re: #301 The Big Ebola of Rocka Rolla

Got someone arguing that MO law allows the officer to use deadly force even if he feels his life was in danger, even if the person is surrendering.

I think that’s misrepresenting what the law says:

Law enforcement officer’s use of force in making an arrest.
563.046. 1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.

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.

4. The defendant shall have the burden of injecting the issue of justification under this section.

Wilson’s got the burden, and he’s the only direct party to the events (everyone else is a witness). He can self-servingly state that he felt he was in danger. Therefore all actions after are justified.

The problem is that his life was no longer in danger when surrendering. He was no longer in immediate danger. Therefore, his actions were improper by operation of the statute.

Brown ran, then turned to surrender with hands up (or going up). That’s not danger. Wilson could simply have waited for backup to arrive before effectuating the arrest, but instead shot him dead with his hands up.

The autopsy results don’t actually confirm that Brown struggled for the gun - only that he was shot at close range in the hand and that GSR was evident. That’s consistent with other witnesses. Baden’s autopsy showed no signs of wounds on Brown consistent with a struggle.

We’re still left with trying to figure out why Wilson would unholster his gun in the police car in the first place, and that two of the shots were fired in the car (which explains blood splatter, the hand wound to Brown, and GSR).

Wilson would appear to have instigated the stop, escalated the events, and then fired and killed Brown even when he surrendered.

By operation of the statute, that’s not a justifiable action.