Much of America, including CNN’s Attorney Sunny Hostin, can’t seem to grasp how Officer Darren Wilson could have been justified in shooting an ostensibly unarmed man. If Ms. Hostin got through law school without learning the definition of “disparity of force,” well, she wouldn’t be the first to do so.
DISPARITY OF FORCE is the legal principle which recognizes that even without a per se weapon, a violent attacker may have such a physical advantage over the intended victim that if the assault is allowed to continue, the totality of the circumstances indicate that the victim is likely to be killed or crippled. This authorizes the victim to use an actual deadly weapon in self-defense. That situation would exist if the attacker was significantly larger and/or stronger than the victim. It would exist if the attacker had complete freedom of movement and leverage, and the victim did not, a situation known as “position of advantage.” Another element that could create disparity of force would be that the victim was already handicapped or injured, even in the course of the instant assault, impairing the victim’s ability to fight back, escape, or evade or block continuing blows. ALL OF THESE WERE PRESENT WHEN THE 292-POUND MICHAEL BROWN WAS SMASHING OFFICER WILSON IN THE HEAD WHILE WILSON HAD VERY LIMITED RANGE OF MOVEMENT INSIDE THE PATROL CAR.
(There are other elements of disparity of force as well, such as male attacking female, multiple assailants attacking lone victim, and more, but none of them seem to have been in play in this encounter.)
This initial attack warranted Wilson drawing his gun and ordering Brown to get back or be shot. Then, Brown went for Wilson’s gun – as proven by bloodstain evidence and Brown’s DNA on the gun – and something else kicked in. BROWN WAS REACHING FOR A GUN, and Wilson testified that Brown had turned the muzzle into Wilson and was trying to pull the trigger when Wilson shot him the first time. This is no longer an unarmed man, it’s a man attempting to kill a cop with his own gun. Thus, shooting him at that point was justified.
Brown ran. Wilson followed police protocol and pursued. He testified that when Brown stopped and turned toward him, one of Brown’s hands went to his waistband as if to draw a gun of his own. This is apparently confirmed by Brown’s bloody handprint on that area of his own clothing. This is what is called a FURTIVE MOVEMENT, in this case a movement consistent with going for a gun and not reasonably consistent with anything else, and at law satisfies the requirement of a reasonable belief that the opponent is armed with a deadly weapon and attempting to draw and use it. This in and of itself, in assaultive circumstances where the opponent is close enough to kill you with such a weapon, justifies deadly force. Simultaneously, he lunged toward Wilson according to the majority of credible eyewitness testimony, consistent with attempting to disarm him again, and was close enough to do so very quickly. It was at this point that Wilson fired his second series of shots – and between the furtive movement and the forward attack, WAS JUSTIFIED IN DOING SO TWICE OVER.
After a short pause, witnesses for the most part agreed, Brown lunged again: another disarming attempt, which again justified shooting. Wilson fired his third and final string of shots, Brown fell, and it was over. Note that each time Brown stopped attacking, Wilson immediately stopped shooting.
These are facts which the grand jury must have taken into consideration. These facts explain why the narrative of “unarmed teen shot by armed jack-booted thug” totally fails the reality test.
Feel free to share with others who, like Attorney Hostin, “just don’t get it” … or, perhaps, don’t want to.
On this day of giving thanks, I hope you’re all with friends and family and, if you’re caught in the Northeast storm, I hope you get through it OK.
And if you’re in Ferguson, Missouri, well, condolences. I hope you get through that storm, too. If you’re NOT in Ferguson, you have one more thing to be thankful for.
For me, I’m thankful that I only have to watch CNN, currently the “all Ferguson, all the time” network, when I want to. Not until last night did they even mention the murder of the young black man who may have witnessed the Michael Brown shooting and given honest testimony that favored Officer Wilson. However, CNN didn’t make that connection. Conservative Treehouse did, a day or two before. Thanks, Treepers! . Indeed, some of the most incisive commentary on this whole case can be found at the Treepers’ main website This element of the case needs more investigation…
A lesson: mad dogs bite anyone, including their own. Among the casualties are the burned-down African-American church that Michael Brown’s biological dad attended. And the bakery of the nice black lady who, throughout the whole mess, had been providing free food for protesters. The difference between mad dogs and rioters is that no one blames you if you shoot rabid dogs.
Meanwhile, a couple of New York Times reporters have published the new address of Officer Wilson and his new wife. If that home is burned down, I think those reporters and their paper will bear significant responsibility. (Someone on the conservative side has, in turned, put the addresses of the two reporters on the Internet. Please, folks, encourage everyone to leave that alone: don’t let them turn “us” into “them.”) It would seem that some elements of the lynch mob have already put a price on Darren Wilson’s head.
Thanks to all the emergency service personnel who are sacrificing their holiday with their families for the safety of the good citizens of Ferguson and other locales that have caught the sparks of civil disturbance.
“No good ever came of mass emotion. The audience that’s easily moved to tears is as easily moved to sadistic dementia.” — P.J. O’Rourke
We’d have to be hermits not to know what happened in Ferguson, Missouri when the no-bill from the grand jury came in on Officer Darren Wilson on the 24th. It was what many had predicted. And, as also predicted, the embers from that conflagration flew a good distance, and sparked protests elsewhere, though none yet so violent as at Ground Zero.
This week I attended a large law enforcement training function where a police chief said, “It would be hard to imagine how this could have been handled worse in the immediate aftermath of the shooting.” What he was talking about was law enforcement’s failure to make certain things clear to the public about what the preliminary investigation was already revealing.
Back in 1972, when they first pinned a badge on me, I was told that we were the keepers of the secrets of the community. We owed the suspect/defendant and the victim alike their rights to privacy. We learned to say, “No comment” to reporters. “It will all come out in court.”
What I realized early on and have preached to brother and sister cops in the decades since is that this doesn’t work when the cops themselves become the accused. An accusation of wrongdoing that goes unanswered is seen as a silent plea of nolo contendere, which translates roughly from the Latin as “we do not contest the charge against us.” The general public doesn’t see much difference between that and a plea of Guilty…and “pleading nolo” generally results in a penalty remarkably similar to what would accompany an actual Guilty verdict.
On the evening of the 25th, on CNN, I watched Anderson Cooper speak as an impartial voice of reason alongside Mark O’Mara, who has performed much the same function for that network since he became a resident specialist there on legal issues. The clarity with which Missouri prosecutor Robert McCullogh explained the evidence the grand jury reviewed leading to their decision was ignored by those who came to Ferguson to act out – they started running toward their long-planned violent goal before they could have possibly heard it. Their minds were made up, and they didn’t want to be distracted by facts. But the reporters had to listen – cramming sleeplessly on the long transcript of what the grand jury had heard, or at least, what their research assistants gave them in digest form – and could no longer ignore the reality.
A four-way dialogue included O’Mara, Cooper, legal analyst Jeffrey Toobin, and Sunny Hostin. Toobin, apparently, had been convinced by the conjunction of the fact evidence and the eyewitness testimony of several African-American eyewitnesses with the account of the officer who pulled the trigger, and who spoke publicly last night for the first time on ABC. Only Sunny Hostin, who had been one of the leaders of the CNN “lynch the defendant” mob in both the Zimmerman trial last year and the Wilson hearing this year, disputed the facts that had come into evidence. The other three seemed incredulous, and she looked almost embarrassed to find herself still defending the now-discredited narrative of helpless child gunned down by racist cop. “He was unarmed,” she all but screamed, and seemed oblivious when O’Mara explained that when Brown was killed, he was lunging for the cop’s gun for the second time.
As I watched the prosecutor live, announcing the grand jury’s verdict, I watched the ripple of rage go through the crowd outside, seen on the CNN split-screen. Soon, the rocks and bottles were flying, there were gunshots (apparently not from the police side), a police car wrecked by the riotous, drawing a volley of tear gas. Then buildings were burning, and the looting was underway.
There was fear in the voices of many news folks reporting from the scene. One seemed surprised when he said that some of the “protesters” were trying to restrain some of the “agitators.” What a teachable moment: watching a journalist realize that when the thrown missiles are coming in his direction, protesters turn into agitators.
The agitators were already moving into their long-pre-planned assault on society, before the prosecutor could even begin his explanation of the reasoning behind the decision of the grand jury, who he described as the only people who had seen all the evidence there was to present. They weren’t there for truth. They weren’t there for justice. They were there for a lynching, in my view.
Because we all KNOW there’s going to be more than “one part” to whatever happens when the Grand Jury announces their determination of the facts based on the testimony they’ve spent so long hearing.
As we all wait on tenterhooks for the determination of the Grand Jury, and for what happens next, we have to consider some basic facts.
Intelligence from the field has told Missouri’s Governor Nixon that he needs to call out the National Guard and have them ready.
Agenda-driven outside protesters are already there, and have been poised for quite some time. The protesters’ alliance encompasses many of the usual suspects in the race-baiting-for-money world, and more. In a New Thing, the protesters have issued Rules of Engagement that they, uh, demand that the police follow: No protective gear allowed for cops, more than they’d usually wear, that sort of thing. Uh, yeah…
Here’s a hint: when YOU propose “Rules of Engagement,” YOU are preparing to ENGAGE.
Some of the “protesters” are on the internet requesting donations of things like gas masks and, I’m told, even bullet-proof vests. Huh. Wonder what they’re planning to draw upon themselves…
I am hearing, “Don’t worry. It will be a peaceful demonstration.” This from the same people who are talking about blocking highways (in bitterly cold winter weather) and keeping people from getting to and from work, ambulances from getting to hospitals, fire trucks from getting to fires, people from arriving at or departing from the St. Louis International Airport, etc. Keeping parents from picking up kids at school, and causing parents and kids alike who can’t make that connection, to panic.
I’m sorry, but that sounds to me very much like “disturbing the peace.” Can anyone tell me how disturbing the peace of people who are not involved in the thing you are protesting is NOT a crime? Can anyone tell me how, by definition, disturbing the peace is PEACEFUL?
Both sides seem to expect a verdict exonerating the officer who pulled the trigger. If it goes that way, I sincerely hope that people who have invested themselves heavily in potential violence protesting that verdict experience a sudden attack of massive self-control, and don’t do it.
But, a long cynicism-producing life tells me that this is not the most likely outcome.
If things “go south,” I can think of at least one cop (not me) who has suggested flamethrowers.
Many more observers, looking at the frigid weather in the Ferguson/St. Louis area – which many of us “in the business” believe may be a factor in the announcement being delayed this long – are of the opinion that fire hoses could come into play if extreme mob violence has to be contained.
I’m not recommending fire hoses, mind you, but given that the police in Ferguson have been shot at repeatedly since this whole thing began, and to the best of my knowledge the cops haven’t thrown anything but gas and rubber back, if things go violent a Night of the Frozen Ice Protesters might be preferable to another Kent State.