Page:DOJ Report on Shooting of Michael Brown.djvu/85

 Were the government to prosecute Wilson, the court would instruct the jury using Loch as a foundation. Given the evidence in this matter, jurors would likely conclude that Wilson had reason to be concerned that Brown was a threat to him as he continued to advance, just as did the officer in Loch.

In addition, even assuming that Wilson definitively knew that Brown was not armed, Wilson was aware that Brown had already assaulted him once and attempted to gain control of his gun. Wilson could thus present evidence that he reasonably feared that, if left unimpeded, Brown would again assault Wilson, again attempt to overpower him, and again attempt to take his gun. Under the law, Wilson has a strong argument that he was justified in firing his weapon at Brown as he continued to advance toward him and refuse commands to stop, and the law does not require Wilson to wait until Brown was close enough to physically assault Wilson. Even if, with hindsight, Wilson could have done something other than shoot Brown, the Fourth Amendment does not second-guess a law enforcement officer’s decision on how to respond to an advancing threat. The law gives great deference to officers for their necessarily split-second judgments, especially in incidents such as this one that unfold over a span of less than two minutes. "Thus, under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day." Smith, 954 F.2d at 347 (6th Cir. 1992). See also Ryburn v. Huff, 132 S. Ct. 987, 991-92 (2012) (courts "should be cautious about second-guessing a police officer's assessment, made on the scene, of the danger presented by a particular situation"); Estate of Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012) ("The Constitution ... requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision." (citing Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993)) "It may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard." (citing Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996) (same))). Rather, where, as here, an officer points his gun at a suspect to halt his advance, that suspect should be on notice that "escalation of the situation would result in the use of the firearm." Estate of Morgan at 498. An officer is permitted to continue firing until the threat is neutralized. See Plumhoff v. Rickard, 134 S.Ct. 2012, 2022 (2014) ("Officers need not stop shooting until the threat has ended").

For all of the reasons stated, Wilson’s conduct in shooting Brown as he advanced on Wilson, and until he fell to the ground, was not objectively unreasonable and thus not a violation of 18 U.S.C. § 242.

Even if federal prosecutors determined there were sufficient evidence to convince twelve jurors beyond a reasonable doubt that Wilson used unreasonable force, federal law requires that the government must also prove that the officer acted willfully, that is, with the purpose to violate the law. Screws v. United States, 325 U.S. 91, 101-107 (1945) (discussing willfulness element of 18 U.S.C. § 242). The Supreme Court has held that an act is done willfully if it was "committed" either "in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite." Screws, 325 U.S. at 105. The government need not