On Wednesday, a state grand jury apparently begins reviewing evidence in the Michael Brown case.  On Tuesday, I argued in favor of a state assessment of the possible criminal charges, rather than a federal assessment, given the difficulties of proving a federal civil rights violation in the shooting.  And I want to again emphasize (as I will discuss below) that we don’t have any real understanding of the facts at his point.  But, nonetheless, since facts may begin to emerge soon, it may be useful to understand what criminal charges for the shooting are possible under Missouri law.

The most serious homicide charge is first-degree murder. Under Missouri law “[a] person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter.”  This charge seems quite improbable, even accepting the version of the facts most favorable to Brown’s supporters, because it would be difficult to show that the officer deliberated before killing Brown.

This leads, then, to second-degree murder which, as relevant here, applies where a person “[k[nowingly causes the death of another person . . . .” To act “knowingly” means to act in a way that producing a result (here, death) is almost certain. So the officer seems to have knowingly shot and killed Brown. Would this automatically be second-degree murder?

Of course not, because not every police killing is second-degree murder. Police are authorized to use force, including deadly force, in appropriate situations. As I discussed two days ago, Missouri has a broad statute authorizing police officers to use force when making arrests, including deadly force. The statute provides (in relevant part):

3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only
. . .
(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; 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.

As I also discussed two days ago, this statute is patently unconstitutional, at least to the extent that it purports to authorize deadly force to apprehend any fleeing felon regardless of the danger of that felon. While interesting issues can arise about the extent to which a criminal defendant can rely on an unconstitutional statute, my sense (without having researched the issue in detail) is that the statute will be construed to authorize deadly force only to the extent consistent with the Supreme Court’s decision in Tennessee v. Garner, that is, deadly force is permissible when the fleeing suspect posed “a threat of serious physical harm, either to the officer or to others.”

Notice, by the way, that the statute allows deadly force only when “immediately necessary” to effect an arrest. If Michael Brown had his hands up and was clearly and obviously attempting to surrender, then deadly force would not be justified and the shooting would be second-degree murder.

Notice further that the statute also provides a defense where the officer has a “reasonable belief” that certain facts exist – that would seem to provide a defense where the officer reasonably, but mistakenly, believed that he was facing a threat of serious physical harm. This is consistent with caselaw in the deadly force area that tends to give the officers some leeway, such as the Supreme Court decision in Graham v. Connor which held that “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”  Missouri law also makes clear that the police officer has no “duty to retreat” when attempting to make an arrest.

So, if justification exists (and I set to one side the issue of who bears the burden of proof on the issue and by what standard), then even though an intentional killing has occurred, no crime has been committed. But what about an intermediate case, such as where an officer acts in what he thinks is a need for self-defense but misjudges the need to use deadly force? In that situation, Missouri law (like other states around the country) recognizes a mitigation described as “imperfect self-defense.” This reduces a crime that would otherwise be murder down to involuntary manslaughterSee, e.g., State v. Frost, 49 S.W.3d 212, 220-21 (Mo. Ct. App. 2001). In situations where the officer acted recklessly, the crime would be a Class C felony. In situations where the officer acted with criminal negligence, the crime would be a Class D felony.

There is one other theoretical possibility for state criminal charges. What if the officer got into a fight with Michael Brown and then, enraged by the mutual combat, shot him? That would not be second-degree murder but, instead, would be reduced to the crime of voluntary manslaughter. This would be a situation where the officer would have acted “under influence of sudden passion.”

Now, what to make of all these possibilities? I think it is useful to understand the Missouri criminal code (which is similar to that in many other states) so that as evidence comes out about what actually happened during the shooting, it is possible to make some kind of informed judgment about whether criminal charges should be filed. But I completely agree with, for example, the Missouri Fraternal Order of Police when they condemn those (such as the Governor of Missouri) who have called for “vigorous prosecution” of the police officer involved.  Until the facts have been assembled, we shouldn’t assume that any prosecution is appropriate, particularly given the presumption of innocence in this country. (Full disclosure: I am working with the Utah Fraternal Order of Police on the defense of an unrelated police shooting here in Utah.  I also do not have specialized expertise in Missouri criminal law, and so my analysis above rests on my understanding of general criminal principles that would apply in the state.)

What the statutes I discuss above make clear is that proving a crime in the Brown shooting will require close attention to the details, particularly details about the shooting officer’s state of mind.  Even if the officer made a mistake in shooting, that will not be enough to support criminal charges so long as his mistake was reasonable — a determination in which the officer will receive some benefit of the doubt because of the split-second judgments that he had to make.  And, of course, if it turns out that Michael Brown was in fact charging directly towards the officer (as recent reports have suggested), the officer’s actions will have been justified under state law and no charges should be filed.  Trial lawyers know that one thing above all else decides criminal cases: the facts.  And that is what we’re waiting for now.

Update:   Robert VerBruggen at RealClearPolicy has doggedly tracked down what appear to be the Missouri jury instructions on the circumstances in which police can use deadly force.  As I surmised in my post, Missouri has simply changed its jury instructions to track the Supreme Court’s current doctrine.  I still think there are interesting questions lurking about the extent to which an officer can rely on an constitutional statute that remains on the books, although I suspect those questions will be resolved in favor of construing the statute to only authorize deadly force in circumstances where the Supreme Court would allow deadly force.