THE BLOG
09/21/2014 08:27 pm ET Updated Nov 21, 2014

Why Darren Wilson Isn't in Cuffs

All of the most recent protests in Ferguson over the slaying of Michael Brown seem recent since the protestors have all asked for the same thing: That is to slap the cuffs on Darren Wilson, the officer who gunned down Brown on August 9. The reasons given for Wilson's freedom by some are that the prosecutors and cops almost never arrest and charge other cops with misconduct, the St. Louis County Prosecutor is a bigot, and there's no smoking gun piece of evidence to base an arrest on. These are all powerful blocks to clamping the cuffs on Wilson. But they aren't the prime reasons. The single biggest barrier to arrest and prosecuting police officers in the use of deadly force in the shootings of unarmed civilians -- even those who have committed no crimes or are even suspected of crimes at the time of the shooting, as is the case with Brown -- is the ancient self-shielding uttered by the officer of the magic words, "I feared for my life or the life of others."

These words are codified in law in many states. Missouri is one of them. It's called the Missouri Defense of Justification Statute. It flatly says that an officer can use deadly force when "he or she reasonably believes" it's necessary to protect life. The operative words are "reasonably believes." Translated, that means that there is no written code, rule, or guideline for what exactly reasonable belief is or means. It's purely a judgment call by the officer at the moment he or she draws his or her pistol and opens fire. The litany of "reasonable beliefs" can fill up a small phone book. The suspect was reaching for a knife, gun, toothpick, holding a cell phone, tugging at his waistband, had his hands in his pocket, there was sudden movement of his vehicle. In the case of Brown, Wilson claims he was charging at him.

A world-class Freudian analyst couldn't decipher exactly what was in an officer's mind, what anger, fears he had, real or imagined, or perception of danger that caused him to resort to deadly force. Fortunately for Wilson, and the countless other officers that have wantonly killed unarmed civilians in recent years, there's absolutely no danger that the officer would be subject to a factual test to determine what perceived threat of supposedly life curtailing danger ever really existed. The encoded practice is to take the officer's word that he or she felt that they would die if they didn't blaze away.

If this sounds like a virtual license to kill, it is. And this almost certainly will be the way Wilson's battery of attorneys will play it if he is ever hauled into a court docket. No matter how many eyewitnesses call him a blatant liar, and swear as they have repeatedly done in interviews that Brown had his hands up and attempted to surrender, Wilson's attorneys will simply counter that he "reasonably believed" that Brown posed a threat to his life.

The bitter reality is that there is no ironclad standard of what is or isn't acceptable use of force. It almost always comes down to a judgment call by the officer. In the Rodney King beating case in 1992 in which four LAPD officers stood trial, defense attorneys turned the tables and painted King as the aggressor and claimed that the level of force used against him was justified.

The two New York City cases involving the killing cops of unarmed African immigrant, Amadou Diallo in 1999, and unarmed Sean Bell in 2006, the cops were tried but were acquitted. In each case, they claimed that they feared for their lives. The jury believed them and acquitted them. Then there's another piece to the sorry picture of how police who kill with little to no justification get away with it. That's the public.

In a Gallup survey that measured overall confidence in police, the police topped out among the three highest-rated institutions out of 17 tested in terms of whites' confidence, behind only the military and small business. They are the one that make up the majority on juries that inevitably hear the rare cases against police officers charged with the overuse of deadly force.

Despite overwhelming evidence that police do profile minorities, lie, cheat, and even commit crimes, jurors still are far more likely to believe the testimony of police and prosecution witnesses than witnesses, defendants, or even the victims, especially minority victims.

St. Louis prosecutor Robert McCullough has had many chances to bring charges against officers in his county that have killed unarmed suspects. He's only brought one case. This is not because of wanton pro-police bias, though that's obviously a powerful disincentive for him to bring charges. He knows like virtually all prosecutors that as long as Wilson has the near impregnable shield of being able to say "I feared for my life" when confronting Brown it's near impossible to put the cuffs on him.

Earl Ofari Hutchinson is an author and political analyst. He is a frequent MSNBC contributor. He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the host of the weekly Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the Pacifica Network.