The Fine Print

11.22.14 12:20 AM ET

Why Darren Wilson Will Walk

Expecting an indictment in Ferguson on Sunday? Don’t. How one Missouri statue will let the police officer who killed Michael Brown go free.

Police Officer Darren Wilson Not Indicted in Shooting of Michael Brown is the headline you should expect to see Sunday after the St. Louis County grand jury’s decision is made public.

This shouldn’t be a surprise. As I addressed in my Aug. 26 article, our courts have afforded the police great latitude in the use of force, in part due to the challenges unique to their profession.

But apart from case law, Missouri has enacted a statute that provides police officers a clear defense when using deadly force in connection with arresting a suspect. This law provides in part:

A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only

(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested:

(a) Has committed or attempted to commit a felony; …

Consequently, three questions must be answered to determine if Wilson is entitled to this statutory defense: Had Brown committed a felony? Was Wilson aware of this fact before the incident? Did Wilson act reasonably under the circumstances? The likely answer to all three questions is yes.

First, the surveillance video taken shortly before the shooting shows Brown in a convenience store grabbing a box of cigars and pushing the store clerk away when confronted. Under Missouri law, the theft of property plus the use of force constitutes robbery in the second degree, which is a felony.

So was Wilson aware of this robbery when he confronted Brown? Some will no doubt recall that a few days after the Aug. 9 shooting, Ferguson Police Chief Thomas Jackson stated that the “robbery does not relate to the initial contact between the officer and Michael Brown.” Rather, it was because Brown was allegedly “walking down the middle of the street blocking traffic.”

If this were accurate, it would mean that the Wilson stopped Brown over a minor offense, not a felony. However, it does appear from the Ferguson Police’s radio dispatch records recently obtained by the St. Louis Post-Dispatch, the police chief’s statement was incomplete.

The dispatcher’s audio records, which can be heard online, indicate that at 11:53 a.m. the dispatcher informed police officers about the robbery at the convenience store, together with a description of the suspects that matched Michael Brown. At about noon, Wilson can be heard asking if other officers needed assistance locating the two robbery suspects, with one officer responding that they had lost them.

Wilson’s version of what happened next, per the St. Louis Post-Dispatch, is that when he spotted Brown and his friend walking in the middle of the street, he directed them to use the sidewalk. But a few moments later, Wilson realized the two people walking matched the description of the robbery suspects. (This appears to be supported by the statement of Brown’s friend Dorian Johnson to the media, when he explained that at first the officer simply yelled at them to get on the sidewalk. However, moments later the officer backed the car up, using it to block Brown.

At 12:02 p.m., Wilson called in his location and asked the dispatcher for backup. That is when the altercation with Brown occurred. The struggle and shooting of Brown apparently took less than one minute because a tweet sent by an eyewitness at 12:03 p.m. stated, “I JUST SAW SOMEONE DIE OMFG.”

Consequently, it appears that Wilson returned to confront Brown over the robbery, not the jaywalking.

Finally, we get to the question of whether Wilson acted reasonably? There is one possible problem for Wilson here. At least one witness stated that Brown was surrendering with his hands in the air when he was shot. (Although others contradict this version.) If Wilson shot and killed Brown while he was surrendering, it’s highly unlikely that the grand jury would deem that “reasonable” under the circumstances.

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The question then comes down to what version will the grand jury believe: Was Brown trying to surrender when shot? Was Brown fleeing when shot (which means the shooting was likely illegal)? Or did the shooting occur as Brown came toward Wilson and the officer reasonably feared for his life?

The grand jury will in all likelihood side with Wilson here. Not just because jurors tend to side with the police, but also because Wilson testified before the grand jury. (It’s uncommon for a defendant to testify before the grand jury because anything they say can be used against them in a subsequent trial.) In fact, Wilson spent over four hours before the grand jury.

As one former prosecutor explained to me, in her experience whenever a police officer has testified in front of the grand jury, they have never been indicted—not once. The reason being that the jurors get to hear directly from the officer about the incident, about how the officer feared for his/her life, etc. And the officer will be well-prepped by an attorney before offering testimony.

Bottom line is we should expect to hear Sunday that the grand jury has not indicted Wilson. The next question will be whether the Department of Justice will file civil-rights charges against Wilson or will this case—like so many other ones where an unarmed individual is killed by the police—simply be marked closed.