Ferguson police released the name of Darren Wilson, the white officer who shot Mike Brown, an 18-year-old, unarmed, black man along with a video of what they said may be Brown robbing a convenience store on Friday morning.
By Friday afternoon, Ferguson police acknowledged that Wilson did not know Brown was a robbery suspect before the confrontation that lead to Brown lying face down in the street after having been shot multiple times.
“The initial contact with Mike Brown was not related to the robbery,” Ferguson Police Chief Thomas Jackson said. Brown had been stopped “because he was walking down the street blocking traffic, that’s it,” he added.
Then that afternoon, in an interview with the St. Louis-Post Dispatch, Jackson backtracked, telling the newspaper that Wilson “saw cigars in Brown’s hand and realized he might be the robber.”
Jackson’s admission that Wilson didn’t stop Brown in connection with the alleged robbery raises the question about why the video and the report were released in the first place. Jackson said he released the video because “you asked for it,” referring to the media. But police refused to disclose Wilson’s name for days, and have still not released the incident report related to Brown’s shooting or his autopsy – both requested by the media.
An attorney for Dorian Johnson, who allegedly witnessed Wilson shooting Brown, acknowledged that Brown had taken cigars from the store. Police have said that Brown was shot after trying to grab Wilson’s weapon. Johnson and another witness, Tiffany Mitchell, have said that Brown was trying to run away from Wilson when he was gunned down.
The decision to release the video and a police report describing the robbery – but little related to the actual shooting – has fueled more questions about whether the police are retroactively trying to justify Brown’s death. During the press conference, an attendee shouted out, “seems like you’re only answering questions that demean the character of Mike Brown.” Earlier Friday, Brown’s family released a statement saying they were “outraged at the devious way the police chief has chosen to disseminate piecemeal information in a manner intended to assassinate the character of their son.”
The convenience store video could bolster Wilson’s claim that Brown reached for his gun. Brown, they could argue, was scared of being apprehended for the robbery he allegedly committed and therefore did something desperate. Though that might help Wilson in the court of public opinion, the video that Ferguson police released Friday would likely be inadmissible in a court of law if investigations into the shooting leads to charges, because admitting it may violate the federal rules of evidence.
“If this police officer were on trial, let’s say for homicide, he would not be able to bring in evidence of what happened in the store and try to assail Michael Brown’s character and suggest he acted a certain way during the encounter,” said Ezekiel Edwards, director of the criminal law reform project at the American Civil Liberties Union. “Whether it was shoplifting, whether he pushed the store clerk, whatever, they shouldn’t be able to bring that in to bolster their defense.”
“A judge is supposed to exclude evidence if its prejudicial effect substantially outweighs its probative value. Here, the probative value is minimal – how plausible is it that someone afraid of getting arrested for stealing some cigars would think the way to get out of trouble was to try to steal a police officer’s gun?” said Samuel Bagenstos, a law professor at the University of Michigan and a former Deputy Assistant Attorney General for Civil Rights under President Obama. On the other hand, “the prejudicial effect is great – it would invite the jury to decide the case based not on what happened at the time of the shooting, but on earlier events that make the deceased victim look like a bad guy.”
Nevertheless, Bagenstos acknowledged, “trial judges have a lot of discretion in deciding what to let in.”
However, even if the video is admissible, Wilson would still have to contend with witnesses who say Brown was first shot while running away, and then shot multiple times while holding his hands up in surrender. Shoplifting is not a capital crime, and police are not empowered to simply execute people. Brown would have had to be considered dangerous to the officer or to others –which is why the police assertion that he reached for Wilson’s weapon is so important – for the use of deadly force to stop him from fleeing to be justified. Continuing to shoot Brown after he surrendered, or was on the ground – as witnesses contend – would likely cross the line.
“If the use of deadly force isn’t necessary to for the officer to defend himself or stop a dangerous fleeing felon, then it’s unlawful,” said Bagenstos.
Separate from the legal questions, the video will give political ammunition to those who believe both the shooting – and the militarized response to the protests in Ferguson – were warranted. Whether or not Wilson committed a crime when he shot Brown does not hinge on the late teen being an angel, or an honor student, or even a decent person. It hinges entirely on the circumstances under which he was shot. Nor does Wilson’s culpability bear on the decision by the Ferguson police force to gear up like Seal Team Six and fire rubber-coated bullets, tear gas, and wooden pellets at town residents protesting Brown’s death.
“This is a distraction from the real issue at hand,” said Edwards. “Another unarmed black man killed by a white police officer.”