Michael Brown, the “Tom Joad Test,” and Darren Wilson’s Likely Defense

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In assessing any act of police violence I believe it’s wise to apply what I’ve called the “Tom Joad Test”: When you see a police officer beating or shooting a citizen, is your first impulse to sympathize with the uniformed assailant, or the victim? If the former is the case, you’re
a natural authoritarian; it the latter is true, you’re an instinctive libertarian.

The American concept of law and justice is rooted in the idea that state agents must justify their use of force against individuals who are presumed innocent of wrongdoing until guilt is proven. Learning that the victim in the scenario above actually committed a crime doesn’t invalidate the test: Liberty-minded people will never give the state or its agents the benefit of the doubt in the use of violence, particularly of the lethal variety.

Michael Brown may have committed a violent felony prior to being fatally shot by Officer Darren Wilson — who was not seeking to arrest Brown in connection with that crime at the time of their encounter. Therefore any justification for that shooting would depend on whether Brown posed a potentially lethal threat to Wilson. Because the Ferguson PD didn’t install a dashcam aboard Wilson’s patrol vehicle (officer accountability is not a priority for that department), no objective record of the encounter exists. Police officials insist that Brown assaulted Wilson in his vehicle and tried to take his gun; eyewitness Dorian Johnson insists that Wilson assaulted Brown, threatened him, and shot him while the 18-year-old was trying to surrender.

Wilson’s original account was offered behind the shield of his Garrity privilege, which means it cannot be used in criminal or civil prosecution. His defense will be built on the proposition that he considered Brown — despite being unarmed — to be a threat to himself or others, and acted as any “reasonable officer” would in those circumstances.

Missouri’s state statute dealing with justifiable homicide offers considerable latitude in the use of lethal force by police: It states that an officer may do so against someone who “has committed or attempted to commit a felony … or may otherwise endanger life or inflict serious injury unless arrested without delay.”

As Ferguson PD Chief Thomas Jackson has acknowledged, Wilson didn’t identify Brown as a suspect in a strongarm robbery (this didn’t prevent Jackson from releasing information about that robbery to the press, thereby obliquely connecting that crime to the Brown shooting). So any role Brown played in that robbery wouldn’t be relevant under the first of the justifications listed above. Thus Wilson’s defense will rest heavily on the claim that Brown assaulted him and fled — and that this would justify a lethal response, even if Brown was unarmed.

What about eyewitness claims that Brown was surrendering at the time he was shot?

Wilson and his defenders are likely crafting a defense under 563.031.1(1)(a), which allows for the use of lethal force against someone who “has withdrawn from an encounter … but later persists in continuing the incident by the use or threatened use of unlawful force….”

A woman claiming to be a friend of Officer Wilson’s “Significant Other” called a local talk show to relate what she described as a second-hand version of Wilson’s story in which Brown supposedly turned around and “charged” at the officer, despite the fact that bullets were flying. A video recorded immediately after the shooting contains garbled and ambiguous comments from an off-camera witness that could be construed as telling a similar story.

At this point, the likeliest outcome of the official investigation will be that the shooting will be ruled “justified” because the alleged assault on Wilson left the officer in “fear for his life,” and Brown’s pleas to surrender were a ruse in anticipation of “continuing the incident.” This may not comport with eyewitness accounts of the incident, or available ballistic evidence. (It may be significant that Attorney General Eric Holder has ordered a third autopsy to be performed on Brown’s remains.)

Because of the institutional privileges enjoyed by law enforcement (for example, Missouri law explicitly authorizes police to act as aggressors under 563.031[1][b]), Wilson and his colleagues will be able to claim that the killing of Michael Brown was legally “justified” even if it was not morally justifiable.

9:17 pm on August 17, 2014