The Michael Brown Case, Update 9.4: Use Of Force In The Real World

Since the shooting of Michael Brown by Ferguson police officer Darren Wilson, virtually every mistaken impression and movie-induced stereotype about the use of force and self-defense has been aired. One of most egregious actually parallels one of the urban narratives revolving around the Trayvon Martin case: if George Zimmerman would have stayed in his vehicle, everything would have been just fine.

Consider this from the transcript of Darren Wilson’s Grand Jury Testimony (pp. 261-262).

The question is asked by one of the assistant prosecutors:

Q: Is there any reason why you didn’t wait in the car until your backup came?

A: I thought I would be able to just stall until someone got there. I thought if I can get out of the car, I could maintain the distance that I need to maintain, they were close. I figure all I needed was 20 to 30 seconds and someone is going to be there.

Q: Right. So why wouldn’t you stay in the car?

A: Because I had already been, my comfort zone is not to be sitting in the car talking to someone else. I wanted to be out of the car, that way if I need to run I can run.

Q: You can run?

A: If I was out and he started like chasing me or went to hit me, I could move.

Q: You are in a car, you are more mobile in a car than you are on foot, right?

A: Right. But I also didn’t want him to run away, so I need to kind of stay where I can keep him there, keep myself safe, and wait for someone to get there.

Unlike the rest of his testimony where he is clear, even eloquent, Wilson did not well explain what he obviously meant to say. Any officer dealing with suspects on foot will park his vehicle and approach them on foot, keeping them a safe distance away, far enough so he can see any movement to attack, but close enough to make them believe they’ll be caught if they run.  It’s a fine and constantly shifting balance that can’t be maintained inside a police car.

Stuck in a police car, an officer is very vulnerable. As Wilson testified, stuck behind the wheel, he could not get to his baton, nor could he swing it in the car. Used in the car, pepper spray was more likely to incapacitate Wilson than Brown. Wilson’s movements and options were badly hampered. With a 6’4” 292 pound attacker forcing himself through the window, the height and leverage advantage was Brown’s, and all Wilson could do was try to limit the damage to his face and head and protect his handgun. Gravity, reach and freedom of movement were all on Brown’s side as long as Wilson was pinned behind the wheel. That’s why Brown ran when the tide turned and Wilson was able to get off two shots. He knew that as soon as Wilson was able to get out of his car, the advantage would no longer be entirely his.

A police car is more mobile only in the sense of traveling long distances on paved roads. When an officer is trying to control the movements of a suspect, or is in hot foot pursuit of someone that has just tried to kill them, a car is not, in fact, more mobile. It’s clumsy, slow, limiting and dangerous.  All a fleeing criminal need do is run between houses or buildings, and by the time an officer can park, exit and secure his vehicle, the criminal is long gone, leaving the officer to explain to his supervisor why he was caught trying to do a foot pursuit in his car.

In the Trayvon Martin case, Zimmerman left his truck because he had been told, twice, by the police dispatcher to let them know what Martin was doing. When Martin ran off and ran around a building, out of sight, Zimmerman had no choice. He had to leave his vehicle to try to keep Martin in sight, but soon lost him, a fact he reported to the dispatcher. Zimmerman had been told that police officers were on the way. He was merely trying to keep sight of Martin to direct the responding officers to him, and when the dispatcher said “we don’t need you to do that,” Zimmerman replied “OK,” and began to walk back to his truck.

In the Brown case, Wilson was an on-duty police officer who at first intended merely to ask Brown and Johnson to get out of the middle of the road and walk on the sidewalk. At about the same time, he recognized from the cigars Brown was carrying and the clothing description that he had the suspects in the robbery–he didn’t know whether it was robbery or shoplifting at that point–and tried to get out of his vehicle to speak with them.

Brown attacked Wilson, pinning him in his vehicle and beating him, and apart from trying to avoid being shot with his own weapon, Wilson was desperately trying to get out of his vehicle. When Wilson was finally able to get out of his car, he, a uniformed police officer, had an absolute obligation to pursue and arrest a fleeing felon, Brown, who had just attacked a police officer and could surely be presumed to be dangerous to anyone he encountered.

Some of the other comments made by talking heads, pundits, various “community activists” and “community organizers” and “civil rights leaders” have been a thicket of misinformation, idiocy and nonsense tactics guaranteed to cost lives and liberty if applied by citizens.

Why didn’t Wilson just overpower Brown? Why did he have to shoot him? Why didn’t he shoot him in the leg? Wilson wasn’t hit that badly; why, he was only hit a few times. Why didn’t Wilson just drive away?

Most citizens don’t realize that most police officers are not martial artists. They do not regularly train for unarmed combat. They learn a small number of specific restraint and striking techniques with open hand and baton at their basic training academy, and may have a yearly–most likely less than yearly–refresher course, but for most officers, that’s it. Like most people, most officers have never been in a serious, no holds-barred fight.

People are used to movie and TV fight scenes where heroes and bad guys go at each other with beautifully choreographed blows that would kill rhinos, yet they shrug them off and continue the dance until the script calls for a blow that incapacitates the bad guy. That’s exactly what is happening: a dance where each step is planned and practiced, and often filmed in slow motion.

In real fights, people are maimed, crippled, even killed, by single blows. As we are only now learning, even high school football is terribly dangerous, and repeated blows to the head cause cumulative, life-long damage. The brain is suspended within the skull in fluid. When one is hit in the face or head, there are two impacts, the first is the blow, and the second, the brain rebounding against the inside of the skull. Both can cause serious damage. Any concussion, which is actually a brain injury, is not to be taken lightly.

In terms of the law, an assault on a police officer doesn’t require any particular level of damage. How could it? Unquestionably, throwing fists repeatedly into the face of a police officer is an assault. How can an officer–how can anyone–know how many blows they can absorb and still survive? How can they tell whether the next blow will bruise them, destroy an eye, break bone or leave them brain damaged or dead? Those that might minimize this reality might change their perspective if offered the opportunity to receive an unspecified number of full power blows to the face thrown by someone Brown’s size.

Police officers have a disadvantage: they cannot disengage and run. Their duty requires they stay and overcome any attacker, yet they are as vulnerable as any human being. Because they can’t run, and because they know that in 80+% of the cases when an officer loses his handgun he is shot with that handgun, if they fear they’re being overpowered, or that they could be rendered unconscious, any reasonable police officer would believe they were in deadly danger.

Keep in mind Wilson testified that he knew he could not overcome Brown by himself; his only intention was in keeping Brown in sight until help could arrive, and causing him to stop and submit if he could.

Then there is the SPOIT rule. The Sober Police Officer In Training rule. I have found that the restraint and striking techniques that work splendidly when used on sober police officers in clean, warm and dry gymnasiums or dojos often fail catastrophically when used against drugged, enraged, desperate or simply stupid people in the real world. It’s not hard to figure this out. Sober cops don’t want their wrists or elbows broken by joint locks, and don’t want to be injured by batons, kicks or other striking techniques. They don’t want to waste their sick time that way. They can feel at least a bit of the pain that a properly applied technique can cause, so they go along, stop resisting, and everyone is happy–until they meet a Michael Brown in the real world.

In the movies, slight women are often able to overcome much larger men with stunning fight choreography. In the real world, size matters very, very much.

One of my favorite stories illustrating the SPOIT rule was a young, aggressive Highway Patrol instructor teaching an arm bar technique to a class of new officers. One of those officers was an older, experienced hand forced to retake the academy to take a new job, just as I was. He was about 6’2” and 270 pounds, and most of that mass was muscle. He had particularly massive shoulders and arms.

The instructor, a young pup in his mid twenties, about 6’1” and 200 pounds, was foolish enough to pronounce the technique he was teaching foolproof. “This will work on anybody,” he proclaimed. That’s when the older hand volunteered. After ten minutes of red-faced straining and grunting that did little more than make the older hand bend forward a bit at the waist, the Highway Patrolman was a bit more careful about his pronouncements.

Consider this from page 212 of Darren Wilson’s Grand Jury testimony transcript. At this point in his continuing assault on Wilson Brown pauses to hand his cigars to Dorian Johnson:

A: And he said, ‘hey man, hold these.’ And at that point, I tried to hold his right arm because it was like this at my car. This is my car window. I tried to hold his right arm and use my left hand to get out of have some type of control and not be trapped in my car any more. And when I grabbed him, the only way I can describe it is I felt like a five-year-old holding onto Hulk Hogan.

Q: Holding onto a what?

A: Hulk Hogan, that’s just how bit he felt and how small I felt just from grasping his arm.

Wilson ran headlong into the brick wall of the SPOIT rule. Trapped in his car seat, unable to maneuver or dodge blows, unable to clearly see them coming, and at a serious leverage, size, weight and aggression disadvantage, he tried to grab the forearm of Brown who, pushing downward and punching downward, had gravity on his side, and realized he was so outclassed in size, strength, deadly intent and every other way, he reasonably feared for his life. He was afraid another blow to the head would kill him or render him unconscious; reasonable fears indeed.

This is what happens to professional boxers. The only reason they are able to fight for more that a few seconds is they are ducking and weaving, dodging and deflecting blows. When an opponent manages to hit them with a solid, non-deflected blow, they’re immediately knocked out, sometimes, seriously injured or killed. That’s the situation in which Wilson found himself.

A venerable police aphorism goes something like this: “In every fight there is always a gun present: yours.” Darren Wilson experienced that reality in horrifying detail.

But what about deadly force? Why didn’t Wilson just drive away? He had an obligation to stop and capture Brown; he is a police officer. More importantly, a motor vehicle is every bit the deadly weapon a firearm is. Wilson could not simply blindly accelerate without being certain who or what was in front of him, and Brown wasn’t giving him the chance to calmly assess his surroundings. Imagine what would happen to Wilson if in fleeing, he accidently ran over a child or any other bystander.

An officer–and any citizen–may generally use deadly force when three criteria are present: means, opportunity and jeopardy:

Means: When an attacker has the present ability to put them in reasonable fear of serious bodily injury or death.

Opportunity: An attacker has the opportunity to cause seriously bodily injury or death–they’re close enough or have distance weapons.

Jeopardy: An attacker has demonstrated they’re about to attack, or are attacking.

Andrew Branca, whose definitive book The Law of Self Defense, is must reading for anyone carrying a concealed weapon–actually, for anyone concerned about these issues–adds several other, related criteria/concerns:

Innocence: the defender must not be the initial or unlawful aggressor. They can’t start the attack.

Imminence: This is another way of expressing the concept of jeopardy. One can’t use deadly force again a possible attack, or against an attack that might happen at some time in the future. The danger must be real, clearly about to occur–with fractions of a second or seconds, or already occurring.

Proportionality: the threat can’t be of humiliation or minor injury, but a reasonable person must believe they’re facing a threat of serious–Branca uses the word “grave” bodily harm.

Reasonableness: A reasonable person of the same knowledge, abilities and in the same circumstances would be compelled to use deadly force.

State laws vary, using different terms, and it is everyone’s responsibility to be aware of the law in their state of residence. Some states particularly allow the use of force–even deadly force–under circumstances that others do not.

Police officers are somewhat different. Citizens don’t generally have to put themselves in harm’s way; police officers often do. Citizens may often safely flee; police officers often can’t. It is anticipated they might have to use force of all kinds, and they train for those possibilities. States commonly have laws that specifically authorize law enforcement officers to use the force necessary to make an arrest, giving them a bit more guidance and perhaps even a sort of benefit of the doubt. As long as they are acting reasonably–and lawfully–in their official capacity, and as long as a reasonable officer in the same circumstances would do the same, their use of force may be found to be lawful. I say “may,” because Darren Wilson might well have been indicted, and at trial, there is never an absolute guarantee of a positive outcome.

As I noted in Update 4: The Law, Wilson clearly acted within Missouri law. Not only was he entitled to self-defense, but he was acting properly as a police officer in the pursuit of his duty. This is why the grand jury, considering an extraordinary amount of evidence, and having the opportunity to interview and re-interview each and every witness at its discretion, found no probable cause to charge him.

But why didn’t he shoot Brown in the leg? He didn’t have to kill him. Consider what Wilson, a trained police officer, knew. When he fired the first two shots, he was under continual attack by a very large and powerful man he could not physically overcome. Tactically, he was in a very bad position. Not only was he in danger of being knocked unconscious, the next blow could easily be the blow that did it. He felt the strength and power of his attacker and understood he could not protect himself. Worse, his attacker had already demonstrated his intention to seriously injure or kill Wilson. If he knocked Wilson out, or otherwise got hold of Wilson’s handgun, Wilson believed–entirely reasonably–he was dead.

After all, as far as Wilson knew, Brown was guilty of nothing more than misdemeanor shoplifting, and Wilson initially stopped only to ask him to get out of the street. Brown’s bizarrely violent response told Wilson something was badly wrong, and he was in deadly danger.

But what about when Brown ran? Could Wilson shoot him then? When Brown was running–his back to Wilson–almost certainly not. Some state laws might allow such, but anyone would be foolish under most imaginable circumstances to shoot a fleeing suspect in the back. Where is the imminence of a threat? How can shooting an unarmed, fleeing suspect in the back be proportional to the threat? How can this be justified as reasonable?

And Wilson was not foolish. He was trying only to stop and capture Brown, and he did not shoot. Then Brown stopped, turned, and aggressively charged Wilson. A witness–probably a black witness–described Brown’s attack as a “full charge.” Apparently another described Brown as charging, head down, like a football player.

At this point, Wilson reasonably believed that the threat was imminent, that he faced serious bodily harm or death–if Brown got to him, he was dead. He was not the initial aggressor and was acting lawfully. Brown’s expression appeared so angry to Wilson, so violent and savage as to be demonic. Why would Brown, who was successfully fleeing, Knowing Wilson to be armed, turn to attack him unless he intended to kill him? Brown was close enough to close the gap between them in seconds, and Wilson fired. This cause Brown to pause, and Wilson paused. Brown charged again, his head down, and Wilson fired again, finally stopping Brown virtually at his feet.

And this is the point. Wilson fired not to kill Brown, but to stop his attack, to protect his life. A reasonable police officer in Wilson’s predicament would have believed that shooting Brown was the only available means to stop him.

Shooting to wound is a very, very bad idea, as I’ve often pointed out on this scruffy little blog and elsewhere. Hitting a moving target is difficult enough. Wilson fired ten rounds at Brown in two strings of fire, and missed four of those shots. The coroner’s diagram is illustrative of the problem. Wilson was hitting consistently to the right of centerline of Brown’s body, only stopping him conclusively with the final round to the top of Brown’s head when Brown was very close to him. A round near the right collarbone, in the outside of the right chest, and three in the right arm did not stop him.

The point is that shooting someone in an area of the body that would not be expected to quickly stop them is not only foolish and liable to cause one to be seriously injured or killed because the attacker is not stopped, only enraged and perhaps slightly less mobile, but is almost impossible to pull off under stress.

In addition, a prosecutor or jury might well decide that shooting someone in the leg or arm demonstrated that the person being attacked didn’t really believe they were in imminent danger of serious bodily injury or death. If they had the leisure to try to shoot their attacker in a non-vital area, their innocence might be called into question. Perhaps they were baiting them, trying to create an opportunity to shoot?

Final Thoughts:

In this case, the choices were all Michael Brown’s. If he had simply done as Officer Wilson asked, Wilson might have simply continued on his way; in his ABC interview, he said exactly that. At worst, Brown would have been arrested and charged with robbery, and considering it was–as far as we know–his first adult offense, it is unlikely he would have faced anything more serious than probation. There is evidence that he had something of a juvenile record, and considering his behavior, that’s not an unreasonable probability, but that too would not have much figured in a judge’s decision in this case.

Brown did not have to die that day. Unfortunately, for him, his family, the nation, and Darren Wilson and his family, A drug-fueled, rage-filled and aggressively violent Michal Brown decided to rob a store to obtain cigars to turn into blunts (hollowed out cigars filled with marijuana). In his Grand Jury testimony, Dorian Johnson admitted they were obtaining blunts and were planning to smoke pot together, which Johnson said he did every morning. When approached by Darren Wilson, Brown tried to kill him. It is highly likely he would have done the same to any police officer.

One might armchair quarterback Darren Wilson. Perhaps if he parked a little more distant from Brown and Johnson, he would not have been attacked, or perhaps that would only have slightly delayed Brown’s assault. Having no window frame restricting his movement, Brown might have rendered Wilson unconscious with a single blow, even killed him. Brown behaved aggressively toward Wilson from the moment Wilson asked him to do nothing more than walk on the sidewalk. It must not be forgotten that Brown was also walking down the middle of the street immediately after robbing a store. Clearly, he was looking for a confrontation, or was so drug addled he was destined to get into one.

To the reasonable prosecutor, filing charges would be unimaginable. It would be an egregious waste of taxpayer funds and an exercise in futility. And not that this matters much these days, but it would be morally and legally wrong. For a federal Department of Justice directed by a president that recognizes no rule of law but his own desires, the unimaginable exercise might occur at any time.

And what can we learn from this? The Social Justice gang, as I explained in Update 8: A Divided People, would have us believe that this case is symbolic of rampant, institutionalized white racism, of police forces that routinely murder black men and suffer nothing for it, of inequality in general and of the proposition that America simply has not had sufficient progressivism, which, if only allowed to do whatever social justice advocates want, will surely produce peace and equality on Earth once and for all.

Those that uphold the rule of law would observe, simply, that the system worked as it was designed to do, and the law was rigorously followed and upheld, leading to a just decision by the grand jury. If the law is truly faulty, there exist more than sufficient means to change it.  And to avoid Michael Brown’s fate, regardless of color, all one need do is avoid doing illegal drugs, robbing convenience stores, foolishly and aggressively drawing attention to oneself by walking down the middle of the road thereafter, and trying to kill police officers that ask them to use the sidewalk.

The battle over which view of America will prevail continues.