Swisher Sweets

Please read SHG’s post this morning entitled The Smearing of Michael Brown. I have two thoughts:

1. The video of Brown stealing Swisher Sweets and shoving the store clerk is highly relevant to the shooting of Brown. It provides a plausible explanation for his struggle with the cop. While the cop knew nothing of the incident, Brown was aware of it. Here is the argument of defense counsel for the cop: Brown thought the cop was after him for the theft and pushing the store clerk and he didn’t want to get caught, so he resisted the cop.

2. I have previously used the acronym stfu. It applies perfectly here. A young black man has been killed by a police officer and riots have ensued. The proper handling of any investigation of this type requires that it be overseen by experienced prosecutors who would control the release of information. Whether intentional or not, the release by the local police of the video of Brown at the convenience store looks like, and may well be, an effort to slime the kid. The information didn’t need to be released now. After all, the poor boy was not even buried when his memory was sullied–simple kindness required restraint.


37 responses

  1. There are three witnesses, two completely independent, who have provided insight into what happened between Michael Brown and Police Officer Darren Wilson. The reports are consistent. None suggest that there was a “struggle.” Had there been a “struggle,” there might be relevance as to what was in Brown’s mind, regardless of what Wilson knew. But there wasn’t.

    The witness reports confirm that Brown was grabbed by Wilson, who opened his cruiser door into Brown, which then bounced back at the officer. Brown pulled away. The witness reports confirm that Brown did not “struggle,” try to get Wilson’s weapon, attack Wilson in any way. Rather, he pulled away.

    So much for the relevance of the smear. It doesn’t apply under the facts as reported by the witnesses here. One could assume that Brown pulled away because he believed Wilson was aware of the Swisher Sweets shoplifting, but there is no logical nexis between his pulling away and Wilson’s shooting Brown the first time, while in the car, or thereafter, as he stood on the street with his hands raised. This smear is only a smear. Nothing more.

  2. I have previously used the acronym stfu. It applies perfectly here. A young black man has been killed by a police officer and riots have ensued.

    Have riots ensued? My understanding is that the protests have been almost all peaceful. There has been some criminality, almost surely related to the shooting. But rioting implies mass criminality by a crowd.

    Part of why the situation in Ferguson has become so nationally important has been the police response to protesters. Peaceful protests have been met with massive force by police, including SWAT teams with armored vehicles and sniper rifles pointed at the demonstrators.

    In addition to being unconstitutional (assault by pointing not being an acceptable response to someone protesting you), these tactics are likely to cause riots, not prevent them. See this excellent piece a couple days ago in the Washington Post by Radley Balko (who literally wrote the book on police militarization).


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  4. SHG,

    Are you honestly telling me that if you were defending Wilson that you would not see the video as an absolute gift from the gods?


  5. Judge,

    Do you really think the police chief released the robbery informarion, at the same time releasing the identity of the officer, for the purpose of showing Brown’s state of mind? Any reasonable person hearing about the robbery immediately thinks the cop had valid reasons to initiate the confrontation with a suspect who just committed a violent crime. While I do think Brown committing the robbery is relevant as to his state of mind, it is much less relevant than the officer’s in my opinion.

    Instead, the chief selectively released the burglary information to smear Brown’s name. If he really wanted to give a full picture, he would have released the robbery information and the officer’s state of mind at the same time. Each day, I’m thoroughly impressed at how bad Ferguson is messing this situation up.

  6. Peter H.,

    I am entirely agnotistic about who is responsible for the riots (the cops or the kids), but there were riots. All the best.


  7. That’s an entirely different issue. I would throw whatever I could at the case if I was repping Wilson. Not because it was relevant, or that its prejudice didn’t outweigh its probative value, but because my sole duty is defend my client, reason be damned.

    But that’s because I’m a defense lawyer. My duty isn’t to the public, or truth, justice and the American way. If pandering to stupidity and emotion serves my client’s interest, I’m obliged to do so.

    But if I’m a public servant whose duty is to the public, like Chief Jackson, then it’s an entirely different matter.

  8. Jack,

    I don’t know what the motivation for release of the video was. It should not have been released now. I couldn’t agree with you more that the way information is being handled by the local police is screwed up. In my view, the local police should have entirely recused themselves, handed the investigation, including the power to release of information, over to another jurisdiction and a seasoned prosecutor. After that, the local police should have gotten completely out of the business of investigating the shooting or providing information about it.

    All the best.


  9. The video would only be relevant if Brown’s conduct in any way gave rise to Wilson use of force. The facts do not bear out any justification for Wilson to seize Brown, no less use force, no less deadly force, no less deadly force upon surrender.

    So no, I see no relevance.

  10. My apologies, but it just occurred to me that I omitted a salient detail that, in my view, impacts the entire thrust of relevance. In his initial communication to the boys, Wilson told them to get out of the street. He did not ask if they stole cigars, or if they were at the convenience store, or anything related to shoplifting. He just ordered them out of the street.

    To the extent that the speculative assumption is that Brown, knowing that had happened, was guided to some extent by this knowledge, it is contradicted by Wilson’s command, which not only failed to evince any interest in shoplifting, but clearly was directed solely to their walking on a quiet side street.

    Thus, even if there was a question as to Brown’s state of mind, it’s contradicted by Wilson’s commands in advance of any physical contact whatsoever, which would have clearly communicated to Brown that Wilson had neither knowledge of, nor interest in, any possible shoplifting.

  11. Not only that, but isn’t the cop claiming Brown went for his gun, despite what the two independent witnesses, who were at a distance, claimed? (Since when do we believe multiple independent witnesses, particularly ones presumably of color, over a cop?) In the context of a defense of self-defense, evidence of prior violent behavior by the victim would be relevant to support claim that victim behaved violently in this instance, regardless of whether the cop knew of that past violent behavior.

  12. “The Ferguson Police department attempted to take control of the civil unrest surrounding the cold blooded killing of a teenaged boy by a police officer. They attempted to try and cover their hides by claiming that the victim had robbed a convenience store earlier that day. However that excuse collapsed when it was revealed that the officer had no idea about the robbery at the time of the shooting.

    And now as promised, Anonymous has shared the St. Louis public dispatch recording which reveals yet another problem in the Ferguson police claims, showing that rather than report the shooting, the officer contacted dispatch when a crowd began to form after the shooting.”


    Cops protect wayward cops. Priests protect wayward priests. And yes, judges protect wayward judges. http://www.legalethicsforum.com/files/king-v-mccree.pdf. We all know why they released the store video. This is why every institution must be held to account by someone not inside the institution. And thank God for Anonymous:

    “Anonymous has already paralyzed Ferguson through shutting off the cities networks and phone system. They threatened to release the officer involved in the shooting’s information if the Ferguson PD did not, but the city blinked first.

    Anonymous still has one demand left, for Missouri’s senators and Ferguson’s federal representative to introduce “Mike Brown’s Law,” to require all police to be outfitted with video recording equipment. In Rialto, California, the outfitting of cameras on individual officers saw a dramatic improvement for the police department, with public complaints against officers dropping by 88%, and officers use of force being cut by 60%. The reality is, when people know that they are going to be held accountable, they think before they act. Behavior then reinforces itself.”

    This is the mission of Jail4Judges: to hold judges accountable for their misdeeds, so that they will start thinking before they act. If judges had the character to do it, we wouldn’t have to demand it. It works for cops. http://www.theguardian.com/world/2013/nov/04/california-police-body-cameras-cuts-violence-complaints-rialto Virtually everyone else is being videotaped while they work. The principle should also apply to one of the most important and critical functions of our society.

  13. SHG,

    On this we would have to agree to disagree.

    Wilson did not know about the shopliffting. Brown did. To the degree that Wilson claims Brown attacked him, Brown’s state of mind is relevant to the defense. Here is how I think it would play out at trial.

    The defense would try to get the video in during the prosecution’s case in chief. If I am the trial judge, I would exclude the video or any evidence of the shoplifting at that point. I would tell the defense that they will have to put Wilson on the stand to assert that Brown assaulted him before I receive evidence of Brown’s motivation for an assault. If Wilson goes on the stand, Wilson would be crossed by the prosecution and the prosecution would implicitly or explicitly suggest that Brown had no motive to attack Wilson. Then,after Wilson testified and asserted that Brown assaulted him,the defense would call the store clerk to testify what happened shortly before the events in question. I would not let the video in at that point,only the store clerk’s testimony. But if the store clerk were impeached regarding what happend in the shop, I would allow the defense to offer, and I would receive, the video evidence to corroborate the store clerk’s testimony.

    In short, once Wilson takes the stand and asserts that he was assaulted by Brown, Brown’s motivation becomes relevant to Wilson’s defense. That’s how a trial in my courtroom would be handled given these facts. Now, that doesn’t mean I am right, it only means that if I’m the judge that’s how I would handle it.

    All the best.


  14. I reserve the right to change my view when Police Officer Darren Wilson publicly offers his version of what transpired, which might provide a basis to call Brown’s conduct and motives into question.

    Somehow, I doubt that will ever happen.

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  16. Judge:
    As to your first point: you may be correct about this. Apparently, the police officer who stopped the decedent did not know that he had stolen something and that did not factor this into his (the police officer’s) conduct. However, it very likely factored into the decedent’s.
    As to your second point: you are probably more correct insofar as I sense there’s a natural inclination on the part of the police, after an incendiary incident such as this one, to try and “get out in front” of the story for both legitimate (the preservation of public safety) and less than legitimate (suggesting that the police were initially justified in their actions) reasons.
    Two personal thoughts: first, I like what our own police commissioner did when he took to the airwaves after this incident and stated “You do not have a right to resist arrest. The place to challenge that arrest is in a court of law, not on the street. If you resist arrest on the street you may get killed.” This message should be repeated, ad infinitum, because it can save lives, especially the lives of young people. Second, this incident seems to highlight a recent and highly disturbing trend in America: the militarization of the police. No one is more pro-law enforcement than yours truly but I am concerned that this has become the new normal. Does every town in America necessarily need a S.W.A.T. Team? What about this federal program (go here: http://www.newsweek.com/how-americas-police-became-army-1033-program-264537) which sends military hardware to U.S. police agencies? In the past, the police maintained order with a nightstick. Now, they look (and act) more like an occupying army. What happened to make this so? BTW, go here for an excellent discussion of this phenomenon: http://www.steynonline.com/6524/cigars-but-not-close.

  17. Judge:
    Let me add that, in spite of all the military hardware transferred to local police agencies, as stated above, apparently Officer Wilson’s car did NOT have a dashboard camera which might have many of the questions currently being asked about this incident. Why not? Was the Ferguson police budget geared instead towards “big ticket,” S.W.A.T.-type law enforcement tools? Was it an oversight?

  18. “You do not have a right to resist arrest. The place to challenge that arrest is in a court of law, not on the street. If you resist arrest on the street you may get killed.”

    The first sentence here is absolutely, positively, 100% wrong in every jurisdiction that I know of. A person has the right to resist an unlawful arrest with reasonable force.

    The second sentence may be pragmatically appealing, but it is not the law. And, unfortunately, the stories told in court (after explanations — or coaching — by lawyers) are often nothing like the perceptions on the scene.

    The third sentence is a remarkable admission by an officer charged with enforcing the law that he doesn’t understand the law at all. Resisting arrest does not give law enforcement carte blanche to kill the resistor — frankly, it doesn’t change the calculus at all. An officer either has a right to arrest or he doesn’t. If he doesn’t, and a citizen resists, he cannot claim to be justified in escalating the use of force to use of deadly force by citing to the resistance. The officer is still in the wrong.

  19. No disrespect intended, judge, (seriously) but this exchange renews my fears that whenever I am defending someone in court, I am facing a minimum of two professional prosecutors, one of whom wears a robe. It’s not (just) the advocacy — this is a blog post about a case for which you are not the judge; it is the mindset.

    Scott is right. The evidence does not support a belief that Brown deserved to be executed in the street sans trial.

    If you were to switch the table around, and evidence with the strength of that against the police officer was against the black citizen instead, my experience teaches me no one would say they had a reasonable doubt about the guilt of my accused black citizen client.

    But here, it’s not my accused black citizen client; it’s an accused police officer.

    And that, it appears, makes everything different to the government’s advocates, regardless of what official role they play in court.

    For my part — which is why I can say that I am serious about meaning no disrespect — it is a natural impulse, which judges are bound to be alert to, and resist.

  20. Apologies that the WordPress login hid my identity. I am Rick Horowitz, a criminal defense attorney from Fresno, California. (I forgot that WP.com hides me unless I change it; it was set years ago.)

  21. SHG,

    My bet is that Officer Wilson is prosecuted. The multiple shots he fired will force the feds even if the locals blow it off. With two witnesses saying the young man was retreating, even if Brown started the melee Wilson arguably had no reason to fire once Brown backed off.

    All the best.


  22. RH Defense,

    I understand your concern. I hope you understand that I am looking at this from the perspective of the police officer as a defendant. As I just indicated to SHG, given the multiple shots, I believe that Officer Wilson is likely to be prosecuted. Given what I know of the evidene now, the feds should if the local don’t.

    All the best.


  23. Dear CWH:
    You claim that there is a “right to resist an unlawful arrest with reasonable force” at the time the arrest s effectuated. By what authority? And isn’t the determination of the alleged unlawfulness of the arrest to be made after the fact by a competent tribunal? Or is the determination of the arrestee on the street enough (in which case EVERY arrest could be challenged in this way)? In sum, I could not disagree with you more.
    The idea that the commissioner was attempting to convey concerning the lethality of resisting arrest was, as I understood it, that an arrestee–intentionally or otherwise–might act in a way that the arresting officer might think required a lethal response, e.g., reaching for the officer’s gun. Mistake or not, in that circumstance deadly force might be used and a tragedy would ensue. Such a thing would be avoided in when not resisting arrest.

  24. “You claim that there is a ‘right to resist an unlawful arrest with reasonable force’ at the time the arrest s effectuated. By what authority?”

    It is black letter (basic) law. You can find it everywhere. Here is a random site collecting cases that say exactly what I did: http://www.constitution.org/uslaw/defunlaw.htm

    As for the rest of your post, I understand the logic completely. Frankly, I would hope to act that way as a matter of intelligence, but also admit that I have not acted so intelligently when I was a younger man. But what you describe is not in fact the law.

    It simply is not correct — and not the law — that citizens must be sheep and obey the sheepdogs, no matter what, until the shepherd arrives to sort it out. That is what the sheepdog wants the sheep to believe (and conveys it through barking, bites and aggression). But the truth is the sheep can legally resist improper sheepdog actions (and frankly could change the whole dynamic if they realized the force of their numbers).

    One other thing, the rule of law could just as easily be that an officer cannot ever escalate the level of force used beyond that which is used upon him. It can certainly be argued cogently that such a standard would protect the lives of all concerned, probably with no loss in police effectiveness. But that is not the law we have.

    Finally, I would note that your argument is subject to reductio ad absurdum. Do we all have to stay inside all the time “to avoid” the chance that we might be confronted with illegal police conduct? Is it our obligation to avoid any chance that a police officer will think we have done wrong? Or should it be their obligation to make sure they are right before they bring down the power of the state upon me? And, shouldn’t there be no question that I am guilty of a heinous crime before a police officer executes me? Shouldn’t the risk of being wrong be on him, not me? I guessing you and I might have different responses to those questions.

  25. CWH:
    Once again, you do not have the lawful right to resist arrest. The quote taken from the “black letter” cases you cite is completely made up. From–of all places–Wikipedia:

    “This case is widely cited on the Internet in blogs and discussion groups.[20] The most commonly quoted version is: ‘Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306 [sic]. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”[21 The quote is a fabrication. There are no known examples of the above quotation being accompanied by a reference giving the year, the court, the state, or a link to the exact wording. The quoted text is not found in the text of Plummer or in any other known ruling by any court. In fact, the opposite is true—all of the cases that cite Plummer discuss the issue as defense against unlawful force, and most also note that a person may not use force to resist an unlawful arrest.[22] The other case cited in the above “quotation” is the U.S. Supreme Court case Bad Elk v. United States[23] in which a tribal police officer was granted a new trial after being convicted of killing another tribal police officer who was attempting to illegally arrest. At the initial trial, the jury was not instructed that it could convict on a lesser offense, such as manslaughter.[24]'”

    They call it the separate crime of “resisting arrest” for a reason: you do not have a legal right to resist arrest. I stand by my comment, above, that the way to challenge the illegality of the arrest is in a court of law.
    I did not say citizens should be “sheep” but that they must resist the impulse to contest an arrest in the first instance, i.e., as they are being arrested by an armed police officer.
    An officer is entitled to use that reasonable degree of force necessary by which to place an arrestee in custody. That standard implies a consideration of the degree of force, if any, being used against him by the arrestee in resisting the arrest. Please explain how that standard does not protect the lives of all concerned (and, if not, what standard you believe should apply).
    We do not have to “stay inside” to avoid the resisting arrest scenario. Quite the contrary: a private citizen is free to act as long as his/her conduct does not contravene the law. On the other hand, a public servant, such as police officer, in the performance of his/her duties has no such right and, instead, has his/her conduct strictly delimited by the rule of law. That is, to me, a fundamental difference between freedom and tyranny.
    Every police officer in America–literally–has to stand behind every single bullet that leaves his gun. Either the use of deadly force was was legally authorized or it wasn’t. In the latter case, the conduct of the officer in question is held to account as a matter of law. No police officer has the right to “execute” you, only to use deadly force in legally justifiable circumstances. I’m not sure our responses to these questions are as different as you think.

  26. I bet MIchael Brown would feel better knowing that when he surrendered and raised his hands in the air, he was doing the right thing. Except he’s dead.

    They can try Wilson, but they can’t bring Brown back to life. Therein lies the problem with trust the cops, comply now and greive later.

    I do not support the concept of resisting an “unlawful” arrest, both from a legal and practical perspective. It rarely ends well for the person. But as others have explained to me, it’s better to be tried by twelve than carried by six. They have a point.

  27. Dear shg:
    You write “I bet MIchael Brown would feel better knowing that when he surrendered and raised his hands in the air…” But did he? As of right now we do not know, for a fact, that this happened any more that we know that Brown wrestled with Officer Wilson and attempted to take his gun from him. I want a world where people–but especially young men–comply now and have no need to grieve later. That can only happen if the idea of “lawfully” resisting arrest (a contradiction in terms) is jettisoned. BTW, I applaud your not supporting the concept of resisting an “unlawful” arrest…and the adage you mention makes more sense than some of the reportage coming out of Ferguson.

  28. Robert, I am really not interested in arguing with you on this any further. However, the law is exactly as I have stated it to you under common law. Several states, including my own state of California, have abrogated the common law in some ways. But what I said remains true generally even then – that is, even under state laws that have abrogated the common law, it just gets more complicated in the analysis and levels of culpability (what otherwise might be a felony if an arrest is lawful, becomes a simple misdemeanor, if it is not).

    Your attempt to argue against that by citing to Wikipedia, which states that one of the state court cases on the website that I referred you to is not accurate, doesn’t address the real issue (or the multiple other authorities that support my prior point). While I do not know whether that one case says what the website quotes it as (and I wasn’t relying on that case to reach my conclusion), I assure you the common law is exactly what I have stated it to be.

    Maybe you should read the US Supreme Court case that is cited there too. It reads exactly as quoted on that page (and in your Wikepedia cite). The case states: “where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.” John Bad Elk v. U.S., 177 U.S. 529, 537-538 (1900) (you can read the actual case at http://supreme.justia.com/cases/federal/us/177/529/case.html ). I have no idea what all the rest of the cases on the cited page say — I just referenced it as it was at the top of the list from a google search reading “right to resist unlawful arrest” – but I assure you that the common law is exactly as I stated. If you want to argue about that, you are going to have to find a better authority than Wikipedia for support. But, really, as I said, I have no interest in arguing about this further.

  29. Cameras and robust logs (requiring login/ID to access or delete recordings) are probably the most promising thing going for meaningful accountability in police work.

  30. Dear CWH:
    I would suggest that, rather than interposing one’s purported “common law” right to resist arrest with an armed and highly trained law enforcement professional (and run the risk of being killed or maimed in the process), it is better to live and seek subsequent criminal and civil relief in court. But I guess we are just going to have to agree to disagree.

  31. “But did he?”

    We have the credible first hand detailed statement of Dorian Johnson, confirmed by two independent eyewitnesses, on the one side. On the other, a PR release, a story that is incomprehensible, no first hand account, a void as to complaints about Wilson because Ferguson PD doesn’t keep records. One view is fully supported while the other has no support whatsoever.

    You see these two views as equivalent. I do not. But then, my perspective is based on the evidence, not grasping at straws to give the police the benefit of any doubt, no matter how baseless.

    “But did he?”

    The evidence says he did. There is no evidence to the contrary.

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