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Friday, August 15, 2014

The Constitutional Limits of Missouri's Statute Permitting Police Officers' Use of Deadly Force

A lot of important things have been said about the shooting of Michael Brown by a police officer, Darren Wilson in Ferguson, Missouri and the following protests and law enforcement reactions. Here, I want to make a few points about the shooting itself and the various legal proceedings that may follow.

Missouri's has a law that permits the use of deadly force by police officers, and this law isvery broad on its face. But this law would have limited application to an excessive force lawsuit against Wilson. Missouri's statute on officers' use of deadly force purports to justify deadly force in any situation where an officer reasonably believes a suspect has committed a felony and where deadly force is immediately necessary to effect the arrest. But the Fourth Amendment limits officer use of deadly force to situations where the defendant poses a danger to the officer or others, or where there is probable cause to believe the suspect has caused serious physical harm to somebody.

While Wilson would therefore not be able to take advantage of the statute's broad language in defending against an excessive force lawsuit, Wilson would probably still be able to raise the statutory defense in a criminal proceeding against him. While the constitutional limits on officers' use of force are relevant in civil claims that the officer has violated a suspect's rights, these constitutional limits would probably not apply in a case where the officer is the subject of a criminal proceeding.

Missouri Revised Statute 563.046 concerns a "Law enforcement officer's use of force in making an arrest." Here is the portion of the statute that addresses deadly force:

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 notable part of this statute is subsection (3)(2)(a) which states that police officers' use of deadly force is justified if the officer reasonably believes that the person has committed or attempted to commit a felony and if officer reasonably believes that deadly force is immediately necessary to effect the arrest..

Felonies are crimes that are punishable by one or more years in prison. While violent crimes like murder, rape, and robbery are felonies, nonviolent crimes like fraud or larceny are also felonies. Under the text of the Missouri statute, officers would be justified in using deadly force against people they suspect have committed a nonviolent offense and who they do not believe poses a threat to officers or others so long as the offense can be punished by one or more years in prison and as long as they reasonably believe the deadly force is necessary to effect the arrest of the suspect.

The Supreme Court has held that laws like this may violate the Fourth Amendment if applied against non-dangerous suspects. In Tennessee v. Garner, the Supreme Court addressed a Tennessee statute which permitted police officers to use "all the necessary means to effect the arrest" if a suspect attempted to flee after being notified of the officers' intent to arrest the suspect. In that case, an officer had shot and killed a fleeing suspect, Garner, who was suspected of having committed a burglary, but whom the officer believed was unarmed. Garner's father brought a section 1983 excessive force action against the officer, the police department, the mayor, and the city, arguing that the officer's use of deadly force violated Garner's Fourth Amendment rights.

The Court held that the officer's belief that Garner had committed a burglary was not enough to justify the officer's use of deadly force. From the Court's opinion:
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
The Court noted that the statute is not unconstitutional on its face, since a statute that justifies the use of deadly force in all suspected felony cases may be applied in a constitutional manner in some cases:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.
The logic from Garner applies to the Missouri statute. There may be some instances where the Missouri law can be applied constitutionally -- such as cases where the officer has probable cause to believe that the suspect has committed a crime that causes serious physical harm or where the suspect has threatened the officer with a weapon. But a mere reasonable belief by Wilson that Brown had committed a felony would not be enough to refute a claim of excessive force.

All of this is goes to show that Wilson would not be able to rely on the broad language of the Missouri statute in defending against an excessive force claim. To meet the requirements of Garner, Wilson would need to show that he reasonably believed that Brown posed a threat to the officers or others. Whether Wilson gave Brown a warning before shooting will also be an important consideration. While it is still unclear what exactly Wilson observed, it is fair to conclude that Wilson's burden in a case for excessive force would be heavier than section 563.046 seems to indicate.

All of this discussion of the Missouri statute must be accompanied by an important caveat: while Wilson may run into constitutional issues while defending against an excessive force claim, the same constitutional issues would probably not preclude Wilson's self-defense claim if he is criminally prosecuted.

While section 563.046 permits deadly force in a broad set of circumstances, and while an officer's use of deadly force in response to a non-violent felony committed by a non-threatening suspect would violate that suspect's Fourth Amendment rights, the officer would still be able to use this justification as a defense in a criminal proceeding. Even if the officer violated another party's constitutional rights, the officer would not be precluded from arguing that his or her actions were justified under the criminal law.

There are indeed constitutional limits to Missouri's statute that permits police officers' use of deadly force. But it is equally important to note that there are limits on these limits. While Wilson may not be able to use Missouri's broad law to defend against a civil lawsuit, Wilson will probably be able to use this law as a defense in any criminal case against him. And while details are still sparse on what exactly happened between Wilson and Brown, I suspect that Missouri's law will be of central importance in any resulting criminal and civil cases.


  1. Supposing (a) that it can be proved that Wilson fired at a fleeing nonthreatening Brown, maybe grazing or hitting him in the arm as some accounts have it, and that Brown then turned and advanced on the officer, putting the latter in justifiable fear of his life, then the killing shots to eye and head may be justifiable self defense but the earlier shots at the fleeing Brown would have violated Garner but been legal under 563.046. Does Garner invalidate the statutory exemption making Wilson prosecutable under MO law or must the prosecution be in Federal court for attempted deprivation of Brown's constitutional rights? (b) Supposing that after Brown stopped and turned Wilson continued to fire, so that Browns rush at Wilson might be attempted self-defense. Does this change anything?

  2. Regarding (a), as I discuss in this post, though, I don't think that Garner eliminates Wilson's self-defense argument in a criminal case, but it does mean there is a federal civil remedy in the form of an excessive force lawsuit. As far as (b) is concerned, I think that there would be a significant initial question of whether Wilson was in fear for his life if Brown indeed did turn. Beyond that, typically, the first aggressor cannot claim self-defense, which seems to be the possible change that this scenario could bring. But I don't know if this general rule applies when one of the parties is a law enforcement officer. And I highly doubt that a gunshot justified by 563.046 would be characterized by a court as an initial aggression that forfeits one's right to self-defense.

    1. But, as I understand what you're saying, if Brown turned, after being shot at and possibly hit, raised his hands in surrender, said "OK,OK,OK..." as the contractors would have it, but Wilson continued to fire that continued firing would not be justified by 563.046 and could be the "initial aggression" of which you speak. Establishing that as a fact beyond a reasonable doubt would be difficult... but if it could be done then Wilson would lose his self-defense exception in MO criminal court? Without that, and if Brown advancing on Wilson can't be excluded, I'm not seeing a state charge.

      I'm not saying the continued shooting scenario happened. Brown's behavior - walking down the middle of a busy street carrying loot and defying a policeman's order to move to the sidewalk cries out non compos mentos, and if you put that together with his family's report that he'd had a recent change in behavior involving a vision of the devil chasing an angel and a baptism and the religious content of his conversation with the contractor on the way to the store, and Wilson's story that Brown taunted him about not shooting him (perhaps a misinterpretation of a statement that Wilson couldn't hurt him)... I'm leaning toward mental problems with symptoms misinterpreted by Brown as religious visions with resultant delusions of grandeur and convictions of invulnerability. Could explain why someone not usually a thief reacted so badly to the obstacle placed in his way by, perhaps, a clerk's demand for id.