Michael Brown Shooting

DOJ Report Makes a Strong Case That Darren Wilson Shot Michael Brown in Self-Defense

The feds find that the witnesses who made Wilson look the worst were the worst witnesses.


After a Missouri grand jury declined to indict Ferguson police officer Darren Wilson in the shooting death of Michael Brown last November, I noted that Wilson probably would been acquitted had he gone to trial, since conflicting eyewitness accounts left plenty of room for reasonable doubt. After reading last week's Justice Department report on the shooting, I would go further: Wilson's use of deadly force probably was legally justified, and St. Louis County Prosecuting Attorney Robert McCulloch was right not to give Brown's family the trial they wanted. Although I still have strong reservations about the way McCulloch achieved that result, he made the right call, and I was wrong to suggest otherwise.

As difficult as a successful state prosecution would have been, a successful federal prosecution would have been even harder, since the relevant statute requires showing that Wilson "willfully" violated Brown's rights, meaning he knew his use of deadly force was inappropriate. As the DOJ report notes, "Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute." But the report goes beyond explaining why Wilson's actions did not meet that test. It also makes a strong case that Wilson shot Brown based on a reasonable fear of death or serious injury, which is the standard for self-defense under Missouri law.

On the face of it, with about two dozen witnesses contradicting aspects of Wilson's story, there was ample basis for probable cause to believe he used excessive force, and if McCulloch had wanted to indict Wilson he almost certainly could have. But the 86-page DOJ report persuasively argues that the witnesses who challenged Wilson's account the most were the least credible because their stories changed over time, did not jibe with the physical evidence, or were admittedly false. The report lists eight witnesses whose testimony was "materially consistent with prior statements, physical evidence, and other witnesses" and "who corroborate that Wilson acted in self-defense." It lists nine "witnesses who neither inculpate nor fully corroborate Wilson," plus 24 "whose accounts do not support a prosecution due to materially inconsistent prior statements, or inconsistencies with the physical and forensic evidence." According to the DOJ, there are no witnesses "who inculpate Wilson" and whose testimony is "consistent with prior statements, physical evidence, and other witnesses."

One can quibble over some of the report's characterizations of witness's reports, but the overall impression is inescapable: The witnesses who make Wilson look the worst are the worst witnesses. That does not necessarily mean they lied (although some confessed that they did), but there are signs that their memories were shaped by the false narrative that took hold after the shooting: that Wilson gunned down Brown as the latter stood still with his arms raised in surrender. While it is possible that Brown briefly raised his arms, the report says, it is unlikely that he ever clearly communicated an intent to surrender. Furthermore, the witnesses the DOJ deemed most credible all agreed that Brown was moving toward Wilson when he was shot—a point confirmed by the location of his body when he fell, coupled with blood found in two other places on the road.

Wilson reported that Brown "charged" him, and several witnesses used the same word. That seems like an exaggeration, to the extent that it implies he was moving at full speed. According to the DOJ, Brown covered about 22 feet, and a recording of the gunshots fired in the roadway indicated that it took him at least eight seconds. That suggests he was moving at less than two miles an hour—a slow walk, as opposed to a dead run.

Wilson nevertheless had reason to believe that Brown, who was six feet, four inches tall and weighed nearly 300 pounds, meant him harm. Physical evidence and witness reports confirm that Brown punched Wilson in the face as the officer sat in his police SUV. Brown's DNA on Wilson's gun and the wound on Brown's thumb are consistent with Wilson's account that he drew his weapon in self-defense, that Brown grabbed it and tried to take control of it, and that Wilson fired at him during the struggle.

Brown took off at that point. Wilson could have let him go or waited for backup, but he testified that he believed Brown posed a threat to other officers and anyone else he might come across. Why Brown turned around after Wilson got out of his SUV remains hazy. But if Brown kept moving toward Wilson despite the officer's commands to stop, as Wilson and several other witnesses testified, it was reasonable for Wilson to worry what would happen after Brown closed the distance between them, even if Brown did not plan to renew his assault.

While standing in the street, Wilson fired 10 rounds, at least five of which struck Brown (in addition to one of the two rounds that Wilson fired in the SUV). Were all of those shots justified? Several witnesses said Wilson fired only when Brown was moving toward him, which is consistent with the pauses that can be heard on the audio recording. Medical testimony heard by the grand jury established that it was possible for Brown to keep moving until the final, fatal shot to his head.

One can imagine ways Wilson might have handled the situation differently, and in some of those scenarios Brown might still be alive. But the relevant legal question is whether Wilson reasonably believed all of those shots were necessary to prevent an assault that could have resulted in death or serious injury. It seems pretty clear that he did believe that, and it probably was a reasonable belief in the circumstances.

I assume McCulloch reached the same conclusion, which is why he decided not to prosecute Brown. But instead of taking responsibility for that decision, he ostensibly entrusted it to a grand jury. Since it would have been unethical for McCulloch to prosecute a man he believed was innocent, it was unclear what he would have done if the grand jurors had approved criminal charges against Wilson. McCulloch's underlings made sure that did not happen, leading the jurors by the nose to a predetermined result. The extent to which prosecutors were acting as Wilson's advocates became clear when they persistently and implausibly tried to explain Brown's aggressive behavior by blaming it on marijuana. Their energetic efforts to avoid an indictment—a dramatic reversal of prosecutors' usual approach in presenting a case to a grand jury—reinforced the impression that the justice system is rigged in favor of cops.

Not surprisingly, this process, conducted behind closed doors by prosecutors acting like defense attorneys, did not do much to reassure skeptics or placate McCulloch's critics, despite his unusual decision to let the public see all the evidence considered by the grand jury. The voluminous transcripts provided fuel for both sides, and McCulloch's characterization of the evidence was easily dismissed as the self-serving rationalization of a cop-friendly prosecutor.

The DOJ report carries more weight, not just because it presents the evidence succinctly and logically but also because the FBI and federal prosecutors are less cozy with local cops than McCulloch is. Since the Justice Department needn't have gotten involved at all, the idea that Eric Holder ordered up a whitewash is quite implausible, especially in light of the DOJ's harsh assessment of Ferguson's law enforcement practices in a separate report released the same day. Fair-minded readers of the report on the shooting, even if they are not completely convinced that Wilson's actions were justified, will come away with a better understanding of why convicting him would have been so difficult. The question is what can be done to make local decisions about whether to prosecute police officers for excessive use of force as credible as the DOJ report.

NEXT: Could a Federal Law to Stop Police Revenue-Seeking Actually Work?

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  1. I predict a productive thread.

    1. I was intending to riot about the result right here. If I had a blink tag, as guaranteed by the Second Amendment, I would be employing it liberally already.

      1. I'm going to need to see your concealed code card.

  2. Not surprisingly, this process, conducted behind closed doors by prosecutors acting like defense attorneys, did not do much to reassure skeptics or placate McCulloch's critics...

    Lesson learned, I'm sure.

  3. The major outrage is the way the double standard was applied here, I agree.

    However, there are reasons to believe that Wilson was lying, on at least two fronts:

    The reported change in his story from "I didn't know about the convenience store robbery" to "I totally knew this was the guy" or somesuch.

    The fact that Brown did not show any injuries consistent with doing a faceplant on the pavement at a full run. And that's pretty critical, actually, since the self-defense argument boils down to Brown was charging the officer when he was shot.

    Enough to convict? Probably not; hard to say, IMO. Enough to get an indictment? Maybe, if the prosecution went after an indictment the way they usually do.

    1. I think it would have been enough to convict a non-cop.

      1. The only reply I would give you is that an officer of the law can be expected, within the course of their duty, to discharge their weapon. A private citizen does not have that expectation and would be under more scrutiny.

        1. The only reply I would give you is that an officer of the law can be expected, within the course of their duty, to discharge their weapon.

          Even though most don't?

          A private citizen does not have that expectation

          Even though more private citizens shoot people in self-defense than cops do?

          1. Because most don't? Of course they don't, but they take the job with the training and knowledge that they may one day have to as a normal part of performing their job. Self defense, while sometimes necessary, isn't always self defense and investigators have to make that determination. They have to do the same with police, but with this situation it wasn't a unexpected outcome for most any police officer.

            1. Matt, that's one impressive word salad.

          2. I was also simply replying to the idea that the officer was under some different rules. Technically, he was.

            1. Here's the rule in the US:

              Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others,

              Which is functionally identical to the rule allowing mere subjects to defend themselves.

        2. Yes it is certainly reasonable to hold police to a lower standard of behavior when judging violent episodes.

        3. It's self defense or it's not self defense. Doesn't matter what costume the person is wearing.

        4. I disagree. The expectation is not that each and every police officer will shoot at least once in the course of their careers. They aren't given weapons in order to find a situation in which to use them. The weapons issued to police are supposed to be used in self-defense or in the defense of others, and in that regard aren't ultimately any different than what a weapon in the hand of a non-cop is intended for within the scope of the 2A and what most people who come here will see as a pretty much universal right.

          Also, at the risk of nitpicking, cops are private citizens.

    2. Unless I missed something, there's also a pretty big gap in explaining why Brown turned around. After the struggle at the car, Brown is an unarmed man who turns and runs away from a cop who had just fired a shot. Then, he suddenly decides to turn around and charge (slowly walk) at the cop who was surely pointing the gun at him. Obviously this must be due to reefer madness.

      Also, the same physical evidence that is consistent with Wilson's story that Brown tried to take control of his gun would also be consistent with Brown reacting in self-defense to having a gun pointed at him and trying to push it away.

      As RC says, probably not enough to convict. But, it is the kind of benefit-of-the-doubt that would not be afforded to anyone other than a cop.

      1. Unless I missed something, there's also a pretty big gap in explaining why Brown turned around.

        I'd caution against applying the rational actor test to a physically imposing 18 year old male, no matter the race or circumstance.

        1. Stupidity is always an option.

        2. That argument always cracks me up. Do these people not realize they're making an argument against the existence of most crime?

          1. Please note that you are not relying on the shooters testimony for the "he turned and charged" narrative as there are more than a half dozen coroborating witnesses and the physical evidence supporting that story as well.

            1. Perhaps I was unclear.

              "there's also a pretty big gap in explaining why Brown turned around."

              This "explaining why" business, if taken to it's logical conclusion, argues that most crime never happened.

              Your honor, I know you think you see my client on video knocking over that liquor store. But can you explain why? Surely my client is aware that a minimum wage job without the possibility of a prison sentence has more utils than an armed robbery.

              1. The avoidance of ever bringing up paranoid psychosis on Brown's part is strange. He was at exactly the right age to have a 'first break' of psychosis. What if he was having paranoia, delusions or hallucinations that made him think the officer was an imminent threat, and it was either 'him or me' and he was attacking to survive?

                Not saying this was the case, but I'm surprised it really hasn't been brought up as a possibility. It goes against the narrative, of course, so it may have been suggested and quickly squelched.

                1. Thats some serious mental gymnastics to avoid the logical conclusion that the punk had it coming. But hey, go nuts.

    3. "The fact that Brown did not show any injuries consistent with doing a faceplant on the pavement at a full run."

      Actually Brown did show injuries that were consistent with him charging towards Wilson. Mentioned on page page 20 of the DOJ report in the third paragraph.

      "Brown also sustained abrasions to the right side of the head and face, including abrasions near the right forehead, the lateral right face, and the upper right cheek, consistent with Brown falling and impacting the ground with his face. The private forensic pathologist opined that the severity of these abrasions could have been caused by involuntary seizures as Brown died. He also opined, as did the SLCME pathologist, that these abrasions were consistent with Brown impacting the ground upon death and sliding on the roadway due to the momentum from quickly moving forward"

      1. Interesting. That's what you get for relying on secondary rather than primary sources.

        1. I strongly recommend reading the full DOJ report on the shooting. It gives valid and detailed reasons as ro why the shooting was justified. It explains every supposed inconsistency, examines all physical evidence and witness testimony from both sides in a clear and organized manner.

  4. "The question is what can be done to make local decisions about whether to prosecute police officers for excessive use of force as credible as the DOJ report."

    Inquest juries whenever someone is killed by a cop, or dies in custody.

    Montana does this. Inquests are public. And in that one case where Reason criticized an inquest jury, the jury seems to have had some reason to exonerate the cop.


  5. Obama is on NPR, and his speech about Ferguson seems "blacker" than usual.

    And there's a correspondent for "Urban" radio saying Obama should apologize for slavery.

    1. It seems no previous President has issued an apology. Unless you count Lincoln's Second Inaugural.

  6. my friend's sister-in-law makes $63 /hour on the internet . She has been fired from work for 6 months but last month her payment was $16955 just working on the internet for a few hours. go to the website.......

    ????? http://www.netjob70.com

    1. I am not confident that this is a legit offer, Marsha.

  7. The sad reality is that SJWs see this case and the OU frat chant as related: evidence of a broad American culture that is irredeemibly racist towards blacks to the point where the hostility leads to outright murder of blacks by whites without consequence.

    The sadder reality is that these stories are connected, but in a way that is largely uncomfortable for people to discuss. The attitudes of OU frat bruhs towards blacks have been shaped by the culture of inner city black America and events like Michael Brown's dumbass decision to attack a cop and the rioting and wide embrace of an oversized thug that was commonplace in the black community following his death.

    That's not to condone the attitudes of the Oklahoma SAE house, far from it. Every individual should be view as an individual and treated independent of whatever group identity affiliations he demonstrates. But it's also willfully ignorant to pretend that disparities in behavior don't exist among various groups. The problem with the frat bruhs is that they viewed the wider cultural issues in the black community as a template they could impose on every member of that race.

    1. I was having a conversation with a person of color who commented on the idea that you can't treat a black man like a criminal because there are other black men who are criminals. Similarly, I'd say you can't treat a white man like a racist because there are other white men who are racist.

  8. my friend's sister-in-law makes $63 /hour on the internet . She has been fired from work for 6 months but last month her payment was $16955 just working on the internet for a few hours. go to the website.......

    ????? http://www.netjob70.com

  9. Ive come to two conclusions re: wilson - there was not enough evidence to convict wilson of murder AND the criminal justice system is completely flawed in ferguson for a whole host of reasons. the handling of this case by the local prosecutor was so bungled that it is difficult to come away from this situation without the suspicion that even if Wilson had murdered Brown, he would have gotten off the hook.

    1. I also think its a shame that the media and the public latch on to cases like this one - that arent neccesarily representative of the social problems that SJW's believe them to be. Problems do exist with police violence, and there are many, many very clear cut cases of it that havent receieved 1/10th the exposure this case got.

    2. the handling of this case by the local prosecutor was so bungled that it is difficult to come away from this situation without the suspicion that even if Wilson had murdered Brown

      I'll disagree on this point. I don't think the prosecutor "bungled" the case, although he certainly didn't proceed with the grand jury proceedings the way he was supposed to. He presented a sort of balanced perspective of the situation in the grand jury proceedings even while no exculpatory evidence is supposed to be presented at such proceedings.

      But his hand was kinda forced. He had to take the case to a grand jury for PR reasons even in a situation where he believed the evidence did not make a compelling case to do so. As a result, he made a mockery of the GJ process by presenting evidence exculpatory to the defendant (Officer Wilson) in order to avoid what he thought the greater injustice of Wilson being forced to go through the time and expense of criminal prosecution.

      That's not bungled per se, as the DA knew what he was doing. He was forced to convene a GJ not based on evidentiary findings but rather based on political pressure and to quell rioting. He then deliberately mishandled (as opposed to bungled) the GJ to mitigate his decision to convene the GJ in the first place.

      1. Malice, rather than incompetence?

        I can go with that.

        1. Yes, malice. Although to be more precise: malicious prosecution.

          The DA did not believe the actions of Darren Wilson rose to the level of criminal wrongdoing but proceeded to convene a grand jury as the only way to satiate the violent mob actually engaged in criminal wrongdoing. He proceeded to present exculpatory evidence to the GJ, contrary to the GJ procedure, in order to pay penance for the legally and ethically dubious decision to convene the GJ in the first place.

          Funny how rights of the accused gets such short shrift when the accused wears a badge.

          1. Funny how rights of the accused gets such short shrift when the accused wears a badge.

            I didn't even know any of us had the right to avoid a grand jury in the first place!

            The problem is that, while your explanation is compelling, it doesn't disprove special treatment because Wilson wore a badge. It's a bad example, really, to draw any generalizations from, either way.

  10. They keep trying to make it about race instead of police behavior in general. So they keep picking the wrong cases to get outraged about.

    1. That's because most people naively trust the police, so they assume it must be some racist bad apples, not a culture of depraved indifference.

      1. I think its because the legacy media complex is invested in yet another one of their narratives, and only goes with stories that fit the template.

        1. We need something like a science of journalism, with ethics that begin and end with finding objective truth.

    2. Well, race hustlers like Sharpton make a big deal about situations like this, where the shooting was justified, because they know it's controversial. As soon as someone says, "Well, wait a minute, maybe the victim was black AND in the wrong," they can immediately cry racism and the Progs and SJWs can wring hands and lose their minds.

      Note how little traction the 12-year-old with a BB gun who was shot and killed by police got. The guy in Brooklyn who was shot in cold blood for entering a stairwell at the same time as a jumpy cop. The kid in Arizona (or OK, maybe, out west somewhere) who got shot by a cop for carrying a BB gun in a field. The guy who got shot in Wal-Mart. None of these victims were white, and the shooters in question were either white or, in the Brooklyn case, Asian.

      Why? Surely race should be an issue in those cases as well. The key difference is that these are situations involving an unambiguously sympathetic victim.

  11. "I assume McCulloch reached the same conclusion, which is why he decided not to prosecute Brown."

    Jacob, I think you meant to write Wilson instead of Brown here.

  12. Think of all the actual cases of police brutality that could have been given ample spotlight had this not happened. Sigh.

    I hope that Brown is resting in peace, but based on all the evidence I have found, I don't think that this was an example of a cop going on a murderous rampage.

    1. You hope he's resting in peace, I hope that he's toiling in the fires of Gehenna.

      We'll both have to settle for the reality of the situation: He's decomposing.

  13. The DOJ report is informative, but it would have better served justice if they had not waited to get more dirt on the whole department before releasing it. If they had come out as soon as possible with this result and had Holder and Obama deliver the message much harm could have been avoided.

    Because he was out in front during the "rile them up" phase,Obama should make a strong and personal statement backing this guy's innocence. Ain't gonna happen, but it should.

  14. Wilson did not change his testimony about the convenience store robbery. As the DOJ report states, he knew about the robbery and recordings of the radio traffic confirm that he even asked the officers involved if they needed any help. People who state otherwise are confusing Wilson's two comments regarding his encounters with the two young men. He initially confronted them b/c they were walking down the middle of the road, blocking traffic. Only as he was driving away from that first encounter did he make the connection between the attire of Brown and the description from the robbery and back up for the second encounter.

    Also, the autopsy report does indicate abrasions to Brown's forehead, face and upper right cheek " consistent with Brown falling and impacting the ground with his face." You also seem to be assuming Brown must have been moving full speed when he fell, but after sustaining seven gun shot wounds, he may have been moving much slower when the eighth (and fatal) wound was delivered.

  15. Hands up Jacob! Time to turn yourself in for being wrong way back when.

  16. Wilson patrols the streets not to keep himself alive, but to keep Brown alive. Wilson acts super-aggressively toward Brown -- essentially picks a fight with him -- and before you know it Brown lies on the pavement with a bullet through his head. Wilson acted like a bully from the beginning of the encounter right through to the end of it. When one person has a gun and uses it, while the other person does not, you know how the fight will end.

    One can argue about the legal requirements for conviction when a police officer shoots someone, but Ferguson residents did not go into the streets to make legal arguments. They went into the streets because police officers in Ferguson mistreat black people. They mistreat black people even after they have killed them, leaving Brown to lie in the street for hours after he died.

    Yes, we are a legalistic culture, but this case does not turn on whether the evidence supports a conviction for Darren Wilson. This case turns on whether police officers in Ferguson treat black people with dignity and respect. Not one black resident of Ferguson believes that if Wilson had treated Brown as he deserved to be treated, Brown would be dead today.

    1. Are you a total idiot? I'm not a fan of the cops, but Goddamn, this was not some misunderstanding. i don't think you have the lightest concept of what kind of vicious punk this kid was, or what really transpired. If you want a clue, watch the video footage of that poor disrespected young fellow knocking the shit out of the convenience store clerk while he was stealing.

      I'm sure he was just as delightful to deal with when Wilson confronted about getting his ass out of the middle of the road. And probably with more restraint than I would have had. Every time i see some young punk strutting down the middle of the road on foot like that I just want to beat the holy shit out of them.

  17. Police officers are trained to deescalate conflict, not escalate it to the point where an officer feels he needs to draw his weapon in self defense. From the first words Wilson spoke to Brown - "Get the f**k off the street!" - to the moment he put a bullet through Brown's head, Wilson escalated the confrontation. Nothing justifies the way he acted.

    Nevertheless, policemen still treat their motto -- to serve and protect -- as if it were an inside joke. Someone even said that he had never heard those words used in the presence of police officers, when the officers didn't guffaw. Some inside joke. Meantime, officers with guns are running amok, shooting a twelve-year-old boy in Cleveland, strangling a large man in broad daylight in New York City, gunning down a Mexican national in Seattle with one shot after another as he tries to run away. Michael Brown's is one case out of dozens. Police have started to use deadly force against unarmed victims every time you look up. Legalistic arguments must not obscure the plain evidence in front of us: police have become a threat to people who are poor, to people whose skin is not white, to people who do not speak English well, and for that matter, to anyone the police do not like.

  18. "Wilson did nothing wrong. But the entire Ferguson department is racist so we'll be removing the chief and probably disbanding the whole department so we can create a new department made up entirely of black officers only."

    Still trying to figure out how the police are racists for pulling over black people in a 70%+ black city. Of course you're going to pull over more black people if black people are the clear majority in town. But whatever, I don't doubt there are problems in the department just as there are in basically every department in America. I'm no cop defender, but I find it funny the Justice Department gets so involved here in a case with no video evidence, but declines to investigate NYPD when those guys have clear video of officers strangling people to death over minor offenses.

    1. Or the piss poor NYPD firearms training exposed by the stairwell shooting. If any case would have been a good case to highlight police problems that case was it.

  19. Sharpton, Holder, Obama and all the other outsiders who jumped in the middle of the fray knew this was true from day one. Everyone of them should be held financially responsible for the property destruction that occurred in Ferguson. We just saw the exact same thing happen in Madison, but not one of them has traveled there and started making unfounded accusations, why? Simple, the results of their interference in Ferguson will not be permitted by the public and so there is no political gain for them. Ferguson was not about Michael Brown or Darren Wilson, but was about the racial politics of the Progressive left, period.

  20. Where is the justice for the true victim in Ferguson, Darren Wilson.

    Even an apology from Holder, Sharpton, Obama?

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