In the wake of the grand jury decision in Ferguson, Michael Skolnik has taken his misinformation campaign to the media incorrectly arguing that the shooting of Michael Brown by Officer Darren Wilson was unconstitutional pursuant to Tennessee v. Garner
TENNESSEE v. GARNER, 471 U.S. 1 (1985)
Does a statute authorizing use of deadly force to prevent the escape of any fleeing suspected felon violate the Fourth Amendment?
Yes. In a 6-3 decision, Justice Byron R. White wrote for the majority affirming the court of appeals decision. The Fourth Amendment prohibits the use of deadly force unless it is necessary to prevent the escape of a fleeing felon and the officer has probable cause to believe that the suspect poses a significant threat of violence to the officer or the community. The Tennessee statute was unconstitutional as far as it allowed deadly force to prevent the escape of an unarmed fleeing felon.
Justice Sandra Day O’Connor wrote a dissent stating that the majority went too far in invalidating long-standing common law and police practices contrary to the holding. Chief Justice Warren E. Burger and Justice William H. Rehnquist joined in the dissent
Michael Skolnik’s argument fails on four key points.
1. TENNESSEE v. GARNER, 471 U.S. 1 (1985) addresses the issue of fleeing felons. The blood trail evidence released with the grand jury transcripts clearly shows Michael Brown turned around and was heading back toward officer Darren Wilson. He was no longer “fleeing” at that point.
2. TENNESSEE v. GARNER, 471 U.S. 1 (1985) does authorize the use of deadly force when the suspect presents a clear and present danger to the officer or the community. The injuries to Officer Wilson as well as the video of the strong arm robbery clearly demonstrate that Michael Brown presented a danger to both Officer Wilson and the community.
3. TENNESSEE v. GARNER, 471 U.S. 1 (1985) addresses the “arrest powers” of law enforcement officers. At no time was Officer Wilson trying to place Michael Brown under arrest. Because Wilson did not shoot Brown as part of an effort to effect an arrest, TENNESSEE v. GARNER, 471 U.S. 1 (1985) has no application to the shooting death of Michael Brown.
4. While Michael Skolnik is correct that the grand jury was instructed on Missouri Revised Statutes Section 563.046.2 which is Missouri’s statute regarding the use of force by law enforcement, Skolnik’s TENNESSEE v. GARNER argument fails in that the grand jury was also instructed on Missouri Revised Statutes Section 563.031.1 which authorizes Use of force in defense of persons which gives Officer Darren Wilson separate independent justification for the shooting of Michael Brown which is wholly independent of Missouri Revised Statutes Section 563.046.2.
563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:
(a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or
(b) He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or
(c) The aggressor is justified under some other provision of this chapter or other provision of law;
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;
(3) The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.
2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:
(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony;
(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or
(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual claiming a justification of using protective force under this section.
3. A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining. A person does not have a duty to retreat from private property that is owned or leased by such individual.
4. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.
5. The defendant shall have the burden of injecting the issue of justification under this section. If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.
My advice for Michael Skolnik is to stick to rap music and “the hip hop lifestyle” because the law certainly isn’t “his thing”.
The author of this piece David Piercy is a paralegal student in Central California. The author is not a practicing attorney or a member of the state bar association. The content of this article should not be considered particularized legal advise.