The Michael Brown Incident Revisited

In the past few days, the names of Michael Brown and Darren Wilson have suddenly become once again the topic of news stories and protesters’ complaints. This is quite extraordinary, given that nothing has happened that changes any of the information in the public domain.

There were two, “news-worthy” items that have thrust the case back into the public eye. The first was the release of a documentary that shows video of Michael Brown in the convenience store he would later be accused of robbing. The video was from a visit to the store by Mr. Brown hours before the fatal encounter.

The second was the publicity surrounding the release, by the Washington Post, of a court transcript of a December, 2016 court appearance by former Officer Wilson, who resigned from the department after the 2014 incident. In this filing, Wilson admits to having used in the past the word, “ni**er” to describe African Americans. Wilson’s lawyer cautioned that Wilson had testified under oath that he had only used the derogatory term as a description when repeating witness accounts given to him during police investigations.

What is very important to remember is that none of this in any way affects the oversight being conducted in Ferguson to address systemic issues uncovered by the Department of Justice, and the consent decree that the city is under. The court-enforceable decree, filed in the U.S. District Court for the Eastern District of Missouri, aims to remedy the unconstitutional law enforcement conduct that the Justice Department found during its civil pattern-or-practice investigation into the Ferguson Police Department and the Ferguson Municipal Court. The department’s findings were released in a public report issued March 4, 2015.

Review

The fatal encounter between Officer Darren Wilson and Michael Brown in August, 2014 was indisputably a turning point in contemporary American policing. The case divided Americans, with blacks and progressives holding up the killing as an example of clearly biased policing.

The profile of the incident was so high that The White House sent to attend Michael Brown’s funeral three officials: Marlon Marshall, deputy director of the White House Office of Public Engagement, and Heather Foster, an adviser for the office. It also sent Broderick Johnson, chairman of the My Brother’s Keeper Task Force, an Obama initiative to empower boys and men of color.

The Department of Justice sent a team to investigate policing within the City of Ferguson. The Criminal Section of the Department of Justice Civil Rights Division, the United States Attorney’s Office for the Eastern District of Missouri, and the FBI subsequently opened a criminal investigation into whether the shooting violated federal law, and its Civil Rights Division led an investigation into the shooting.

Additionally, Department of Justice conducted a post-mortem of Mr. Brown, along with autopsies by the county coroner and a privately hired forensic consultant to examine the autopsy results.

A grand jury convened and its findings were made public.

The result of these investigations – which it must be stated were conducted by a DOJ intent on prosecution if at all possible – was best summed up by the Department of Justice’s final report on the matter:

The evidence, when viewed as a whole, does not support the conclusion that Wilson’s uses of deadly force were not objectively unreasonable under the Supreme Court’s definition. Accordingly, under the governing federal law and relevant standards set forth in the USAM, it is not appropriate to present this matter to a federal grand jury for indictment, and it should therefore be closed without prosecution.

Quite simply, in the words of Peter Moskos, the DOJ report “really is a complete [vindication] of Police Officer Wilson. 100 percent. And you can’t really say that this is some racist white-wash from Eric Holder’s rah-rah pro-police Department of Justice.”

Which leaves us to analyze these latest reports.

The Convenience Store Surveillance Video

First, the surveillance footage from the convenience store hours before the fatal encounter is, by definition, utterly irrelevant to any of the actions that took place during the fatal encounter between Officer Wilson and Mr. Brown.

The St. Louis County Prosecuting Attorney Robert McCulloch called Pollock’s assertions “just stupid” during a news conference.

I disagree. It’s not “just stupid.” The filmmaker who used this footage to gain attention for his pathologically silly documentary is both entirely, totally and completely stupid; and he was shamefully opportunistic in his exploitation of the memory of Mr. Brown. What this charlatan did was akin to holding a press conference to screen a film clip of President Kennedy eating breakfast on November 22, 1963, and then saying that how he wiped his mouth with his napkin had an impact on the interpretation of the Zapruder film.

Also, it’s not as if the footage was being hidden. It was ignored because of its content. The New York Times points out that the video was mentioned in the official report on the case by The St. Louis County Police Department – in fact, that was how the filmmaker first learned of the footage. The SLCPD had determined that the footage was not relevant to the case. That’s because it was not relevant to the case. The DOJ didn’t say, “In lieu of 10-hour-old footage showing Mr. Brown in the store, we find no evidence that the use of force was unreasonable.”

They said unequivocally that Wilson’s uses of deadly force were not objectively unreasonable under the Supreme Court’s definition.

This video changes nothing. For those interested, the legal standard applied is called Graham v Connor and it is the law of the land.

The Testimony

Now we can turn our attention to the court filing, “Defendant Darren Wilson’s Responses To Plaintiffs’ First Set Of Requests For Admissions.”

It’s clear that the reporter at the Post was thrilled that he could find the reference to Wilson using the epithet, and this became almost itself the basis for publication of the transcript:

154. You have been formally accused of racial discrimination towards a citizen as a police officer.

RESPONSE: Admitted.

155. You have made a racist remark while on duty as a police officer.

RESPONSE: Denied as phrased. I have repeated a racist remark made by someone else, but I have not made a racist remark against another individual while on duty as a police officer.

156. You have used the word “nigger” to refer to an African American on at least one occasion.

RESPONSE: Admitted.

157. You have heard a fellow officer(s) at Ferguson Police Department use the word “nigger” to refer to an African American on at least one occasion.

RESPONSE: Admitted.

Also in the testimony, Wilson admits saying that Brown behaved like a “demon”:

164. You described Michael Brown as a demon or demon-1ike.

RESPONSE: Admitted.

165. A demon is not a human being.

RESPONSE: Admitted.

166. You did not view Michael Brown as a human being during this incident.

RESPONSE: Denied.

The denial of this, and of the circumstances under which Wilson used the epithet, are important for the civil suit. Based on the questioning, it is clear that the plaintiffs’ attorneys are seeking to establish that Wilson used unreasonable force, and that he used deadly force without first attempting to use non-deadly force. This has already been established in the investigation, but the civil suit is a different matter, with a lower standard of proof.

Another important consideration in the civil trial is that jurors will be unfamiliar with tactics and, especially, with Graham v Connor. I have already seen on Twitter posts in which untrained people conflate the fact that Wilson admits that he, and he alone, drew his pistol from his holster, and the fact that Wilson struggled with Brown for control of Wilson’s weapon.

It is important to recognize that all three autopsy report analyses agreed that Brown had a hand wound from a bullet fired at extremely close range, and DNA and other evidence in Wilson’s police car corroborates Wilson’s narrative of the struggle for the gun while Wilson was seated in his patrol car.

Here is that passage:

38. Michael Brown never tried to remove your gun from your holster.

RESPONSE: Admitted.

39. The holster you carry is designed to prevent someone from easily pulling your weapon from the holster.

RESPONSE: Admitted.

40. You eventually decided to draw your gun from the holster and point it at Michael Brown.

RESPONSE: Admitted.

41. Before drawing your weapon, Michael Brown had not displayed any weapon.

RESPONSE: Objection on the grounds the tem “weapon” is vague. To the extent Michael Brown’s body (including his fists) constitute “weapons” this is denied.

42. Before drawing your weapon, Michael Brown had not displayed any threatening object.

RESPONSE: Objection on the grounds the term “weapon” is vague. To the extent Michael Brown’s body (including his fists) constitute threatening Objects, this is denied.

At this point, I should point out that, in 2013 (the year prior to this incident), 687 people in the United States were murdered by someone using “hands, feet or fists”. As we describe in detail in our book, In Context: Understanding Police Killings of Unarmed Civilians, “unarmed” does not mean, “not deadly.”

More of the exchange:

43. Before drawing your weapon, you did not attempt to move your vehicle to a different position.

RESPONSE: Defendant objects on the grounds this is vague as to time. Subject to this and with respect to after I first attempted to open the door but before Michael Brown slammed the door shut, admitted.

44. Before drawing your weapon, you did not attempt to raise your car window to shield yourself

RESPONSE: Admitted.

Here, the lawyer seeks to establish that Wilson did not use what is commonly referred to as the “Force Continuum”, a concept that has been deprecated in police training over the past decade, and the application of which is not required under Graham v Connor.

45. You did not have pepper spray in the car at that time.

RESPONSE: Denied.

46. You did not draw your pepper spray at that time.

RESPONSE: Admitted.

47. You did not pepper spray Michael Brown at that time.

RESPONSE: Admitted.

48. You did not have a taser weapon in the car at that time.

RESPONSE: Admitted.

49. You did not draw a taser weapon at that time.

RESPONSE: Admitted.

50. You did not use a taser weapon on Michael Brown at that time.

RESPONSE: Admitted.

51. You did not have any electronic weapon in your car at that time.

RESPONSE: Defendant objects on the grounds this is confusing. Subject to this objection and with respect to an electronic control weapon / TASER, admitted.

52. You did not draw any electronic weapon at that time.

RESPONSE: Defendant objects on the grounds this is confusing as to the term “electronic weapon” Subject to this and with respect to my understanding of the term, admitted.

53. You did not use any electronic weapon on Michael Brown at that time.

RESPONSE: Defendant objects on the grounds this is confusing as to the term “electronic weapon” Subject to this and with respect to my understanding of the term, admitted.

54. You did not have a baton in the car at that time.

RESPONSE: Denied.

55. You did not draw a baton at that time.

RESPONSE: Admitted.

56. You did not strike Michael Brown with a baton at that time.

RESPONSE: Admitted.

57. You did not use your gun as a non-lethal impact weapon to strike Michael Brown’s body.

RESPONSE: Defendant objects on the grounds this is vague. Subject to this and to the extent this requests whether I used my firearm as a blunt object to Strike Michael Brown’s body, admitted.

The problem that I see here is the same problem I see with the news media sending reporters to review forensic reports or autopsies: they don’t know what they are looking at, and they tend to leap to conclusions. For example, note how the media treated the offical autopsy report of Mr. Brown - from NBC News:

A federal autopsy of Michael Brown, an unarmed black teen whose fatal shooting by a white police officer set off nationwide protests, found he died from multiple gunshot wounds and described his death as a “homicide.”

And again:

It found that Brown — who was shot in Ferguson, Missouri, on Aug. 9 — suffered “severe injuries of the skull, brain and right chest” and appeared to have been shot in the hand at close range. “The manner of death is homicide,” the Justice Department's medical examiner ruled.

Clearly, someone at NBC felt that this was important. But in highlighting this in the lede paragraph, they merely exhibited ignorance of the term “homicide” - it means ‘death at the hands of another.’ If anyone in America did not know by the time this was written on December 9 – five months after the incident - that Officer Wilson had killed Mr. Brown, they had been under sedation.

What this report did not say was that the cause of death was murder. But people unfamiliar with these phrases (and people steeped in knowledge gleaned from television programs) became highly upset that the autopsy had somehow proved Officer Wilson murdered Mr. Brown. Nothing could have been farther from the case.

Similarly, when reviewing this testimony, uninformed people have leapt to conclusions about the meaning of statements, and the timing of the struggle in the car. This tweet is representative, and note that it has been re-tweeted more than 1,200 times:

For some reason, Ms. Yates seems to think that anyone had suggested that Officer Wilson had claimed Mr. Brown had initially drawn Officer Wilson’s pistol from its holster. This is not the case, and the drawing of the pistol is irrelevant to the subsequent struggle for its control.

Yet anger has risen.

In cases like these, calling for calm and reason is the best counter we have to anger and irrationality. But this shows that, nearly three years later, the Michael Brown case still is the source of hurt, anger, and confusion.

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The Michael Brown Incident Revisited - March 15, 2017 -