THE BLOG
11/26/2014 10:56 am ET Updated Jan 26, 2015

Self-defense Claim Remains Big Hurdle for Feds in Brown Killing

St. Louis County Prosecuting Attorney's office

Despite a St. Louis County's grand jury's controversial decision not to indict Ferguson, Missouri, Police Officer Darren Wilson, 28, on any state charges for the tragic shooting death of Michael Brown, 18, the United States Department of Justice is still free to undertake the formidable task of pursuing harder to prove charges under federal law. The death of the unarmed teenager has prompted a renewed national debate about police use of deadly force in communities of color, as well as on how such cases are prosecuted.

President Obama spoke in a national address on split television screens, as Missouri protests turned violent:

First and foremost, we are a nation built on the rule of law. And so we need to accept that this decision was the grand jury's to make. There are Americans who agree with it, and there are Americans who are deeply disappointed, even angry. It's an understandable reaction.

Shortly after the decision Monday night, outgoing Attorney General Eric Holder wrote:

While the grand jury proceeding in St. Louis County has concluded, the Justice Department's investigation into the shooting of Michael Brown remains ongoing. Though we have shared information with local prosecutors during the course of our investigation, the federal inquiry has been independent of the local one from the start, and remains so now. Even at this mature stage of the investigation, we have avoided prejudging any of the evidence.

Following the decision, mostly peaceful protests broke out in major cities throughout the nation. Locally, however, arson and looting left over 20 businesses in ruins, 23 injured, and 82 arrested on Monday night alone. The chaos spread despite pleas for peace by Michael Brown's parents, athletes and prominent community and civil rights leaders. However, outside the Ferguson Police Department Monday night after Brown's grief-stricken mother, Lesley McSpadden collapsed into tears, his stepfather Louis Head chanted "Burn the bitch down."

"I think he was expressing a sentiment that a lot of folks in that crowd felt and when he said those words, the mood did change and things got a little bit out of control," Antonio French, a St. Louis alderman, told CNN. Criticism of Head, the limited law enforcement response and the decision to release the grand jury decision after nightfall spread across the Internet.

On Tuesday, civil rights leaders renewed their calls for nonviolence, but also blasted the "flawed" manner by which the grand jury proceeded. The criticisms come against a backdrop of other recent high profile fatal confrontations between police and unarmed black males, the release of an October ProPublica analysis of 2010-2012 national data showing that African-Americans age 15-19 were 21 times more likely to be killed by police than whites and accusations that the Ferguson police department discriminated against blacks.

Decision Prompts Criticism

On Good Morning America Brown family lawyer Benjamin Crump proclaimed, "The system needs to be indicted." Crump and others blasted St. Louis County District Attorney Robert McCullough for overwhelming the jury with unnecessary witnesses, failing to make a charging recommendation, leaks, and the way Officer Wilson's testimony was handled. There was only one follow up question to Wilson by a juror and no cross examination by prosecutors. Legal analyst Sonny Hostin noted, "When a prosecutor has a prospective target, a suspect, a defendant -- a prospective defendant -- inside of the grand jury, that's the prosecutor's chance to cross-examine that person. These prosecutors treated Darren Wilson with such kid gloves." One of the most debated issues about the case was the prosecutor's presentation of exculpatory evidence at the grand jury stage, something neither the Supreme Court, nor Missouri law requires, although it is done in some other places, like California and New York City.

Others Defend Process

Others, like Rudy Giuliani, the former New York mayor and federal prosecutor, vehemently disagreed stating, "I believe it was a correct verdict." Conservative legal scholar Bruce Fein said, "This is due process at its finest, in contrast to the vigilante justice for which some protestors were clamoring." Another prosecutor with decades of experience, who asked not to be named, went even further, "I think the real travesty here is what happened to this officer. A man who spent his whole career trying to protect the public, who now has to spend the rest of his life looking over his shoulder for a fringe element of vigilante justice [seekers]." The prosecutor further stated:

I prosecute police officers.... Bad police officers have to be ferreted out with greater fervor. Its imperative to punish bad officers who have criminally misbehaved, that is not the case here....I am not supposed to file a case unless I believe in my heart of hearts that I can prove the case beyond a reasonable doubt before a jury. You don't file a case just for political reasons, you just don't do it, even if you think you can get it past a grand jury or a magistrate at the probable cause stage.

Grand Jury Controversy Preceded Its Decision

St. Louis County District Attorney Robert P. McCulloch convened a 12-member grand jury earlier this year to determine whether probable cause existed to charge Officer Wilson under state murder or manslaughter statutes. Probable cause, required under the Fourth Amendment for searches and arrests, exists when there is a reasonable basis for believing a crime was committed. The standard for a criminal conviction after a trial is much higher: beyond a reasonable doubt.

Some members in the community and over a dozen lawmakers objected to Mr. McCulloch's involvement in the case and unsuccessfully urged Governor Jay Nixon to remove him. Critics point to such things as Mr. McCulloch's previous actions and statements in suspected excessive force cases, the lack of diversity of his staff, his police officer father's death at the hands of an African-American assailant, and the distrust some in the African-American community have for him, despite his election to office four times.

The twelve-person grand jury, which was constituted before the shooting, consisted of three African-Americans and nine whites. Over the last few months the grand jury, which operates in secret, met for 25 days, hearing over 70 hours of testimony of 60 witnesses, including Officer Wilson. Wilson is allowed, but not required, to testify under state law.

Missouri Homicide Law

Under Missouri law, unlawful homicides are most commonly charged as murder and manslaughter. First degree murder, punishable by death, is when someone "knowingly causes the death of another person after deliberation upon the matter." Deliberation, however, can take place over a very short time. Second-degree murder is slightly different allowing for more circumstances. In Missouri second-degree murder occurs when one "knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person" or when in the commission, attempt or escape from any felony a death results.

Manslaughter, either voluntary or involuntary, is a lesser felony than that punishes unlawful killing that do not rise to the level of murder. Manslaughter punishes killings that result from recklessness, negligence, or heat of passion. Heat of passion refers to an immediate rage provoked by a victim that interferes with a defendant's ability to think clearly and control himself.
Under the legal doctrine of self defense, one is able to use deadly force in certain circumstances. The model penal code, a non-binding guide for legislatures, allows for the use of deadly when one reasonably believes it necessary to protect themselves or a third party from death, serious bodily injury, rape, or kidnapping.

Deadly Force Justified in Limited Circumstances

In Missouri police may use deadly force when they reasonably believe it is immediately necessary to effect an arrest and also reasonably believe the threat by another may "endanger life or inflict serious physical injury unless" the suspect is arrested without delay. This reasonableness standard is based on what a reasonable officer under similar circumstances would do. In general, relevant factors include the presence of a deadly weapon, the distance between the parties, direction of movement of the suspect, size disparities, the crime involved, or other facts or behaviors that create a reasonable apprehension of serious bodily injury or death to the officer or a third party. Even if a perpetrator committed a violent crime, police may not use deadly force once the suspect ceases to be a threat. In Tennessee v. Garner, the United States Supreme court in 1985 ruled that police may not shoot a nonviolent fleeing felon. However, if Michael Brown was no longer fleeing, but charging the officer from a short distance the Garner would not necessarily apply.

For an indictment to be issued in Missouri, a true bill must be approved by at least nine members of the grand jury with a finding of probable cause that a crime was committed. The 6-foot-4-inch, 210-pound Wilson, who sustained bruises to the head, testified that he was acting in self defense when he shot the 6-foot-4-inch, 292-pound teenager. Wilson fired a total of 12 shots, commencing while he was still in his vehicle during what he said was a struggle for his gun. A total of at least six shots struck the unarmed teenager, with the fatal one to the front of the head, taking place after the officer gave chase on foot with the two facing each other. Eyewitness testimony was at times in conflict about whether or not Michael Brown was surrendering or charging. Wilson calmly and methodically told ABC News that he was struck in the face early in the confrontation. Blood evidence in the police vehicle and on the street corroborated some of Wilson's story, but much remained ambiguous. Brown was eight to 12 feet away from the officer when he finally fell, but accounts differ about both the beginning and end of the confrontation.

Federal Law Sets Additional Requirements For Prosecution

Any attempted federal prosecution of Officer Wilson would come under "Deprivation of Civil Rights Under Color of Law," 18 U.S.C. 242. The post civil war statute punishes civil rights violations by government officials like police or corrections officers. The law has four elements, each of which must be established beyond a reasonable doubt, for a conviction to take place:

a defendant's acts deprived the victim of a protected right under the Constitution or statute, including the right to live;
the defendant was acting under color of law in that he is a government official acting in that capacity;
victim is an inhabitant of the United States;
defendant acted willfully.

Even if federal authorities are more sympathetic, as some maintain, a federal case is much harder for prosecutors. While the strength of the evidence, a showing of beyond a reasonable doubt is required under both state and federal rules, the federal law requires more facts to be proven to that standard. The Justice Department must prove a purposeful intent by Officer Wilson beyond a reasonable doubt to interfere with Michael Brown's protected civil rights. This includes the right not be killed without a trail. As in a state case, a showing of reasonable self-defense would trump the prosecution. A bigoted racial motive on the part of the officer would suffice for prosecutors if proven, but other bad motives prompting excessive force, would also work. However, absent additional evidence, it is likely that Wilson's partly corroborated version of self defense, coupled with Brown's unavailability to challenge it, would successfully block a prosecutor's claim that both the force was excessive and motivated by racial or other illegitimate animus.

The federal statute, which has been modified over the years, reached the Supreme Court in 1944, when a Georgia sheriff who viciously beat an African-American suspect to death was granted a new trial because of the heightened requirements of this law. The law is the same one used to retry four Los Angeles Police officers in federal court for the videotaped beating of Rodney King after Los Angeles County prosecutors failed to obtain convictions. Following acquittals in state court two of the four officers were convicted after subsequent federal trial. In New York the law was used against police officers who anally sodomized a victim with an object.

Double Jeopardy Doesn't Apply

Double jeopardy protections found in the Fifth Amendment do not apply in dual federal/state investigations and prosecutions. Double jeopardy prohibits retrial of a defendant by the same "sovereign" or government entity on the same or very similar charges after a jury trial acquittal. Here, the federal government and state government have jurisdiction, and the federal civil rights laws are legally distinct from state homicide laws, making a double jeopardy defense, legally, untenable. In addition, Wilson was not acquitted after a trial, he wasn't charged at all.

Philosophically, some still find the practice, unfair, and some states by statute prohibit a retrial in cases where there has already been a federal prosecution. In practical terms, federal prosecutors, for a variety of reasons often do not retry defendants either because of issues of fairness, or because cases under federal civil rights statutes are difficult to retry when defendants claim self-defense. Despite compelling video evidence the federal government has not retried the case of Fullerton, California, police officers who were either acquitted or not prosecuted in the brutal beating death of Kelly Thomas, a homeless mentally ill man. Federal prosecutions of 18 New Orleans police officers in Katrina related killings have yielded only one standing conviction and various circuitous retrials. Disgraced neighborhood watchman George Zimmermann has also not been hauled into federal court for his killing of unarmed teenager Trayvon Martin. Prosecutors in either state or federal courts have significant obstacles in cases dealing with allegations of excessive force by police, particularly in those that involve short random, yet fatal interactions.

Civil Remedies

Civil actions for monetary damages enable a decedent's heirs to prevail by a much lower standard of evidence in either a state tort law proceedings for wrongful death, or in a civil case in federal court. In federal court a civil case for monetary damages could be attempted under a companion statute to the federal criminal one: 42 USC 1983. The standard for both types of civil cases, preponderance of the evidence, only require a showing that the plaintiff's position is more likely than that of the defendant police department or municipality.

Even if the federal government declines to prosecute Wilson, it is highly probable that the Justice Department under a 1994 federal law will take the Ferguson police department to federal court itself. Once there, upon a showing of a pattern or practice of civil rights violations such as racial profiling or excessive force, they can force reforms under consent decrees with federal monitors.

One thing is sure: The Court system is impotent to magically return things to the way they were. A grief-stricken family has forever lost a teenager in a hail of bullets, who will never live to see his full potential, and a community remains fearful about the safety of their children at the hands of those tasked with protecting them. Police, too, will worry that split second decisions on force will leave them either dead or a living lightening rod for all the pent up anger and fear that many have against a justice system that they represent, but don't control.

Brian Levin is a former New York City police officer who trains law enforcement and has co-authored Supreme Court briefs about federal criminal civil rights statutes used in police cases.