Missouri AG confirms Michael Brown grand jury misled by St. Louis DA

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ODonnellUseOfForceBy Frank Vyan Walton

[S]ubsequent to a previous report from Lawrence O’Donnell, the Missouri Attorney General has confirmed with “Last Word” that instructions given the Michael Brown grand jury describing the police “use of force” laws was incorrect and misleading.

Video from Program

The background of this situation: Lawrence O’Donnell reported that after reviewing the transcripts of the grand jury, his analyst discovered that the assistant district attorneys working for Bob McCulloch gave the jurors an outdated copy of Missouri law, which stated all that was required for an officer to use deadly force is their “reasonable belief” that there was a threat.

In 1985, in Tennessee v. Garnerdirectly before Darren Wilson’s testimony giving the impression that all that was required under the law for Wilson to kill Michael Brown with impunity was his belief that he was in danger, without the additional requirement of probable cause for such a belief.

The Missouri AG now proclaims that was wrong, and that the Missouri Law needs to be changed and updated to reflect the Supreme Court’s ruling.

O’Donnell: The Missouri Attorney General says “The Police Use of Deadly Force Law in Missouri must be changed.” in response to my question to the Attorney General he said:”Among the problems that Ferguson has brought to light is the need to update Missouri’s use of deadly force statute.  This statute is inconsistent with the Supreme Court’s holding in Tennessee v. Garner.  Consequently, it is important this statute be amended by the Missouri legislature to incorporate the Garner decision to avoid confusion in the criminal justice system”

Chris Koster
Missouri Attorney General

O’Donnell: As I have stated on this program there should be no confusion in the criminal justice system because the United States Supreme Court clarified the proper, and legal, and constitutional use of deadly force by police, 29 years ago.

There are two clear possibilities here.  Either the St. Louis County District Attorney’s Office was aware of this conflict and deliberately attempted to give the Grand Jury a false impression of the law, only to slip in a unclear, unexplained “correction” at the last minute which would be far too weak to override the prevailing impression gained from weeks of testimony which had been reviewed through a jaundiced lens…Or…

The St. Louis County and other DA’s throughout the state have been regularly misleading juries and grand juries with the mistaken and wrong impression that probable cause is not required for law enforcement before deliberate deadly force can be deployed legally because they just don’t know any better.

And worse even still, are Officers walking the streets of Missouri – or other states – also under this incorrect impression that all they need to use deadly force is to “feel threatened”?

This of course begs the question of what happens then when you get people like Rudy Giuliani or Joe Scarborough or Bill O’Reilly or Ted Nugent or -pick a conservative, any conservative- telling everyone that Young Black Men are, by definition, A Threat?

I think we can see what you get from that, even when controlling for demographics young black men are about seven times more like to be killed by law enforcement than just about any other group.

Considering the fact that Darren Wilson has made public statements that he actually went through the thought process: “Can I Legally Kill This Guy?” and then in about 3.5 seconds decided for himself that he could when his judgement on what was truly legal in that situation, like that of the DA, may have been factually and constitutionally wrong – it begs yet another critical question, has this statute been updated in New York?

Could that, or a similar issue, be a factor in the decision by the New York Grand Jury not to indict Officers involved in what the NY Medical Examiner’s Office called “A homicide”?

Naturally since New York’s Grand Jury law’s don’t allow their testimony or deliberations to be revealed to the public we don’t know what they were told, or what they weren’t told.

What the New York Daily News Reports is this:

Under New York State law, police officers can use force to affect arrests, prevent escapes and to protect themselves and others from physical harm. New York law further provides that citizens may not physically resist. Arrests are to be challenged in court, not on the street….

As a practical matter — on the basis of past cases — the grand jury would likely indict only if it found malice or some intention to hurt Mr. Garner or that a gross disregard for Mr. Garner’s well-being is what created the tragic ending during this routine arrest. Finding that the officer was careless or that the arrest was bungled will not rise to the level of a crime.

So if the office doesn’t “intend” harm, they can’t be charged – which essentially means they can’t get away with Murder, but they still can potentially get away with Manslaughter.It’s “Ok”, if they didn’t really mean it and all that really requires is not getting caught bragging about it afterward, right? Sure.

Unlike the Wilson case, Officers in New York clearly didn’t make the deliberate decision that the subject was “a threat” and chose to use deadly force, they were – as best we can tell from the Snuff Film we’ve all seen by now – just trying to make an arrest with a difficult subject and in the process violated NYPD Policy in using a choke-hold and piling onto him while ignoring the subjects repeated signs respiratory of distress.

I can’t breath.  I can’t breath. I can’t breath…

But they didn’t “mean” it – so, whatever.The National Institute of Justice states that:

Police officers should use only the amount of force necessary to control an incident, effect an arrest, or protect themselves or others from harm or death.Police should also:
Ensure that those injured receive medical aid.
Ensure that the family of any injured person is notified.

So, no – not Murder, but someone was definitely slaughtered, yet no one has been held accountable for it.Again.

What I additional found was the actual New York Statute of Police Use of Force to Effect an arrest, and the quick answer to the question of whether it reflects the Constitutional Case Law, just as Missouri’s law did not, is IMO… “No!”

1. A police officer or a peace officer, in the course of effecting  or
attempting  to  effect  an  arrest,  or  of  preventing or attempting to
prevent the escape from custody, of a person whom he or  she  reasonably
to  have committed an offense, may use physical force when and
to the extent he or she reasonably believes  such  to  be  necessary  to
effect  the  arrest,  or  to  prevent  the  escape  from  custody, or in
self-defense or to defend a third person from what he or she reasonably
to  be  the use or imminent use of physical force; except that
deadly physical force may be used for such purposes only when he or  she
reasonably believes that:
(a) The offense committed by such person was:
(i)  a  felony  or  an attempt to commit a felony involving the use or
attempted use or threatened imminent use of  physical  force  against  a
person; or
(ii)  kidnapping,  arson,  escape in the first degree, burglary in the
first degree or any attempt to commit such a crime; or
(b) The offense committed or attempted by such person was a felony and
that, in the course of resisting arrest therefor or attempting to escape
from custody, such person is armed with a firearm or deadly weapon; or
(c) Regardless of the particular offense which is the subject  of  the
arrest  or  attempted  escape,  the  use  of  deadly  physical  force is
necessary to defend the police  officer  or  peace  officer  or  another
person  from  what  the  officer  reasonably  believes  to be the use or
imminent use of deadly physical force.

IANAL, but I don’t see any mention that the Officers need probable cause for their “reasonable belief” that deadly force is necessary. Would that have made a definite difference to the St. Louis or New York Grand Juries?  I honestly don’t know, but having the law be incorrect in two states where this has happened doesn’t make me all that confident about Justice being reached fairly in Ohio [Jonathan Crawford, Tamir Rice], Utah [Darrien Hunt] or other states.This may not be the last case – even in the last 12 months – where people feel compelled to take to the streets in protest because the police and the DA and the courts and various legislatures have grossly failed in their duty to protect all of our citizens equally.

But… and there is a big butt… the NY statute also says this.

2. The fact that a police officer or a peace officer is  justified  in
using deadly physical force under circumstances prescribed in paragraphs
(a)  and  (b)  of  subdivision one does not constitute justification for
reckless conduct
by such police officer or peace officer amounting to an
offense against or with respect to innocent persons whom he  or  she  is
not seeking to arrest or retain in custody.

[Having re-read that last section I realize the “reckless conduct” limitation only applies to “innocent persons…who aren’t being arrested”. So what happens when the reckless conduct is against people they are trying to arrest? This right here, could be the loophole Officer Pantaleo and others escaped through.]What both of these cases, as well as others, have shown is that the Constitution we think we are governed by, and the laws that are supposed to be put in place in consistency with that Constitution – aren’t being followed by our legislatures, aren’t being correctly implemented by our police and aren’t being enforced by our DA’s and Grand Juries.

And that, Ladies and Gentlemen, is a problem.  A big problem.

2:37 PM PT: Lawrence mentioned this during the full segment and I don’t want to leave it out:

This is not usually a problem as the relevant case law is often attached to the statute when it’s provided to juries or grand juries.  This is partly why legislatures don’t constantly revise all their laws everytime the SCOTUS makes a decision, the courts and DA’s are supposed to keep up to date and handle it.

Less so the Officers on the street.

The point here is that St. Louis County DA, either by accident or by design, didn’t provide the case law until 6 weeks later after all the testimony and exhibits were done.

2:58 PM PT: Officer Pantaleo stated to GJ, due to some partial releases, that he was trained at the academy to use that particular choke maneuver.  The first problem with that is that choke-holds were supposedly banned as part of NYPD policy after the choke-hold death of Anthony Baez in 1994, which led to Officer Francis Livoti being prosecuted Federally – after being indicted twice then acquitted in State Court – and was ultimately sentenced to 7 years in prison. Pantaleo is only 29 years old, so since the entire time that he’s been on the Force, and when he went through the Academy, the choke hold has been banned by NYPD.

The second issue is that he’s doing it wrong.  The point of the carotid choke hold is to restrict blood flow to the brain and render the subject unconscious by compressing the arteries, It’s not to put pressure on the windpipe which can be crushed in the process. From the video Pantaleo is putting his full weight directly on Garner’s windpipe, not on his carotid arteries which are on the sides of the neck.  This mistake a major reason by many PD have banned the practice for decades. What Pantaleo, and the other officers who piled on top of Garner thus further compressing his chest and helping to asphyxiate him, was a public hanging without the rope.

3:11 PM PT: Not to pile on, but Police took seven minutes to give Garner CPR after they took him down.


Originally published at DailyKos.

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