An important issue in the news this week has been the St. Louis County Grand Juries failure to indict Ferguson Police Officer Darren Wilson for his conduct in shooting and killing Michael Brown in Ferguson, Missouri on August 9, 2014. The Grand Juries failure to indict Officer Wilson and Mr. Brown's death have produced widespread protests, demonstrations and violence in the community. Protests around the country are occurring over Police Officers use of excessive force.  Regardless of what side of the issue you are on, in such cases there is always the potential of a civil lawsuit, on behalf of the survivors of a deceased person, to redress constitutional violations involved in the situation. Here the national news networks have been interviewing a Florida attorney who represents the family of Michael Brown. He has clearly stated that he intends on filing a civil rights lawsuit against Mr. Wilson and possibly others for Mr. Brown's death. It will likely be alleged that Officer Wilson and possibly others violated Mr. Brown's civil rights by Officer Brown using excessive force in attempting to question or apprehend Mr. Brown for his part in the theft of cigars at a local store in Ferguson, Missouri. The conduct of Officer Wilson and his shooting Mr. Brown multiple times will likely be brought under 42 U.S. C. Section 1983 for excessive force. According to news reports Mr. Brown was shot at least six (6) times, including twice in the head. New York Times, August 17, 2014 and Autopasy Report.


To state a claim for excessive force under 42 U.S.C. Section 1983, of the Civil Rights act, a Plaintiff must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the deprivation of the person's rights was committed by a person acting under color of state laws. Cook v. City of Bella Villa, 582 F.3d 840, 848-49 (8th Cir. 2009). A 42 U.S.C. section 1983 claim is supported when an officer violates a person's consititutional right to be free from excessive force by the officer, in attempting to question or arrest a suspect. This right flows from the United States Constitution's 4th Amendment's prohibition against unreasonable seizures of a person. Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998). The test is whether the amount of force used in the situation was "objectively reasonable" under the particular circumstances. Brown, v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). 


The amount of force that is reasonable for a police officer to use varies depending upon the facts of each case. In some cases the victim may have committed a violent crime and have a weapon or be fleeing from a robbery or from a violent crime scene.  In other situations the person may have committed a minor crime, or no crime, or have no weapon when confronted by police officers.  Each case must be evaulated depending upon the facts of the case. For example in the Michael Brown case, the jury will focus on what force was reasonable for Officer Wilson to use under all the circumstances of that particular situation. Did Officer Wilson think that Mr. Brown had a weapon? Was Officer Wilson in fear of his life? Was the size of Mr. Brown something that made the use of more force necessary?  Was Mr. Brown attempting to surrender, or was he attacking Officer Wilson? The jury will have to consider these factors as well as other factors such as:  Was something less than deadly force reasonable to have been used to apprehend Mr. Brown? Should a taser gun have been deployed to stop Mr. Brown? Did Officer Brown have the availability of a taser gun and decide not to use it? Could a shot to the leg or knee in order to incapacitate Mr. Brown have been used instead of multiple gunshots to Mr. Brown over a short time period of time. These are all questions that a jury in the civil rights case will have to weigh to determine whether the force used by Officer Wilson was objectively reasonable under the circumstances. 


Prior case law in the Federal Courts tell us that "It is important to balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Montoya v. City of Flandreau, 669 F.3d 867, 870 (8th Cir. 2010). Such a balance requires considering the "totality of the circumstances, including the severity of the crime, the danger the suspect poses to the officer or others, and whether the suspect is actively resisting arrest or attempting to flee." City of Bella Villa, 582 F. 3d at 849.


In the Michael Brown case,  there appears to be a conflict in the testimony of the witnesses as to whether Mr. Brown had his hands up and was attempting to surrender at the time that he was shot and killed or whether he was charging Officer Wilson in an aggressive manner at the time of him being shot. There seem to be some witnesses saying that Mr. Brown was shot in the back while physical evidence may indicate that all shots were to the front of the body and to the head. There seems to be agreement that Mr. Brown stole some cigars in a local shop but that he did not commit any other crimes and had no weapon at the time of the conflict with Officer Wilson. They jury will have to consider which of the witnesses testimony is the most credible, the fact that Mr. Brown did not have a weapon, whether Mr. Brown was surrendering at the time and the effect of his shoplifting cigars  in determining  the "totality of the circumstances" as to whether Officer Wilson violated Mr. Brown' civil rights.


In all civil rights cases the jury decides these cases based upon the law and the facts specific to the case. The jury instructions that state what the law is are read to them by the Judge of the court. The jury instructions contain the law that the jury must follow in deciding the case. The jury deliberations are secret, just as they are in the Grand Jury deliberations.  The attorneys and the family members of the deceased are usually the Plaintiffs. The officer and municipalities in such a case are the Defendants. The Plaintiffs and the Defendants involved never know which factors the jury found most important in their deliberations and verdict. In the Michael Brown case, if the parties can not settle their case, at some point a jury will be called to hear the case and to decide whether the actions of Officer Wilson and the force that he used upon Mr. Brown was reasonable under all of the circumstances, or whether the force that he used amounted to excessive force under 42 U.S.C., Section 1983 and the 4th Amendment of the United States Constitution. Until that time, the protests are likely to continue as both sides seek the answer to this question.

Author: Phillip A. Tatlow

Phillip A. Tatlow
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