The Volokh Conspiracy
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Officer Darren Wilson's testimony before the Michael Brown grand jury developed a very strong case that he acted in self-defense under Missouri law. Wilson testified clearly that Brown was the "first aggressor" and that Wilson had a reasonable fear for his safety when he fired the fatal shot. Indeed, under Missouri law, the state would have had the burden at trial of disproving Wilson's version beyond a reasonable doubt. As a result, unless there was significant evidence that Officer Wilson's testimony was false (a point I plan to address in a future post), the grand jury got it absolutely right in declining to return an indictment.
Wilson's grand jury testimony can be found here (at page 196). While other blogs have commented generally on the testimony, they perhaps have not focused enough on how this testimony would be assessed under Missouri's self-defense law. Like many other states, Missouri places heavy emphasis on who is the "first aggressor" in any conflict and then allows someone who is attacked to use deadly force provided he has a "reasonable belief" in the need to use such force.
It is useful to begin with a careful review of the important parts of Wilson's grand jury testimony. Wilson testified that, as he was in uniform driving in his marked patrol car, he saw Brown and a companion (later identified as Dorian Johnson) approaching him, walking down the middle of the street. [Vol. V, p. 208, line 9—hereafter just cited by page and first line number.] When Wilson asked Johnson why they didn't use the sidewalk, Johnson said that they were almost at their destination. Wilson then asked "well, what's wrong with the sidewalk?" (208:19). At this point, Michael Brown replied "f*** what you have to say" (208:23).
Officer Wilson then noticed that Brown (who, it is undisputed, weighed approximately 300 pounds) had in his hand a bunch of cigarillos, and that was when it "clicked" that Brown might have been the perpetrator of a "stealing" that had broadcast over the police radio channel a few minutes earlier (209:4). Brown appeared to match the description of the perpetrator. Wilson then backed his car up into the projected path of Brown and Johnson, angling his car to block them. He directed Brown to come over to him and began opening his car door. Brown said "what the f*** are you going to do about it?" and slammed the door shut on Wilson (209:21). Brown was staring at Wilson, trying to intimidate or overpower him.
Wilson told Brown to "get the f*** back," tried to open his door again, but Brown blocked him, ducked his head and began trying to lean into the open window of Wilson's car. Brown then tried to take a full-on swing and punch Wilson in the side of his face (210:20). Wilson managed to partially deflect the blow, but was still struck hard in the face.
At this point, it may be relevant to note that Officer Wilson's testimony that Brown struck him hard in the face is corroborated by physical evidence. A photograph taken later that day shows a clear injury to his face. (Other photographs show other injuries.)
In the eyes of Missouri law, a significant event under self-defense doctrine had certainly occurred by this point in the encounter (if not earlier): If Officer Wilson's testimony was even generally true, Michael Brown had become what is called "the first aggressor," which means (as one often-quoted decision puts it) he has committed an "affirmative unlawful act reasonably calculated to produce an affray foreboding injuries or fatal consequences."
Wilson then testified that Brown tried to grab his gun:
He grabs my gun, say, "you are too much of a pussy to shoot me." The gun goes down into my hip. and at that point I thought I was getting shot. I can feel his fingers try to get inside the trigger guard with my finger and I distinctly remember envisioning a bullet going into my leg. I thought that was the next step. . . .
I was just so focused on getting the gun out of me. When I did get it up to this point, he is still holding onto it. and I pulled the trigger and nothing happens, it just clicked. . . .
At this point I'm like why isn't this working, this guy is going to kill me if he get ahold of this gun. I pulled it a third time, it goes off. When it went off, it shot through my door panel and my window was down and glass flew out of my door panel. (214:21)
Here again, the grand jury had photographs and ballistic information corroborating Wilson's testimony, such as this photograph here showing a bullet hole in the driver's door to his car.
As the struggle continued, Wilson managed to fire a second shot while Brown was looking at Wilson "with the most intense aggressive face" (225:1). The only way he could describe it, Wilson told the grand jury, is "he look[ed] like a demon, that's how angry he looked" (225:3).
At this point, Brown took off running and Officer Wilson called his dispatch, telling them "shots fired, get me more cars" (225:13). Brown was heading in the direction that Dorian Johnson had earlier said was their destination. Wilson ran after Brown, hoping to keep him in sight to later (with backup) make an arrest. Brown ran a short distance, past several light poles, and then stopped. "So when he stopped, I stopped," Wilson told the grand jury (227:3). Brown then turned around and Wilson told him "to get on the ground, get on the ground" (227:5). At this point, according to Wilson, Brown charged him:
He turns, and he looked at me, he made like a grunting, like aggravated sound and he starts, he turns and he's coming back towards me. His first step is coming towards me, he kind of does a like a stutter step to start running. When he does that, his left hand goes into a fist and goes to his side, his right hand goes under his shirt in his waistband and he starts running toward me. . . .
As he is coming towards me, I tell, keep telling him to get on the ground, he doesn't. I shoot a series of shots. I don't know how many I shot, I just know I shot it. . . .
I remember having tunnel vision on his right hand, that's all, I'm just focusing on that hand when I was shooting.
Well, after that last shot, my tunnel vision kind of opened up. I remember seeing the smoke from the gun and I kind of looked at him and he's still coming at me, he hadn't slowed down.
At this point, I start backpedaling and again, I tell him get on the ground, get on the ground, he doesn't. I shoot another round of shots. Again, I don't recall how many it was or if I hit him every time. I know at least once because he flinched again. At this point it looked he was almost bulking up to run through the shots, like it was making him mad that I'm shooting at him. And the face that he had was looking straight through me, like I wasn't even there, I wasn't even anything in his way (227:6).
Wilson then explained how the encounter finally ended, testifying that "he still keeps coming at me, gets about 8 to 10 feet away" (229:3). Wilson was backpedaling "pretty good because I know if he reaches me, he'll kill me" (229:5). And Brown "had started to lean forward as he got that close, like he was going to just tackle me, just go right through me" (229: 7). At this point, Wilson looked through the sights on his gun and "all I see is [Brown's] head and that's what I shot" (229:17).
Wilson's testimony, if believed, would establish a clear case of self-defense under Missouri law. (I analyze only general self-defense law, not special law that applies to a police officer's use of force.) State v. Anthony, a Missouri Court of Appeals decision from 2010, is instructive on the applicable law, approving the following jury instruction on self-defense for those who are not a "first aggressor":
In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger but he must have a reasonable belief that he is in such danger. If he has such a belief, he is then permitted to use that amount of force that he reasonably believes to be necessary to protect himself.
But a person is not permitted to use deadly force, that is, force that he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes he is in imminent danger of death or serious physical injury. And, even then, a person may use deadly force only if he reasonably believes the use of such force is necessary to protect himself.
As used in this instruction, the term "reasonable belief" means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.
As this instruction makes clear, the dispositive issue when a defense of self-defense is in play is not whether a defendant actually needed to defend himself, but what the defendant's state of mind was—i.e., what was he thinking at the time that he acted. So long as a defendant has a "reasonable" belief in the need to use force, then he can defend himself with force himself regardless of whether his belief is ultimately "true or false."
Based on Wilson's testimony, his state of mind was far more than sufficient to meet the "reasonable belief" requirement. At the time Wilson fired the last (and apparently fatal) shot, he was a uniformed police officer in a marked police car who had been struck in the face by Brown (a fact confirmed by physical evidence), Brown had tried to grab Wilson's gun, two shots gone off inside Wilson's car (again, confirmed by physical evidence), Brown had run away and then turned on Wilson—finally charging at Wilson. Wilson's state of mind at this time, according to his testimony, was "I know if he reaches me, he'll kill me" (229:5)—a clear basis for using deadly force.
I have recited Wilson's testimony at some length, because it would have been central to the grand jury's ultimate conclusion. Only if there was good reason to discount that testimony, should the grand jury have returned a true bill. I will discuss other testimony in the case in a future post. But one last pivotal point about Missouri law has not been given any significant attention in the press coverage.
In some states, a defendant bears the burden of establishing self-defense. But according to State v. Anthony, once a defendant injects self-defense into a case, the prosecution bears the burden of disproving the defense beyond a reasonable doubt, as made clear in this language from Anthony:
The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty.
Applied to this case, Missouri law would have obligated the prosecution to eliminate any reasonable doubt about Wilson's testimony that he feared for his life. That is an extremely difficult burden to carry. Fair-minded people can differ about whether that is proper way to structure self-defense law. But as I understand it, that is the law in Missouri today—and the law that formed the backdrop to the grand jury's decision. I haven't seen anyone make a plausible case that the prosecution could have carried this burden of proof at trial. The grand jury's conclusion thus only put out of its misery what would have been a criminal case ultimately destined for an obvious not guilty verdict.
Update: Co-blogger Orin Kerr raises a helpful note of clarification that, in my view, primarily applies to cases other than self-defense. Orin writes that "I'm not sure about an assumption Paul may be making, that a grand jury should take seriously a criminal suspect's exculpatory testimony." Orin then explains, quite rightly, that suspects have an obvious incentive to lie before the grand jury.
While this point is generally true, there is a particular problem when applied to circumstances involving self-defense. Consider these situations where a finder of fact (and in this case the grand jury was the initial finder of fact) knows the following:
- A police officer shoots someone—a suspected dangerous felon;
- A homeowner shoots someone—a suspected burglar entering his home;
- A women shoots her boyfriend who has a stalking injunction against him—a suspected domestic abuser.
Surely we don't want the finder of fact to automatically file charges in each of these situations on grounds that the shooter knowingly caused the death of another (the elements of a homicide charge under Missouri and other states' laws). Instead, we would want the finder of fact to make some preliminary assessment of the surrounding circumstances—weighing the shooter's testimony, the testimony of other witnesses, and (perhaps most important) the physical evidence. Ultimately the critical issue is what the shooter was thinking at the time of the shooting. Self-defense in that sense is quite different than the normal run of cases, where an assessment about the reasonableness of a suspect's behavior is typically not in play.