United States Department of Justice

“ Witness accounts suggesting that Brown was standing still with his hands raised in an unambiguous signal of surrender when Wilson shot Brown are inconsistent with the physical evidence, are otherwise not credible because of internal inconsistencies, or are not credible because of inconsistencies with other credible evidence. In contrast, Wilson’s account of Brown’s actions, if true, would establish that the shootings were not objectively unreasonable under the relevant Constitutional standards governing an officer’s use of deadly force. ”

“ 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 government therefore cannot meet its burden of establishing probable cause to a grand jury or proving beyond a reasonable doubt to twelve trial jurors that the shots fired by Wilson at the SUV were unreasonable. ”

“ Witness 101 told county and federal investigators that Brown told Wilson, "Get the fuck off me. We're not doin' anything wrong. Leave us the fuck alone." However, Witness 101 explained that even though Wilson had his grip on Brown, Brown had the upper hand both because of his stature and his physical position relative to the car. As Witness 101 told investigators, Wilson would have to be "superhuman" to "overpower" Brown. Witness 101 told the county grand jury that Brown was getting "the best of the officer" because Wilson was only using his left hand. ”

“ Witness 138 said that Brown was more like the World Wrestling Federation wrestler "Big Show" in stature, but not in personality. Brown was intimidating because of his size, and Witness 138 understood how Wilson could generally perceive him as a threat. Witness 138 explained that he was friendly with Brown, and although it would surprise him if Brown attacked a police officer, it also surprised him to see the surveillance video of Brown shoving a store clerk, as it was uncharacteristic of him. ”

“ Nonetheless, she repeated that Wilson shot Brown as he was "surrendering."
When prosecutors and agents pressed Witness 148 as to why it took her nearly seven months to come forward and report what she witnessed, she explained that she feared the FPD. She maintained that she did not tell anyone – "not one living soul" – about what she witnessed on August 9, 2014. Witness 148 stated however, that she was she was not going to live in fear and therefore went to Ferguson every day since the shooting until the day of the county grand jury's decision on November 24, 2014. ”

“ Witness 102 does not have a criminal history. Therefore, if called as a defense witness in a prosecution of Darren Wilson, this witness's account would not be vulnerable to meaningful cross-examination and would not be subject to impeachment due to bias or inconsistencies in his prior statements. Accordingly, after a thorough review of all the evidence, federal prosecutors determined his account to be credible and likewise determined that a jury appropriately would credit his potential testimony. ”

“ An officer may not, on the other hand, use physical force, deadly or otherwise, once a threat has been neutralized. This is true even if the suspect threatened an officer's life – or that of another – prior to being brought under control. See Moore v. Indehar, 514 F.3d 756, 762 (8th Cir. 2008) ; Nelson, 162 F.3d at 990. For that reason, every instance in which Wilson shot Brown could potentially be prosecuted if the deployment of deadly force was objectively unreasonable in the particular circumstance. ”

“ The detectives told federal prosecutors that they knew that typically testing for one would preclude testing for the other, and there was a high likelihood of DNA given the presence of apparent blood on the gun. They also knew that even according to Wilson, Brown never had sole possession of the gun, and if Brown ever had control of the gun at all, it was only when Brown's hand was over Wilson's hand during a struggle for the gun, lessening the likelihood of fingerprints. ”

“ At the time of her interview with federal agents and prosecutors, she was Wilson's fiancée and was Wilson's field training officer in 2011. Prosecutors considered her potential bias when interviewing Witness 134, but sought out and evaluated her account for several reasons. First, as noted below in the legal analysis, to make a determination as to whether a potential civil rights defendant has the requisite criminal intent, prosecutors must consider a subject officer's training as part of an evaluation of his overall understanding of when the use of deadly force is permissible. ”

“ Again, the key question is whether Brown could reasonably have been perceived to pose a deadly threat to Wilson at the time he shot him regardless of whether Brown was armed. Sufficient credible evidence supports Wilson's claim that he reasonably perceived Brown to be posing a deadly threat. First, Wilson did not know that Brown was not armed at the time he shot him, and had reason to suspect that he might be when Brown reached into the waistband of his pants as he advanced toward Wilson. ”

“ After learning of Witness 101's account alleging that Wilson grabbed Brown's throat by reaching out the driver's window and then subsequently shooting him while he was surrendering, Wilson told Witness 134 that Witness 101 was not present for the shooting because he saw Witness 101 run off as soon as Brown handed him the cigarillos during the assault at the SUV window. Wilson and Witness 134 agreed that the notion that a police officer would attempt to pull an individual into his vehicle, especially someone as big as Brown, is contrary to training. ”

“ As Brown assaulted Wilson, Wilson leaned back, blocking the blows with his forearms. Brown hit Wilson on the side of his face and grabbed his shirt, hands, and arms. Wilson feared that Brown's blows could potentially render him unconscious, leaving him vulnerable to additional harm.
Wilson explained that he resorted to his training and the "use of force triangle" to determine how to properly defend himself. Wilson explained that he did not carry a taser, and therefore, his options were mace, his flashlight, his retractable asp baton, and his firearm. ”

“ He then went to the FPD on Monday, August 11, 2014, where he was referred to the SLCPD. Witness 102 explained that he came forward because he "felt bad about the situation," and he wanted to "bring closure to [Brown's] family,” so they would not think that the officer "got away with murdering their son." He further explained that "most people think that police are bad for 'em up until the time they're in need of the police," and he felt that witnesses would not come forward to tell the truth in this case because of community pressure. ”

“ 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 show that the defendant knew a federal statute or law protected the right with which he intended to interfere. Id. at 106-07 (" [t] he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected") ”

“ Investigators tracked down several individuals who, via the aforementioned media, claimed to have witnessed Wilson shooting Brown as Brown held his hands up in clear surrender. All of these purported witnesses, upon being interviewed by law enforcement, acknowledged that they did not actually witness the shooting, but rather repeated what others told them in the immediate aftermath of the shooting.
For example, one individual publicly posted a description of the shooting during a Facebook chat, explaining that Brown "threw his hands up in the air" as Wilson shot him dead. ”

“ Also in accordance with common police practice, crime scene detectives processed the crime scene with Brown's body present. According to SLCPD CAP detectives, they have one opportunity to thoroughly investigate a crime scene before it is forever changed upon the removal of the decedent's body. Processing a homicide scene with the decedent's body present allows detectives, for example, to accurately measure distances, precisely document body position, and note injury and other markings relative to other aspects of the crime scene that photographs may not capture. ”

“ There were no bruises, abrasions, hemorrhaging of soft tissues, or any other injuries to the neck, nor was there evidence of petechial hemorrhaging of Brown's remaining left eye. The private forensic pathologist opined that although the lack of injury does not signify the absence of strangulation, it would be"“surprising," given Brown's size, if Wilson attempted to strangle Brown. The private forensic pathologist explained that the act of strangling is often committed by the stronger person, as it is rarely effective if attempted by the person of smaller size or weaker strength. ”

“ However, she then explained that she watched as Brown ran west past Wilson, who shot Brown right next to the SUV. Witness 113 stated that Wilson fired shots into Brown's back as he lay flat on his stomach on the ground. When the FBI told Witness 113 that the autopsy results and other evidence were inconsistent with her account, she admitted that she lied. She explained to the FBI that, "You've gotta live the life to know it," and stated that she feared offering an account contrary to the narrative reported by the media that Brown held his hands up in surrender. ”

“ 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. ”