[Councilman Richardson, Aug. 16, 2014 Inside District 9 text]...This young man was 18 years of age and was shot and killed by police as he walked down the street to visit his grandmother. His family is stunned with grief, and an entire nation is left to cope with yet another unjustifiable death of an unarmed Black teenager.

As the youngest member of the Long Beach City Council, the 36th largest city in the nation, almost 3 thousand miles away from the Ferguson protests, I can't help but to think about the young men in my own community, and how they might be affected by such a tragedy.

How would the youth from my community feel if one of their own, who recently graduated high school, were unnecessarily slain in broad daylight by a law enforcement officer while walking to his grandmother's house?

Would they feel hopeless or perhaps confused? If they were angry or afraid, would it be justified? Should any young person expect to stare down the barrel of a gun at some point in their life?

In many ways the African American youth of Ferguson are a representation of oppressed and downtrodden youth across America. Therefore these questions are not only fair, but necessary to ask...

...I grew up just 5 miles away from the Canfield Green Apartments, in Ferguson, Missouri where the Michael Brown tragedy occurred. I spent a significant portion of my childhood in the communities in and around Ferguson...If circumstances or conditions were slightly different, I could have been a victim of gun violence, and Michael Brown could have become a City Councilmember of a major American city.

...I want every young African American man in Ferguson to know this: despite the daily and systemic injustices you face, your future is limitless. You have people in your family, your community and at all corners of the country who want nothing more than to protect you and help you succeed. You are our future, and it’s our honor to invest in you.

Though it might be difficult, I encourage you to pursue constructive ways to resist those individuals and institutions that may seek to suppress your dreams and diminish your potential. Let's stand together for change. Let's organize. If Michael Brown himself will never get to City Hall, let's build a class of leaders who will honor his legacy. You are the future of your community, and your future is bright!

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The police shooting of Michael Brown was the subject of a Grand Jury proceeding to determine if probable cause existed to indict Officer Darren Wilson on state criminal charges. The Grand Jury concluded that probable cause did not exist for a criminal indictment of the officer. A Denver law professor, writing on HuffingtonPost.com, summarized what the Grand Jury finding did and didn't do in "Getting the Facts Right About the Ferguson Grand Jury Decision" at this link.

The U.S. Department of Justice separately investigated the Michael Brown shooting to determine if it might bring criminal charges against the officer under federal law. The US DOJ concluded that federal criminal charges should not be brought. The U.S. DOJ's report ("Regarding the Criminal Investigation Into The Shooting Death of Michael Brown By Ferguson, Missouri Police Officer Darren Wilson") can be viewed in full on US DOJ's website at this link.

In its conclusion, the US DOJ report applied a basic legal formula: it first stated what the law is (citing statutes and cases), then applied the law to the facts as it found them, and then drew a conclusion. Its conclusion is at pp. 85-86, quoted below:

[US DOJ report text] ...Even if federal prosecutors determined there were sufficient evidence to convince twelve jurors beyond a reasonable doubt that Wilson used unreasonable force, federal law requires that the government must also prove that the officer acted willfully, that is, with the purpose to violate the law. Screws v. United States, 325 U.S. 91, 101-107 (1945) (discussing willfulness element of 18 U.S.C. § 242). 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"); United States v. Walsh, 194 F.3d 37, 52-53 (2d Cir. 1999) (holding that jury did not have to find defendant knew of the particular Constitutional provision at issue but that it had to find intent to invade interest protected by Constitution). However, we must prove that the defendant intended to engage in the conduct that violated the Constitution and that he did so knowing that it was a wrongful act. Id.

"[A]ll the attendant circumstance[s]" should be considered in determining whether an act was done willfully. Screws, 325 U.S. at 107. Evidence regarding the egregiousness of the conduct, its character and duration, the weapons employed and the provocation, if any, is therefore relevant to this inquiry. Id. Willfulness may be inferred from blatantly wrongful conduct. See id. at 106; see also United States v. Reese, 2 F.3d 870, 881 (9th Cir. 1993) ("Intentionally wrongful conduct, because it contravenes a right definitely established in law, evidences a reckless disregard for that right; such reckless disregard, in turn, is the legal equivalent of willfulness."); United States v. Dise, 763 F.2d 586, 592 (3d Cir. 1985) (holding that when defendant invades personal liberty of another, knowing that invasion is violation of state law, defendant has demonstrated bad faith and reckless disregard for federal constitutional rights). Mistake, fear, misperception, or even poor judgment do not constitute willful conduct prosecutable under the statute. See United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (inadvertence or mistake negates willfulness for purposes of 18 U.S.C. § 242).

As discussed above, Darren Wilson has stated his intent in shooting Michael Brown was in response to a perceived deadly threat. The only possible basis for prosecuting Wilson under section 242 would therefore be if the government could prove that his account is not true -- i.e., that Brown never assaulted Wilson at the SUV, never attempted to gain control of Wilson's gun, and thereafter clearly surrendered in a way that no reasonable officer could have failed to perceive. Given that Wilson's account is corroborated by physical evidence and that his perception of a threat posed by Brown is corroborated by other eyewitnesses, to include aspects of the testimony of Witness 101, there is no credible evidence that Wilson willfully shot Brown as he was attempting to surrender or was otherwise not posing a threat. Even if Wilson was mistaken in his interpretation of Brown's conduct, the fact that others interpreted that conduct the same way as Wilson precludes a determination that he acted with a bad purpose to disobey the law. The same is true even if Wilson could be said to have acted with poor judgment in the manner in which he first interacted with Brown, or in pursuing Brown after the incident at the SUV. These are matters of policy and procedure that do not rise to the level of a Constitutional violation and thus cannot support a criminal prosecution. Cf. Gardner v. Howard, 109 F.3d 427, 430-31 (8th Cir. 1997) (violation of internal policies and procedures does not in and of itself rise to violation of Constitution).

Because Wilson did not act with the requisite criminal intent, it cannot be proven beyond reasonable doubt to a jury that he violated 18 U.S.C.§ 242 when he fired his weapon at Brown.

VI. Conclusion

For the reasons set forth above, this matter lacks prosecutive merit and should be closed.

On July 21, 2016, the nationwide Fraternal Order of Police (325,000+ sworn officers as members nationwide) webposted a "Statement on the DNC Convention" on its Facebook page, stating in part

[Fraternal Order of Police statement] We are shocked, angered and saddened to learn the convention planners have invited the survivors of several who have tragically, died as a result of altercations with police officers to speak at the Convention, while totally ignoring the survivors of brave officers gunned down in ambushes in places like Dallas and Baton Rouge and Kansas City. We are shocked that the Convention chooses to pillory police, forgetting about the heroes of San Bernardino, and Fort Hood, and Orlando and of every city and town and lonely highway in the United States who risks his or her life to protect others.

It's time for politicians so cynical as to pick sides against the rule of law and due process to make the right choice and to stand with the men and women of law enforcement and to stop shameful rhetoric.

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