The police are allowed to shoot people

From my perspective, the shooting of Michael Brown is sufficiently ambiguous that Darren Wilson was never going to be convicted of anything.  I’m not saying that’s right or wrong, it just is.  We give the police an amazing amount of latitude in their legal ability to shoot people.  My sense if probably a little too much latitude, but legally there’s a ton of precedent for Darren Wilson shooting Michael Brown and not facing any legal consequences.  The truth is factually ambiguous police shootings of unarmed suspects happen all the time with the officer not facing any consequences.  The difference in this case is that the protest in Ferguson means we all know about it.

Some useful perspective from Jamelle Bouie:

None of this was a surprise. It’s extremely rare for a police officer to face an indictment for a shooting, much less criminal punishment. “The FBI reported 410 justifiable homicides by law enforcement in 2012,” notedTalking Points Memo in an August story following the events in Ferguson, “The number of indictments appear to be minimal after a TPM review of available press reports.” And it’s not just shootings; earlier this year, Georgia police mistakenly raided a home and seriously injured a young child. Prosecutors convened a grand jury, and the grand jury voted against an indictment. “The drug investigation that led to these events was hurried, sloppy, and unfortunately not in accordance with the best practices and procedures,” wrote the grand jury in its decision. Still, no one from the police force was held accountable.

The truth is that the law gives wide berth to the police’s use of deadly force…

Beyond this, there are the general standards for use of deadly force by police, which give wide latitude to officers who use their weapons. The Supreme Court allows police to use their weapons in two circumstances: To defend their lives and to stop an escaped felon. If Wilson believed that Brown was a felon—or committed a felonious offense—then he was justified under existing law. And if Wilson believed he was in danger of losing his life—a belief that only has to be “objectively reasonable,” not likely or even possible—then, again, he was justified under existing law.

And 538 that points out that grand juries not indicting is incredibly rare.  Except in police shootings:

As my colleague Reuben Fischer-Baum has written, we don’t have good data on officer-involved killings. But newspaperaccounts suggest, grand juries frequently decline to indict law-enforcement officials. A recent Houston Chronicle investigationfound that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. Separate research by Bowling Green State University criminologist Philip Stinson has found that officers are rarely charged in on-duty killings, although it didn’t look at grand jury indictments specifically.

Vox covers many of the same points, but I like their perspective on how the prosecutor handled the grand jury:

Alex Little, a former federal prosecutor who spent six years trying violent crimes, including homicides, told Vox’s Amanda Taub in August that the strategy raised concerns about McCulloch’s commitment to seeking justice in the case:

So when a District Attorney says, in effect, “we’ll present the evidence and let the grand jury decide,” that’s malarkey. If he takes that approach, then he’s already decided to abdicate his role in the process as an advocate for justice. At that point, there’s no longer a prosecutor in the room guiding the grand jurors, and — more importantly — no state official acting on behalf of the victim, Michael Brown…

Then, when you add to the mix that minorities are notoriously underrepresented on grand juries, you have the potential for nullification — of a grand jury declining to bring charges even when there is sufficient probable cause. That’s the real danger to this approach…

In an interview Vox’s Amanda Taub conducted with David Rudovsky, an expert in police prosecutions, he explained that various stages of the criminal justice process — from being investigated by police peers, to being prosecuted by attorneys who work closely with police, to natural jury bias toward law enforcement — makes it rather rare for cops to go to jail for misconduct on the job. This plays out not just in Ferguson, but across the nation.

And Jon Cohn on the failure to indict:

At this point, and pending a thorough examination of everything McCulloch has posted online, it’s difficult to feel confident about exactly what happened in Ferguson on that day. Given the standards of Missouri law, which gives police officers deference when they claim self-defense, it’s also difficult to imagine a trial jury agreeing to convict Wilson of a crime. That alone might have been reason enough for a Grand Jury not to find “probable cause” of a crime, according to Frank Bowman, a professor of law at the University of Missouri:

A finding of probable cause means that the grand jury is able to conclude, based on the evidence, that it is more likely than not that each and every element of a charged crime exists.  The fact that some evidence exists to support one or all elements doesn’t amount to probable causeparticularly if there is also evidence pointing the opposite direction on some or all elements. … The grand jury does not need the level of certainty, beyond a reasonable doubt, required for conviction by a trial jury. But if it is to serve any useful function as a protection against unfounded prosecution, it must refuse to indict unless it is convinced that a crime was committed.

We are chosen to have a society where police can conspire to legally steal your cash and can shoot people with impunity in all but the most egregious circumstances (I don’t doubt that the substantial majority of these shootings are actually justified, but not to the degree that is currently allowed by our legal system).  Maybe this is how it should be, but I think the pendulum has gone too far in our hope for the police to “keep us safe.”  Especially when you consider the racial angles of how this plays out.  I’m not actually optimistic of meaningful changes, but this case does very much highlight the decisions we have made in this regard as a society and (hopefully) call for us to reexamine them.

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