When Any Felony Can Become a Capital Crime, Something is Wrong

I don’t have any idea whom to believe or what actually went wrong in those fatal moments on August 9 in Ferguson, MO, when a police officer shot and killed an 18-year-old man who did not have a conventional weapon. Last night, a grand jury declined to indict the officer, Darren Wilson, for the death of Mike Brown. There was a lot about the case that was, shall we say, unusual.

But what I want to focus on is the law in Missouri that enabled those grand jurors to find no reason to take the charges to a trial, which was all they were asked to judge. Not whether Wilson acted unreasonably or illegally, just whether there was sufficient reason to think he might have to warrant having a full, public trial on the issue. An old legal saw holds that a DA can get an indictment against a ham sandwich. The fact that the county DA in this case couldn’t get an indictment says plainly that he didn’t want to get one. Instead of using the grand jury to determine whether there was probable cause that needed to be determined in a trial, the DA dumped all of his evidence on the grand jury and then asked them to determine what, if any, charge should be brought against the officer.

And reports that are now filtering out of those deliberations seem to focus on one thing. Prior to the fatal shooting, there were several witnesses who saw Wilson and Brown struggling while the officer was in the car and Brown was outside. They were apparently (or at least possibly) struggling over the officer’s weapon.

That tussle, in which the officer said he felt his life was in danger, gave the grand jury legal cover to decline to indict the policeman. Under MIssouri law, “officers can act with deadly force when they believe it is necessary to arrest a person who has committed a felony.” Read that sentence again. All that is required for a policeman in Missouri to become judge, jury and executioner — often (though not in this case) in a split second — is a “belief” that the person they are about to kill has committed any felony. Are you kidding me?

By all accounts, this is an unusual law. Most states require that the officer believe his life is in imminent danger. In this case, the officer said Brown matched the description of a shoplifter who had stolen a pack of cigarillos from a convenience store. I assume that’s not a felony.

But the bigger issue here is that this law has the potential to turn any felony — or suspected felonious conduct — into a capital crime. In effect, what it does is make it a capital offense to refuse to heed an order from a police officer. Legitimizing such behavior on the part of a police officer is a key ingredient in creating a police state. And we are certainly drawing ever closer to that reality.

There must be realistic limits on police conduct so that the potential consequences of committing a crime suit themselves to the seriousness and nature of the criminal act. Stealing a pack of cigarillos shouldn’t be a capital offense. Neither should hitting a police offer and then leaving. There is time and capability for retribution short of death after such an incident.

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