Lawsplainer: How Mike Brown's Alleged Robbery Of A Liquor Store Matters, And How It Doesn't

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189 Responses

  1. Marvin says:

    All of this may very well be true but Michael Brown did not know why he was being stopped by police right after the robbery. Brown's reaction could very well have been that of a thief who believed he was about to be arrested for his crime and acted accordingly.

  2. ysth says:

    and possibly a third time in a mock-self-critical analysis

    Careful, your cynicism is showing.

  3. ZK says:

    Building on how this might go towards Brown's state of mind, I took this strategic release of information to be setting the stage to claim that Brown wasn't surrendering or running away, but attacking. I'm interested in what else materializes over the next few days, but I'd bet they go in that direction. It may even be true.

  4. Steve Sailer says:

    If this video wasn't relevant the Obama Administration wouldn't have tried so hard to keep it covered up. Beyond legal technicalities, it completely undermines the picture the media has been painting of the gentle lad.

    Even in legal terms, your original argument isn't really applicable because Brown's robbery and assault on the clerk aren't separate incidents from his encounter with the police — in his head, at least, it's all part of a single chain of events he initiated over just a few minutes time.

  5. Matthew Cline says:

    @Steve Sailer:

    If this video wasn't relevant the Obama Administration wouldn't have tried so hard to keep it covered up.

    Ummmm, what?

  6. Kevin says:

    Wow, when I read this blog post, my immediate reaction was "Hmm, Ken makes a compelling argument, apparently quite well supported by reference to relevant case law and rules of evidence….. but I wonder what a race-obsessed blowhard with no legal training thinks?"

    And what do you know? It's my lucky day!

  7. Doctor X says:

    The issue presented will be whether Wilson posed "a threat of serious physical harm, either to the officer or to others," as required to justify deadly force. Could Wilson seek to introduce evidence of the robbery in his own defense? They answer — like most lawyer answers — is maybe.

    Should that be "Brown" in the first sentence rather than "Wilson?" Just checking; not trying to be Grammar Gestapo.

    Excellent article as usual.

  8. Rick says:

    If this video wasn't relevant the Obama Administration wouldn't have tried so hard to keep it covered up. Beyond legal technicalities, it completely undermines the picture the media has been painting of the gentle lad.

    I suppose they couldn't find any angelic photos of him when he was 14 to publish?

  9. Rick says:

    In other words, if my client is accused of bank robbery, the government can't introduce his prior bank robberies to show that he's the sort of person who robs banks

    Who was it who said "the law's an ass?" That, of course, is a good example of asshatedness.

  10. xtmar says:

    Ken,

    Another interesting Lawsplainer would be the legality of curfews, and what restrictions are/aren't in agreement with the general 1st Amendment right to assemble. I tried doing a bit of searching on this, but could only find info on juvenile curfews, which seem to get more legal deference because they deal with minors.

  11. David says:

    While I can easily buy that Brown was "a thief who believed he was about to be arrested for his crime and acted accordingly," as far as I'm concerned the idea that the natural reaction of a guy who stole a five dollar box of smokes is to try and kill the arresting officer in broad daylight beggars belief. Far more likely that he tried to run and the LEO acted with lethal force to prevent that most serious of capital crimes, contempt of cop.

  12. EPWJ says:

    There is case law that fleeing suspects who pose an imminent threat to the public can be shot even if unarmed. Assuming an assault upon a police officer and going for the gun. A bad shoot is a bad shoot, there are numerous bad shoots out there – but is far from being racist as situational IMO.

  13. Ernesto says:

    With respect FRE 404(b)(1), does the robbery even need to count as a reference to character given the close temporal proximity to his death? Seems to me it doesn't need to be a reference to character so much as to an event connected in time. Does that even matter (IANAL)?

    It kind of bothers me that evidence like the robbery can't be used to the officer's benefit. I can see why the rule exists for criminal defendent's benefit, but for a witness's or victim's (read: prosecution's) benefit, it seems rather unfair.

  14. jdgalt says:

    Even if Brown did charge at Wilson and try to grab his gun, I would hope any jury (or anyone else investigating this) will start by asking, why didn't Wilson use his Taser or tear gas rather than shoot to kill? That situation is exactly why peace officers are allowed to carry those things (and I would hope that officers who Tase or gas someone just for arguing with them, or beat people up for running away, will always engender the same kind of protest as this case).

    If police are only going to use the lesser weapons when they are not warranted, then we need to take them away from them. Maybe give an officer only one bullet and make him carry it in his shirt pocket, like Barney Fife.

  15. Chris Upchurch says:

    Even if Brown did charge at Wilson and try to grab his gun, I would hope any jury (or anyone else investigating this) will start by asking, why didn't Wilson use his Taser or tear gas rather than shoot to kill?

    Every law enforcement agency I am aware of trains its officers that an attempted gun grab is a deadly threat, one that justifies lethal force. Tasers and pepper spray are intended for use at a distance, not when in a wrestling match with a subject (indeed, trying to use pepper spray in such a situation is going to result in the officer getting just as much of it as the subject).

    Based on what has been released so far I would not be at all surprised if the initial shots, fired during the struggle inside the police car, are ruled justified. The more problematic shots are those fired after Brown and Wilson exited the car.

  16. Rick says:

    I would hope any jury (or anyone else investigating this) will start by asking, why didn't Wilson use his Taser or tear gas rather than shoot to kill?

    I don't know what happened, nor do you, but I do know that tear gas won't stop a charging man right away. Conversely, I'm remembering a case where a cop shot someone in the chest with a taser and it stopped the perp's heart. People like you were then saying, "Why didn't he shoot him in the leg then?"

    Let's wait for some facts, people. All conjecture does is fuel the flames.

  17. Ernesto says:

    why didn't Wilson use his Taser or tear gas rather than shoot to kill?

    Do we know that he had a Taser? These are standard issue in my hometown (St. Paul, MN) since the GOP national convention in 2008, but I don't know if Ferguson's officers had them. Tear gas is more about crowds, so I wouldn't expect that. Maybe mace or pepper spray would apply, but that would assume a lot (e.g., the officer was facing the eyes of the sprayee).

  18. xtmar says:

    @Rick

    Let's wait for some facts, people. All conjecture does is fuel the flames

    Precisely.

  19. John says:

    In the Navy and the Coast Guard, we are taught to shoot if somebody goes for our gun. This is more related to jdgalt's question than what happened to Brown. Going for your gun is good enough for proving lethal intent, opportunity, and capability, at least as far as an initial investigation goes. OC is not good for close quarters, and as rick said above, you dont know how an assailant will be affected by that or a taser.

  20. Darwin says:

    Thank you. Your article gave me chills, particularly the last paragraph. I'm sharing this all over the place.

  21. Ted H says:

    Thanks for the traumatic bar exam flashback dude.

  22. Bob Brown says:

    I know about traditions of proofreading and the absence thereof, but you probably really should fix the headline to reflect that Brown allegedly robbed a convenience store.

    Also, as DoctorX has pointed out, the name is wrong in "The issue presented will be whether Wilson posed "a threat of serious physical harm, either to the officer or to others," and that's probably worth fixing.

  23. Anon Y. Mous says:

    @Matthew Cline

    @Steve Sailer:

    If this video wasn't relevant the Obama Administration wouldn't have tried so hard to keep it covered up.

    Ummmm, what?

    Ummmm, this:
    http://www.washingtontimes.com/news/2014/aug/16/doj-asked-ferguson-police-not-release-michael-brow/

  24. Bob Brown says:

    @David: It wasn't a five dollar box of smokes; the media reported the value at $48. (I can find boxes of 25 Swisher Sweets on the Web for $34, so $48 might be a good number if priced per-each at retail.) Certainly strong-arm robbery is not and should not be a shooting offense, but the difference between trivial and less-trivial values might have affected how the alleged (and apparently now confirmed) robber thought things might go.

  25. mud man says:

    Speaking of facts, Fox news reports that the cigars were a $48.99 item. MAY bee…

  26. vinteuil says:

    "The question is…did Officer Wilson [] have cause to believe that Mike Brown posed a serious physical threat at the moment Wilson pulled the trigger?"

    Well, yeah – if the Cathedral hadn't intervened, attempting to impose their preferred ideological narrative on events and transforming this local police blotter item into a gigantic national political issue, that might be "the question."

    But they did. So it isn't. The only really interesting question, at this point, is whether this incident does or does not support said narrative. The robbery video proves at a glance that it doesn't.

  27. Rick says:

    It wasn't a five dollar box of smokes; the media reported the value at $48. (I can find boxes of 25 Swisher Sweets on the Web for $34, so $48 might be a good number if priced per-each at retail.)

    That reminds me of the old story about the rich man who offered a beautiful woman a million bucks to sleep with him, and she did. The next time, he offers her $20 and she gets all offended saying, "What kind of a woman do you think I am?" He replies, "We've already established that; right now we're just haggling."

    Get the point? Whether $34 or $48 a thief a still a thief.

  28. Anon Y. Mous says:

    @Rick

    Yes you are correct. However, the reason people are talking about the price is that the original story was that Brown shoplifted a $5 box of cigars. It was a deliberate lie, part of the attempt to paint this thug as an innocent youth who committed a minor infraction. It was a strong-arm robbery and the item he stole was worth $50. If it didn't matter, they wouldn't be using every trick in the book to shape the public's perception of the event and the people involved.

  29. Pathgirl says:

    Long time lurker here,

    Lots of partisan links this early I need to invest in popcorn…

  30. Liberaltarian says:

    I will predict right now that you are wrong about the cop's defense. Instead of self-defense, he will argue that he was justified to use deadly force against Brown because he was a violent fleeing felon. the defense will argue that Brown assaulted him and tried to take his gun and that shooting him in the back was the only way to stop him. Any extra shots to the front will be justified as the confusion and adrenaline of the moment in a rapidly evolving and dangerous situation.

  31. Ken White says:

    @Liberaltarian: you mean, the theory that I explicitly referred to in the post, and cited a Supreme Court case for, as opposed to the "self-defense" theory I didn't mention in the post?

  32. Chris Upchurch says:

    If we're playing the prediction game, mine would be a disparity of force defense based on Michael Brown's size and strength.

  33. (Not That) Bill O'Reilly says:

    No analysis of how FRE 404(b)(2) might factor in?

    subject to the limitations in Rule 412 [addressing sexual crimes], a defendant may offer evidence of an alleged victim’s pertinent trait . . .

    The Missouri Rules of Evidence don't seem to include any prohibitions on character evidence, so the FRE 404 Rules only matter if a case is brought in Federal court. Insofar as someone was killed, I anticipate any charge brought by DOJ would be of a criminal nature, so 404(b)(2) would seem to apply, no?

  34. Liberaltarian says:

    Is it too late to delete? Mea culpa.

  35. Ken White says:

    @O'Reilly: I hypothesized a federal case. I think you quoted Rule 404(a)(2)(A), not (b)(2). And (a)(2)(A) applies to evidence of character — like testimony from neighbors saying he was violent or peaceable. The robbery would be a prior specific act, covered by 404(b).

  36. (Not That) Bill O'Reilly says:

    Bah, my mistake. Been too long since I took Evidence, apparently.

    Or I just never really understood it to begin with.

  37. David says:

    Oh yes, how silly of me. Fifty dollars is well into "kill all the witnesses" territory. Obviously.

  38. WhatYouTellMe says:

    This is the saddest site for a bunch of terrified authoritarian bootlickers to be hanging around making excuses for extrajudicial execution by a police officer. I can't imagine Ken is any more pleased than I am to see the results of you squatting on his lawn (I find it repulsive, and I don't even have to step in it). You're not the only one, Rick, but you're the sorriest so far:

    Get the point? Whether $34 or $48 a thief a still a thief.

    What the everloving fuck makes you think this matters even the tiniest little bit? What if he stole a shoebox full of 64 gB microSD cards full of legally purchased music worth a couple of billion dollars? What if he had committed a crime of violence that had actually hurt someone? What if he actually lived up to your worst paranoid fears, was a lifelong and hardened criminal who had actually shot and killed a police officer earlier that same day? SO FUCKING WHAT?

    So a police officer who is unaware of Mr. Brown's alleged crimes shoots him a minimum of "more than just a couple" times, once in the officer's car and at least once more at least 35 feet away from the car, while he is unarmed according to the account of the police them-fucking-selves? (And that's assuming that you consistently take the word of the gentlemen in the jackboots and blue uniforms over the consistent accounts of unrelated witnesses which would indicate that in this case Mr. Brown was surrendering and/or fleeing at the time of several of the shots. But I'll bet you don't always believe the police over unrelated witnesses…)

    And you trip over your trousers in your haste to explain why it's probably okay because he's "still a thief"? These are vile ideas.

    I think Ken has the better approach.

    Everybody has rights, or nobody has rights.

  39. Sara says:

    I have a problem with this whole analysis. Prior bad acts are excluded, as in the example here, to prove the guilt of the actor IF the actor was on trial. Is that also true in a defensive mode by the non-actor Officer Wilson? I don't think so.

    Further, the video shows Michael Brown leaving and as the store clerk makes a move to confront him, Brown turns back and makes a threatening gesture.

    The current information coming from another officer and someone from the street inadvertently taped, is that at 35 feet Officer Wilson confronted Brown and Brown turned around making moves to charge back.

    To me that is admissible to show modus operandi.

  40. John Gilroy says:

    The Missouri statute defines as robbery the use or threat of force for the purpose of "[p]reventing or overcoming resistance to the taking of the property *or to the retention thereof immediately after the taking.* Mo. Rev. Stat. § 569.010(1)(a). The case you cited left out the "or for the retention thereof . . . " part. That second part is crucial to your assertion that Brown committed robbery, as indicated by the cases acquitting individuals of robbery where the force was used immediately after the manual seizure of property. See State v. Holmes, 295 S.W. 71 (Mo. 1927); see also State v. Samuel, 562 S.W.2d 733 (Mo. Ct. App. 1978) ("It is well settled that in the case.where the state's evidence shows that the accused had obtained physical possession of the property by stealth and that force and violence or putting in fear was used only as a means of escape, or where the evidence fails to show that possession of the property was obtained by force or violence or putting in fear, the crime is not robbery." (quoting State v. Vandament, 299 S.W.2d 532, 534 (Mo. 1957)), superseded by Statute as stated in State v. Marberry, 639 S.W.2d 290 (Mo. Ct. App. 1982).

  41. Chris Upchurch says:

    "What if he stole a shoebox full of 64 gB microSD cards full of legally purchased music worth a couple of billion dollars?"

    Looks like somebody reads xkcd.

    http://what-if.xkcd.com/108/

  42. WhatYouTellMe says:

    Looks like somebody reads xkcd.

    That's where I get all my news.

    Or at least all my casual thought pieces about the consequences of accelerating everyday objects to relativistic velocities.

  43. Bob says:

    Ah, confused. You say the police cannot use evidence that your client has robbed previous banks to paint him as a bank robber. Can they use convictions for bank robbery to paint him as a bank robber?

  44. Trent says:

    I'll second disdain of the "authoritarian bootlickers" posting in support of police killing people.

    First, I share the families suspicions about the release of video's timing and relevance including whether it shows what it purports to show. The video is shot from an angle where it's impossible to tell what actually happened or if money changed hands (one of his friends clearly pays for something). All we know for certain is that someone tries to stop Brown from leaving the store and is intimidated away from stopping him.

    Regardless, the only information that's relevant here is what happened between the officer and Mike Brown, the officer wasn't aware of what had happened before, he confronted them because they were walking in the street. The officer also shot an unarmed man 6 times (once in the head) and there are no powder burns on the body (though the clothes haven't been examined). That generally means that Brown was shot from a distance farther than up close. I'm suspicious of any claim by the police of grabbing for their gun, this is taught to police as a standard justification for violence. There are videos of police screaming at people not to grab their gun while they pummel them mercilessly that show that the person never reached for the gun. So I believe any claim of grabbing for their gun needs extraordinary evidence that is true. There are numerous witnesses that say Brown was shot with his hands in the air. IMO even if all the allegations are true, that he reached for the gun that they fought don't matter because if Brown was shot with his hands in the air while trying to kneel down, IMO the officer committed murder. Once the hands go up and the suspect starts obeying commands the threat is gone. Six shots is a lot and they are all over the body, the head shot is at an angle such that Brown was either looking down or bending over something. This would appear to corroborate the witness accounts that Brown was starting to kneel down when shot with the final killing shot.

    It's far past time that officers were equipped with mandatory body mounted video recorders that cannot be shut off during their shift. The trial runs of these cameras have seen a 60% drop if police use of force and 80% reduction is complaints of police abuse. The cameras will assist with prosecution and will keep everyone acting civil just as the research has shown them to do.

  45. Anglave says:

    vinteuil said:

    "The question is…did Officer Wilson [] have cause to believe that Mike Brown posed a serious physical threat at the moment Wilson pulled the trigger?"

    Well, yeah – if the Cathedral hadn't intervened, attempting to impose their preferred ideological narrative on events and transforming this local police blotter item into a gigantic national political issue, that might be "the question."
    .
    But they did. So it isn't. The only really interesting question, at this point, is whether this incident does or does not support said narrative. The robbery video proves at a glance that it doesn't.

    If I'm reading this correctly, according to your worldview the Obama administration (that's "The Cathedral", or am I reading you entirely wrong?) has a predefined narrative – something like 'Innocent blacks are persecuted and unjustly killed by oppressive white authority figures.' – and they have intentionally elevated events in Missouri to the national stage, while shaping evidence and media perception in order to support this thesis?
    .
    And furthermore, since you've reached this conclusion, in your mind the question of whether officer Wilson was legally justified in shooting Mike Brown is conveniently irrelevant — the interesting fact now is that this video "disproves" the "ideological narrative" of the Obama Conspiracy?
    .
    This is (largely) a law blog. Ken is lawsplaining why the video of the robbery may or may not be admissible in court. I'm tempted to call you a paranoid delusional with some kind of politically oriented persecution complex, but honestly what I think of your bizarre perspective is irrelevant. Even if you're 100% correct, trying to make this a political argument is way off topic.
    .
    IANAL but I believe it's illegal for an officer of the law to shoot an unarmed man multiple times in the back, particularly if the man is trying to surrender at the time. Their skin colors don't enter into it. As Ken points out, even their past behavior or criminal records wouldn't enter into it. You accusing the President and/or his administration of some kind of racially motivated agenda certainly doesn't enter into it. The only relevant question really is 'did Officer Wilson have cause to believe that Mike Brown posed a serious threat – one that justified use of lethal force – at the moment he pulled the trigger?"

  46. Anglave says:

    Bob,

    I'm no lawyer, but I think the theory is that evidence of (or even convictions for) previous bank robberies aren't evidence of the defendant's guilt in later robberies. We don't convict people because they've committed crime in the past, or because they're 'the type who robs banks' or because they look shifty. Such information may sway a jury toward a guilty verdict, without presenting any factual evidence of guilt.

    If your town's bank gets robbed, and there's a known bank robber in town, he's a good suspect. But his prior conviction is no evidence of his guilt.

  47. Zem says:

    Lets just strip this all back to basics. It's an attempt to blame the victim. The next step is to spin the police officer as the real victim. Then the officer will be charged and convicted, but in such a rushed manner that the conviction will be overturned on appeal. And all this time Mike Brown will still be dead.

  48. Kevin Horner says:

    I think the main lesson we should all take from this is: arming a certain set of people and giving them special rights to kill others just because they feel threatened isn't especially conducive to a free society… especially when those given those special rights are the people supposedly meant to keep the peace.

  49. MattC says:

    The job of the police is not to protect the public or "keep the peace" but to enforce the law.

  50. Jamie Kitson says:

    A few typos:

    Brown was a robbery

    But he fact

    did Officer Wilson him

    the treat of violence

  51. Bob says:

    A few typos:

    did Officer Wilson him

    I don't know Jamie, I think "to Officer Wilson someone" might well be a verb when this is all said and done :)

    Bob,

    I'm no lawyer, but I think the theory is that evidence of (or even convictions for) previous bank robberies aren't evidence of the defendant's guilt in later robberies. We don't convict people because they've committed crime in the past, or because they're 'the type who robs banks' or because they look shifty. Such information may sway a jury toward a guilty verdict, without presenting any factual evidence of guilt.

    If your town's bank gets robbed, and there's a known bank robber in town, he's a good suspect. But his prior conviction is no evidence of his guilt.

    Thanks Anglave. I think it makes sense now, what Ken said about "state of mind". So I guess, if Ken's client was accused of robbing a bank, the state could not use previous convictions as evidence he did the deed. But if Ken's client's defense is that he did not know he was a getaway driver, and he only thought he was waiting outside to drive his friend home, previous convictions for bank robbery might be used to cast doubt on that claim (I think, assuming I've understood this all).

  52. Leeada Johnson says:

    A 6 foot 4 inch 300 pound violent thug, walking away from a robbery down the center of the street at high noon, gets stopped by a cop, who lets him go, then sees the thug is holding a bunch of cigars, and backs up to stop what is now a recognized suspect. The thug attacks the cop who shoots him in self defense, all frontal shots. As a pleasant result the thug expires before he can go on to a career of further thuggery and even murder…
    Everybody except the lawyers on this blog realizes that, which is why Wilson will be charged with nothing, there is no winnable case here, as reasonable people understand. The only people who agree with the self righteous lawyers on this blog, are the people rioting and looting in Ferguson… that's how normal people see these things. And in this case it appears they are quite correct. The "witness" is a felon who was in the company of a fleeing robber, and has no credibility. Mike Brown thank fully will not rob, terrorize and bully again, but the immigrant of color, who was the real victim is going to flee Ferguson, in justified fear of his life.
    Sometimes you abstract things so far up your legaleezed butts, that you lose sight of the simple truth of things

  53. Bill B says:

    As a non-LEO who has sat through the LEOs use-of-force continuum lecture I wanted to correct A misconception about Taser use. A Taser is not considered or taught as an alternative to lethal force. It is a compliance weapon that is an alternative to laying hands on a subject or striking them with the baton.

    Prior to this lecture I also considered that the Taser device was supposed to be used instead of a gun but this is emphatically not the case. If lethal force is "justified" police officers are taught to use lethal force. As far as I'm concerned using a weapon that delivers a extremely painful electric shock to force compliance is actually torture and I was quite suprised and disappointed to learn that to say the least.

  54. Tarrou says:

    And we can see how the emotional processing of information drives the partisan split. "Bootlickers" and "coverup" indeed. Allow me.

    1: Whether Brown robbed a store, as Ken says, is totally irrelevant to whether or not his shooting was justified. If it was justified, it was justified with or without the robbery, if it wasn't, the same goes.

    2: That said, the protesters did a lot of work in the media selling the "St. Brown" story, about how he wouldn't hurt a fly, and of course the cop just shot him randomly because EVIL RACISM! I think it's a bit unprofessional for the cops to leak this, but there is zero chance it wouldn't have come out from somewhere. Apparently, some folks are okay with Anonymous hacking and releasing the name of the officer involved but not the cops playing the same game. It's different legally, I grant, but in the court of media exposure, this is tit for tat.

    3: I tend toward the belief that this wasn't a very good shoot, but those who suggest that the officer should have used mace, or a taser, or shot him in the leg, are just being ridiculous. If the situation warranted deadly force, then there is no requirement the officer try the "golf bag" approach. And, assuming for the moment the officer's story is correct, if Brown was wresting for his gun, is he really expected to take the time to fish around on that same belt for something else while someone tries to draw his weapon? No. If Brown did what the officer said he did, the shoot is righteous. Some eyewitnesses dispute this, and the officer clearly has a strong motivation to lie if things went down differently, but there it is.

    4: Nothing says "legitimate civil rights protest" like robbing and burning liquor stores. The Brown partisans have done more damage to their own cause than anyone else, much like the police in this case. I have enough opprobrium for all.

    5: No matter the merits of this case, police militarization should be opposed. I'm saddened that there had to be a race-baiting angle to bring the issue to national coverage, but lemons and lemonade, I suppose.

  55. Alyric says:

    According to the autopsy, he was shot six times, all from the front – which nixes the 'he was running away from the cops' argument I've seen a few places. One of those shots was to the top of the head, consistent with someone charging the shooter.

    A recently released video that caught witnesses relaying their stories – not to police – both gave similar accounts of Mike Brown choosing to charge the officer. If those accounts are true, especially considering Mr. Brown's size, that (in my humble opinion) posed more than enough risk to justify the shooting. Remember that the Tueller Drill shows that an attacker can cover 21 feet in 1.5 seconds – perhaps not *every* attacker, but when there's a threat it's not wise to take chances.

    I no longer automatically give the police the benefit of the doubt – I've read about too many abuses for that – and I'm not writing off the possibility of police mishandling this incident; but from the information that's been made available to date – not all of it by police – the shooting *seems* justified.

    I guess only time will tell.

  56. David says:

    Brown was a robbery

    But he fact

    did Officer Wilson him

    the treat of violence

    …Burma-Shave.

  57. Bill says:

    Could the witness be considered unreliable because of his association with the robbery? From what I gather he hasn't been charged with any crime, but he was present while the robbery occurred. I was just wondering if that would be admissible or not.

  58. Veritas says:

    Obviously written by a member of the OJ jury.

  59. Franklin Bluth says:

    1. MO has not adopted the FRE or (mostly) any formal rules of evidence. It only has common law rules of evidence, which are even more stringent on the use of prior bad acts.

    2. All of that is irrelevant, because cops in MO pretty much have carte blanche to shoot people. Cops can use lethal force "in preventing an escape . . . [w]hen he reasonably believes that such use of deadly force is immediately necessary to effect the arrest" of someone who has committed a felony. RSMo 563.046. So the robbery is admissible to show that Brown was someone who had committed a felony and the cop gets off scot free.

  60. Geeklaw says:

    Ken, have you considered writing a Lawsplainer book, because this post does a better job of explaining FRE 404(b) than law school, Bar prep courses, and practicing attorneys put together.
    Thanks for taking the time to explain the law to lawyers and nonlawyers alike.

  61. CJK Fossman says:

    @Tarrou
    Agreed.

    Do you wonder, as I do, how the initial protest would have gone down had the cops not showed up in riot gear and aimed a rifle at the crowd?

    @Veritas
    Do you have a point? Do you have a working synapse?

    Obviously written by a member of the OJ jury.

  62. Rick says:

    I think the main lesson we should all take from this is: arming a certain set of people and giving them special rights to kill others just because they feel threatened isn't especially conducive to a free society… especially when those given those special rights are the people supposedly meant to keep the peace.

    I'll bite. What's the alternative, given that we're not a nation of lemmings and sheep, and given that a certain subset or two of the population would be regarded as heroes if they killed The Man.
    Disarm the police (our proxies), and then every one of us will have to walk around with our six shooters strapped to our hips practicing our fast draws for our modern day OK Corral.
    Disarm the police AND the honest citizen? Ooh, would the human predators have a field day….

  63. Rick says:

    @WhatYouTellMe

    You need to work on reading comprehension, dude. Please reply with a quote where I said it was okay for him to be shot because he stole cigars. Him being a thief is independent of him being shot; there's no causality nor no correlation.

    But he's still a thief.

    Thank you.

  64. xtmar says:

    Disarm the police (our proxies), and then every one of us will have to walk around with our six shooters strapped to our hips practicing our fast draws for our modern day OK Corral.

    This message approved by Clark.

  65. glasnost says:

    Nothing says "legitimate civil rights protest" like robbing and burning liquor stores. The Brown partisans have done more damage to their own cause than anyone else, much like the police in this case. I have enough opprobrium for all.

    People with functioning logical facilities are very tired of other people who use the actions of an irresponsible few as if they have bearing on the attitude or intentions or actions of the "community". Ferguson is a city of 20,000 people. The behavior you speak of, given the scale, appears to involve five to ten.

    Institutions can be judged for the actions of the few who belong to them, because they have tools to force people to behave by a code. Communities don't.

  66. Rick says:

    @CJK
    Agreed.

    Do you wonder, as I do, how the initial protest would have gone down had the cops not showed up in riot gear and aimed a rifle at the crowd?

    Do you wonder, as I do, why the protesters burned and looted innocent owners' stores? Any moral high ground they possibly could have claimed is gone with that set of actions. Stealing those shoes and hair extenders sure showed Whitey, didn't it?
    One of these days, there's going to be a business owner with a 12 gauge that's going to defend their property, and it's going to get uglier.

  67. Rick says:

    Institutions can be judged for the actions of the few who belong to them, because they have tools to force people to behave by a code. Communities don't.

    Yeah they do. It's called the law.

  68. Levi says:

    Even considering the ridiculously absurd way this whole situation has been handled by authorities, I simply cannot follow the line of thinking of the reflexive-officer-support people. Even assuming the worst possible state of mind for Brown (say, he's a hardened gang member who just stole cigars and was looking forward to an evening of torturing puppies) and the best possible state of mind for Wilson (filled with a gentle glow of love for his community and compassion for Brown and his compatriots), I can not construct any logical string of events with good faith on Wilson's part that leads from:

    1) "Why don't you lads get out of the street" to
    2) "Come over to my car where you're in range for a friendly tussle" to
    3) "My only option now is to shoot you six times with gun/taser/water pistol" [his equipment is irrelevant, should not have come into play]

    "Get out of the road" does not require close contact (indeed, the folks in riot gear seem to be doing their best to avoid close contact when clearing protestors). To think that this was justified, it would appear that people either assume that Brown snapped and rushed the police vehicle to take out the cop or that Wilson pulled up inches away from him, so close that Brown thought he could snatch the weapon. The former seems completely out of left field and the latter is automatically a needlessly threatening escalation.

  69. xtmar says:

    @glasnot

    Institutions can be judged for the actions of the few who belong to them, because they have tools to force people to behave by a code. Communities don't.

    I disagree, sort of. Part of the reason past non-violent protest movements have been successful is that they've been good about kicking out people who wanted to incite violence, or otherwise tarnish the image of the protesters, both police provocateurs and the more radical fringes of their own alliance.

    Protests are ultimately about politics, and as such, the image that they project is the most important thing they have. To the extent that they tolerate looting or rioting, they work into the hands of their opponents, because most people are more anti-rioting and anti-looting than they are pro-protest.

  70. Bob Brown says:

    Well, holy cr… smoke!

    I did not mean to suggest, and do not suggest, that killing a man over $5 is wrong, but $50 is OK.

    I posted the message about the price of the seegars for two reasons. The less important is at least trying to keep the facts straight. There is also the question of what was going on in the mind of the thief. To me, at least, $5 is what lawyers call de minimis and $50 is a non-trivial amount of money.

    David said: "Oh yes, how silly of me. Fifty dollars is well into 'kill all the witnesses' territory. Obviously." I certainly wouldn't think so, but who can say what was going through Michael Brown's mind. He somehow considered a box of Swisher Sweets valuable enough to risk the penalty for strong-arm robbery.

    I left out "alleged" on purpose because, apparently, a lawyer for the Brown family has confirmed that it is Michael Brown on the tape.

  71. Levi says:

    I have similar problems with those who dismiss the entire protest because of the looting.

    "Some of you have not paid your taxes" != "All of you forfeit your right to petition the government for redress of grievances" (I guess if the local police shoots your neighbor and doesn't come by to explain to their kids why it happened or how sorry they were that it turned out this way, there is no grief/grievance?)

    "Internet comment threads occasionally attract obnoxious trolls" != "What a pack of fucking animals! I'm deleting everything and shutting this sucker down, civilized discourse is obviously impossible"

  72. CJK Fossman says:

    @Rick

    No, I don't wonder about that at all. I don't believe you do, either. But I've got a pretty good idea that our beliefs don't agree.

    By the way, who enforces the law on the law enforcers?

  73. Rick says:

    @cjk

    No, I do wonder that. All of the talk about "rights" seem to gloss over THOSE victims' rights, that they're just acceptable collateral damage.

    Quis custodiet ipsos custodes? has been asked since Senegal's time. The only sane answer is the justice system, not the mob.

  74. Eric Rasmusen says:

    What is the story the anti-police people say happened? I haven't heard one yet, though maybe I've missed it. I've seen people say Brown was fleeing and was shot in the back, but he wasn't— all wounds were to the front. See the article and sketch from the private autopsy done at his family's request:

    http://www.nytimes.com/2014/08/18/us/michael-brown-autopsy-shows-he-was-shot-at-least-6-times.html

    The video is absolutely relevant and probative for the policeman's story, which is that in a routine stop Brown unexpectedly went for the officer's gun, they scuffled, then Brown ran, and then Brown doubled back and charged the officer.
    What is the story of the other side? What is supposed to be the policeman's motive? Why aren't any of the wounds to Brown's back, if he was running away? If he was surrendering from a distance, and there were witnesses, why would an experienced policeman shoot a man he didn't even know? The article I link to says the eyewitness claimed Brown was shot in the back— but the autopsy now tells us that that eyewitness was lying. Another person said Brown had his hands up—- but was that person just retelling an instant rumor?

    Another legal question: would it be admissible that Brown was 6 ft. 4 and 292 pounds?

  75. piperTom says:

    Rick is dreaming:

    Disarm the police (our proxies), and then every one of us will have to walk around with our six shooters strapped to our hips practicing our fast draws for our modern day OK Corral.

    Your fantasy bears no relation to reality. For a start, look at the current experience in Detroit. Those police have withdrawn to their bunkers and the citizenry did not go nuts. Instead, they self-organized for violence protection and it's working as well as any agency of The State and for far less cost. Many other examples exist.

    Also, The Official State Monopoly Police may be your proxy; they are not mine.

    P.S. to xtmar: I doubt very much that Clark is approving.

  76. amac78 says:

    I appreciate Ken's Lawsplainer; the admissibility issues are surprising to me (IANAL obv.) — important context.

    I also appreciate the analysis of the broader social issue that Steve Sailer (comment #4) has provided at his website. As with similar previous dramas, the criminal and civil law process is only one small piece of the story. NPR, the NYT, CBS Morning News, and my city's local print and TV media (my sources) are all on board. As are the DOJ, the President, and the State of Missouri. That shared Narrative studiously ignores issues like the role of Section 8 Housing and the lure of the cash payout in the descent of Ferguson. Not to mention that kicking ass and looting can provide hours of exciting recreation, for many young lads.

    Trying to make sense of the broader story tragedy isn't the same thing as giving cops a pass, or celebrating the militarization of U.S. police forces.

  77. mt45 says:

    If this was a regular defendant and a judge excluded evidence that was the basis of his entire defense, you guys would be freaking out about misconduct and biased judges and stuff.

  78. Rick says:

    @piper

    Yes, let's do look at Detroit. What part of highest murder rate per capita are you not understanding? Do we have a different definition of "go nuts?"

    Also, The Official State Monopoly Police may be your proxy; they are not mine.

    Only, apparently, if you live in Detroit.

  79. mt45 says:

    Also, the 1983 case cited would have some applicability in an actual 1983 case, but a murder case would be very different. A criminal defendant has the right to put on a defense and to put on evidence relevant to that defense. Even police officers.

  80. Zak says:

    @CJK Fossman – IAB, at least in theory, and the courts like everyone else. If it gets out of hand, then the feds… All of which are too slow to act for some people.

    @Bob Brown
    I am on your side but for different reasons. It is inappropriate to downplay actual facts in a case, no matter how minor. If an absurdity was added like kicking a puppy then I could get behind it because it is not distorting facts. It is the same with distorting the law by calling it shoplifting instead of robbery.

    If it comes to court (meaning the robbery, the shooting obviously will) and the jury, which will be tainted no matter what we do at this point, hears the amount is 10x what they heard for months and they are picturing a more violent altercation because what they saw was "not that violent" and "that was shoplifting" they will likely see it as the facts being blown out of proportion.

    Words matter, facts matter, especially in the heat of a courtroom to a jury.

  81. melK says:

    …are staples of youth culture…

    And here I thought the punk movement had died out.

  82. David W says:

    The answer — like most lawyer answers — is maybe.

    This bothers me. I want the law to be a well-understood thing – same reasoning as stare decisis, really. To tie to Ken's other "favorite" topic: harassment law bothers a lot of people because it's filled with maybes as well. Is this generally characteristic of all law? Is that why Ken's so puzzled by the blowups around harassment law in particular?

    I can think of a few possible reasons why law ends up vague and subject to interpretation, and I'd be curious to hear lawyers' analysis of them:
    1) The law is generally poorly written, with a lot of ambiguities. Better legislators could help.
    2) You only ask a lawyer about the non-obvious things. Most things are straightforward and don't need much lawyerly input, so laymen don't hear about them.
    3) It's not practically possible to spell out the law in advance. Truth being stranger than fiction, no matter what you write, someone will immediately do something previous unimagined.
    4) Something else

  83. Kilroy says:

    you left out one of the most important details. He stole Swisher Sweets. And everyone knows what people use Swisher Sweets for. Just waiting for the "hopped up on drugs" story lines.

  84. Doctor X says:

    Yeah, any argument celebrating Detroit is doomed to fail.

    Be that as it may, I would encourage many to RE-READ Ken's commentary–in allcaps of course. He does not exonerate the victim of either whatever crime he may have committed or what contribution he may have made to the shooting. He does not convict the policeman. He does not advocate vigilante violence. He does not advocate disarming the police.

    He is simply trying to provide a coherent explanation of the law while maintaining a realistic understanding of how such law is applied.

  85. cb says:

    As a pleasant result the thug expires… Everybody except the lawyers on this blog realizes that

    IANAL, but I don't realize that capital punishment without due process is a pleasant thing. Perhaps it's those damn moral teachings the church has brainwashed me with

  86. Dictatortot says:

    Precisely. Even if Brown committed the robbery, it doesn't make the shooting one whit more justified in itself. Now, it might make it more plausible that Brown behaved aggressively or violently when later confronted. This, in turn, might introduce a smidge of reasonable doubt about whether the circumstances of the confrontation made shooting him a defensible call. I'm not sure whether it'd be admissible under those grounds, and it doesn't seem like a particularly strong argument for the defense, but it doesn't seem totally irrelevant or unfairly prejudicial either.

  87. Chris Upchurch says:

    @David W

    Orin Kerr had a nice post about this a while back.

    http://www.volokh.com/posts/1253813251.shtml

  88. Chris Upchurch says:

    Former federal judge Paul Cassell has a post on the admissibility of Brown's robbery up on the Volokh Conspiracy. Essentially he thinks the robbery is much more clearly admissible than Ken does.

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/18/why-michael-browns-robbery-would-be-admissible-at-a-federal-criminal-trial/

  89. Kevin Horner says:

    I'll happily respond:
    If you think shooting people down in the street solves anything, you are one of those human predators you mention.

    I think the main lesson we should all take from this is: arming a certain set of people and giving them special rights to kill others just because they feel threatened isn't especially conducive to a free society… especially when those given those special rights are the people supposedly meant to keep the peace.

    Rick said – I'll bite. What's the alternative, given that we're not a nation of lemmings and sheep, and given that a certain subset or two of the population would be regarded as heroes if they killed The Man.
    Disarm the police (our proxies), and then every one of us will have to walk around with our six shooters strapped to our hips practicing our fast draws for our modern day OK Corral.
    Disarm the police AND the honest citizen? Ooh, would the human predators have a field day….

  90. Matt says:

    small correction: "But it would not be broadly admissible for the purpose of showing that Brown was a robbery or that he was violent."

    "Brown was a robber", extra y was added in your original, fyi..

  91. Tarrou says:

    @CJK Fossman,

    Do you wonder, as I do, how the initial protest would have gone down had the cops not showed up in riot gear and aimed a rifle at the crowd?

    As I said, against police militarization and I do think they mishandled the situation pretty badly. That said, I doubt riot gear turned peaceful nonviolent pillars of the community into "MUST BURNINATE!".

  92. Red Tonic says:

    @Alyric:

    With regard to this video–cite your sources. If you're going to use a "recently released" video to back up your claims, then produce a link.

  93. Grandy says:

    @Tarrou

    2: That said, the protesters did a lot of work in the media selling the "St. Brown" story, about how he wouldn't hurt a fly, and of course the cop just shot him randomly because EVIL RACISM! I think it's a bit unprofessional for the cops to leak this, but there is zero chance it wouldn't have come out from somewhere. Apparently, some folks are okay with Anonymous hacking and releasing the name of the officer involved but not the cops playing the same game. It's different legally, I grant, but in the court of media exposure, this is tit for tat.

    I see this as a sad reflection of the times. Protesters feel the need to do all of this stuff precisely because the other side is generally ok with anything and everything the state does (as long as it does not affect them and their immediates). Further, most people only respond to narrative driven news events. The costs of this are on full display.

  94. Alyric says:

    @Red Tonic:

    Here's one:

    https://www.youtube.com/watch?v=VdL9dqkyjhM#t=388

    Starting around the 6:30 mark you can hear one of the witnesses talking. A relevant portion:

    #1: Then the next thing I know he doubled back toward him cause – the police had his gun drawn already on him
    #2: Oh, the police got his gun
    #1: The police kept dumping on him, and I’m thinking the police kept missing – he like – be like – but he kept coming toward him

  95. cb says:

    One of those shots was to the top of the head, consistent with someone charging the shooter.

    Who charges with their head down? That's ridiculous.

  96. Pablo says:

    Ken,

    Fantastic explanation as usual. I would like to second a request for a lawsplainer about curfews for non youth. Cause you know, screw those pesky youths.

  97. JonasB says:

    Volokh Conspiracy has an interesting response to Ken's post here: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/18/why-michael-browns-robbery-would-be-admissible-at-a-federal-criminal-trial/ and I think it's a fair assessment, particularly with regards to evidence about state of mind.

    Unrelated: if I go to the main page of Popehat the most recent post shown is the Crowdsourcing Justice thing about Kimberlaid–is the main article list just not updating right?

  98. sinij says:

    If I ever charge at the police officer who is detaining me, I fully expect to be shot. Is this not a reasonable assumption? How is operating with this assumption violates my rights?

  99. cb says:

    @Alyric
    your words:

    choosing to charge

    the witness' words:

    coming toward

    Seems you've made an assumption here

  100. rick says:

    If you think shooting people down in the street solves anything, you are one of those human predators you mention.

    Well, no. By definition a predator would be the one victimizing other people. Regardless, there are good and valid reasons for "shooting people down in the street." Unlike you, though, I seem to be looking for facts-based evidence before blindly making a determination of whether this is or isn't one of those times.

  101. M_Young says:

    " I can't imagine Ken is any more pleased than I am to see the results of you squatting on his lawn "

    He can always not have comments, but comments drive traffic.

    He could, of course, do the TN Coates thing ans sharply restrict dissenting comments.

  102. M_Young says:

    "He is simply trying to provide a coherent explanation of the law while maintaining a realistic understanding of how such law is applied."

    Until he ventured into the 'why it shouldn't matter'.

  103. Alyric says:

    cb:

    True, but it's based partially on other witness statements (including the police, I grant you), partially on the autopsy results, and partially on common sense: i.e., if a cop is pointing a gun at you and ordering you to stop, advancing toward him (charge or not) is relatively stupid – whether the arrest is justified or not.

    I'm not ignoring the possibility of bad judgment on behalf of the police leading up to the incident, but if he was charging – or even advancing – toward a cop who was pointing a gun at him (which the witness claims), it was not a particularly smart thing to do.

    Hopefully, the true details about the shooting – including the events leading up to it – will eventually emerge. Unfortunately, as Charles Spurgeon said – "a lie will go round the world while truth is pulling its boots on."

    If it's determined the police exercised poor judgment, I hope they're punished accordingly – past incidents leave me skeptical of this, though.

  104. Anton Sirius says:

    @Rick

    Do you wonder, as I do, why the protesters burned and looted innocent owners' stores? Any moral high ground they possibly could have claimed is gone

    They who? You seem to be suggesting that every protester is culpable for the actions of the looters.

    BTW – vague, loose pronouns are a dead giveaway that you haven't put much thought into what you're saying.

    But he's still a thief.

    Michael Brown had no criminal record, and the convenience store owner said he filed no criminal complaint stemming from the incident shown in the security camera footage.

    According to the law, Brown was no more a thief than Officer Wilson is a murderer.

  105. The thing that strikes me about the furor is; why must we assume that if one side is wrong the other side is right? Isn't it equally likely that Brown was a thieving lowlife who freaked on a cop, the cops was thug whose immediate reaction to any perceived resistance was to empty his gun, the protesters are a bunch of race baiting jerks, and obliterating the entire town and replacing it with commuter parking would constitute an improvement?

    It seems that one faction currently having hysterics all over cable news thunks the best of all possible worlds is one in which nobody ever gets shot.

    Not going to happen.

    Another faction is sure that the Police can do no wrong.

    Yet another is convinced they can do no right.

    My perspective?

    Walking down the middle of a street is normal (and stupid) male teenage behavior. Being belligerent to cops is also normal. The teens should know better, but can't nobody tell 'em nothin'. I know. I remember being a teenager. I was white, so maybe I got more of a pass than I would have had I darker skin. On the other hand, had I had darker skin I would have had even more reason to be respectful of The Man, so maybe it should even out if not for teen stupidity.

    Cops are too goddamned fond of whaling on the citizenry, and of stonewalling after. I don't know anything about this case that I could use to prove that this cop in this case was unreasonable, but there is a pattern that inclines me in that direction. Cops should think about that, HARD.

    "Protesters" and even "Rioters" get too goddamned much sympathy in this society. A protest that sets fire to things has crossed a serious line that most people don't recognize and don't want to recognize. If "rioters" or "Protesters" have torched a building, then they have initiated potentially deadly force; a building sized fire is not really under anyone's control and is all too likely to kill. This struck me first when I read James A. Michener's KENT STATE. I didn't read it until sometime after 1998. I grew up in Ohio. Nobody had ever mentioned that the night before the shootings, "Protesters" had set fire to the ROTC building and interfered with firefighters on the scene. That means that, regardless of hope sympathetic one might one to feel over the "Protesters" they had committed an abysmally stupid and seriously dangerous act. That protest had to be shut down before they ran out of sheer dumb luck.

    On the other hand, Protesters get it in the neck from Authorities that ought to goddamned know better. No, you cannot make a free people convince their free speech to those areas and hours that are convenient to you. You can keep them out of private property that you own or have hired. Otherwise you are gonna have to put up with it. I don't care if they are PETA members, KKK nitwits, or Flat Earthers. Cope. With. It. If your sensibilities are too tender to handle some name calling, then you've little business in any position of authority.

    So what I'm saying is that NOBODY comes out of this looking good, and maybe instead of debating who was "wrong" and who was "right" we should be looking at the social and legal conditions that have had a hand in making EVERYBODY wrong.

  106. Chris Upchurch says:

    Michael Brown had no criminal record, and the convenience store owner said he filed no criminal complaint stemming from the incident shown in the security camera footage.

    According to the law, Brown was no more a thief than Officer Wilson is a murderer.

    That's not how the law works. The decision whether or not to press charges is in the hands of the prosecutor, not the victim. The prosecutor can choose to press forward with charging a suspect even when the victim doesn't "file charges" (and even when the victim actively opposes the prosecution).

    In this case, charges are rather a moot point, given that Brown is dead, but the fact that the store owner did not call 911 or file charges has no bearing on whether Brown committed a crime.

  107. Rick says:

    They who? You seem to be suggesting that every protester is culpable for the actions of the looters.
    BTW – vague, loose pronouns are a dead giveaway that you haven't put much thought into what you're saying.

    Every protester is as culpable for the looters' actions as every cop is for Wilson's actions, with slight small caveat the protesters had/have the opportunity to stop the looters while the cops couldn't for Wilson.

    But he's still a thief.

    Michael Brown had no criminal record, and the convenience store owner said he filed no criminal complaint stemming from the incident shown in the security camera footage.
    According to the law, Brown was no more a thief than Officer Wilson is a murderer.

    Yet you accuse me of being imprecise with language. Brown, based on video evidence and statements to the police, is a thief (just not a convicted one), and Wilson is a killer. He won't be a murderer if/until convicted of…murder.

  108. Andrew says:

    If I'm understanding Ken and some other blawgers correctly, the legal relevance — if any — of the alleged robbery is the insight into how Brown was behaving as a result, provided that Wilson really did not know about the robbery.

    How might the analysis change if:
    1. The alleged robbery never happened;
    2. Brown had no other crime-related reason to expect arrest;
    3. Brown was, for any of one or more other reasons (including but not limited to his race), rational or otherwise, of the belief that being approached by a cop is likely to get him hurt or killed; and
    4. Brown's friends and family were well aware that Brown held this belief.

    If this situation explained Brown's behavior, would it change the admissibility and/or relevance of evidence regarding Brown's state of mind at the time of his encounter with Wilson?

  109. Anton Sirius says:

    @Chris Upchurch

    If you disagree with me, then please explain how, in the eyes of the law, Michael Brown was a thief. I was, after all, responding to Rick's declarative statement that he was one.

  110. Chris Upchurch says:

    @Anton Sirius

    You stated that he was not a thief because the store owner did not file a complaint. I merely pointed out that whether or not the store owner filed a complaint has no bearing on the analysis.

  111. Anton Sirius says:

    with slight small caveat the protesters had/have the opportunity to stop the looters

    Really? So even protesters who weren't at the scene of the lootings could have stopped them? Fascinating theory.

    Brown, based on video evidence and statements to the police, is a thief (just not a convicted one)

    Well, based on statements to the police Wilson shot a man in cold blood, so he would be a murderer in exactly the same way that you claim that Brown was a thief.

    Not needing a trial or anything to declare a man a criminal makes things so much easier, doesn't it?

  112. CJK Fossman says:

    @CSP

    Best post in the thread. Thank you.

    @Tarrou
    Atlanta GA managed to get through the shooting of a black septuagenarian grandmother without any looting and burning. How is Atlanta different from Ferguson, MO?

  113. cb says:

    with slight small caveat the protesters had/have the opportunity to stop the looters

    And some have tried, but you still lump them together.

  114. Rick says:

    Well, based on statements to the police Wilson shot a man in cold blood, so he would be a murderer in exactly the same way that you claim that Brown was a thief.

    Nope, "merely" a killer, as noted above.

    Not needing a trial or anything to declare a man a criminal makes things so much easier, doesn't it?"

    LMFAO. The mobs in Ferguson did just that, no?
    Just remember, reality doesn't need to be adjudicated. He's a thief and Wilson is a killer. Those are indisputable facts. Whether Wilson is also adjudged to be a murderer is up to the legal system since murder is a legal term ("the UNLAWFUL killing blah blah") so it can't be murder until his case has gone through the system.

  115. cb says:

    @Tarrou

    Apparently, some folks are okay with Anonymous hacking and releasing the name of the officer involved but not the cops playing the same game. It's different legally, I grant, but in the court of media exposure, this is tit for tat.

    Some people have a problem with Anonymous and with police engaging in tit for tat. The police shouldn't be playing a game of "he started it", you shouldn't be excusing their behavior

    The Brown partisans have done more damage to their own cause than anyone else

    As with Rick, the failure to differentiate between protestors and looters is inappropriate

    race-baiting

    aka menitioning race at all

  116. George says:

    The video depicts what appears to be a robbery, but I have not seen any complaint file by the store owner. Perhaps Brown paid for the cigars but was asked to provide ID to prove his age, and refused. Without a conviction, I dont think the video is admissible.

  117. Anton Sirius says:

    @Rick

    Nope, "merely" a killer, as noted above.

    You're not making sense. 'Killer' and 'murderer' are synonyms. Unless you're insisting on the precise legal term, in which case that was my point – there are exactly the same grounds by which to label Wilson a murderer as there were to label Brown a thief.

    LMFAO. The mobs in Ferguson did just that, no?

    No.

    Just remember, reality doesn't need to be adjudicated.

    Oh, you're one of those. My apologies for trying to have a conversation with you that you aren't equipped to handle.

  118. Ken White says:

    @George: incorrect. The standard for proving up 404(b) prior acts is "sufficient evidence." It does not require a conviction.

  119. Alyric says:

    @Anton Sirius

    "'Killer' and 'murderer' are synonyms."

    That's simply not true – there are legal justifications for killing someone – self defense, war, state sanction (death penalty, etc.). Anyone who kills another human being is a killer, 'murderer' implies a lack of justification. Any of our soldiers who have had to kill someone overseas is a killer, but I imagine they'd take issue with being labelled a murderer.

    It may be semantics, but it's an important distinction.

  120. sorrykb says:

    The effect in the public's mind is to emphasize the point Mike Brown was a robber, with the subtext so he probably had it coming.

    For more, and a slightly different take, Greg Howard, has a powerful article in Deadspin (yes, Deadspin):

    Arguing whether Brown was a good kid or not is functionally arguing over whether he specifically deserved to die, a way of acknowledging that some black men ought to be executed.

    To even acknowledge this line of debate is to start a larger argument about the worth, the very personhood, of a black man in America. It's to engage in a cost-benefit analysis, weigh probabilities, and gauge the precise odds that Brown's life was worth nothing against the threat he posed to the life of the man who killed him.

  121. AlphaCentauri says:
    In other words, if my client is accused of bank robbery, the government can't introduce his prior bank robberies to show that he's the sort of person who robs banks

    Who was it who said "the law's an ass?" That, of course, is a good example of asshatedness.

    Even if you think that once a person has been convicted of a crime, he deserves to be sent to prison for crimes he didn't commit, it doesn't make any sense for the community as a whole. Every innocent person in prison means there's a guilty one still on the street, and that he's probably feeling even more fearless about committing his next crime.

  122. Rick says:

    Even if you think that once a person has been convicted of a crime, he deserves to be sent to prison for crimes he didn't commit, it doesn't make any sense for the community as a whole. Every innocent person in prison means there's a guilty one still on the street, and that he's probably feeling even more fearless about committing his next crime.

    You're equating correlating similiar past crimes to the present crime to an innocent person going to jail. If there's any logic in that leap I fail to see it.

  123. pathgirl says:

    I think what AlphaCentauri is saying is that
    1. man A robbed a bank
    2. Man A was convicted and sent to jail
    3. Man A is released from jail
    4. Man B robs bank
    5, Police pick up Man A because he is a bank robber, but he didn't rob THIS bank
    6. Man A gets thrown back in jail (he is not guilty of the crime)
    7. Man B robs more banks

  124. Trent says:

    The video depicts what appears to be a robbery, but I have not seen any complaint file by the store owner. Perhaps Brown paid for the cigars but was asked to provide ID to prove his age, and refused. Without a conviction, I dont think the video is admissible.

    Well I said it earlier and everyone ignored it. If you watch that video you cannot see a robbery take place without doubt. It's clear he grabs something from behind the counter and walks out with it after making no attempt to conceal it. His hands are never visible and one of his friends clearly pays. Its clear the clerk tries to stop him but is intimidated by threatening body language. I don't know what the smoking age is in MO, but I bet it's either 19 or 21 and Brown was 18. For all we know he put money down on the counter (you can't see the counter where his hands are) then when asked for ID grabbed the box.

    I personally would not put it past the police to frame it as a robbery, even if he paid for it. Though again, whether or not he robbed the store is irrelevant. The police officer had no knowledge of the prior events during the confrontation over walking in the street. The head shot is evidence that something other than what the cops allege happened. On the other hand the complete lack of bullets in the back indicates the friends that witnessed it are not telling the truth either. Hopefully the truth will come out.

    Either way it's a sad state of this country when you can get shot by a cop for walking in the street then mouthing off about it. If that is the standard for getting shot I likely wouldn't have survived my teenage years nor would any of my friends at the time. We need mandatory body mounted video recorders on all police officers.

  125. anne mouse says:

    >I don't know what the smoking age is in MO, but I bet

    Care to lay $50 on that?

  126. Chris Upchurch says:

    "His hands are never visible and one of his friends clearly pays. "

    I've watched that video and I do not see any point where Johnson "clearly" pays.

  127. Bob Brown says:

    @Zak: I don't think I have a "side." I just don't know enough about this yet. I doubt anyone alive does, with the possible exception of officer Wilson.

  128. stupidquestions001 says:

    Whether or not they released the surveillance video in response to a public records request, as they claim

    Should be easy enough to find out. Public records requests are, well, public records. Ask for them. Knowing who made the request, when, and specifically what they asked for might be really interesting.

  129. SIV says:

    CJK Fossman
    August 18, 2014 at 12:30 pm

    @CSP

    Best post in the thread. Thank you.

    @Tarrou
    Atlanta GA managed to get through the shooting of a black septuagenarian grandmother without any looting and burning. How is Atlanta different from Ferguson, MO?

    Kathryn Johnston was a nonagenarian. 1914-2006 RIP.

  130. Dan Weber says:

    I just don't know enough about this yet. I doubt anyone alive does, with the possible exception of officer Wilson.
    Amen. Lots of things confidently presented by many people in these days will turn out to be completely incorrect later.

    unrelated: if I go to the main page of Popehat the most recent post shown is the Crowdsourcing Justice thing about Kimberlaid–is the main article list just not updating right?

    I noticed this about a week ago. The front page is kept in some kind of cache that you have to force your browser to reload to notice any changes. I don't know what layer it's at.

  131. Zak says:

    @Bob Brown: Sorry, I stated it poorly. I just meant the side you put forward in your argument. I am not sure what to think about any of this yet since all we really have is major news outlet stories which are stated as fact whether they verified it or not.

  132. George says:

    @KenWhite IMHO, I dont agree that the video shows a robbery, hence to show it to a jury without a conviction should not be allowed by a judge. There was some sort of exchange at the register and a disagreement ensued. The clerk laid hands on Brown first, and then he responded, and the clerk then declined to call police. If I'm on the jury, this looks like a Hail Mary by the state.

  133. Dan Weber says:

    I dont agree that the video shows a robbery, hence to show it to a jury without a conviction should not be allowed by a judge.

    This doesn't make sense. There is evidence submitted in trials all the time without having been evidence in some earlier trial that ended in a conviction.

    I'm not saying the judge should allow it. Just that this particular reason is silly.

    Caveat: I haven't watched the video, but that doesn't matter.

  134. I'm no crim law expert (just a civil litigator), but it seems to me that Ken's analysis looks at rules for a case in which Brown would be the criminal defendant, when the more appropriate analysis would be a case in which the cop, Wilson, is the criminal defendant.

    With Wilson as the defendant, Rule 404(a)(2)(B) "Exceptions for a Defendant or Victim in a Criminal Case" provides that "a defendant may offer evidence of an alleged victim’s pertinent trait."

    So it seems that in a prosecution of Wilson, he would be entitled to present evidence of Brown's physical assault on the little store clerk to show that Brown, the "alleged victim" had "the pertinent trait" of having a violent disposition. The evidence would come in not as proof of "Crimes, Wrongs, or Other Acts," but as "Character Evidence" of a "an alleged victim’s pertinent trait." It's debatable how and how much of the video incident would be presented to the jury to show the "pertinent trait," but some kind of proof of the incident would be admissible as an exception to the rule excluding character evidence.

    Notes to the rule say:

    an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide

    and . . .

    In criminal cases, the so-called “mercy rule” permits a criminal defendant to introduce evidence of pertinent character traits of the defendant and the victim. But that is because the accused, whose liberty is at stake, may need “a counterweight against the strong investigative and prosecutorial resources of the government.”

    So I think Ken's analysis starts off on the wrong foot by analyzing the issue as if Brown were the defendant instead of as if Wilson were the defendant.

  135. Herman Jacobs says:

    Following up on my earlier comment–a proper analysis should begin with Wilson as the defendant not with Brown as the defendant, but even if Brown, rather than Wilson, were the defendant,the video of the store robbery would be admissible as part of the "chain of events":

    United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004) (“Evidence of criminal activity other than the charged offense is not extrinsic under Rule 404(b) if it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense. Moreover, [e]vidence, not part of the crime charged but pertaining to the chain of events explaining the context … is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime … to complete the story of the crime for the jury.”) (citations and quotation marks omitted) (discussed in 2 Fed. Evid. Rev. 38 (Jan. 2005) (Rule 404(b), United States v. Wright (11th Cir.))

    Link

  136. Ken White says:

    Herman: as I said in the post, Rule 404 explicitly applies to prior acts evidence about both defendants and witnesses.

    As for the "chain of events" (sometimes called "res gestae" by assholes), it's a rather slippery and vague category. Moreover, saying it is "necessary to complete the story of the crime" is begging the question.

  137. Sid says:

    All,

    Honest question: why do some commenters keep repeating two refuted claims? 1) That the Wilson did not know about the robbery and 2) that the clerk declined to call the police?

    What has been clearly displayed by dispatch logs is that Wilson initially ordered Brown out of the street for jaywalking. As he was pulling away, the dispatch posted the description of the robbery suspect which matched Brown. He then back up to Brown and began to attempt an arrest. What happened after may be open to debate, but that much has been clearly dispelled.

  138. Herman Jacobs says:

    Ken, thanks for the reply and for humoring a civil litigator.

    I haven't gone through your blog post with a fine tooth comb, but it looks like in most of the scenarios you describe in your post ( (e.g., US v. Williams), it's a defendant's other bad acts that are being proposed as evidence, whereas the more pertinent cases would be those in which the victim's other bad acts are being proposed as evidence.

    That's a key distinction and it is fuzzed up in your blog post.

    I think the courts make a big distinction between the state using evidence of the defendant's own other bad acts to prosecute him as opposed to a defendant using evidence of the victim's other bad acts to defend himself against the state.

    Strictly speaking, Brown will be neither a defendant nor a witness. Indeed, it seems like another pertinent point here is that Brown is quite dead, and therefore a discussion of Brown's "rights" during any prosecution that emerges from these events ought to take into account the stone cold legal fact that dead people, even if they were victims of a crime, don't retain a lot of "rights" once they're dead. Of course, I'm not saying Brown did not have rights while he was alive, but tor better or worse, Brown will never be prosecuted for any of his alleged wrongdoing, so we don't need to worry about his rights as if he were a defendant. Thus, the focus now should be on Wilson's rights, not upon Brown's right not to be "dirtied up."

  139. Ken White says:

    Even if he isn't a witness, Herman, would you agree that he is a person?

    Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

    The rule reflects a fundamental judgment about what type of evidence is probative, appropriate, and non-inflamatory. It's not clear why it should be eased here.

    Do you have any cases for your proposition that courts treat victims and defendants so differently? Let me point out that the second case I cited did directly involve the alleged victim's prior bad acts offered by the defendant.

  140. Robert says:

    I'm afraid you've gone off the rails on this one.

    You know who has rights? People accused of crimes. They have the right to be presumed innocent, and they have the right to fair proceedings. The President and AG weighing in on a a local matter, and applying pressure for an indictment isn't fair.

  141. Herman Jacobs says:

    Do you have any cases for your proposition that courts treat victims and defendants so differently? Let me point out that the second case I cited did directly involve the alleged victim's prior bad acts offered by the defendant.

    Well, the two cases you cite pretty well make my point that there's a crucial distinction between: (1) the state offering the defendant's other bad acts to prosecute a defendant and (2) the defendant offering the victim's other bad acts to defend himself. In (1) US v. Williams, the court said the state could not use evidence of the defendant's other bad acts against him. But in (2) Celaya v. Stewart, the court said the defendant could use evidence of the alleged vicitim's other bad acts.

  142. Matthew Cline says:

    @Leeada Johnson:

    As a pleasant result the thug expires before he can go on to a career of further thuggery and even murder…

    So after committing a single felony, a person is doomed to go on committing more (and more extreme) felonies?

  143. Rick says:

    So after committing a single felony, a person is doomed to go on committing more (and more extreme) felonies?

    Doomed to? Nope. Statistically likely to? Yep.

  144. You guys are behind the times, haven't you seen the full version of the "robbery" video? The police released a misleadingly edited version. I see that as strong evidence that the police are trying to cover something up, which "can only be" the murder of Brown by Wilson (worse, Wilson acting under color of authority).

    See for example http://www.addictinginfo.org/2014/08/18/ferguson-pd-busted/

  145. Dan says:

    No it doesn't matter if Brown shoplifted. What matters is that if Brown had been white, he'd probably still be alive. That's the only piece that matters. That's what this controversy is really about.
    The militarization of police is important, yes, but it's a side issue. Whether Brown robbed a store or got called a thief just before his interaction with Wilson is immaterial.

    This video is probably admissible, both at the cop's murder trial, and at the wrongful death civil trial, because maybe it shows that Brown gets into disagreements, and that those disagreements can get physical quickly. Maybe the defense will try to use it to imply that Brown had a propensity for being disagreeable, physical, and generally hotheaded.

    Let's not forget the key fact though: a hotheaded white guy would probably still be alive to talk about it.

  146. Rick says:

    No it doesn't matter if Brown shoplifted. What matters is that if Brown had been white, he'd probably still be alive. .

    You know that how?

  147. Anglave says:

    Dan,

    Skin color isn't really a legal issue.

    You may be correct that officer Wilson wouldn't have shot a white youth under the same circumstances, but the fact is that either the shooting was "just" or it wasn't. Brown's ethnicity has no bearing on that matter.
    .
    Wilson (and other officers) may be prejudiced against black youths. That's an upsetting social issue, but I doubt we'd ever prove in a court of law that Brown "would still be alive if he'd been white". Rather than making this about the boy's skin color or the officer's prejudice, we really need to focus on whether or not the use of lethal force was justified.
    .
    The legality of the shooting has nothing to do with skin color. If use of lethal force was legally justified, then it would have been justified against a white youth as well. The fact that Wilson may have been less likely to shoot someone of a different color is a matter for his employers and the community they serve to address (and I hope they do!), but it's not a criminal matter.
    .
    The law should equally treat any officer-involved shooting of an unarmed citizen. Isn't that the point?

  148. ksj says:

    Something that seems pretty obvious to me appears to be getting missed. The officer alleges that Brown rushed him. The shot pattern on Brown does not appear to show that Brown was rushing towards anyone. If he were there is simply no way that all of the initial shots hit him in his right arm, as the autopsy report indicates. Someone that is running would almost certainly be moving those arms back and forth rapidly. Now if someone were standing still I could see it. I would also guess that a running man hit in the arm would get spun around and the shots would be more scattered.

  149. Jason says:

    The narrative of "officer was unprovoked in shooting a black kid in the back who was minding his own business" was mostly supported by the friend who was with Brown.

    Now there is evidence that the primary witness was lying. The friend participated in a robbery – they were not just minding their own business. Brown was not shot in the back. The officer suffered a fractured eye socket.

    This alone does not justify the shooting, but it is evidence that the primary witness is not trustworthy and the "innocent teen" narrative is exaggerated.

  150. George says:

    @DanWeber
    Without a conviction or even a charge, and corroboration by the clerk, the video has no value. It shows Brown buying something, and when attempting to leave the store being assaulted by the store clerk and then Browns aggressive response. Wilson will need actual evidence that Brown was a thug, not a video that shows he like cigars.

  151. babaganusz says:

    Tarrou, almost entirely rational; why color it with

    is he really expected to take the time to fish around on that same belt for something else while someone tries to draw his weapon?

    "fish around"? because the reasonable assumption about a law enforcement professional is that they won't know exactly where any particular tool is in an emergency? or was that a brief nod to the notion that humans are incompetent [under stress] more often than not? or could you just not resist one little flourish?

  152. babaganusz says:

    CSP, CJK and Anton, thanks for attention to detail and bigger picture. unsurprisingly your points were largely ignored, just as Lizard's in the previous 'Ferguson post'.

    Rick, thanks for supposing that Leeada had anything as detached as 'statistical likelihood' in mind.

  153. babaganusz says:

    and Anglave, thanks for striving to keep it on track.

  154. CJK Fossman says:

    @Sid

    When the store's lawyer says the clerk didn't call the cops I think we have a right to conclude it's true.

    As to the timing of the dispatch logs and the shooting, I would like to see the evidence.

  155. CJK Fossman says:

    @Robert

    Can you provide a link to some evidence that either Obama or Holder has asked for an indictment?

  156. cb says:

    @Jason

    there is evidence …The officer suffered a fractured eye socket

    I don't think unconfirmed reports by anonymous sources consitute evidence

  157. cb says:

    @Robert

    You know who has rights? People accused of crimes….The President and AG weighing in on a a local matter…

    The way you phrase this suggests you think the President and AG weighing in is a violation of his rights

  158. Rick says:

    I don't think unconfirmed reports by anonymous sources consitute evidence

    But unconfirmed reports sure constituted "evidence" when he was "killed because he was black."

    Just saying….

  159. Rick says:

    The way you phrase this suggests you think the President and AG weighing in is a violation of his rights

    Absolutely; it's prejudicial: http://www.military.com/daily-news/2013/06/17/judge-obama-comments-unlawful-command-influence.html

  160. cb says:

    But unconfirmed reports sure constituted "evidence" when he was "killed because he was black."

    Just saying….

    No, no they didn't

  161. Rick says:

    No, no they didn't

    Yeah, you're absolutely right. The narrative is "He'd still be alive if he was white."
    My bad; I can see how you got confused over my misstatement.

  162. CJK Fossman says:

    @Rick

    That link to the ruling in a military court proves nothing.

    This is a civilian matter and one, currently, for the local courts.

    Say, maybe you can provide me with a link to evidence that the President or the AG has exerted pressure for an indictment.

  163. cb says:

    My bad; I can see how you got confused over my misstatement.

    Well, yeah, if you're going to change things up I can see how I might be confused about what you mean

    My point was that the claim "he was killed because he was black" aren't evidence. Nor are claims that he'd be alive, regardless whether or not they are true. They are opinions.

  164. Rick says:

    This is a civilian matter and one, currently, for the local courts

    No shit. But command influence is command influence, whether it's military or civilian. But let me ask you this. If it's a matter for the local courts as you rightfully say, why was the top Federal "cop" even there? Bringing donuts? He's certainly not offering any law enforcement expertise because he doesn't have any being a lawyer ,(also proven by his 6 years of mediocrity.)

    Say, maybe you can provide me with a link to evidence that the President or the AG has exerted pressure for an indictment.

    I never said they did; I said IF they did it would be prejudicial as it would be. But if they did after the ruling you sneered at, even Holder wouldn't be so stupid (giving the moron the benefit of the doubt….) as to do it publicly.

  165. Rick says:

    My point was that the claim "he was killed because he was black" aren't evidence. Nor are claims that he'd be alive, regardless whether or not they are true. They are opinions

    Bingo. But tell that to all of the protesters, not to me.

  166. CJK Fossman says:

    @Rick

    Gosh, I must have slept through the lecture on the chain of command from the US AG St. Louis County prosecutor.

    Maybe the feds are in Ferguson because there's some suspicion that a federal law may have been violated. Do you share that suspicion?

    I can't find that "IF" in your previous comments on this topic. How about a pointer to that.

    And what's all that about the evil protesters? Let's assume for a moment that everybody who has been out on the street shares culpability in the burning and looting. Does that justify the shooting of Michael Brown? Does that invalidate their suspicion that the Ferguson police are engaged in a cover up? Does it somehow bear on officer Wilson's state of mind before and during the shooting?

  167. Cb says:

    @Rick

    Not even sure what your on about now. So because some protestor supposedly thinks opinions are evidence my point that an unsourced claim isn't evidence needs to be challenged?

  168. Dan says:

    @Anglave:

    Skin color isn't really a legal issue.

    It isn't? Since when?
    I'm aware that my bald assertion that a hypothetical white Michael Brown would still be alive is not directly relevant to whether the shooting was justified. But if I understand what these protests are about, people aren't marching in the streets to determine whether the shooting was justified. The issue is that the shooting happened.
    Yes, this blog is about legal issues. And this post is ostensibly about the probative/prejudicial value of a certain piece of video. It's my opinion that to focus on that point, while it may be interesting as a legal thought exercise, completely misses the social issue that is the real point. And it leads to your frankly weird assertion that skin color isn't a legal issue.
    It's unconstitutional that Ferguson police target black citizens, and that black citizens are disproportionately stopped, cited, and arrested. Washington Post.
    Using tear gas in a crowd violates international law under any circumstances. I'm going to propose to you, without any direct evidence, that protesting white crowds would receive less of that toxic substance.
    And nationwide, but particularly in this part of Missouri, police show much more restraint, patience, and forbearance when interacting with white citizens than with citizens of color. Even if I hadn't gone to law school, if were out doing something that people thought was strange, it's likely that I'll be given the benefit of the doubt in any interaction with law enforcement before things get heated. I don't feel that's an unearned privilege: I think almost everyone should be entitled to that same basic presumption. And America's people of color, statistically speaking, are not afforded that presumption, in case after case after case after case. Oftentimes, that's true even for good cops. It's true even in tolerant and diverse cities.
    This isn't about—and shouldn't be about—about whether this shooting was justified. It's whether all of them are.

  169. Rick says:

    This isn't about—and shouldn't be about—about whether this shooting was justified. It's whether all of them are..

    Eh? How can police shootings possibly be looked at on anything than a case-by-case basis?
    Are you saying that nothing ever a citizen can do to a police officer or to another citizen merits being shot?

  170. MARK TRAINA says:

    ST. MICHAEL has FALLEN from GRACE!

    QUESTION: Did BIG MICHAEL have PERMISSION to remove all those CIGARS from that STORE?

    ST. LOUIS CRACKHEADS and CRACKWHORES don't make very CREDIBLE WITNESSES! ST. MICHAEL'S WITNESSES are all CHANGIN their STORIES or DISAPPEARING into the WOODWORKS! In the mean time MSNBC, CNN and the FOX NEWS NETWORKS make BILLIONS by PROMOTING RACIAL HATRED! NAAWP – 2014

  171. paulg says:

    Michael Brown's actions in robbing the store, and shoving around the clerk, may be viewed as part of a continuous set of actions, followed by his walking down the middle of a city street, interfering with traffic, which is what apparently provoked the initial contact by the police officer, who told Brown and his friend to get on the sidewalk. Brown's actions could be viewed as belligerent, and he may have been looking for more trouble.
    When the cop tried to get out of his car to talk to Brown, Brown supposedly (by some accounts) slammed the door on the officer and reached in and punched the officer. He may also have tried to take the gun away from the officer. Pretty brazen and bold for an unarmed man to attack an armed police officer, again suggesting Brown was aggressive and seeking a fight. Brown and his friend then started to run away, but something caused Brown to turn around and go back (again, according to some reports) towards the cop, who had his gun out and may have already fired it.
    If this is what happened, Brown was showing no fear of the armed police officer and was still aggressive, which would have shown he did pose a threat.
    All of this may be admissible as res gestae evidence – each part – including the aggressive store robbery – is part of the continuing episode, and it all fits together to show Michael Brown's state of mind and it shows the cop may well have had a reasonable fear that this 300 pound man was coming to attack him even knowing the cop was armed.
    I am not saying this is what happened, but it is a scenario which some of the evidence tends to support, and a defense lawyer would surely look at this defense.

  172. Nop says:

    @Paulg

    Pretty brazen and bold for an unarmed man to attack an armed police officer, again suggesting Brown was aggressive and seeking a fight.

    Or suggesting that that interpretation defies common sense if you're not a racist/statist who's determined to see the black victim as the bad guy.

  173. Dan says:

    @Rick

    How can police [behavior] possibly be looked at on anything [other] than a case-by-case basis?

    The reason that police behavior can (and should) be evaluated on a macro scale as well as on a case-by-case basis is that the aggregate statistics tell us something more about the subtle pressures and influences that subconscious attitudes have on behavior. Malcolm Gladwell's Blink articulates this well in his explanation of the Amadou Diallo shooting in New York a few years back (Four white cops, one black man, 41 bullets.)
    It won't be clear from any one given traffic stop that a police officer might harbor racist preferences or tendencies (most of us bristle at the suggestion that we might harbor them). This only becomes clear when the officer takes something like the Implicit Association Test (Gladwell notes that the test shows he too has subtle preference for white faces, and he's mixed-race). If you have a subtle preference for white faces, you'll lean in closer to them when speaking, or be visibly more tense around black faces, and these subtle nonverbal signals have a measurable impact on how the social engagement proceeds.
    Here's the problem: the police are racist. It's possible to say that, and for it to be true, even if every single cop were free of conscious animus towards black people. Here's how it played out with Diallo, from Blink:

    First, Sean Carroll saw Diallo and said to the others in the car, "What's that guy doing there?" The answer was that Diallo was getting some air. But Carroll sized him up and in that instant decided he looked suspicious. That was mistake number one. Then they backed the car up, and Diallou didn’t move. Carroll later said that “amazed” him: How brazen was this man, who didn’t run at the sight of the police? Diallou wasn’t brazen. He was curious. That was mistake number two. Then Carroll and Murphy stepped toward Diallou on the stoop and watched him turn slightly to the side, and make a movement for his pocket. In that split second, they decided he was dangerous. But he was not. He was terrified. That was mistake number three.

    Gladwell's conclusion is that the truth is somewhere between "this was just a horrible misunderstanding, an accident" and "the police are out-and-out racists." The problem, in Gladwell's mind, and I daresay in the minds of the protesters in Ferguson and beyond, is that when police interact with black Americans, they do less exemplary police work. When an unarmed guy gets shot and killed, it seems like maybe there could have been a non-lethal way out of that situation. The jury acquitted all four Diallo shooters of murder. Yes, that requires us to second-guess not only the immediate justification, if there is one, for Brown's shooting. It also is useful to look at this shooting in the larger context. And that's police and American's in general who over many years have developed subtle subconscious assumptions about black men.

  174. paulg says:

    Attacking the character of a person you don't know, is not much of a response to an argument. But it is an admission you don't have anything of substance to say.

  175. CJK Fossman says:

    @paulg

    The video is subject to interpretation. In your first sentence you offer the interpretation unfavorable to Michael Brown as fact.

    If you were interested in writing about a potential defense for officer Wilson, as the rest of your post seems to say, your first sentence didn't serve you well.

    If you were interested in making some comment about Michael Brown's character, you've gotten ahead of yourself. Not all the evidence is known to us and what little we know is not conclusive.

  176. Desert Rat says:

    In your note 3 you write "Every time a black kid is shot we become a nation of pearl-clutching couch-fainters…". IMHO that needs to be changed to "Every time a black kid is shot by a non-black" as every day black kids are shot by other blacks in many cities across this land. No notice is taken of these shootings by any of the MSM.

  177. paulg says:

    I wrote in response to the article questioning the relevance of the video of Michael Brown apparently robbing a convenience store shortly before his confrontation with the police officer, a confrontation which resulted in the officer killing Brown.
    I showed how a defense attorney could use the video at trial. I didn't argue that the officer was not guilty of murder, or that he was.
    Hopefully forensic evidence will help clear up what happened so inconsistent and unreliable witness statements will not have to be relied upon.
    It appears (by some accounts) that Brown attacked the officer in his car, then ran away, and subsequently was shot and killed. Had Brown turned around to face and charge the officer, or had he turned around to surrender? Was the officer in fear for his life? Or was the officer enraged by Brown's assault on him and killed Brown out of an uncontrolled rage. Michael Brown can't answer these questions, but the officer can try – if he chooses to.
    Under these circumstances, the officer certainly has a motive to present a story of justification, which may or may not be true. I believe, but can't prove, that too often police shootings are found to be justified when they are not, too often the badge may provide a license to kill under questionable circumstances, and too often prosecutors accept the officer's account. I hope this officer's account does not have to be relied on.
    Competent investigation and collection and analysis of forensic evidence may show what really happened.
    Michael Brown deserves that. So does the officer.

  178. sadmar says:

    173 comments, and I don't see one addressing the central point of the OP: the way the law is supposed to work is one thing, and the way people's minds work is another. On the one hand you have a set of procedures designed to present a set of probative facts to a jury, and on the other, the power of narrative, or rather the fact that 'by nature' human beings tend to employ narrative frames to apprehend — not just comprehend (but that too, of course) – the physical world. Ken White mentions two key sets of narratives that seem to have escaped significant comment (though one is in a small-print block quote, and the other a footnote; still…): the whole framework of 'deserving'* in general and the bizarre 'If you're not Wally Cleaver, you're a thug' fantasy.

    But the whole question of the surveillance video is testament to narrative, in this case a disturbingly racist one: the interpretation that it shows a robbery. This seems to have beguiled everyone but Trent, who rightly notes you can't see what exactly is going on over the counter. But Trent's assertion that Brown's friend "clearly" pays is not borne out by the footage, nor is the assertion in the link provided by Davis Dyer-Bennett that Brown can be seen paying. In fact, the video offers no indication of whether anybody paid for anything or not. WITHOUT A NARRATIVE FRAME TO INTEPRET IT, IT'S UTTERLY AMBIGUOUS.

    I shan't go into a detailed analysis of the video here, but I must note there is not 'a video' (as in singular). There are a wide variety of versions of the footage on the web, with many different crops, resolutions, color and luminance balances, and so on. NONE of these are the 'raw' footage as recorded by the store security system. All have been post-processed in some way. I would guess the 'true' raw footage will have more detail, and reveal more detail. Law enforcement agencies tend to be clueless about the AV technologies they employ, so there is not necessarily any intent to obscure here, though given the really quite ludicrous assertion by the Ferguson police that the footage depicts a "strong arm robbery" and clearly inflammatory cherry-picked stills that were released in advance of the footage, that's certainly a possibility.

    The power of the 'robbery' narrative is evidenced in the OP. Ken White is clearly trying to be judicious, as he uses "alleged" in the headline, and the first sentence is unusual and laudable in the discussion of this event, as it offers a strictly factual description of what can actually be seen in the footage "a young man shoving a protesting convenience store clerk and leaving with merchandise." But, perhaps because it gets painful to keep typing "alleged", after a few more "alleged"s we wind up with "Could Wilson seek to introduce evidence of the robbery… The robbery is not broadly admissible…" The OP continues to alternate between uses of "alleged" and absences of the qualifier. I note this not to fault Ken White. He has to call the event something, and 'robbery' is the term narrative has supplied. He uses "alleged" enough times that any thoughtful reader will get the gist of his overall view. But, really, though calling the events in the video an "alleged robbery" may satisfy legal standards of fairness, it activates the same narrative frame anyway, and misses a central point: an allegation of robbery is unwarranted based on the visual evidence of the surveillance footage. It's sort of like referring to Barack Obama as "alleged Kenyan."

    IANAL, but the whole discussion of the admissibility of the video strikes me as bizarre, as it's missing a context that is obviously available, although unknown to the public at this time: the accounts of the eye-witnesses. There are six people other than Brown visible on the video, three of whom would have witnessed the event in its entirety. AFAIK we have not heard anything from any of them, as the police have not released any statements, the prosecutors aren't disclosing anything, and the witnesses have not spoken to the media. Obviously, one or more of the witnesses might have described the events in a way such that "alleged robbery" would be warranted as a summary. But, again AFAIK, we don't know if that's the case. Attorneys for the convenience store have released a statement that the store did NOT call the police to report a robbery, but that would not exclude the possibility that someone described a robbery to the police at some later point.

    Back to narratives: As Bob Brown notes above, the headline of the OP incorrectly says, "Alleged Robbery Of A Liquor Store," while the body text properly identifies the site as a "convenience store." It is worth noting that this error did not originate with Ken White by any means. A quick Google reveals many news accounts identifying the incident as taking place at a liquor store. The question is, why would anyone have made this error, and what does it signify? I can only speculate, but it strikes me that the archetypal target of 'strong-arm robberies' in the public mind is 'a liquor store' rather than 'a convenience store,' as liquor store robberies are more likely to be depicted in popular fictions. There's also something (falsely) innocuous or trivial seeming about a 'convenience-store-stickup' in contrast to the stakes of a 'liquor store stickup,' including the association with aggressive intoxication for the later, and Big Gulps with the former. So, especially given the baseline racial stereotypes associated with black males of Mike Brown's age, height and mass, given the bare frame 'big black man robs store', how do we expect people to fill-in-the-blanks? Not with Quik Trip, methinks.

    * No comments on the allusion? Srsly? No Clint Eastwood fans in Popehatland? "Deserve‘s got nothin' to do with it." is Will Munny's reply to Little Bill Daggett, the fascistic sheriff Munny is about to execute for lynching his friend, after Daggett says, "I don't deserve this… to die like this. I was building a house." Unforgiven/1992/script: David Webb Peoples/ dir: Eastwood.

  179. sadmar says:

    CORRECTION: My bad. There were apparently false reports in some media coverage somewhere that the Mike Brown cigars incident occurred at a QuikTrip convenience store on W. Florrisant Ave. in Ferguson, immediately North of the intersection with Canfied Drive, leading to the Canfield Green apartments where Brown was shot. That store was subsequently burned by protestors. Several shots of the QuikTrip were included in news stories I saw on the web, leading me as well to the false impression that was where Brown had gotten his smokes. However, the incident actually occurred at a store on the corner of W. Florissant and Fergusan Ave — the first intersection on W. Florissant South of Canfield Drive. That store is listed as "Ferguson Market" on Google Maps and has been identified as such in subsequent news stories, and that appears to be the formal name of the business. However, Google Street View shows the sign on the store front as reading "Ferguson Market & Liquor." So, it's not factually incorrect to call it a 'liquor store.' However, given that 'liquor store' will conjure in most people's mind a store that specializes in booze sales, not a food market that has a limited selection of potent potables as well, the choice of reference to 'convenience store' or 'liquor store' still says something about the narrative frame being evoked, however unconsciously.

  180. Gandydancer says:

    You write, "Later Ferguson's police chief later admitted that officer Darren Wilson did not seek to detain Brown based on the robbery, but because Brown was walking in the street."

    The video you link to does not say this. The police chief says Wilson first ordered Brown and Johnson off the street because they were blocking traffic, and did not at that point know of the robbery. But the attempt to DETAIN Brown was made AFTER Wilson made the connection between Brown and the robbery. You should know by now that the encounter took place in two parts. If you added note#2 to deal with this, that is insufficient.

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