Did MO Law Allow for Deadly-Force Arrest of Mike Brown?Posted by Andrew Branca
Sunday, August 24, 2014 at 7:00pm
A cautionary tale on the hazards of relying on the plain-language of statutesThe shooting in Ferguson MO of robbery suspect Mike Brown by Police Officer Darren Wilson has raised a myriad of social, racial, and legal issues. In this post I’d like to address one of the latter, specifically whether under Missouri law Wilson was authorized to use deadly force to arrest a fleeing Brown in the absence of Brown representing imminent threat of death or grave bodily harm to an innocent. (The presence of such a threat would have justified Wilson’s use of deadly force under self-defense and defense of others grounds, which are outside the scope of this post.)
This issue was very well addressed by Robert VerBruggen in his August 16th Real Clear Policy post entitled “Missouri’s Rule on Deadly Force by Cops,” which was brought to my attention a few days after publication, and which I encourage you to read. I offer here a more in-depth discussion of the same issues, and reach the same conclusion.
MRS §563.046: Law enforcement officer’s use of force in making an arrest
In this context much has been made in the press by “journalists” who have stumbled across Missouri Revised Statute §563.046 is entitled “Law enforcement officer’s use of force in making an arrest.” It provides, in relevant part, that:
3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only (emphasis added)
. . .
(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 (emphasis added); 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.
A plain reading of this 563.046(3)(2)(a) could reasonably lead to the conclusion that Wilson was authorized to use deadly force to stop Brown’s flight, even if Brown presented no imminent threat of death or grave bodily harm, if Wilson merely had a reasonable belief that Brown was fleeing to avoid apprehension for a recently completed felony robbery:
If true, all the discussion of whether the 18-year-old, 6' 4" tall, 292 pound Brown represented a deadly threat at the time Wilson shot him would be moot. Indeed, even had the since debunked claim that Wilson shot Brown in the back proven to be true, it would have been irrelevant if deadly force may be used to arrest or apprehend a fleeing felony suspect.
[.....]
Wilson’s Use of Deadly Force Would Be Unlawful Absent Imminent Deadly Threat And there we have it. Despite the plain-language reading of §563.046 that a law enforcement can use deadly force to make an arrest when he reasonably believes the person making the arrest has committed a felony, in the aftermath of Tennessee v. Garner and subsequent changes to Missouri case law and jury instructions, the use of deadly force to make an arrest of a non-dangerous fleeing felon is not permitted under Missouri law.
....more at linkhttp://legalinsurrection.com/2014/08/di ... ike-brown/
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