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 threat to Wilson as Brown advanced toward him. Accordingly, seeking his indictment is not permitted by Department of Justice policy or the governing law.

To obtain a conviction of Darren Wilson at trial for his actions in shooting Michael Brown, the government must prove the following elements beyond a reasonable doubt: (1) that Wilson was acting under color of law; (2) that he acted willfully; (3) that he deprived Brown of a right protected by the Constitution or laws of the United States; and (4) that the deprivation resulted in bodily injury or death. The Constitutional right at stake depends on Brown's custodial status at the time Wilson shot him. See Graham, 490 U.S. at 395; Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). In this case, Wilson had attempted to stop and possibly arrest Brown. The rights of an arrestee are governed by the Fourth Amendment's prohibition against unreasonable searches and seizures, which includes the right to be free from excessive force during the course of an arrest. See Nelson v. County of Wright, 162 F.3d 986, 990 (8th Cir. 1998). Under the Fourth Amendment, an officer's use of force must be "objectively reasonable" under the facts and circumstances known to the officer at the time he made the decision to use physical force. Id. Establishing that the intent behind a Constitutional violation is "willful" requires proof that the officer acted with the purpose "to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them." See United States v. Lanier, 520 U.S. 259, 267 (1997), citing Screws v. United States, 325 U.S. 91 (1945). While the officer need not be "thinking in Constitutional terms" when deciding to use force, he must know what he is doing is wrong and decide to do it anyway. Screws at 106-07. Mistake, panic, misperception, or even poor judgment by a police officer does not provide a basis for prosecution under Section 242. See United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (inadvertence or mistake negates willfulness for purposes of 18 U.S.C. § 242).

There is no dispute that Wilson, who was on duty and working as a patrol officer for the FPD, acted under color of law when he shot Brown, or that the shots resulted in Brown’s death. The determination of whether criminal prosecution is appropriate rests on whether there is sufficient evidence to establish that any of the shots fired by Wilson were unreasonable given the facts known to Wilson at the time, and if so, whether Wilson fired the shots with the requisite "willful" criminal intent, which, in this case, would require proof that Wilson shot Brown under conditions that no reasonable officer could have perceived as a threat.

Under the Fourth Amendment, a police officer's use of physical force against an arrestee must be objectively reasonable under the circumstances. Graham, 490 U.S. at 396-97 (1989). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. "Careful attention" must be paid "to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. Allowance must be made for the fact that law enforcement officials are