'Was the Ferguson Grand Jury Misled?'
That's the question posed by Caleb Mason at The Crime Report. It's a technical question, but a good one. The problem stems from a failure of Missouri legislators to update a law that the Supreme Court invalidated.
The provision in question appeared to give police the right to kill any felon if it was necessary to prevent his escape, regardless of the seriousness of the felony or the threat the felon posed. A number of people called attention to the rule as the Michael Brown case unfolded, especially when the narrative held that Brown had been shot in the back.
Problem was, the rule on Missouri's books wasn't the rule courts were supposed to apply. In the 1985 case Tennessee v. Garner, the Supreme Court had held that cops can't kill fleeing felons unless it's necessary to prevent escape and the felon poses a serious danger.
One Saturday morning in August, I set out to find the state's official jury instructions on the matter. It was difficult, because Missouri doesn't make its instructions publicly available without a huge fee, but after some Googling I was able to find a police-department document summarizing them. I whipped up a quick blog post showing that, as the Supreme Court requires, the "fleeing felon" rule is not applied in Missouri courts. Andrew Branca of Legal Insurrection, who has a "well-equipped" legal library, later posted the full text.
Apparently that was more effort than the prosecutors in the case bothered to put in. They actually instructed jurors in the fleeing-felon rule until the very last day, at which point they handed out updated instructions.
Mason's post reveals the text of those revised instructions:
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 reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. The use of force, including deadly force by a law enforcement officer in making an arrest or in preventing an escape after arrest, is lawful in certain situations. An arrest is lawful if the officer reasonably believes that the person being arrested has committed or is committing a crime.
The officer is entitled to use such force as reasonably appears necessary to effect the arrest or prevent the escape. A law enforcement officer is not entitled to use deadly force unless he reasonably believes that the arrestee was attempting to escape by use of a deadly weapon or that the arrestee would endanger life or inflict serious physical injury unless arrested without delay; and even then, the officer may use force only if he reasonably believes the use of such force is immediately necessary to effect the arrest or prevent the escape.
What's particularly odd is that these are not the official instructions either. I think two words of difference are especially important. From those instructions as provided by Branca:
In making a lawful arrest or preventing escape after such an arrest, a law enforcement officer is entitled to use such force as reasonably appears necessary to effect the arrest or prevent the escape.
A law enforcement officer in making an arrest need not retreat or desist from his efforts because of resistance or threatened resistance by the person being arrested.
But in making an arrest or preventing escape, a law enforcement officer is not entitled to use deadly force, that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes that the person being arrested is attempting to escape by use of a deadly weapon or that the person may endanger life or inflict serious physical injury unless arrested without delay (emphasis added).
And, even then, a law enforcement officer may use deadly force only if he reasonably believes the use of such force is immediately necessary to effect the arrest or prevent the escape.
These instructions aren't great by any stretch; they still say an officer is "entitled to use such force as reasonably appears necessary to effect the arrest or prevent the escape," which is not true. Here, however, the word "but" makes clear that the second rule stated (that lethal force isn't okay unless the person poses a threat or is escaping with a deadly weapon) is an exception to the first. And the word "is" makes clear that the escape-with-a-deadly-weapon must be in progress to justify deadly force in response, whereas the prosecutors' instructions imply it's okay to shoot someone who tried to escape with a deadly weapon previously but now is escaping without one. (That the sentence switches tenses makes this especially problematic: "unless he reasonably believes that the arrestee was attempting to escape by use of a deadly weapon.")
It's unlikely that this affected the grand jury's decision. Brown was not shot in the back, and Darren Wilson didn't claim he killed Brown to prevent an escape. Mason himself says the decision was "probably correct." But as Mason notes, the jury didn't have to believe Wilson, and it's at least possible that something important hinged on these instructions. In particular, Brown may have tried to escape with a deadly weapon by grabbing Wilson's gun but then have run away without it.
At the very least, this is incredibly embarrassing for the prosecutors. All they had to do was take the pre-written jury instructions and use them to instruct the jury. Instead, they gave the jury a summary of the law that had been outdated for 30 years, and failed to give completely accurate information even when they found their mistake.
[Update: Fun fact: In a 2014 bill that became law a few months before the Brown shooting without the governor's signature (in Missouri a bill becomes a law if the governor ignores it), the Missouri legislature changed the text of this provision slightly. The new text, which goes into effect in 2017, still does not reflect Tennessee v. Garner.
[Update II: I see a few objections are coming up in the comments, so I'll address them briefly. First of all, there are quotation marks around my title because it's the title from Mason's piece. I think it's a legitimate question even if, on closer inspection, the answer turns out to be "not really." Second, yes, I am aware that a regular jury and a grand jury are not the same thing, and nowhere have I claimed that prosecutors are legally required to use the official jury instructions to explain the law to a grand jury. (Obviously they're not, as they didn't, twice.) What I am saying is, given that the law needed to be explained, simply using the official instructions (A) would have stopped the initial mistake from happening and (B) would not have raised the questions that the "revised" instructions do. I am further aware that Tennessee v. Garner had to do with civil liability, but this is irrelevant, not only because the ruling flatly said that the fleeing-felon rule is "unconstitutional" (there are interesting arguments to be made about whether defendants can rely on unconstitutional laws), but because Missouri criminal proceedings actually follow the ruling (see the Branca post linked above for a discussion).]
Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen