The Trayvon Martin and Michael Brown cases are much in the news these days. The Martin case because media outlets, “community organizers,” and other assorted rabble rousers and race hustlers see an opportunity to stir the political pot, poke political enemies in the eye, and above all, make money by trading on its notoriety in comparison to the Brown case. We are treated to specious comparisons of the Trayvon Martin case to the Michael Brown case, and never-ending misleading descriptions of Michael Brown as an “unarmed teenager.” There are, in fact, a few useful comparisons . . .
and some worthwhile lessons to be learned, but not if one listens to most of the media, a media far more interested in fulfilling the elements of a chosen, politically charged narrative than in telling the truth or actually educating the public.
My first article on the Trayvon Martin case on March 26, 2012 spawned a large response and larger archive. My first article on the Brown case, on August 17, 2014 will almost certainly not be the cornerstone of such a large archive, but will hopefully be as instructive and useful to anyone interested in the law, the facts, and self-defense. Anyone relying on the media for accurate information, or anything even resembling the truth, will likely find himself in jail, or even dead.
In the Martin and Brown cases, the media have labored mightily to portray both Martin and Brown as near-children. An iconic photograph of a cherubic, 12-year-old Martin helped in that misleading portrayal. And the media avoided like the plague the many contemporary photos of Martin portraying himself as a thug. By the time George Zimmerman actually went to trial, Martin was being portrayed as a near-fetus by the prosecution and the media.
Such blatant media misdirection has been more difficult in the Brown case, particularly since no photos have surfaced depicting Brown as anything resembling an angelic infant. Instead, we have the convenience store footage of a huge, hulking Brown (he was 6’4” and nearly 300 pounds) manhandling a diminutive clerk as he robbed the store minutes before he was shot by Ferguson PD officer Darren Wilson. Instead, Brown has been called a “teenager,” an “18 year-old child,” and an “18 year-old teenager.” He has more consistently been called, “unarmed.” While technically accurate, it is very misleading in the context of Brown’s robbery and apparent attack on Officer Wilson. An attack that led to Brown’s death.
For readers of The Truth About Guns, perhaps the most obvious reason either of these cases is of interest is the self-defense angle, an angle being overlooked–or ridiculed–by the media. There is no question in the Martin case that Zimmerman acted in self-defense under Florida law. The physical and testimonial and expert evidence supported that conclusion, and the prosecution actually proved it at trial, a trial that should never have happened.
The Brown case is still under investigation. The public knows relatively little about it, but what is known suggests that Wilson acted lawfully under Missouri law. What is less well known is that even though Brown was not carrying a weapon when shot by Wilson, the law doesn’t require it. Unarmed assailants often commit murders: fists and elbows, knees and feet are more than sufficiently deadly, as Katie Pavlich at Townhall.com notes. Even though the media seems unaware of this — or chooses to ignore it in favor of a preferred narrative — the law, fortunately, tends to recognize reality.
Let’s examine the law as it applies to this case. A more detailed account of the legal issues, and links to the applicable statutes, are available here. But before delving too deeply into the law, understand that in the use of deadly force, police officers and citizens are essentially the same; the law applies equally to both and the foundational requirements for the use of deadly force are generally the same. The primary difference is that police officers, by the very nature of their jobs, are often required to engage in confrontations that citizens could choose to avoid or flee, something the law generally recognizes. This may–or may not–mean that prosecutors might afford police officers more of a benefit of the doubt than citizens.
Any citizen should understand that when attacked by an apparently “unarmed” stranger–a criminal by the very nature of the attack–they are in a life and death struggle. The mere fact of the attack clearly argues that no one is engaging in a sporting contest with rules designed to prevent real injury. Citizens cannot be expected to read the minds of those attacking them as stunning, damaging blows are landed to their face and head to determine that they will stop short of causing serious, debilitating damage, or even of death if they are given what they want–whatever that is. A criminal attacker may want to seriously injure or kill their victim, nothing more.
It is this lack of an aggressive mindset on the part of most people that allows criminals to not only attack, but to win. Consider George Zimmerman, sucker punched, stunned, his nose broken and bleeding, flat on his back on the ground, Trayvon Martin astride him, raining blows on his head and face and smashing his head repeatedly into a concrete sidewalk. Was Zimmerman required to assume that Martin intended him no real harm? How could Zimmerman know what damage the next blow would do, or the blow after that? How could Zimmerman know that he would survive the attack, even if Martin promised not to kill him (he didn’t)? People die–or are left crippled or disabled–from single blows.
The calculation changes somewhat when the person being attacked is a uniformed police officer. Police officers know that in any fight in which they are involved, there is always a gun–and other weapons–present. Anyone attacking a police officer is inherently dangerous, and has demonstrated their contempt for the law and public safety. Any officer must assume that anyone attacking them intends to kill them, particularly if that person tries to get their handgun. Even more, they have a duty to arrest anyone committing crimes, particularly the felonies involved in an attack on a police officer. If a criminal is willing to attack a cop, what would they do to the next citizen they meet?
There is no question that Michael Brown, a few minutes before attacking Officer Wilson, committed a strong armed robbery: under Missouri statute 569.030, Robbery in the Second Degree, a felony. Because he was 18, Brown would surely have been charged as an adult. There is also no doubt that Brown was under the influence of marijuana, though the exact concentration of the drug in his blood is currently unknown. That is a violation of Missouri statute 1195.202, Possession or control of a controlled substance, a misdemeanor.
The property Brown stole arguably adds another charge:195.233, Unlawful use of drug paraphernalia. Brown stole about $50.00 worth of cheap cigars, commonly used to make “blunts.” The cigars are hollowed out, filled with marijuana, and smoked.
When Wilson first saw Brown and Dorian Johnson, he would probably have been unaware of the drug offenses–though Brown was carrying a handful of loose cigars–and apparently the robbery, but they were walking in the middle of the street. This implicates 300.390, When pedestrian shall yield and 300.405, Pedestrians walking along roadways. Both are misdemeanors, but even if Wilson knew nothing of Brown’s robbery, or had no other suspicions of potential wrong doing, he had probable cause to stop, speak with, and cite or arrest Brown and Johnson. Wilson was, in other words, acting entirely within his authority, and in the use of self-defense was not an aggressor of any kind.
Wilson likely would have intended to do nothing more than identify Brown and Johnson, and probably warn them to get out of the roadway. At best, he might have issued them citations. Everything that happened from that point was at the initiative of Brown and Johnson; they were the aggressors.
If at some time during the encounter, Wilson became aware that Brown and Johnson were suspects in a nearby robbery, his duty to apprehend them, and his justification for the use of force in arresting two robbers, would have been obvious, however, let us assume that Wilson was not aware of this.
The best current information indicates that when Wilson tried to speak with Brown and Johnson, they attacked him, pushed him back into his vehicle, and certainly Brown–and possibly Johnson–beat him apparently fracturing the orbit of at least one eye, inflicting other injuries to Wilson’s head and face, and did their best to get his handgun. At least one shot–and possibly two–were fired inside the vehicle, which apparently caused Brown and Johnson to temporarily flee, as Wilson was able to retain possession of his handgun. Brown may have been shot in the hand during this struggle, which may have caused him to flee, but this is not currently known with certainty.
At this point, Brown and Johnson were guilty of 565.081 Assault of a law enforcement officer. This is a felony punishable by up to life in prison. Arguably, Brown and Johnson had also committed attempted murder (565.020/021) which can be inferred from their assault of Wilson and their attempt to take his handgun, as well as its discharge in the police vehicle during the struggle for control of the handgun.
At this point, Wilson was injured, but still functional, and acting as any competent police officer would, did his best to stop Brown and Johnson, ordering them to stop. Again, the best evidence suggests Brown did stop not far away, and facing Wilson’s drawn handgun, taunted him and charged him, causing Wilson to shoot him multiple times in rapid succession until Brown was finally, actually stopped. There is every reason to believe that if Brown complied with Wilson’s orders, he would have been handcuffed and would be alive today. The fact that Johnson remained uninjured supports this. But faced with an unprovoked charge by a 6’4,” 300 pound man that had already inflicted substantial injuries on him, and that had tried to take his handgun, Wilson had every reason to believe he could not survive a second attack, and every reason to believe the only option open to him to stop Brown and to protect his life was to shoot.
Two important elements of the use of deadly force are in play here: proportionality (disparity of force) and who was the “initial aggressor.” In Missouri, an initial aggressor is the person who started the assault, and who is pressing it (563-031). However, the conduct of police officers in using force is under 563.046, which takes note of their unique role. An officer may use force, including deadly force, in making a lawful arrest. In the Brown case, Wilson had more than enough probable cause to make an arrest of Brown for multiple felonies. The statute reads, in part:
3.A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only
(1) When such is authorized under other sections of this chapter; or
(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably
believes that the person to be arrested
(a) Has committed or attempted to commit a felony; or
(b) Is attempting to escape by use of a deadly weapon; or
(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.
The issue of who is the “initial aggressor,” which would apply in any encounter between citizens, is not in play here. Wilson was acting lawfully in his role as a police officer. Brown had committed multiple felonies even if Wilson were not aware of his robbery. Wilson was entirely justified in stopping Brown’s escape–it was his duty–and when Brown stopped, turned, refused to obey his commands, taunted and charged him, Wilson reasonably believed he had no choice but to use deadly force because Brown had twice demonstrated his intention to “endanger life or inflict serious physical injury unless arrested without delay.”
Remember, Brown knew he committed a robbery, even if Wilson did not. He knew he had just attacked, and potentially tried to kill, a police officer. He knew Wilson was holding a gun on him, yet chose to charge him. Would any reasonable police officer believe Brown did not intend to cause him serious bodily injury or death? This is proportionality: was deadly force necessary–at the time and place and under the circumstances Wilson used it–to achieve his lawful purpose as a police officer, or once Brown began to charge him, could he reasonably have arrested Brown with the application of lesser force? Did Wilson have the time, distance, and could he muster sufficient force to overcome a much bigger and demonstrably violent Brown–and possibly Johnson–in the time available?
Notice that Missouri statutes do not require that Brown–or anyone–be armed with any weapon before deadly force may be used against them. This is true with most states. The law rightly acknowledges that serious bodily injury or death may be inflicted without weapons. It is the demonstrated intentions and the actions of an “initial aggressor,” not the weapon they hold that matter. Of course, someone holding a firearm and threatening to kill someone is arguably more imminently dangerous than someone making the same threat with no weapon, unless of course, there is a clear disparity of force.
Someone of Brown’s size is clearly capable of inflicting serious bodily injury or death on anyone smaller, including the convenience store clerk and Officer Wilson. Most men have such a size, weight and strength advantage over most women, that weapons are essentially a non-issue. A man larger than his attacker, repeatedly struck and unable to defend himself, is surely on the wrong side of the disparity of force equation.
In continuing to portray Brown as “unarmed,” the media are doing a great disservice to the rule of law and to public safety. Far too few understand anything about the use of deadly force under the law. Perpetuating the idea that merely because someone was not carrying a weapon when killed in self-defense, they must have been wrongfully killed goes beyond reportorial laziness into outright deception in the furtherance of a false, racially charged (in this case and the Martin case) narrative.
The consequences of this kind of deception are already obvious in the ravaging of Ferguson businesses, and in the threats of “activists” in Ferguson and the surrounding area that are demanding that the very businesses they have looted, burned and otherwise destroyed reopen and employ them, or there will be even more violent consequences. Continuing demonstrations and riots quickly deplete even the most solvent public treasury. But most dangerously, this kind of irresponsible media coverage will surely result in even worse violence should Officer Wilson be found to have acted lawfully, as what is currently known appears to be the inevitable outcome. “Social justice” acknowledges no law and ignores reason. Its demands are political and racial, and the media plays to those destructive forces, not the currents of law, order and domestic tranquility and genuine racial reconciliation.
As for the “average” citizen forced to defend their life or the lives of those they love, self-defense is made more difficult, and far, far more expensive, in every imaginable way. Learning the way of the firearm, understanding the law, and practicing good tactics and responsible firearm ownership to avoid, to the greatest extent possible, ever having to use deadly force, is no longer enough. We must also prepare to defend ourselves against all of the resources of the media, even the media that tries to be fair, but lacks knowledge of the law and reflexively reverts to narrative-driven rhetoric.
Mike’s Home blog is Stately McDaniel Manor.