Ferguson, MO.

As of today, the only people who know what the county grand jury has ruled are the members, and probably the presiding judge of that county. I have been hearing commentators and talk show hosts speculate about what is going to be the outcome. Even some, with law enforcement training,however old and stale, are saying they will be "surprised if Officer Moore is not indicted". They add that a jury should decide at a trial, apparently irrespective of what the evidence presented to the grand jury showed.

None of us really know what that evidence is. There have been "leaks" regarding the autopsy report, what eight or so black eye witnesses testified, and so on. We don't know....no one outside that aforementioned small group of people can know as of today. I believe most of those making comments currently have a limited and / or biased view of the law and have no basis to know what happened.

What is the role of a grand jury?

Sitting as reviewers of the facts, county grand juries determine only one thing. Based on what is presented to them, they determine whether probable cause exists to show that a crime has been committed and who, if anyone committed a crime. A showing of probable cause is a very light threshold. Probable cause is simply a determination that, based on the facts, would a reasonable and objective person believe a crime has been committed. And, they also review whether or not there exists a defense to those charges.

Self defense is probably the oldest defense recognized by law. This defense goes back to England a thousand or more years ago. The defense came to this country with the settling of the new world and has been codified in each state and the federal courts. So lets look at what we do know. We know that events bringing a young black man in contact with a police officer occurred in Ferguson, MO. We know that he did not have any weapons other than his size and his fists. We know that a white police officer shot and killed him. That is about all we actually know at this time.

We believe the grand jury heard testimony from many, many witnesses, and we believe these included people who actually witnessed the shooting, and the seconds leading up to it. While we do not know yet if it is true that this young man had injured the officer and tried to take his gun initially; that he backed off and then, seconds later charged the allegedly injured officer causing the officer to fear for his life causing the officer to employ deadly force to stop the threat, we will. Lets assume for argument, the above is true and found to be so by the grand jury. If so, then the officer may have feared he might die unless he took steps to defend himself. That said, that is not enough alone to say this officer was justified in using deadly force to defend himself. The other part of the equation is the question of whether the officers use of force was objectively reasonable. Put another way, would a reasonable person in this officers shoes at that moment be reasonable to conclude self defense is required to save himself or another from death or serious bodily injury.

If so, then the reasonable use of self defense is a complete defense to a criminal charge, and, if that is what the evidence showed the grand jury, then the grand jury would be just in concluding this officer committed no crime. But, some say, the young man was UNARMED!!!!. Well, he may not have had a knife or a gun, but his size, strength, and motivation to do harm to this officer is a very deadly weapon. If the evidence shows this young man fought with the officer and almost took his gun away, coupled with (if shown by the facts) he was charging the officer at the time shots were fired, the result is a deadly threat. Some may say the officer should have backed off, left the area to avoid making an arrest, or have a second confrontation. This is not what this cops job was to simply leave. Most states, including California, state in the penal code that a law enforcement officer is not required to retreat and, indeed, I submit to you, have a legal obligation to not retreat in his or her enforcement of the law. So, where are we?.

This is just speculation. None of us know, yet, what happened that afternoon in Ferguson. Maybe we will when the grand jury's findings are released later this week or next. Just keep an open mind. Apply a little legal knowledge to the facts as they may be. Remember that self defense requires two parts. 1. Subjective fear of death or serious injury, and 2. Facts that show that fear is objectively reasonable. If #1 and #2 are found by the grand jury, then they will have done their duty to not indict. It would be easy to throw an indictment out there and make some trial jury decided...pass the buck....ignore their oath....Lets hope, whatever the outcome of the grand jury proceedings are, that cool and reasoned thought prevails. Somehow, I doubt that will happen.