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Time to reconsider cops' 'deadly force'?

By Mark O'Mara
updated 10:34 AM EDT, Fri August 29, 2014
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.
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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
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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?

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