Robert F. Jakubowicz: Grand jury’s task in Ferguson
From a strictly criminal law viewpoint, this is the key question in the case of the shooting by the police officer in Ferguson, Mo. After leaving the scene of the initial physical confrontation with the police officer, did the shooting victim reasonably signal to the officer that he was no longer under an imminent threat of death or serious bodily injury? Although, no detailed police incident report nor statements made by the officer are available at this point, the blitz of media coverage has resulted in reported statements by alleged eyewitnesses.
They all basically tell the same story that there was an initial confrontation -- variously described as a tug-of-war, pushing and shoving, punches being thrown and a shot being fired from inside the vehicle -- between the police officer in his vehicle and the victim leaning into the vehicle through a window. The local police chief, who was not a witness, added in a television interview that he understood the struggle between these two individuals was over the officer’s gun and a shot was fired, presumably by the officer from inside the vehicle. It is not clear whether that shot struck the victim. The officer, according to the chief, was said to have suffered a facial injury including a bone fracture near an eye.
Based on just these circumstances a legal defense could be raised by the officer that he reasonably feared imminent death of serious bodily injury, which justified the firing of his weapon to defend himself during the physical confrontation while he was in his vehicle. Law enforcement officers are instructed that they can use deadly force but only if there is an imminent danger of either death or great bodily injury to themselves or others.
The use of deadly force by law enforcement officers is strictly restricted. They are not supposed to use such force, for example, to stop a fleeing criminal who does not present such danger. In Hollywood, the old cops and robbers movies usually contained a scene showing an officer shooting at a fleeing criminal. In the real world of law enforcement, officers are expected to chase such criminals and apprehend them. In my first assignment to a hijacking squad as an FBI agent, I was designated to be such a runner, if necessary, because I was the youngest and fastest member on the squad.
So far, all the reported statements basically agree that the victim broke off the physical confrontation and began to flee the scene as the officer exited his vehicle with his weapon drawn. Some witnesses to the shooting said in television interviews that a shot was fired at the fleeing victim. Others said they saw the victim flinch after what they thought was the firing of a shot. The pathologist, who conducted an autopsy on the victim at the request of his family, reportedly said he could not tell whether the victim was shot from behind.
In any event, the stories all agree that this incident stopped the victim who then turned to face the officer. Some witnesses say it appeared he was facing the officer with his hands up. According to the reported witness statement, the officer and the victim were some 20 to 25 feet apart. Then according to all the reported witnesses, the officer fired multiple times, striking the victim six times.
The pathologist said that it did not appear that the shots were fired at close range. He said an analysis of the victim’s shirt will confirm whether the shots were or were not fired at close range. This case is being presented to the grand jury whose function is not to determine the innocence or guilt of a crime committed by the officer, but whether sufficient evidence exists to justify a criminal charge to be made against him.
There appears to be sufficient evidence that it was reasonable for the officer to think he was in imminent danger of death of serious bodily injury when the initial confrontation took place at the officer’s vehicle that would have justified he use of deadly force at that point to defend himself. The important question for the jurors is whether there is sufficient evidence to justify charging the officer with a crime because he was unjustified in pursuing the use of deadly force. In other words, should the officer have reasonably realized that he was no longer under an imminent threat of death or serious injury when he shot the victim dead because the victim stopped being such a threat by stopping the physical confrontation, fleeing, stopping and facing the officer with raised arms? There seems to be sufficient evidence for this.
It has been reported that the Missouri prosecutor is considering having the police officer testify. It is unusual for a defendant to so tell his story without having his testimony directly challenged. Unless there are eyewitnesses that the public is not aware of who will testify that the victim looked like he still presented a real threat of imminent danger to the officer at the time of the fatal shooting, the only witness to so testify would be the officer. When I was a former assistant district attorney in this county, our office allowed a defendant just one time to testify before a grand jury and that resulted in no indictment being issued.
Robert "Frank" Jakubowicz is a Pittsfield lawyer and regular Eagle contributor.