Edward Garner made off with a purse and $10 in cash after burglarizing a home in Memphis, Tenn., late on the evening of Oct. 3, 1974. He paid for his crime with his life when a Memphis police officer, Elton Hymon, shot him in the head as Garner fled on foot and ignored the officer’s shouted instruction to halt.
A Shelby County grand jury declined to bring any charges against Hymon for the shooting, but Garner’s father later filed a federal civil rights suit against Hymon and the city of Memphis for his son’s death. And when the case reached the U.S. Supreme Court, the justices ruled that the Tennessee law authorizing the use of deadly force to apprehend any suspected felon fleeing from police was unconstitutional.
“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable,” Justice Byron R. White wrote for the 6-3 majority in Tennessee v. Garner (1985). White, a pro-law enforcement vote in most criminal procedure cases, concluded that the Fourth Amendment’s rule against “unreasonable” seizures allows the use of deadly force only if necessary to prevent the escape of a suspected felon who poses a physical threat to the officer or to others.
A decade after the Supreme Court ruling, a law professor who ran the numbers found a measurable decline in the number of police homicides over time. The drop was slightly greater in those states that formally found their deadly-force statutes unconstitutional than in those states that left laws inconsistent with the ruling on the books.
Missouri was among those states that never changed its unrestricted deadly-force law. So when the St. Louis County prosecutors assigned to the grand jury investigating the shooting death of Michael Brown went to the law books, they found a statute that had not been changed since 1979, six years before the Supreme Court’s ruling. And the prosecutors gave grand jurors that law on Sept. 16 as Ferguson, Mo., police officer Darren Wilson was about to testify before them and give his account of the fatal encounter with Brown.
It was more than three months later, on Nov. 21, when prosecutor Kathi Alizadeh confessed error to the grand jurors. Alizadeh told the grand jurors that she and colleague Shelia Whirley had found after additional “research” that the Missouri statute “does not comply with the case law.”
Back in September, the prosecutors had given the grand juror a printed copy of the Missouri deadly-force statute to have before them as Wilson testified. Now, Alizadeh told the grand jurors to “fold that in half so that you [ ] don’t necessarily rely on that. . . .” She proceeded to give the grand jurors a new sheet of paper — apparently not included in the materials released by the St. Louis County prosecutor’s office. The new handout “does correctly state” the law on use of deadly force, Alizadeh explained, but without specifying exactly what was wrong from the previous handout.
From the transcript, it does not appear that Alizadeh identified the Supreme Court’s decision by name or explained its holding or reasoning. She simply said that the previous explanation of the law had “something in it that’s not correct. Ignore it totally.”
Garner’s death 40 years earlier differed in significant respects from Brown’s fatal encounter on the afternoon of Aug. 9. Garner was slight of build: 5-foot-4 and 100 pounds, according to the evidence; Brown was bigger: 6-foot-2 and 280 pounds. Garner was suspected of nothing other than the alleged burglary; Brown had compounded his suspected offense — the theft of a package of cigarillos from a conveniences store — by a tussle of some sort with Wilson as the officer sat in his patrol car.
Most significantly, Hymon assumed Garner was unarmed and fired at Garner’s back. Wilson testified that he fired at Brown only after the teenager had reached inside his waistband, possibly for a gun, and had begun to charge at the officer. “At this point,” Wilson told the grand jurors, “I’m backpedaling pretty good because I know if he reaches me, he’ll kill me.”
Some witnesses disputed Wilson’s reconstruction of the events. According to those accounts, Brown had his hands up as though to surrender. In any event, Wilson never saw Brown with a weapon. And from his own words Wilson started out in pursuit of Brown not because he saw the teenager as a threat to himself or to others but only because he thought it his job to apprehend the fleeing suspect.
Three decades earlier, the Supreme Court had laid down a rule that catching a crook does not of itself justify a police officer in using deadly force. But grand jurors did not know of that rule when they initially listened to Wilson’s testimony. Instead, the grand jurors had in mind the prosecutors’ mistake of law that completely excused Wilson. Asking the grand jurors three months later to ignore the mistake was surely a fruitless attempt to unring the bell.
The grand jurors are barred by law from explaining their reasoning or even disclosing their vote. But even without the other mistakes by police and prosecutors in the case, the prosecutors’ ignorance of the current law on deadly force was enough to doom any chance for the grand jury to hold Wilson accountable at law for his actions.
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