Skip to main content

Time to reconsider cops' 'deadly force'?

By Mark O'Mara
August 29, 2014 -- Updated 1434 GMT (2234 HKT)
Protesters march in Ferguson, Missouri, on Thursday, August 21. The St. Louis suburb has been in turmoil since a white police officer, Darren Wilson, fatally shot an unarmed black teenager, Michael Brown, on August 9. Some protesters and law enforcement officers have clashed in the streets, leading to injuries and arrests. Protesters march in Ferguson, Missouri, on Thursday, August 21. The St. Louis suburb has been in turmoil since a white police officer, Darren Wilson, fatally shot an unarmed black teenager, Michael Brown, on August 9. Some protesters and law enforcement officers have clashed in the streets, leading to injuries and arrests.
HIDE CAPTION
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
Emotions run high in Ferguson, Missouri
<<
<
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
>
>>
STORY HIGHLIGHTS
  • Mark O'Mara: Michael Brown case raises question: When is cop justified to shoot?
  • He says Wilson's defense will likely argue he was using necessary force on fleeing felon
  • Supreme Court says cops have right to use deadly force if fleeing felon poses danger
  • O'Mara: It's time to reassess laws that result in needless deaths in a biased system

Editor's note: Mark O'Mara is a CNN legal analyst and a criminal defense attorney. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Several recent high-profile cases involving cops who have shot civilians have acquainted us with the nuances of self-defense, deadly force and the standard of "reasonable fear of imminent great bodily harm or death."

This is the threshold for justifiable homicide for civilians, and so far it has also been the focus of the inquiry into whether Ferguson, Missouri, police officer Darren Wilson acted appropriately in firing his gun in the direction of Michael Brown and killing him.

Mark O\'Mara
Mark O'Mara
When cops shoot to kill the mentally ill

However, for law enforcement officers -- the men and women we count on to stop crime and apprehend criminals -- the threshold for use of force, including deadly force, is much broader than for civilians.

The question is: Are cops allowed to shoot people who are resisting or fleeing felony arrest? The answer is "maybe."

If Wilson faces charges in the shooting of Michael Brown, I'll bet his legal team will not solely go with a self-defense argument: They'll also claim that Wilson was using necessary force to arrest a fleeing felon.

It will likely be argued that Brown posed a significant threat to Wilson. Their interaction at the police car, if it included Brown striking Wilson as has been alleged, would have turned Brown into a felon in Wilson's eyes and shown evidence that he was willing to inflict physical harm.

Should evidence support the fight over the gun, Wilson's belief of the danger of engaging Brown would be increased. That's the law in Missouri, and it's consistent with laws in states across the country.

You may think this is not appropriate, but Wilson has the affirmative obligation to do what is necessary to arrest. That's not his right, that's his job. And it's a job we gave him, and all other law enforcement officers, when we started passing the "fleeing felon" statutes.

Complete coverage of the Ferguson shooting

Back in the '70s, the United States went on a "tough-on-crime" kick. As part of the clampdown, states began adopting "fleeing felon" statutes -- laws that authorized the use of force, including deadly force, to stop suspected felons from evading capture. As a society, we basically agreed that we'd prefer to shoot a suspected felon rather than let him go.

Not surprisingly, police shootings increased, and tragic incidents arose in which people were shot as fleeing felons, even though the officer's safety was not jeopardized.

'Eyewitnesses are horrible witnesses'
App: Audio near time of Ferguson shooting
Analyzing the Michael Brown audio

In 1984, a young black man named Edward Garner was fleeing a police officer who responded to a "prowler inside call." When Garner tried to scale a fence to elude capture, the officer shot Garner in the back of the head, and he died. He had stolen $10 and a purse.

Initially, the shooting of Garner was found to be justified. Challenges to the ruling eventually bumped the case up to the U.S. Supreme Court. In the case of Tennessee v. Garner 471 U.S. 1(1985), the Court decided that fleeing suspects should not be shot for trying to escape -- unless an arresting officer reasonably believes the fleeing person poses a "significant threat of death or serious physical injury to the officer or others." In that case, the officer has the right, and maybe the obligation, to use deadly force.

This is the authority we give to our cops. This is the standard we put in place to determine if a police shooting is justifiable. But in the wake of the Michael Brown shooting, it may be time to ask ourselves: Is this really a standard we are willing to accept?

I believe the time has come to focus, not only on the inherent, undeniable biases that exist in our criminal justice system, but also on those particular laws that result in tragic deaths within that biased system.

Cops are doing the job we told them to do. Through our laws, we have mandated that they arrest suspected felons, and we've told them to use deadly force if necessary. Take away these "fleeing felon" laws, and then we can tell the Officer Wilsons to keep their guns holstered. We can tell them that we'd rather have some felons get away than suffer the tragedy of witnessing one more young man, like Michael Brown, being shot and killed.

But remember: When we hamper law enforcement's abilities to use force they believe necessary, we allow more dangerous felons to walk the streets. We embolden them with the knowledge that they can continue to commit crimes against us: all they have to do is outrun a cop they know can't shoot.

Which are we more willing to live with?

Read CNNOpinion's new Flipboard magazine

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
November 24, 2014 -- Updated 2310 GMT (0710 HKT)
If Obama thinks pushing out Hagel will be seen as the housecleaning many have eyed for his national security process, he'll be disappointed, says David Rothkopf.
November 25, 2014 -- Updated 1311 GMT (2111 HKT)
The decision by the St. Louis County prosecuting attorney to announce the Ferguson grand jury decision at night was dangerous, says Jeff Toobin.
November 25, 2014 -- Updated 0857 GMT (1657 HKT)
China's influence in Latin America is nothing new. Beijing has a voracious appetite for natural resources and deep pockets, says Frida Ghitis.
November 24, 2014 -- Updated 2151 GMT (0551 HKT)
Iranian President Hassan Rouhani speaks during a press conference in the capital Tehran on June 14, 2014.
The decision to extend the deadline for talks over Iran's nuclear program doesn't change Tehran's dubious history on the issue, writes Michael Rubin.
November 21, 2014 -- Updated 1925 GMT (0325 HKT)
Maria Cardona says Republicans should appreciate President Obama's executive action on immigration.
November 21, 2014 -- Updated 1244 GMT (2044 HKT)
Van Jones says the Hunger Games is a more sweeping critique of wealth inequality than Elizabeth Warren's speech.
November 20, 2014 -- Updated 2329 GMT (0729 HKT)
obama immigration
David Gergen: It's deeply troubling to grant legal safe haven to unauthorized immigrants by executive order.
November 21, 2014 -- Updated 0134 GMT (0934 HKT)
Charles Kaiser recalls a four-hour lunch that offered insight into the famed director's genius.
November 20, 2014 -- Updated 2012 GMT (0412 HKT)
The plan by President Obama to provide legal status to millions of undocumented adults living in the U.S. leaves Republicans in a political quandary.
November 21, 2014 -- Updated 0313 GMT (1113 HKT)
Despite criticism from those on the right, Obama's expected immigration plans won't make much difference to deportation numbers, says Ruben Navarette.
November 21, 2014 -- Updated 0121 GMT (0921 HKT)
As new information and accusers against Bill Cosby are brought to light, we are reminded of an unshakable feature of American life: rape culture.
November 20, 2014 -- Updated 2256 GMT (0656 HKT)
When black people protest against police violence in Ferguson, Missouri, they're thought of as a "mob."
November 19, 2014 -- Updated 2011 GMT (0411 HKT)
Lost in much of the coverage of ISIS brutality is how successful the group has been at attracting other groups, says Peter Bergen.
November 19, 2014 -- Updated 1345 GMT (2145 HKT)
Do recent developments mean that full legalization of pot is inevitable? Not necessarily, but one would hope so, says Jeffrey Miron.
November 19, 2014 -- Updated 1319 GMT (2119 HKT)
We don't know what Bill Cosby did or did not do, but these allegations should not be easily dismissed, says Leslie Morgan Steiner.
November 19, 2014 -- Updated 1519 GMT (2319 HKT)
Does Palestinian leader Mahmoud Abbas have the influence to bring stability to Jerusalem?
November 19, 2014 -- Updated 1759 GMT (0159 HKT)
Even though there are far fewer people being stopped, does continued use of "broken windows" strategy mean minorities are still the target of undue police enforcement?
November 18, 2014 -- Updated 0258 GMT (1058 HKT)
The truth is, we ran away from the best progressive persuasion voice in our times because the ghost of our country's original sin still haunts us, writes Cornell Belcher.
November 18, 2014 -- Updated 2141 GMT (0541 HKT)
Children living in the Syrian city of Aleppo watch the sky. Not for signs of winter's approach, although the cold winds are already blowing, but for barrel bombs.
November 17, 2014 -- Updated 1321 GMT (2121 HKT)
We're stuck in a kind of Middle East Bermuda Triangle where messy outcomes are more likely than neat solutions, says Aaron David Miller.
November 17, 2014 -- Updated 1216 GMT (2016 HKT)
In the midst of the fight against Islamist rebels seeking to turn the clock back, a Kurdish region in Syria has approved a law ordering equality for women. Take that, ISIS!
November 17, 2014 -- Updated 0407 GMT (1207 HKT)
Ruben Navarrette says President Obama would be justified in acting on his own to limit deportations
ADVERTISEMENT