Last Friday, as the killing of Mike Brown continued to roil Ferguson, Missouri, the Ferguson Police Department released a police report and surveillance video showing a young man shoving a protesting convenience store clerk and leaving with merchandise. Mike Brown's family lawyer confirmed that the video showed Brown, but decried its release as an irrelevant smear. Later Ferguson's police chief later admitted that officer Darren Wilson did not seek to detain Brown based on the robbery, but because Brown was walking in the street.
Would the alleged robbery1 matter, in any case brought against Darren Wilson for the death of Mike Brown?
It might matter legally, but only for narrow reasons. It does matter practically, but shouldn't.
The Alleged Robbery Might Have Limited Relevance To A Case Against Officer Wilson
Imagine that federal prosecutors decide that the shooting was unjustified and file charges against Officer Darren Wilson for violation of Mike Brown's civil rights. The issue presented will be whether Brown posed "a threat of serious physical harm, either to the officer or to others," as required to justify deadly force. Could Wilson seek to introduce evidence of the robbery in his own defense? They answer — like most lawyer answers — is maybe.
The robbery is not broadly admissible to show that Mike Brown was the sort of person who robs convenience stores. Federal Rule of Evidence 404(b)(1) — which is duplicated in some form in most state evidence codes — provides:
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
In other words, if my client is accused of bank robbery, the government can't introduce his prior bank robberies to show that he's the sort of person who robs banks and therefore probably robbed this one. Note that the rule talks about persons, meaning it applies to evidence about parties and witnesses.
Here, Mike Brown's alleged robbery could not be offered to show that he was the sort of person who uses force against others. Wilson couldn't offer it, for instance, to support the argument "you know Officer Wilson is telling the truth about Mike Brown attacking him, because Mike Brown was violent on this other occasion."
However, there is a significant exception to Rule 404(b):
This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
The classic example of this rule is the old Law & Order episode where the kid "accidentally" shoots his friend, and detectives discover that he had previously "accidentally" shot another friend. The prior shooting wasn't admissible to show that the kid was the sort of person who shoots people, but it was admissible to call into doubt his story that the latest shooting was an accident, because it tended to show he knew guns and knew what he was doing — an absence of mistake.
Here, the robbery may be relevant to state of mind. At least as I understand the facts, it's not relevant to Wilson's state of mind, because he didn't know about the robbery when he shot Brown.2 But it could conceivably relate to Brown's state of mind. Wilson might argue that Brown resisted him because Brown thought he was being arrested for robbery, and that Wilson's story that Brown forcibly resisted arrest is more credible if Brown had a motive to resist.
For a very similar example, consider United States v. Williams. Sheriff's Deputy John Williams shot Adam Hall in the back. Hall was unarmed. The feds prosecuted Williams for violating Hall's civil rights. Williams asserted that Hall made "furtive movements" and that Williams thought Hall was going for a gun; witnesses contradicted this. Prosecutors offered evidence that Deputy Williams had previously shot another suspect, and that Hall knew this; they argued this was relevant to Hall's state of mind, because it showed that Hall would not make furtive movements when confronted with an officer he knew was a shooter. Williams appealed, saying that the admission of his past shooting and Hall's knowledge of it violated Rule 404. The United States Court of Appeals for the Fifth Circuit upheld the conviction, agreeing that the victim's state of mind was relevant:
Though a victim's state of mind indeed rarely matters, in this case it somewhat helped the government disprove Williams's main defense. The jury had to determine whether Williams acted reasonably when he shot Hall. This judgment turned on a credibility assessment: Was Williams telling the truth when he testified that Hall made several threatening movements before Williams shot him, or were the other witnesses telling the truth when they denied such movements? If Hall feared that Williams might shoot him, the government argues, then Hall would avoid anything that might provoke Williams to shoot.
Or consider Celaya v. Stewart, in which a federal court overturned Celaya's state conviction for killing a man. Prosecutors claim that Celaya posed as a prostitute, lured the victim into the desert, shot him, and took his truck. Celaya claimed the victim offered her a ride and then attempted to rape her, and that she shot in self-defense. Celaya offered witnesses who would say that the victim had previously picked up women and sexually assaulted them and that he had a reputation for violence amongst prostitutes. The trial court excluded the evidence under the state version of Rule 404, saying that because Celaya did not know about the victim's past conduct it was not admissible. The federal court disagreed, finding that the evidence was admissible under Rule 404(b) because it showed the alleged victim's intent, state of mind, and modus operandi, and thus corroborated Celaya's version of events. Because the exclusion of the evidence substantially prevented Celaya from corroborating her self-defense claim, the court overturned the conviction.
But determining whether Rule 404 allows evidence of a witness' prior conduct is only part of the analysis. Under Rule 403 — echoed in every evidence code in the country — the trial judge must also weigh the probity of the evidence (its tendency to prove something legitimate and relevant) against its potential for unfair prejudice (its tendency to lead the jury to decide the case based on illegitimate factors). Here, the trial court would weigh how evidence of the robbery would serve legitimate purposes (by showing why Mike Brown might resist Officer Wilson) against the danger it would serve illegitimate purposes (by suggesting to the jury that Mike Brown had it coming, or was a violent person). The rest of the evidence will influence this decision. For instance, if the evidence shows that Wilson shot Brown from 35 feet away while he was surrendering, the court might rule that the question of whether he initially resisted Wilson, and why, is not very probative.
Were Wilson a normal mortal, I'd give this a 50/50 chance of being admitted in evidence. Since he's a cop, and he wants it to come in, and cops generally get special treatment, I'll give it a 75% chance of getting in. The judge might limit the evidence to reduce potential prejudice; for instance, the judge might only allow the government to introduce a summary of the robbery rather than the video.
In short: the alleged robbery could conceivably be relevant and admissible if Darren Wilson is charged in connection with Mike Brown's death. But it would not be broadly admissible for the purpose of showing that Brown was a robbery or that he was violent.
The Alleged Matter Shouldn't Matter To How We Value Mike Brown's Rights
But he fact that Mike Brown allegedly robbed a convenience store shouldn't matter to our analysis of whether it was acceptable for Darren Wilson to shoot him. The fact that it does matter is nearly everyone's fault.
Whether or not they released the surveillance video in response to a public records request, as they claim, the Ferguson Police Department undoubtedly knew that the news would reach the pool of prospective jurors in any criminal or civil case against Officer Wilson, telling them facts that they might not hear in court. They knew that the media would run with the story, and that the media would run with it multiple times: first to report it, then to ask why the police released it, and possibly a third time in a mock-self-critical analysis of whether they were played. The effect in the public's mind is to emphasize the point Mike Brown was a robber, with the subtext so he probably had it coming.
The alleged robbery matters because nearly everyone accepts the subtext that a robber deserves to be shot even if he's unarmed. People who say "look, he was a robber" accept it, as do the people gleefully digging through Mike Brown's life to find things to dirty him up3 But more insidiously, many of Mike Brown's champions accept the narrative of just deserts as well. When Mike Brown's supporters say that he had no record, that he was a high-school graduate, that he was never in any trouble, and that he was going to college, they advance the narrative that because of these things he did not deserve to be shot as he stood, unarmed, attempting to surrender. This implies that had been a dropout with a record, he might have deserved it. A couple of years ago I wrote about how this notion played out in the evaluation of Rodney King:
But portraying Rodney King as a hero, or as a villain, plays into the central narrative of our criminal justice system, one that offers the ultimate excuse for cutting corners, giving police the benefit of the doubt, looking the other way at constitutional violations, putting our thumbs on the state’s end of the scales of justice. He got what he deserved — that’s what one side says, cutting through facts and law and reasoned analysis to pure us vs. them. He didn’t deserve that, says the other side, unwittingly lending support to the implicit argument that there are some who do. But deserve‘s got nothing to do with it. Heroism and villainy have nothing to do with it. We have to demand that everyone be treated justly, whether our viscera tell us that they do not deserve the rule of law at all. Rodney King should have been spared excessive force not because he’d earned respite, but because we extend it to everyone. We do so as a measure of grace, and because it’s so foolish and perilous to let the state (or the mob) decide who deserves rights and who doesn’t. Neither the state, nor the mob, will ever conclude that you deserve justice if it sets its eye upon you.
I don't care that Mike Brown apparently robbed the convenience store. I don't give a shit if Mike Brown was a career thug or a saint destined for a Rhodes scholarship. The question is the same: did Officer Wilson him have cause to believe that Mike Brown posed a serious physical threat at the moment Wilson pulled the trigger?
Everyone has rights, or nobody has rights.
Edited to add: Patterico, a prosecutor, disagrees at least in part. At the Volokh Conspiracy, former federal judge Paul Cassell thinks that I significantly understate the likelihood that evidence of the robbery would come in. At Simple Justice Scott Greenfield comes out more strongly for the proposition that the robbery should be inadmissible. When more facts are in, the evidentiary issues will be clearer.
- A robbery is a theft accomplished by use of force. The conduct in the video — using the threat of force against a clerk attempting to stop a theft — appears to be robbery. "A person commits second degree robbery when he 'forcibly steals property.' Section 569.030.1. A person 'forcibly steals,' thereby committing second degree robbery, if, 'in the course of stealing' the person 'uses or threatens the immediate use of physical force upon another person for the purpose of … [p]reventing or overcoming resistance to the taking of the property or … [c]ompelling the owner of such property or another person to deliver up the property[.]' Section 569.010(1)." Patterson v. State, 110 S.W.3d 896, 901 (Mo. Ct. App. 2003) ▲
- This is still a bit cloudy. Ferguson PD's public relations strategy is terrible and the information has leaked out bit by bit, sometimes in inconsistent ways. If Wilson knew there had been a robbery, and only realized Brown was a suspect sometime during the encounter, then what Wilson knew could be relevant to his state of mind, because his evaluation of the treat of violence posed by Brown would be relevant. But only what Wilson knew — not the videotape — would be relevant under that theory. ▲
- Every time a black kid is shot we become a nation of pearl-clutching couch-fainters, professing shock that eighteen-year-olds don't act they way they do on Leave It To Beaver. Never mind that this behavior — "gang signs," mock thuggery, and terrible fashion — are staples of youth culture, not reliable proof of actual thuggery or gang membership. ▲
Last 5 posts by Ken White
- In Space, No One Can Hear You Threaten Lawsuits - October 4th, 2015
- Down With Peeple - October 1st, 2015
- Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass - September 30th, 2015
- Arthur Chu Would Like To Make Lawyers Richer and You Quieter and Poorer - September 29th, 2015
- In Roca Labs Case, FTC Takes Novel Stand Against Non-Disparagement Clauses - September 29th, 2015