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What charges could the Michael Brown grand jury consider, if they choose to indict?


A St. Louis County grand jury is considering whether or not to charge Officer Darren Wilson in the shooting of Michael Brown. While we don't yet have all the specific facts in the case, it is possible to look in detail at the governing Missouri state law. While I blogged on this issue back in August, it may be useful to review the law again as the grand jury deliberates.

Under Missouri law, the most serious possible charge is first-degree murder. The relevant statute provides that "[a] person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter." This charge seems quite improbable, even accepting the version of the facts most favorable to Brown's supporters, because it would be difficult to show that the officer deliberated before killing Brown. Such facts as have emerged suggest a very "brief encounter," as developed in this St. Louis Post-Dispatch analysis of Wilson's radio logs.

This leads, then, to second-degree murder which, as relevant here, applies where a person "[k]nowingly causes the death of another person . . . ." To act "knowingly" means to act in a way that producing a result (here, death) is almost certain. So Wilson seems to have knowingly shot and killed Brown. Would this automatically be second-degree murder?

Of course not, because not every police killing is second-degree murder. Police are authorized to use force in appropriate situations. Missouri has a broad statute authorizing police officers to use force when making arrests, including deadly force. The statute provides (in relevant part):

3. 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; or
(b) Is attempting to escape by use of a deadly weapon; or
(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.

This statute is patently unconstitutional, at least to the extent that it purports to authorize deadly force to apprehend any fleeing felon regardless of the danger of that felon. While interesting issues can arise about the extent to which a criminal defendant can rely on an unconstitutional statute, my sense (without having researched the issue in detail) is that the statute will be construed to authorize deadly force only to the extent consistent with the Supreme Court's decision in Tennessee v. Garner, that is, deadly force is permissible when the fleeing suspect posed "a threat of serious physical harm, either to the officer or to others." (Several days ago, a 15-member commission was sworn in to investigate possible reforms in the wake of the shooting—fixing this statute seems like one obvious recommendation.)

Robert VerBruggen at RealClearPolicy has helpfully tracked down the current Missouri jury instruction on deadly force by law enforcement. It took a bit of legwork because the Missouri judiciary does not make its jury instructions available to the public online. Other states, such as my home state of Utah, make their jury instructions readily available. Given that jury instructions can effectively have the force of law (as this case illustrates) and given the tremendous public interest in issues such as the circumstances under which police can use deadly force, perhaps the 15-member commission might also recommend that the Missouri court system move its jury instructions from behind an expensive paywall and to a publicly-accessible platform.

The current Missouri jury instruction on deadly force provides:

A law enforcement officer is justified in using deadly force to effect an arrest and such use of deadly force is lawful if:

First, the law enforcement officer is making or attempting to make a lawful arrest or what he reasonably believed to be a lawful arrest and the law enforcement officer reasonably believed that the use of force was necessary to effect the arrest or to prevent the escape of the offender, and

Second, the law enforcement officer reasonably believed that he offender was attempting to escape by the use of a deadly weapon or would endanger life or inflict serious physical injury unless arrested without delay, and the law enforcement officer reasonably believed that the use of deadly force was immediately necessary to effect the arrest of the offender.

Notice that the statute allows deadly force only when "immediately necessary" to effect an arrest. If Brown had his hands up and was clearly and obviously attempting to surrender, then deadly force would not be justified, and the shooting would be second-degree murder.

Notice further that the statute also provides a defense where the officer has a "reasonable belief" that certain facts exist—that would seem to provide a defense where the officer reasonably, but mistakenly, believed that he was facing a threat of serious physical harm. This is consistent with case law in the deadly force area that tends to give the officers some leeway, such as the Supreme Court decision in Graham v. Connor which held that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." In combination, the Graham decision and the Garner decision give police officers some leeway in making the assessment of when to use deadly force, as this Washington Post article summarizes. Missouri law also makes clear that the police officer has no "duty to retreat" when attempting to make an arrest. The deadly force statute specifically provides that "[a] law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he or she reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee."

So, if justification exists (and I set to one side the issue of who bears the burden of proof on the issue and by what standard), then even though an intentional killing has occurred, no crime has been committed. But what about an intermediate case, such as where an officer acts in what he thinks is a need for self-defense but misjudges the need to use deadly force? In that situation, Missouri law (like other states around the country) recognizes a mitigation described as "imperfect self-defense." This reduces a crime that would otherwise be murder down to involuntary manslaughter. See, e.g., State v. Frost, 49 S.W.3d 212, 220-21 (Mo. Ct. App. 2001). In situations where the officer acted recklessly, the crime would be a Class C felony. In situations where the officer acted with criminal negligence, the crime would be a Class D felony.

There are three other possibilities for state criminal charges. What if Wilson got into a fight with Brown and then, enraged by the mutual combat, shot him? That would not be second-degree murder but, instead, would be reduced to the crime of voluntary manslaughter. This would be a situation where the officer would have acted "under influence of sudden passion," a long-standing legal theory that Eugene Volokh discussed at length on Thursday.

The final possible charge is involuntary manslaughter. Let's assume that Wilson recklessly caused the death of Brown. If so, he has committed the crime of first degree involuntary manslaughter, a Class C felony. My sense is that this is not a likely charge. Everyone seems to agree that Wilson intentionally or knowingly caused death. Recklessly causing death applies in situations where a person is aware of a risk of death, and chooses to move forward with risky conduct. A classic example is a person who speeds in his car through a city street, striking a pedestrian. Wilson was not risking the death of Brown, he was trying to cause of the death of Brown. Recklessness in assessing the need to use force would probably be better analyzed under the imperfect self-defense provision recounted above.

Second degree manslaughter in Missouri involves someone who causes death with criminal negligence and is a Class D felony. Here again, I'm not sure that this really fits the facts, as Wilson did not negligently cause death. Instead, criminal negligence in assessing the need to use force would be considered under the imperfect self-defense statute above.

These are the possible state law charges. All of these charges involve a victim—Brown. I have explained earlier that, under Missouri's crime victims' rights statute, Brown should be regarded as a victim, and his representative (e.g., his parents) should be afforded certain rights, such as the right to be informed of the status of the case.

A federal investigation is also ongoing in the case, although (as I have argued earlier) federal charges would be more difficult to file in this situation than state charges.

Now, what to make of all these possibilities? It should be useful for everyone interested in this case to understand the details of the Missouri criminal code. With an understanding of the criminal code in mind, it will then be possible as grand jury testimony is released (as appears likely) to make an informed judgment about whether the grand jury appropriately approved or failed to approve the filing of criminal charges.

What the Missouri statutes make clear is that proving a crime in the Brown shooting will require close attention to the details, particularly details about Wilson's state of mind. Even if he made a mistake in shooting, that will not be enough to support criminal charges so long as his mistake was reasonable—a determination in which the officer will receive some benefit of the doubt because of the split-second judgments that he had to make. And, of course, if it turns out that Brown was in fact charging directly toward the officer (as some reports have suggested), the officer's actions will likely have been justified under state law, and no charges should be filed. Trial lawyers know that one thing above all else decides criminal cases: the facts. And, unlike the rest of us, the 12 members of the grand jury uniquely have access to those facts.