WASHINGTON, D.C. (August 19, 2014):   While much of the media is suggesting that the only defense in the killing of an unarmed youth in Ferguson, MO, is that the officer acted in self defense to protect his own life (or possibly the lives of others), a Missouri statute authorizes shooting a fleeing robbery suspect.

Facebook Ferguson protest

Ferguson: Missouri Law authorizes officer to use deadly force when necessary

Section 563.046 authorizes a law enforcement officer to use “deadly force” “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 . . . has committed or attempted to commit a felony.”

Thus, even if Michael Brown were in fact fleeing from the officer’s attempt to arrest him, and posed no threat whatsoever to the officer’s safety, officer Darren Wilson might still be able to argue that he reasonably believed that Brown had committed a robbery, and that he could not “effect the arrest” without shooting the suspect, says public interest law professor John Banzhaf.

Relevance of the video tape to issues in Ferguson

In addition to possibly providing another defense argument, the existence of the statute more clearly establishes the legal relevance of the videotape released by authorities which seemingly shows Brown committing a strong-arm robbery just minutes before his confrontation with the officer.

“Although many have argued that the videotape has no relevance to the issues in Ferguson, it is legally relevant because it provides a strong motive for Brown to attempt to resist arrest.”

Also, Wilson might have suspected Brown of being the robber – and therefore a very serious danger – based either on a physical description of the robbery suspect broadcast over the police radio, or if he noticed a box of cigars in Brown’s hands when he was stopped, says Banzhaf.

Ferguson: Conclusion from the robbery videotape

Moreover, even if the robbery videotape is ruled not admissible at trial – i.e., because of its strong prejudicial effect – it is now so well known that virtually all potential jurors will have seen it, and concluded that Brown was not just an innocent graduate going to college, but actually a bully and a robber.

Banzhaf notes that a very effective although ethically dubious defense tactic in homicide cases is to put the victim on trial by suggesting to the jury that somehow he deserved what was coming to him.

The irony of the statute, says Banzhaf, is that it would seem to be unconstitutional under a decision by the U.S. Supreme Court which limited the circumstances under which an officer may use deadly force to stop a fleeing suspect.

However, as law professor Paul G. Cassell noted, Wilson might try to argue that he relied upon the statute in good faith, perhaps unaware that it apparently violated a Supreme Court ruling.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf