camera?

... August 17, 2014 at 10:09 am

Okay, read the cited piece. What constitutes “serious physical injury”? If that isn’t defined it is open for a large range of interpretation.

Also, what might affect serious physical injury to one person might not do so to another. For example, a woman got knocked over, along with her shopping cart, in a purse snatching at our grocery store a couple of days ago. She ended up in the hospital, in part because she was 74. If I had been knocked over in similar fashion, I probably wouldn’t even feel any pain within five minutes, maybe not at all.

So what’s the standard?

PD Shaw August 17, 2014 at 10:16 am

Based on the link, I would assume that the cop has a valid defense to any criminal prosecution (murder, manslaughter, etc.), but this would be no defense to a civil lawsuit for violating the victim’s Constitutional rights. Different outcomes for different issues.

PD Shaw August 17, 2014 at 10:23 am

Elipses, “Serious physical injury” is defeined as “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.”

PD Shaw August 17, 2014 at 10:26 am

@steve, you are talking about self defense, not SYG or anything unique about Florida. For example, in Pennsylvania, it is self-defense if “the actor believes that [deadly] force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat.”

http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.005.005.000..HTM

PD Shaw August 17, 2014 at 10:28 am
TastyBits August 17, 2014 at 10:58 am

What is in the criminal code is overridden by case law. For years after Roe v Wade in Louisiana, abortion was illegal. The cases law that overrides the code is taught.

Thirty years ago in New Orleans, there was a narrow justification for shooting a fleeing suspect. It was multi-part, and it required probable cause not suspicion. Obviously, defense of self or others was the easy one.

Otherwise, you had to have probable cause to believe that the fleeing suspect would kill or do great bodily harm to others, and the fleeing suspect had or could obtain the means.

If I remember correctly, great bodily harm was almost killing somebody. It was added for cases where the person would have killed the person but something happened. To my knowledge, there was no standard. The prosecutor would need to prove that this condition was met. This phrase was used in the murder definitions also.

Part of the problem is that police have been turned into Girl Scouts, and you now have a lot of nervous Girl Scouts with weapons. In the old days, you would just put a foot in the bad guy’s ass. It was how the game was played, and everybody knew the rules.

steve August 17, 2014 at 11:18 am

PD- My point is that it seems to be based upon the shooters feelings rather than any objective rules. If someone feels threatened, they can shoot. If the officer felt like the guy was running away and was a danger to someone else, he can shoot an unarmed person who was running away. On that basis, it seems to me that it would be pretty hard to convict.

Steve

... August 17, 2014 at 11:51 am

PD, thanks for info. That’s a bit more constrained.

TB, regarding police being turned into girl scouts: I remember reading that decades ago the LAPD had an unofficial policy whereby police were given free reign to shoot and kill armed robbers. The thought was that people committing armed robbery were likely to kill someone eventually, so the police were getting out ahead of the problem. Can’t imagine that today.

PD Shaw August 17, 2014 at 3:11 pm

It looks like the common-law rule was that deadly force could be used to stop a fleeing felon. In 1985, about half of the states followed this rule, but many of the others might allow deadly force to stop a fleeing felon in more narrow circumstances.

jan August 17, 2014 at 3:31 pm

It would seem if people could disengage themselves from the racial component injected in this police shooting, almost from the get go, a more unbiased, factual account could be established for how and possibly why this 18 year old young man was fatally shot. As it was, Brown’s profile was initially described with much innocence attached to it. Only later was the convenience store incident and roughing up a clerk introduced, with the DOJ recommending that the Ferguson police hold off from showing this to the public for fear of more violence.

Now we have another unintended piece, a recorded background conversation, coming forth, collaborating what another officer at the scene described happened prior to Brown’s death.

A previously unnoticed detail in a background conversion of a video taken minutes after the Ferguson shooting could change the course of the investigation into Mike Brown’s death.

The original video poster appears sympathetic to the narrative that Mike Brown was shot unarmed with his hands in the air. But he unknowingly picks up conversation between a man who saw the altercation and another neighbor.

Again, what’s alarming here is the misplaced violence that is not only being rationalized by some as ‘justified,’ but also exploited by a headline thirsty media. While peaceful protests can legitimately air injustices, IMO, ones that opportunistically use them to commit injustices against others should neither be tolerated nor infamously overexposed in the public media.

Dave Schuler August 17, 2014 at 3:55 pm

steve:

The “reasonable person” standard is a commonplace in the law which means that it’s not entirely subjective. It’s not what any single person might feel but what a reasonable person in the situation would feel.

... August 17, 2014 at 4:33 pm

Jan, remember too that Trayvon Martin was initially reported to be an undersized boy completely innocent of all wickedness, before we found out he was tall, liked street fighting and stealing stuff, and aspired to be a No Limit Nigger.

As in 2012, the media is hungry for The Great White Defendant, and also looking to boost Democratic voter turnout by any means necessary. Such as by advertising where the officer involved in the shooting lives, in the hope that he and his family will be murdered. Saw that in the Trayvon case, too.

I expect this case to go even more sideways than the Martin fiasco, as the federal government got involved early, and is clearly trying to present the narrative of the Innocent Black Angel murdered by the Evil White Man. I’m sure that was the real reason Holder wanted the tape from the convenience store buried, to further the narrative.

It’ll be interesting to see the toxicology reports from the dueling autopsies. If Brown was clean, I expect the autopsies will agree. If he wasn’t clean, I fully expect the feds and the coroner working for the family’s lawyers to fudge the results. If they time it right they can set off fresh riots in mid to late October to help get our the vote.

Guarneri August 17, 2014 at 5:13 pm

Schuler at 3:55

Or the “business judgement rule” without which commerce would grind to a halt.

Guarneri August 17, 2014 at 5:15 pm

Jan

Misplaced violence? I’ve always said that when you have a grievance the first thing you do is loot and set ablaze the local retailers…….

PD Shaw August 17, 2014 at 5:30 pm

@steve, I think I understand your point. But I would say it is probably more an issue that our criminal justice system requires proof beyond a reasonable doubt. There may not be evidence to convict a cop in most situations; all police departments have cases that lack evidence to pursue. The one downside to justification defenses is that they require the suspect to waive, at least to some degree, their right against self-incrimination, so unlike other defendants there is some statement made, and the statement gives investigators an assertion to falsify.

But Dave’s point is correct, criminal law uses the “reasonable person” standard which is not considered subjective. Here is the key part of the Zimmerman jury instruction:

“The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.”

steve August 17, 2014 at 6:33 pm

PD- Thanks. In this case, is it a reasonable person or a reasonable police officer?

I find it odd that this cannot be taken seriously just on the facts. An unarmed person, apparently, running away was shot and killed. How can that not lead to a major investigation? Also, how can it not seem odd that the tape showing the guy in the convenience store gets released, and the preliminary autopsy report does not?

Steve

... August 17, 2014 at 7:11 pm

An unarmed person, apparently, running away was shot and killed.

Whether or not Brown was running away is still an issue. At least a couple of accounts now have him running at the police officer when the final shots were fired. That is one of those pesky things to be investigated, yes?

And in any event, this is no more a national, much less an international, story than the Trayvon Martin or Casey Anthony stories should have been. So, why does THIS get all the media attention?

Not to mention that it seems to be the only thing the Obama Administration is taking seriously at the moment. Besides deleting emails, that is. But THIS gets to be a federal case. Another B+ performance by the Chief Executive and the Attorney General!

... August 17, 2014 at 7:12 pm

We’re also going to get three autopsy reports. Presumably they will show that Brown is still dead. Or at least he will be by the time the last one is over.

PD Shaw August 17, 2014 at 8:04 pm

It has been over a month since my friend was killed by police officers in a different St. Louis suburb, and the report hasn’t been released yet. How many months until Robin Williams’ toxicology report is released? How long did it take for James Joyner’s wife’s death certificate to be issued?

... August 17, 2014 at 8:27 pm

I heard there were FOIAs out for the video. Presumably there are for the autopsy results as well, but perhaps legal reasons protect that information for a while.

But really, the media relations by the Ferguson police department haven’t been terribly good. That police chief is in way over his head. No doubt he kept seeing all the Gentle Giant crap being perpetrated by the press and the Dems and thought, “This is bullshit. I’ve got to change the narrative.” Unfortunately he hasn’t realized yet that you can’t beat someone with control of a microphone and a tv camera. He should have saved his ammunition for later.

Guarneri August 17, 2014 at 9:51 pm

There is an election coming up ice. Would you want to run on the economy, the Middle East or ObamaCare “…………..or drum up a reliable voting block?

jan August 17, 2014 at 11:10 pm

Ice,

Thanks for pointing out that conflicting reports are now out as to which way Brown was actually running. According to a recently revealed ‘accidental’ recording of what happened, Brown ran away from the police for about 35 feet. When the officer yelled “freeze!” it was then that Brown reversed his course and started to “bumrush” the guy holding the gun on him. At 6’4″ and nearly 300 lbs Brown would have presented an ominous figure, wouldn’t you think?

PD

The usual time for toxicology reports to be released is about 6 weeks. I don’t know why it takes so long. However, in controversial cases like the Brown shooting, which is enlarging into a political, racial issue, who knows what will happen.

Like ice said, Holder seems to have attached himself like suction cups to this one. I only wish he would be as enthusiastic and timely on other issues, which have been pending, and “under investigation” for years!

As a side comment, I think police have become too aggressive of late. I only wish this were being brought out and analyzed in a non-racial way, instead of having “color” taking top billing, as seems to be the case.

... August 18, 2014 at 12:14 am

I’d be too ashamed to stand for reelection based on the record our leaders have produced. But they’re getting richer all the time, accruing more power all the time, so they must be accomplishing something for someone.

Reading a book on the end of the Hapsburg, Hohenzollern (Prussian/German), and Romanov empires by a guy named Sulzberger. Interesting to see the scorn he heaps on these families. There are only six of them he considers truly exceptional or even competent: Charles V, Maria Theresa and Joseph II of the Hapsburgs; Frederick the Great of the Hohenzollerns; and Peter the Great and Catherine the Great of the Romanovs. (And Catherine was Romanov only by marriage, of course.) And even those folks come in for scorn of varying degrees.

Other than those six, the rest were all mediocraties or worse, with nothing to recommend them. Somehow, even though he mentions it quite clearly himself, it seems to escaped Sulzberger’s attention that the nobodies and incompetents ruled over vast swathes of humanity for centuries. Either these three families were the luckiest families on earth, or, or they truly had something on the ball. Sulzberger’s problem is that he’s judging them by assuming that they should be judged by the standards that he believes in, when they merely wanted to rule.

The point is that judging the pols by the standards we might believe in is not how they necessarily judge themselves. If all they want is wealth and power, they’re doing a Damned fine job of it. Perhaps even earning a grade of B+, for example.

... August 18, 2014 at 12:36 am

We don’t know what happened yet. We have two incomplete, somewhat mangled narratives competing for the public consciousness. One of them is likely closer to the truth than the other, but not necessarily. So until we know more it’s hard to reasonably criticise the actions of those involved.

Personally, I don’t trust the police or like them. I’m still stuck having to call them if the shit hits the fan, because they tend to look down on the exercise of private justice. But I’ve had too many encounters with the police where they’ve failed utterly in their duty to think well of them.

Which doesn’t mean I like the crooks any better. But these days one isn’t allowed to have opinions so nuanced as to think both sides may be wrong, or right, or both be mixed. We’re only allowed to believe one side must be wholly in the right, and the other must be wholly in the wrong..

This will probably look somewhat like the Trayvon Martin case by the end: all actors involved did things they probably shouldn’t have done, and someone paid for these bad decisions with their life. Zimmerman should have stayed in his truck. Martin shouldn’t have have doubled back to jump a stranger.

No idea what happened here outside of this somewhat nebulous chain of events. Someone matching Brown’s description pulled off a strong armed robbery. Brown and a buddy decided to walk down the middle of a street. They didn’t move fast enough to get out of the way of a cop. Eventually the cop shoots Brown dead.

Brown did something dumb by walking down the middle of a street and drawing attention to himself from the police. That last thing is almost never a good idea. It seems to me the officer probably should have called for backup before taking on two people seemingly looking for trouble.

Bad decisions. It an epidemic at the moment worse than Ebola. I will change my mind about this matter as the other facts come out.

But what we do know at this point is that various authorities, both in the government and the press, have been working to push various storylines, some of which have been patent bullshit. One can make up one’s mind about the actions of these authority types now, and I have.

... August 18, 2014 at 12:47 am

Speaking of police actions another one going on right now. Dozens of cop cars driving around and blocking off streets, and the police chopper is buzzing the joint.

The other day driving home around 4:00 in the afternoon I drove onto a street being blocked off just as at least four officers with drawn weapons charged a house. I doubled back right quick and took the long way around, and drove onto another blocked street, this time with an ambulance and a bunch of cops with weapons in their hands milling around.

Neither story made the news.

Man I live living in the hood – always something going down!

... August 18, 2014 at 12:56 am

Cops are drawing the net tighter. They’ve unblocked a couple of streets and moved more cars into a smaller area. The chopper is pulling a tighter circle, too. Fun, fun, fun!

I’m sure this won’t make the news either. Unless they’re after those purse snatchers from the grocery store. That generated more coverage than most of the murders around here.

Well, except for the spectacular ones, like the one from a few weeks ago with the two cars driving down a residential street, gunmen hanging out of one firing into the other. But that made news because when the one driver finally got hit he plowed into a house. Good footage for the nightly news, and nice photos forcthe paper. And it happened in the middle of the afternoon, so the tv crews had enough time to show up and get good makeup on the actors/reporters/personalities before the five pm newscasts. That happened around the corner from my oldest friend’s house, though, so I would have heard about it anyway.

... August 18, 2014 at 12:59 am

The dragnet keeps moving a little farther up the street. I think they’ve lost their man. Too bad the chopper is right out there, I just can’t sleep with that Damned thing out there.

... August 18, 2014 at 1:04 am

Since I’m going to be up anyway, may as well hit the book. Now where was I? Ah, Csar Nicholas II’s advisors are telling him that attacking Japan will create “a small victorious war to stem the tide of revolution.” I wonder how this will turn out!

... August 18, 2014 at 1:29 am

The cops have buzzed off, as it were, so now I can sleep, Russo-Japanese War be Damned.

But the family’s preliminary autopsy report is out, and the eyewitness account of Brown’s friend is now shot full of holes, too. No bullet wounds in Brown’s back. The wounds are all to the front of the body or on top of Brown’s head. The location of the wounds on the arm probably, though not definitively, rules out Brown’s right arm being up when he was shot there.

Still lots of other questions, but I find it peculiar that the guy working for the family offered an expert opinion that the officer fired too many shots without knowing any other details of the shooting, and that this guy that reviewed the JFK autopsy has a ‘magic bullet’ in this case too.

... August 18, 2014 at 1:34 am

Predictably, the riots escalated tonight. Because, you know, six shots, or something.

Andy August 18, 2014 at 4:37 am

Food for thought:

http://www.politico.com/magazine/story/2014/08/what-i-did-after-police-killed-my-son-110038.html#.U_D3zvnnSSr

PS, the Governor is calling out the National Guard – presumably the autopsy report will not reflect favorably on the officer’s actions.

... August 18, 2014 at 9:19 am

Andy, one autopsy report was already out when the NG were deployed, and that report made some of the eyewitnesses look bad, rather than the officer. The officer’s actions ate still up for consideration, but he did not shoot someone in the back.

TastyBits August 18, 2014 at 9:31 am

@Icepick

A lot of people have been in your situation, and they feel the same way. In many places, the police are worse than the criminals. Where you are now, it sounds like they are just not very responsive.

... August 18, 2014 at 10:22 am

TB, I’ve had problems with police responsiveness back when I lived a good middle class life in a good middle class neighborhood. They don’t take property crimes seriously unless you’re rich. They don’t take traffic laws seriously unless they think it won’t be a hassle to them. (I.e. they can’t catch the street racers even though they’re always in the same place at the same time and very loud. But they might cause trouble so they get left alone.)

They generally don’t care about violent crime unless it happens to someone wealthy or it gets on the news. And there is no reason to, given that you can have multiple felony convictions for violent crime and still get out after six days in jail for committing more violent felonies, as my idiot neighbor has proved conclusively.

They do seem to care about their pay and benefits, however.

As I said about pols, the standards by which the public judges them and the standards by which they judge themselves tend to diverge.

TastyBits August 18, 2014 at 11:20 am

@Icepick

There is a debate about any Romanov blood in the Czars after Catherine.

Nicholas II was a wimp, but his daddy, Alexander III, knew how to deal with rebels.

If you are not careful, you will wind up getting sucked into Russian history. You may even get dragged into Mongolian and Byzantine history.

... August 18, 2014 at 12:17 pm

I’ve been down this road before, TB. All a well-traveled path of worn stones.

Actually, the Sulzberger is some light reading during some reading on the French Revolution and Napoleonic Years, and before starting some reading on the clusterfuck of wars in Central Africa over the last 20 years or so.

TastyBits August 18, 2014 at 12:56 pm

@Icepick

I am not sure how I never got into Napoleon or French history. I think it was because Napoleon’s Russian invasion was boring militarily and historically from a Russian perspective.

If I ever get around to it, Egyptian history is what I would love to delve into.

... August 18, 2014 at 4:54 pm

I’m just paying attention to the Napoleonic era now because I’m reading the Richard Sharp books. They’re easy, but fun, but now I want more background.

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