Making Murder "Reasonable": How the Ferguson PD Will Whitewash the Killing of Michael E. Brown (UPDATE, August 15)

NOTE: In addition to the postscript at the bottom of the page, look for additional updates in the blog section of www.LewRockwell.com.

Edward Garner was unarmed when he was shot in the back of the head by Memphis Police Officer Elton Hymon. At the time, the short, slightly built teenager was scaling a fence attempting to flee. Hymon knew the suspect was unarmed, and that the only threat he posed was one of escape. When Garner’s lifeless body was searched later, all that was found was ten dollars he had stolen from a nearby house.

At the time, Tennessee state law dictated that a police officer confronting a resisting or fleeing suspect “may use all the necessary means to effect the arrest” even when the suspect didn’t pose a threat to others. Garner’s father filed a federal civil rights suit against the Memphis PD that took eleven years to reach the US Supreme Court, which ruled that even where there is “probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” 

While the Tennessee v. Garner ruling effectively repealed what was called the “Any-Felony Rule” regarding deadly force, and apparently contributed to a reduction in police homicides, it didn’t create an objective or uniform standard for police conduct. As one scholarly examination of the ruling and its impact summarized, “the creation or modification of laws has never effectively modified police behavior.” Officers still enjoy broad discretion regarding the use of deadly force, as long as they can contrive some way to describe their decisions as the course of action a “reasonable officer” would follow in the circumstances as he perceived them. 

What this means is that any use of deadly force is “reasonable” if the subjective perceptions of the officer lead him to believe he is threatened, and courts have traditionally been disinclined to “second-guess” those actions. This arrangement, in which the latitude enjoyed by police in using deadly force is defined by the timidity and dishonesty of the officer, is called the "objective reasonableness” standard. 

The shooting of Edward Garner happened almost exactly forty years before last Saturday’s execution-style killing of 18-year-old Michael Brown by a police officer in Ferguson, Missouri. Like Garner, Brown was a teenager fleeing from a police officer. In the more recent case, however, there was no evidence that the fugitive had actually committed a criminal offense, and no reason to believe that he had done anything to merit the attention of the officer who killed him. 

Officer Hymon was responding to a report that a prowler was in the neighborhood long after sunset, and on the available evidence it’s clear that Garner had committed a burglary. By way of contrast, the still-unidentified officer who shot Michael Brown accosted the victim and his friend, Dorian Johnson, on an uncluttered street in a quiet neighborhood on a previously uneventful Saturday afternoon.  

Neither of the young men was doing anything suspicious to justify a police “contact,” so the officer synthesized one out of the ether: According to Johnson, as the cop drove by he bellowed at the pedestrians to “get the f**k on the sidewalk.”  

Johnson, displaying immeasurably more civility than the armed functionary supposedly there to protect and serve him, politely explained that he was only a few hundred feet from his home. He recalls that the officer took offense, slammed on his brakes, threw his vehicle into reverse — nearly hitting the pedestrians -- and growled, “What’d you say?” 

According to Johnson’s account, the cop began to exit his vehicle, but his door slammed into Brown. At roughly the same time, the uniformed assailant grabbed the terrified 18-year-old by his neck. As Brown tried to escape, Johnson testifies, the officer repeatedly sneered, “I’m gonna shoot you.” 

A moment later, the first of several gunshots was heard. Brown, who may have been grazed by the round, turned to flee, and Johnson quickly joined him. The officer fired a second shot at the fleeing victims, hitting Brown, who fell to the ground with his hands in the air, pleading: “I don’t have a gun — stop shooting!” The assailant fired several more shots, killing the unarmed teenager outside an apartment complex. His body was left about 35 feet from the vehicle, surrounded by empty casings from the officer’s gun. Brown was unarmed.

The narrative peddled by St. Louis County Police Chief Jon Bermar, interestingly, confirms critical elements of Johnson’s testimony, while eliding over critical and uncontested details. Bermar described the event as an “encounter” between the officer and “two individuals in the street. 

In fact, one of those individuals … allegedly pushed the police officer back into the car where he physically assaulted the police officer. It is our understanding at this point in the investigation that within the police car there was a struggle over the officer’s weapon. There was at least one shot fired within the car, After that officer … came back out of the car, he exited his vehicle, and there was a shooting that occurred where the officer in fact shot the suspect, and … they were fatal injuries.” 

The Chief did not explain how an “encounter” escalated to a situation in which Brown supposedly “pushed the police officer back into the car.” This omission is intended to convey the impression that an 18-year-old black male simply attacked an unassuming police officer out of irrepressible malice.

Johnson’s version, on the other hand, depicts a police officer trolling for trouble. That characterization is facially credible, owing to what is known about the institutional character of law enforcement. Additionally, that testimony – unlike the shooter’s account -- was offered first-hand, in public, by a witness who is not afraid to be known by both his name and his face.

Furthermore, Johnson’s claim that the officer was forced back into his seat after slamming the driver’s side door into Brown would explain how he was “pushed … back into the car” without being shoved into the vehicle by the victim. Johnson’s claim that the officer threatened to shoot Brown would both explain why a “struggle” over the gun would have occurred, and justify any action the victim took to defend himself. There is no dispute that Brown was unarmed and attempting to surrender when he was fatally shot.

Immediately after the killing, the officer who shot Brown was placed on paid vacation and sheltered within a security cocoon. More importantly, he sought refuge in his supposed rights as defined by the “Garrity rule,” under which he cannot face criminal or civil prosecution on the basis of anything he discloses to police investigators.

Assuming that standard protocols are being followed, the officer is being advised by both his union representative and defense counsel, and his narrative is being tailored to fit the standard adumbrated in the Garner ruling. In fact, the story retailed by Chief Bermar – which could be little more than a carefully cropped version of Johnson’s testimony – is, most likely, very close to the final draft of what will become the Official Version.

It must be understood that “reasonableness” in this context isn’t defined by the discoverable facts of a police shooting, but by the subjective perceptions of a privileged functionary who has been indoctrinated to see the public as an undifferentiated threat, whose primary concern is his personal safety, and who is insulated by “qualified immunity” from the moral and legal consequences of his criminal aggression.

For this reason it is not only possible, but likely, that the Ferguson PD will essentially concede the accuracy of Dorian Johnson’s recollection, while insisting that the conduct described by that witness (and others on the scene) is appropriate under the “reasonable officer” standard. 

It wouldn’t matter how the “encounter” began, or whether the officer was acting on “reasonable suspicion” when he snarled a profane directive at the two inoffensive young men. Once the officer had decided to favor them with his attention, they were subject to his will, and could be detained, abused, or killed at his discretion – and his judgment is not subject to review by sublunary beings not clad in the vestments of the state’s punitive caste.

If (more likely, “when”) this version of events is officially ratified, the department will praise itself for its “professionalism”; the victim’s family will file a lawsuit that will eventually be settled by the city’s insurance carrier; and the long-suffering black residents of Ferguson will resume their lives under what amounts to a low-grade military occupation. 

                    UPDATE: "Any Felony Rule," Velvet Gloves for the Iron Fist

Ferguson Police Chief Thomas Jackson, in a press conference notable for its brevity, identified the officer who shot Michael Brown as Darren Wilson, a six-year veteran of his department. Information distributed to the media included reports suggesting that Brown was a suspect in a strong-arm robbery of a package of cigars at a local convenience store. Still photographs, reportedly of the incident in the local Ferguson Market*, show a large young man resembling Brown involved in what appeared to be an assault on a much smaller individual in the store.

If Brown was a suspect in a crime of that kind, this case would have uncanny similarities to the 1974 incident in which another teenaged suspect, Edward Garner, was fatally shot while attempting to flee from a Memphis police officer following a burglary. As noted previously, that case went before the Supreme Court a decade later, resulting in the 1985 Tennessee v. Garner ruling, in which the Court held that "The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” This was a rejection of the "Any Felony Rule" under which officers in many states, including Tennessee, were authorized to use deadly force to stop a fleeing or resisting suspect.

The "Any Felony Rule," it should be pointed out, didn't enjoy universal approval, even in the supposedly barbarous 19th Century. In an 1858 editorial, the New York Times expressed alarm over the promiscuous use of lethal force by officers of the newly created NYPD against fleeing suspects: “The pistols are not used in self-defense, but to stop the men who are running away. They are considered substitutes for swift feet and long arms… [W]e doubt the propriety of employing them for such a purpose. A Policeman has no right to shoot a man for running away from him.”

The paper's editorial board expressed concerns about “the policy of arming our Policemen with revolvers.”  Today, of course, the thoroughly militarized NYPD is, as former Mayor Michael Bloomberg boasted a few years ago, the seventh-largest army in the world.

Disclosure of Officer Wilson's name will increase public pressure for a criminal investigation into the shooting. However, there is still abundant reason to believe that the likely outcome of this matter will be a finding that Wilson -- owing to his perception of the situation -- acted justifiably under the "reasonable officer" standard. This may be complicated somewhat by eyewitness accounts that Brown was surrendering at the time he was fatally shot.

Chief Jackson claims that Wilson was "injured" in the reported struggle with Brown, and that he received treatment at a nearby hospital. No explanation has been provided for the fact that Brown, after being shot at a distance of about 35 feet from Wilson's patrol vehicle, was left face-down in the street and received no medical attention. His lifeless body was eventually carried away in the back of an SUV



Following several nights of protests and counter-insurgency warfare by the Ferguson PD, Missouri Governor Jay Nixon removed the Goon Squad and placed the Highway Patrol in charge of "public safety" in the city. The on-scene commander is Captain Ron Johnson, an African-American who was born and raised in the area.

One "emerging lesson" from Ferguson, apparently, is that after authorities employ the Iron Fist, they should quickly deploy people dressed in velvet gloves. Successful counter-insurgency operations, after all, require an effort to "win the hearts and minds" of the targeted population.
__
*I originally mis-identified the store where the robbery took place. My thanks to a reader for the correction.

Click here to listen to, or download, the most recent Freedom Zealot Podcast.

Please follow me on Twitter.

If you can, please donate to help keep Pro Libertate on-line. Thank you!

Dum spiro, pugno!