Facts are often strangers to politicians who want to trigger emotive responses in targeted groups. The problem is when good politics make for bad law. That seems to be the case with Senators Kamala Harris and Elizabeth Warren who have declared that Michael Brown was murdered five years ago in Ferguson, Missouri. The problem is that their statements would mean that Officer Darren Wilson is a murderer. However, Wilson was cleared in the shooting, including an exoneration by the Obama Administration. Wilson could conceivably claim defamation but the standard is quite high for a public figure.
Three months after the shooting, a grand jury rejected an indictment of Wilson. Later a report released by President Barack Obama’s Department of Justice found that Wilson most likely had reason to fear for his life in using lethal force. That latter conclusion followed a controversial decision by Obama and his Attorney General Eric Holder to intervene before the completion of the local investigation. Some of us raised the concern that the intervention of Obama and Holder signaled a strong desire for federal charges. However, the Justice Department found no credible evidence of murder.
The DOJ concluded:
Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson, March 4, 2015: As detailed throughout this report, the evidence does not establish that the shots fired by Wilson were objectively unreasonable under federal law. The physical evidence establishes that Wilson shot Brown once in the hand, at close range, while Wilson sat in his police SUV, struggling with Brown for control of Wilson’s gun. Wilson then shot Brown several more times from a distance of at least two feet after Brown ran away from Wilson and then turned and faced him. There are no witness accounts that federal prosecutors, and likewise a jury, would credit to support the conclusion that Wilson fired at Brown from behind. With the exception of the two wounds to Brown’s right arm, which indicate neither bullet trajectory nor the direction in which Brown was moving when he was struck, the medical examiners’ reports are in agreement that the entry wounds from the latter gunshots were to the front of Brown’s body, establishing that Brown was facing Wilson when these shots were fired. This includes the fatal shot to the top of Brown’s head. The physical evidence also establishes that Brown moved forward toward Wilson after he turned around to face him. The physical evidence is corroborated by multiple eyewitnesses.
Nevertheless, Harris wrote: “Michael Brown’s murder forever changed Ferguson and America. His tragic death sparked a desperately needed conversation and a nationwide movement. We must fight for stronger accountability and racial equity in our justice system.”
Warren tweeted that “5 years ago Michael Brown was murdered by a white police officer in Ferguson, Missouri. Michael was unarmed yet he was shot 6 times. I stand with activists and organizers who continue the fight for justice for Michael. We must confront systemic racism and police violence head on.”
While both Harris and Warren have criticized Trump for ignoring his own Justice Department and politicizing the legal process, these allegations of murder would seem to raise the same concerns. What would be interesting is if Wilson elects to sue for defamation. This could be defended as opinion. However, even under the New York Times v. Sullivan standard, there are cases to be made for “actual malice,” which is defined as either knowing falsehood or reckless disregard of the truth.Wilson could claim that the statements constitute reckless disregard of the truth as established by the Obama Administration and the grand jury.
What is interesting is that both Warren and Harris are rejecting the results of the state and federal legal systems, including the judgment of professionals at the Justice Department in the case. They have criticized Trump for the same type of dismissive approach to legal standards.
What do you think?