There’s little doubt in my mind that the grand jury in Ferguson, Missouri, will not indict Darren Wilson and charge him with murder. And there is just as little doubt that Ferguson will erupt in violence when that happens. Two conceptions of justice will collide, thus illustrating in graphic form what a crisis of legitimacy looks like.
On August 9, 2014, Wilson, a Ferguson police officer, shot and killed Michael Brown. Thereafter, Ferguson erupted in violence. Police officials contend the shooting was justified; those on the street claim Brown is yet another victim of police violence.
Both sides are right.
Legitimacy is what transforms an act of naked force into something approaching righteousness. A man approaches you on the street with gun drawn. He demands your wallet. Odds are you will give up your wallet out of fear, in response to the man’s show of overwhelming, and potentially lethal, force.
But suppose the gunman were wearing a policeman’s uniform. He approaches with gun drawn, and makes the same demand. You will most likely comply, and you will almost certainly still do so, at least in part, because of his show of force. But the policeman brings a little something extra to the interaction — he brings the cloak of authority.
The difference in your reaction to a mere armed man and a uniformed officer is legitimacy. It is a concept most folks grasp intuitively. A society that loses its sense of legitimacy is in deep trouble.
As a matter of federal and state laws, police officers are permitted to use deadly force. The law is very forgiving when it comes to police officers. Deadly force is permitted when officers believe they, or someone else, are in imminent, or immediate, risk of serious physical injury. The law recognizes that the decision to use force often arises in tense, evolving situations requiring instantaneous decisions.
There is no doubt that Darren Wilson caused the death of Michael Brown. It is an act of homicide — the taking of a human life, pure and simple. But to be a crime, the shooting must lack legal justification. The law is simple: A police officer using deadly force to overcome resistance is justified in shooting.
Was Wilson justified in shooting?
All the discussion I’ve seen suggests that Wilson and Brown got into a close quarters confrontation. The law will not inquire too deeply into Wilson’s subjective intentions; it will not inquire at all as to Brown’s state of mind. All that will matter is what a reasonable police officer would conclude in the moments before the shooting.
I’ve just engaged in legal sleight of hand, and you might not have noticed.
States of mind matter in the law. The sum of my thoughts, purposes and intentions is my subjective state of mind. It is what actually motivates me. Darren Wilson’s subjective state of mind shouldn’t matter much to the grand jury.
The law speaks in terms of another state of mind. This mental state defines the conduct of no person actually living, but corresponds to what we think people should do. This state of mind animates one of the greatest legal fictions of all — the reasonable person. It is the so-called objective state of mind.
When evaluating the conduct of police officers, the law requires that fact finder’s use an objective standard. Thus, Wilson might, in fact, have been a racist. It won’t matter in terms of what motivated him to shoot, so long as a reasonable police officer in his shoes would believe it was justifiable to shoot.
This will sound like gibberish to the good people of Ferguson, and rightly so. The community bridles at the treatment young black men receive at the hands of a largely white police force. Many Ferguson residents, and many Americans, have lost the sense that a police officer’s badge confers that extra sense of legitimacy — all they see is a menacing stranger with a gun.
Should the Ferguson grand jury conclude that the shooting was justified, that a reasonable police officer in Darren Wilson’s shoes would believe that shooting to kill to prevent harm to himself or others was necessary, many will believe the vote an outrage. It will seem as though the grand jury condoned a gangland execution.
That’s because we’ve lost a sense of common destiny, of community, in the United States. On the streets of Ferguson, Michael Brown’s shooting will always look like murder.
Grand jurors must be aware of the firestorm gathering in their community. Missouri Governor Jay Nixon has declared an anticipatory state of emergency, fueling suspicion that he knows the verdict, and has called out the National Guard to keep peace on the plantation. Grand jurors may be looking for a compromise, some way to split the baby.
Homicide comes in several forms. The most serious offense is murder, the intentional taking of another life. But all jurisdictions recognize lesser forms of killing, reckless homicide, or even criminally negligent homicide. These lesser offenses are deemed less culpable because the killer didn’t set out to take life.
It would not surprise me in the least to see the grand jury return an indictment for some lesser form of homicide, thus trying to defuse violence, and leaving final resolution to another day.
Grand jurors merely decide whether there is probable cause, some reasonable basis to believe, a crime has been committed. Trial juries, also called petit juries, render verdicts by the more exacting standard of proof beyond a reasonable doubt. (Connecticut state prosecutions almost never are initiated by grand jury decisions; the decision to start a criminal case is made either by an on site arrest or a warrant reviewed and signed by a judge.)
Nothing the grand jury decides will convince many folks in Ferguson that the killing of Michael Brown was anything other than cold-blooded murder. That Governor Nixon felt the need to call out troops and tanks before the grand jury decision was announced is a sign of deep distress in the heartland.
Some part of the soul of a once great nation has expired. It was shot dead on the streets of Ferguson.