Ferguson shooting: Evidence appears to support officer's version of events

Recent leaks out of the federal civil rights investigation into the shooting of Michael Brown suggest that there may not be a sufficient legal basis to proceed with criminal charges against Officer Wilson – a blow to protesters.

It’s been nearly three months now since Michael Brown was shot and killed by Ferguson, Mo., Police Office Darren Wilson in an incident the facts of which remain largely shrouded in mystery, rumor, and sometimes conflicting eyewitness statements to the media. The shooting itself, of course, set off more than two weeks of protests and confrontations between the police and citizens in the streets of the St. Louis suburb, with protesters demanding that Wilson be arrested and the police responding, at least initially, with an overly excessive militarized response that only seemed to inflame the crowds and, in many cases, shock the nation. Since then, the Ferguson story has largely disappeared from the headlines, but that doesn’t mean that the story is over. Protests have continued in the town on a regular basis, and there have been incidents, such as confrontations between protesters and football fans outside St. Louis Rams games, and, of course, continued calls for Officer Wilson to be charged and arrested, with some implication that things will become violent if the grand jury fails to return an indictment. In the past week or so, though, there have been reports leaking out of the investigation that seem to support the officer’s version of events as we know them, and to suggest that we may not see a grand jury indictment at all.

The first leaks appeared last week in The New York Times, which passes along information from unnamed federal officials involved in the federal civil rights investigation into the shooting that is running parallel to the grand jury proceedings:

WASHINGTON — The police officer who fatally shot Michael Brown in Ferguson, Mo., two months ago has told investigators that he was pinned in his vehicle and in fear for his life as he struggled over his gun with Mr. Brown, according to government officials briefed on the federal civil rights investigation into the matter.

The officer, Darren Wilson, has told the authorities that during the scuffle, Mr. Brown reached for the gun. It was fired twice in the car, according to forensics tests performed by the Federal Bureau of Investigation. The first bullet struck Mr. Brown in the arm; the second bullet missed.

The forensics tests showed Mr. Brown’s blood on the gun, as well as on the interior door panel and on Officer Wilson’s uniform. Officer Wilson told the authorities that Mr. Brown had punched and scratched him repeatedly, leaving swelling on his face and cuts on his neck.

This is the first public account of Officer Wilson’s testimony to investigators, but it does not explain why, after he emerged from his vehicle, he fired at Mr. Brown multiple times. It contradicts some witness accounts, and it will not calm those who have been demanding to know why an unarmed man was shot a total of six times. Mr. Brown’s death continues to fuel anger and sometimes-violent protests.

In September, Officer Wilson appeared for four hours before a St. Louis County grand jury, which was convened to determine whether there is probable cause that he committed a crime. Legal experts have said that his decision to testify was surprising, given that it was not required by law. But the struggle in the car may prove to be a more influential piece of information for the grand jury, one that speaks to Officer Wilson’s state of mind, his feeling of vulnerability and his sense of heightened alert when he killed Mr. Brown.

Police officers typically have wide latitude to use lethal force if they reasonably believe that they are in imminent danger.

The officials said that while the federal investigation was continuing, the evidence so far did not support civil rights charges against Officer Wilson. To press charges, the Justice Department would need to clear a high bar, proving that Officer Wilson willfully violated Mr. Brown’s civil rights when he shot him.

(…)

The officials briefed on the case said the forensic evidence gathered in the car lent credence to Officer Wilson’s version of events. According to his account, he was trying to leave his vehicle when Mr. Brown pushed him back in. Once inside the S.U.V., the two began to fight, Officer Wilson told investigators, and he removed his gun from the holster on his right hip.

Chief Jon Belmar of the St. Louis County Police Department has said in interviews that Officer Wilson was “pushed back into the car” by Mr. Brown and “physically assaulted.” The department is conducting the local investigation into Mr. Brown’s death.

Spokesmen for the F.B.I. and the Justice Department declined to comment.

In an interview, Benjamin L. Crump, a lawyer for the Brown family, dismissed Officer Wilson’s account of what happened in the S.U.V. that day.

“What the police say is not to be taken as gospel,” Mr. Crump said, adding that Officer Wilson should be indicted by the grand jury and his case sent to trial. “He can say what he wants to say in front of a jury. They can listen to all the evidence and the people can have it transparent so they know that the system works for everybody.”

Yesterday, The Washington Post laid out additional reports that have been leaked from the investigation that seem to further corroborate the version of events that Officer Wilson has apparently communicated, and again calls into question whether there would be a sufficient legal basis to proceed with criminal charges:

Ferguson, Mo., police officer Darren Wilson and Michael Brown fought for control of the officer’s gun, and Wilson fatally shot the unarmed teenager after he moved toward the officer as they faced off in the street, according to interviews, news accounts and the full report of the St. Louis County autopsy of Brown’s body.

Because Wilson is white and Brown was black, the case has ignited intense debate over how police interact with African American men. But more than a half-dozen unnamed black witnesses have provided testimony to a St. Louis County grand jury that largely supports Wilson’s account of events of Aug. 9, according to several people familiar with the investigation who spoke with The Washington Post.

Some of the physical evidence – including blood spatter analysis, shell casings and ballistics tests – also supports Wilson’s account of the shooting, The Post’s sources said, which casts Brown as an aggressor who threatened the officer’s life. The sources spoke on the condition of anonymity because they are prohibited from publicly discussing the case.

(…)

The St. Louis Post-Dispatch late Tuesday night published Brown’s official county autopsy report, an analysis of which also suggests that the 18-year-old may not have had his hands raised when he was fatally shot, as has been the contention of protesters who have demanded Wilson’s arrest.

Experts told the newspaper that Brown was first shot at close range and may have been reaching for Wilson’s weapon while the officer was still in his vehicle and Brown was standing at the driver’s side window. The autopsy found material “consistent with products that are discharged from the barrel of a firearm” in a wound on Brown’s thumb, the autopsy says.

Judy Melinek, a forensic pathologist in San Francisco who reviewed the report for the Post-Dispatch­, said it “supports the fact that this guy is reaching for the gun, if he has gunpowder particulate material in the wound.”

Melinek, who is not involved in the investigation, said the autopsy did not support those who claim Brown was attempting to flee or surrender when Wilson shot him in the street.

Victor W. Weedn, chairman of the George Washington University Department of Forensic Sciences, said the autopsy report raises doubts about whether Brown’s hands were raised at the time of the shooting but is not conclusive.

“Somebody could have raised their hands way above their head and lowered their hands and then be shot,” Weedn said. “So an autopsy will never rule out that the hands were above the head. It can only say what happened at the time of the shooting.... With the graze to the right arm, it appears the arm was in a vertical position, suggesting that it was closer to down by his side, but it could have been higher.”

(…)

During his testimony before the grand jury last month, Wilson told jurors that the encounter with Brown and his friend Dorian Johnson began when he ordered the two men to stop walking in the street and get onto the sidewalk, The Post’s sources said.

Things quickly escalated, Wilson told jurors, with Brown shouting an expletive at him and refusing to move to the sidewalk, the Post’s sources said. In August, an attorney for Johnson said the officer used profanity when ordering the two onto the sidewalk.

The Post’s sources interviewed in recent days said Wilson testified that he stopped his police SUV and opened the door to approach Brown, but the 18-year-old used both hands to slam the door shut, trapping him in his patrol vehicle. Brown then reached through the open window and began to repeatedly punch the officer in the face, Wilson testified.

The officer said he reached for his gun to defend himself, but Brown grabbed it and let go only after it fired twice. Two casings from Wilson’s gun were recovered from the police SUV, the sources said.

After he was shot in the altercation at the vehicle, Brown fled with Johnson, and Wilson testified that he ordered Brown to stop and lower himself to the ground. Instead, Brown turned and moved toward the officer, the sources said. Wilson said he feared that Brown, who was 6-foot-4 and weighed nearly 300 pounds, would overpower him, so he repeatedly fired his gun.

Brown was shot at least six times, according to all three autopsies that have been conducted.

The Post-Dispatch, in a story on Wilson’s account of the incident published early Wednesday, cited a single “source with knowledge of his statements” in providing additional details. The story said Wilson testified that during the struggle at the SUV, Brown pressed the barrel of his gun against the officer’s hip and attempted to prevent Wilson from reaching the trigger. According to Wilson’s testimony, the Post-Dispatch said, Brown was running toward Wilson when he was fatally shot and his hands were not up.

The source also told the newspaper that Wilson told jurors he was trapped in the front seat and could not use his pepper spray to subdue Brown because the officer would have also incapacitated himself. His baton was also out of reach, at the back of his utility belt, pinned between his body and the seat. He also did not have a stun gun, so he drew his gun, the Post-Dispatch reported.

The autopsy says that Brown was shot in the forehead, twice in the chest and once in the upper right arm. The fatal wound to Brown’s head indicates that he was leaning or falling forward, and the path of a sixth shot, which hit Brown’s forearm and traveled from the back of his arm to his inner arm, means that Brown’s palms were not facing Wilson in an act of surrender, according to analysts cited by the Post-Dispatch.

As a preliminary matter, it’s worth noting that we should be as cautious about judging this case based on leaked evidence before the grand jury has spoken as we should have been in the days immediately after Brown’s shooting when the evidence that was coming to the public consisted mostly of speculation and statements from only those witnesses that chose to go public. Most importantly, we don’t have in front of us all the evidence that the grand jury does, we haven’t actually seen the witnesses testify in person, meaning we have no basis on which to judge their credibility, and we aren’t getting the same complete picture that they are. For example, just looking at the autopsy results or reading what some eyewitnesses to the incident may have said is basically viewing things in isolation in a way that the grand jurors aren’t supposed to be doing. Instead, they are supposed to be looking at all the facts, taken together, in order to determine if sufficient evidence exists to bring some kind of charge against Officer Wilson. That charge could range from murder all the way down to criminally negligent homicide, but it’s not easy to make that judgment when you’re just viewing snippets of information here and there, and you’re doing it through the lens of the media and “experts” who themselves don’t have anymore access to the entire package of evidence that is being presented to the grand jury. The final thing to keep in mind, of course, is that the leaks that are coming out are selective leaks coming from sources that are trying to push public opinion on the case in one direction or the other.

All of that being said, though, it’s impossible not to look at this evidence, such as it is, and conclude that the story that became popularized about the confrontation between Brown and Wilson that was popularized in the days immediately after it occurred and the protests began didn’t play out. Assuming the autopsy and forensic reports are correct, then it does indeed appear that there was a struggle for Wilson’s gun inside his vehicle, and that at least one of the shots that hit Brown, although not fatally, occurred while that happened. There doesn’t seem to be any other reasonable way to interpret the presence of his blood inside the car and on its exterior or the presence of close-range gunshot wounds and apparent gunpowder residue on Brown’s body. The autopsy report also seems to conflict with the claims that Brown was in the process of running away or surrendering, depending on who you listen to, when the fatal shots were fired and may be consistent with Wilson’s contention that Brown was moving toward him. Taken together, all of these tend to paint a far more complicated picture of what happened that afternoon than was being circulated by the media and protesters in the days immediately after the incident, and it places the entire incident in a new light. To be sure, even if it is true that Brown had tried to reach for Wilson’s gun at some point, it could still be possible that Wilson’s final use of force was unjustified, but that’s something that will have to be judged by the grand jury in the totality of the circumstances, including the fact that this entire incident unfolded over the course of less than 90 seconds, and perhaps less than a minute, according to several of the eyewitness reports that have been made to the media since August.

In addition to these factual issues, there may also be legal barriers to proceeding against Wilson. Specifically, one provision of the Missouri Code appears to give police near unlimited discretion in using deadly force in situations similar to the Brown case:

Chapter 563 of the Missouri Revised Statutes, will no doubt come into play in this new case in which a cop shot an unarmed man.

Under this law, a cop is justified in using deadly force “in effecting an arrest or in preventing an escape from custody” if “he reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony … or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

The possibility that all of this leads to, of course, is that the grand jury will return without indicting Wilson at all, or that it will indict him on some lesser charge that will do little to quell the anger of the people who continue to protest in Ferguson and elsewhere regarding this case. While it’s still a stretch to fear that this result would automatically lead to violence akin to some of the looting and property damage that we saw in August, it’s logical to assume that such a result would lead to some kind of unrest even, it if were somewhat quelled by factors such as the weather. Additionally, the report in the Times, which appears to come from federal investigators, seems to be laying the groundwork for the possibility that the Justice Department may not, in the end, bring civil rights charges due to lack of evidence that Wilson was acting with the intent of violating Brown’s civil rights when this all happened. Perhaps that’s what all of this leaking is all about, to try to lay the groundwork for results out of the grand jury that people in Ferguson are likely to find disappointing, to say the least. Whether that stops the protests from reigniting in a few weeks if the grand jury does indeed fail to indict remains to be seen.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.