Michael Brown shooting: when can US law enforcement officers fire?

In the Ferguson case, experts say it’s far from certain criminal charges will be brought against the officer who shot Brown

A child holds a sign during a vigil at Hart Plaza in downtown Detroit for slain teen Michael Brown, who was shot by a police officer in Ferguson
In the case of Brown, it’s hard to say anything definitively about what will happen without knowing the facts. Photograph: Zuma /Rex

For days, frustrated protesters have filled the streets of Ferguson, Missouri, demanding justice for an unarmed black teen who was fatally shot by police over the weekend.

The facts of the Brown case are still unknown – and hotly debated. Police say the officer who shot Brown suffered a blow to the face during an altercation in which the teen tried to take the officer’s weapon. One of Brown’s friends, a witness to the shooting, disputed this account, and said his friend was shot multiple times as he began to flee, hands raised in a gesture of submission.

Among their demands, protesters have called for the officer who killed Michael Brown, 18, to be charged with murder. But experts say if history is any guide, it’s far from certain criminal charges will be brought against the officer. Here’s why:

When can an officer shoot?

While there is no national statute outlining police use of deadly force, there are national standards, established by a pair of 1980s US supreme court decisions.

David Klinger, an associate professor in the department of criminology and criminal justice at the University of Missouri–St Louis and a former officer with the Los Angeles police department, said there are two permissible circumstances in which an officer can use lethal force.

  1. Constitutionally, a police officer can shoot a suspect who is threatening the life of the officer, a fellow officer or a member of the public, said Klinger, a use-of-force expert. This is known as the “defence of life” standard.
  2. An officer can also shoot a fleeing suspect if the officer believes the suspect has committed a violent felony and his or her escape would pose a significant and serious threat, he said.

The US constitution does not allow a police officer to shoot an unarmed, non-violent suspect in flight who does not pose a serious risk to public safety.

This was determined in a 1985 supreme court case, Garner v Tennessee. The justices ruled that deadly force “may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious bodily harm to the officer or others”.

The decision limited the long-standing “fleeing felon” rule that permitted officers to use deadly force against a suspect who was trying to escape, even if the person in flight was not a threat to the public.

Police in Ferguson.
Individual police departments also implement their own standards and protocol that outline the situations in which use of deadly force is appropriate. Photo: Sipa USA /Rex

‘It’s not the Wild West’: state laws and departments’ protocol

The constitution establishes a clear framework within which states and police departments can further regulate deadly force, said Candace McCoy, a professor at the John Jay College of Criminal Justice at the City University of New York.

“It’s not the Wild West out there,” she said.

McCoy said states, guided by the constitution, have adopted their own laws governing officers’ use of lethal force on suspects. The state laws can only be more restrictive of police action than the standards set by the supreme court, although McCoy said, it would be “hard to restrict that further, unless you say that police shouldn’t be carrying guns at all”.

Individual police departments also implement their own standards and protocol that outline the situations in which use of deadly force is appropriate. For example, Klinger said, some departments have imposed blanket bans on shooting a suspect in flight.

How the rules apply to the Brown case

A 1989 supreme court case, Graham v Connor, established an “objectively reasonable” standard, which applies in cases where a law enforcement officer stands accused of using excessive force. Klinger said “reasonableness” is based on how a “reasonable” officer at the scene would have responded and that the “use of force must be proportional to the threat”.

The standard is not based on the threat that existed, but the threat the officer believed existed.

Because the decisions are often made in split seconds and under extreme pressure, there can be a disparity between the threat a suspect actually posed at the time and what the officer perceived. For example, Klinger said, giving a somewhat improbable scenario as an example, that an officer could under that standard be found to have been justified in shooting a man wielding a hatchet against a young boy, even if it is later discovered that the hatchet was fake and the man was just role-playing with his son.

So, a key question for investigators to consider: Was shooting an unarmed teenager the objectively reasonable response given the specific set of circumstances the officer was dealing with at that time? In other words, did the officer “have reason to believe” Brown posed a threat – with or without a gun? This of course cannot be determined without the results from ongoing investigations into the shooting.

Ronald Johnson Ferguson
Captain Ronald Johnson was appointed by the governor to take control of security operations in the city of Ferguson. Photograph: Scott Olson/Getty

Holding officers accountable

A criminal investigation is standard protocol following an officer-involved shooting, whether the incident results in injury or death, Klinger said. Often the investigations are conducted by the department for which the officer works, which may cause the public to doubt their comprehensiveness and transparency, sometimes with good reason.

In Missouri, the St Louis County police department, not the Ferguson police, is conducting the criminal investigation into Brown’s death. The FBI is conducting a concurrent investigation that will evaluate whether the shooting violated Brown’s civil rights.

In 2012, Klinger published a study on shootings by the St Louis Metropolitan police department in which he recommended the department make public the findings from all investigations into officer involved shootings. Klinger said part of the process should include disclosing the names of the officers involved, although in this case, he said, he understands why officials in Ferguson withheld the name of the officer who shot Brown until Friday.

After an investigation is complete, the findings are delivered to a prosecutor who will decide if the officer acted within the confines of state law, Klinger said. If not, the prosecutor will then have to determine which crime to charge the officer with, and if there’s enough evidence to bring a criminal charge.

Despite protesters’ demands that the office be criminally charged, indictments of police officers are rare, and convictions even rarer, McCoy noted.

She said it’s notoriously difficult to convince a jury that an officer knew lethal force wasn’t an appropriate response in a given situation and took a shot anyway. Also, juries have a tendency to favour police officers because they typically make good witnesses and speak well, McCoy said.

In the case of Brown, McCoy said it’s hard to say anything definitively about what will happen without knowing the facts.

“It will be extremely difficult to prove this and a conviction is very unlikely,” she said. “The burden of proof is high.”