The Volokh Conspiracy
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Missouri law allows a person to use deadly force defending himself when he has a "reasonable belief" he needs to use deadly force. The law goes on to define a reasonable belief as one based on "grounds that could lead a reasonable person in the same situation to the same belief." Unsurprisingly, Officer Darren Wilson testified to the grand jury that he reasonably believed he needed to use deadly force to defend himself against Michael Brown. But the clinching argument on this point is that other reasonable people—i.e., some credible eyewitnesses—agreed with Wilson.
In previous posts, I have discussed how the grand jury process was fair, how Officer Wilson's testimony covered the bases of Missouri self-defense law, and how the physical evidence bolstered his credibility. In this post, I turn to eyewitness testimony—which The Post has helpfully collected in this story. It would be difficult to discuss in detail the testimony of all of several dozen eyewitnesses. But a defendant raising self-defense need not show that his interpretation was the only one; rather he need only show that it was a reasonable one—i.e., a conclusion a reasonable person could reach based on all the facts.
Against that backdrop, I want to review in detail the testimony of one seemingly reasonable and neutral observer—Witness No. 10. If his objective assessment was that Officer Wilson acted appropriately, that would be strong evidence demonstrating that Wilson's belief was reasonable.
Witness 10 told the grand jury that he was outside while working a job on Canfield Drive when two men (later identified as Mike Brown and Dorian Johnson) walked by him. He then was able to see the events in question with a direct line of sight. Witness 10 saw the struggle in Wilson's police car—with Brown confronting Wilson inside the car:
I just see Mr. Brown inside the police officer's window. It appeared as [though] some sort of confrontation was taking place…. [T]hat took place for seconds, I'm not sure how long…. And one shot, the first shot was let loose and after the first shot, Mike Brown came out of the window and took off running. So my initial thought was that wow, did I just witness this young guy kill a police officer (grand jury testimony, Vol. 6, page 165, line 23, hereafter cited by just page and line number).
Witness 10 elaborated about Brown's position: "Half of his body, his feet was still planted on the ground, his upper body was inside the window in a leaning motion inside the window, his upper body was inside" (169:21). And while the witness could not hear what was being said inside the car, "it just looked out of the norm with somebody being leaned over inside the police officer's car" (171:15). Witness 10 then explained that, after the firing of a shot, Michael Brown and his friend took off down Canfield Drive. Officer Wilson remained in his car briefly, and then pursued with his gun drawn—but not firing at Brown (177:15). Eventually Brown stopped.
According to Witness 10, Brown then turned and ran "full charge" toward Wilson:
He [Mike Brown] stopped. He did turn, he did some sort of body gesture, I'm not sure what it was, but I know it was a body gesture. And I could say for sure he never put his hands up after he did his body gesture, he ran towards the officer full charge. The officer fired several shots at him and to give an estimate, I would say roughly around five to six shots was fired at Mike Brown. Mike Brown was still coming towards the office and at this point I'm thinking, wow, is this officer missing Mike Brown at this close of a range. Mike Brown continuously came forward in the charging motion and at some point, at one point he started to slow down and he came to a stop. And when he stopped, that's when the officer ceased fire and when he ceased fired, Mike Brown started to charge once more at him. When he charged once more, the officer returned fire with, I would say, give an estimate of three to four shots. And that's when Mike Brown finally collapsed…. (166:21-167:18).
With regard to the body gesture, Witness 10 explained: "All I know is it was not in a surrendering motion of I'm surrendering, putting my hands up or anything, I'm not sure. If it was like a shoulder shrug or him pulling his pants up, I'm not sure. I really don't want to speculate [about] things…." (180:5). But "[i]mmediately after he [Brown] did his body gesture, he comes for force, full charge at the officer" (180:16). Ultimately, in the view of Witness 10, the officer's life was in jeopardy when Brown charged him from close range (206:4).
Under Missouri law, this testimony by itself (even apart from any other evidence) would have provided a sound basis for the grand jury to decline to return any charges against Wilson. A Missouri appellate decision approves the following jury instruction allowing deadly force when supported by a "reasonable belief" in the need to use such force:
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…. 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.
Of particular importance for this post, Missouri law defines a "reasonable belief" as one that would be held by a reasonable person knowing the same facts:
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.
Witness 10 was a neutral observer who saw all the same things that Officer Wilson saw (albeit from a safe distance). He concluded that Wilson's life was in jeopardy. This would seem to be very strong evidence that a reasonable person could reasonably conclude that deadly force was required to protect against 300-pound Mike Brown's "full on charge."
Moreover, Witness 10's version of the facts is quite credible. Witness 10 saw a "confrontation," and Mike Brown's DNA was later found inside the car. Indeed, Witness 10 was afraid that Brown might have killed the police officer inside the car when he heard the firing of a single shot. (The ballistics evidence shows two shots were fired at the car, so that is a point of difference.) Witness 10 then describes Wilson pursuing Brown but not firing any shots along the way. Here again, the ballistics tracks this testimony.
Finally, Witness 10 describes Wilson firing a series of shots as Brown charged forward. This conforms to the physical evidence showing that the bullet wounds to Brown's body and head came from the front and that they had a downward trajectory.
Witness 10 not only gave this testimony to the grand jury under oath on Sept. 23, but also much earlier. On Monday, Aug. 11—two days after the shooting—he gave a recorded interview to two St. Louis County Police detectives. This was before any autopsy had been completed and before the media had reported other physical evidence. Witness 10's later grand jury testimony is consistent with the statement he gave the police just 48 hours after the shooting.
Perhaps even more important for those trying to get to the bottom of what happened is that Witness 10's sworn testimony tracks almost perfectly the sworn testimony of Darren Wilson. For example, Witness 10 describes Wilson pursuing but not firing at Brown initially, until Brown turned and charged. Moreover, Witness 10 describes an initial series of shots, Brown stopping, Wilson stopping firing, and then Brown resuming his charge. Wilson gave the same testimony, talking about a "pause" between a first and second round of shots (vol. 5, 229:1)—only to be forced to fire by Brown's final rush.
In sum, Witness 10 had a clear view of all the events. He gave testimony that tracked not only Officer Wilson's testimony, but also the ballistic evidence. He gave a (recorded) statement to the police very shortly after the events. He did not know Michael Brown or Officer Wilson. And, for those who deem this important, he was reportedly an African American.
What about other eyewitness testimony? Witness 10 was not the only witness to describe a "charge" by Brown. One woman testified, "I thought he [Brown] was trying to charge him [Wilson] at first because the only thing I kept saying was is he crazy? Why don't he just stop instead of running because if somebody is pulling a gun on you, first thing I would think is to drop down on the ground and not try to look like I'm going to attack 'em, but that was my opinion" (vol. 11, 181:5). Another woman testified that "[t]hen Michael turned around and started charging towards the officer and the officer [was] still yelling stop. He did have his firearm drawn, but he was yelling stop, stop, stop. He [Brown] didn't so he started shooting him" (vol. 18, 27:9).
Of course, as some commenters to my previous post pointed out, other eyewitnesses reported a different version of what happened, including the widely publicized "hands up, don't shoot" account. PBS Newshour has put together a chart of at least some of the competing witness statements. Summarizing the chart, PBS reported that its "data" showed that "[m]ore than 50 percent of the witness statements said that Michael Brown held his hands up when Darren Wilson shot him. (16 out of 29 such statements)."
PBS acknowledged that its chart "doesn't reveal who was right or wrong about what happened that day, but it is a clear indication that perceptions and memories can vary dramatically." This concession is required, because a fair assessment (such as the grand jury was tasked with making) involves not simply toting up the number of witnesses on competing sides, but determining the quality of their accounts. The grand jury observed the demeanor of all of the witnesses and, perhaps even more important, had other evidence (including physical evidence) to sort out which witnesses were giving credible testimony.
Why should Witness 10's testimony be believed over other accounts? Sadly, Witness 10 gives a clear explanation about how at least some of these conflicting accounts developed. He explained that immediately after the shooting, he began "observing the chaotic [situation], how it got so chaotic so quick[ly], and different point of views on, it didn't add up to what I actually witnessed. I felt very uncomfortable and … I would probably estimate I was down on the scene maybe five to 10 minutes … just observing everything and how the uproar became about so quickly"(vol. 6, 190:16). When he started saying what he had seen, some in the crowd became verbally "violent" toward him (204:3) and started directing racial slurs toward him (206:10).
The next day, Witness 10 felt even more uncomfortable after he had "seen all the rioting. I just felt bad about the situation. I knew that I needed to come forward to let the truth be told" (192:6).
And so, "after seeing the rioting," he called St. Louis County Police: "So I went down to the police station and I felt uncomfortable then just walking past all the protesting that was going on, but I knew it was the right thing to do. It is an unfortunate situation, but I know God put me in this situation for a reason" (192:21). Witness 10 also spoke poignantly of trying to bring some comfort to Michael Brown's family:
I came forward to bring closure to the family and also for the police officer because … with me knowing actually what happened … I know it is going to be a hard case and a hard thing to prove with so many people that's saying the opposite of what I actually seen. I just wanted to bring closure to the family not thinking that hey … they got away with murdering my son. I do know that there is corruption in some police departments and I believe that this was not the case. And I just wanted to bring closure to the family (194:22).
Witness 10 also told the grand jury about a continuing concern for safety in testifying: "Within my [redacted] family … [t]hey fear for my safety or our family's safety" (206:2).
Given the intimidation campaign that Witness 10 described, it is not surprising that PBS would find that a slight majority of the statements tracked the narrative that the "Hands Up, Don't Shoot" protesters were relying on. More helpful than the PBS chart is the collection of testimony from The Post. With links to the underlying grand jury testimony, a reader can click on the competing statements and read them in their entirety. But here is one overall assessment of what can be found among the testimony: "An Associated Press review of thousands of pages of grand jury documents reveals numerous examples of statements made during the shooting investigation that were inconsistent, fabricated or provably wrong. For one, the autopsies ultimately showed Brown was not struck by any bullets in his back."
But as I have tried to explain in this post, the issue that the grand jury ultimately had to decide was whether Officer Wilson's assessment of the danger he faced was a reasonable one. Witness 10 was a reasonable person. He thought Wilson faced such a danger. Unless there was good reason to doubt this witness's apparently fair-minded assessment, Officer Wilson was entitled to use deadly force in self-defense, and the grand jury plainly did the right thing in declining to indict.
Update: For discussion of how Michael Brown's best friend's story is far less credible that Witness 10's, see my new post here.