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The death of Michael Brown, legal facts and Democratic messaging

Black Lives Matter protesters rally in New York City on Dec. 4, 2014. (AP) Black Lives Matter protesters rally in New York City on Dec. 4, 2014. (AP)

Black Lives Matter protesters rally in New York City on Dec. 4, 2014. (AP)

Louis Jacobson
By Louis Jacobson August 14, 2019

Two Democratic presidential candidates recently observed the fifth anniversary of Michael Brown’s death by police officer Darren Wilson in Ferguson, Mo. — a case that sparked the Black Lives Matter movement as well as days of unrest locally.

Sen. Kamala Harris, D-Calif., tweeted, "Michael Brown’s murder forever changed Ferguson and America."


Sen. Elizabeth Warren, D-Mass., tweeted, "5 years ago Michael Brown was murdered by a white police officer in Ferguson, Missouri."


After these tweets came out, PolitiFact heard from numerous readers who asked us to check whether Harris and Warren were correct in calling Brown’s death a "murder."

There is no question that Wilson killed Brown, and there’s strong evidence that it was not accidental. 

In discussing the case with legal experts, however, we found broad consensus that "murder" was the wrong word to use — a legal point likely familiar to Harris, a longtime prosecutor, and Warren, a law professor. 

In fact, two other Democratic senators with law degrees now running for president — Cory Booker and Kirsten Gillibrand — more accurately referred to it as a killing.

That said, experts who have studied police-related deaths and race relations said that focusing too much on the linguistics in controversial cases comes with its own set of problems.

"I don’t know if the legalistic distinction intensifies the anger, but it does feel like an attempt to shift the debate from a discussion about the killing of black and brown people by police," said Jean Brown, who teaches journalism at Texas Christian University and specializes in media representations of African Americans. "This is unfortunate, because rather than discussing the need for de-escalation tactics and relations between police and communities of color, this has become a conversation about legal terms. Quite frankly, it’s a distraction that doesn’t help the discussion."

Because the significance of Harris’ and Warrens’ use of the word is open to some dispute, we won’t be rating their tweets on the Truth-O-Meter.

Neither campaign responded to inquiries for this article.

The Brown case 

On Aug. 9, 2014, Wilson, a white police officer, shot and killed Brown, an unarmed black teenager, in Ferguson, Mo., a black-majority city with a white-majority police force. The shooting and protests that followed produced passionate debates about race and police shootings of civilians.

Brown came to police attention after he reached across the counter at a local market and liquor store, took packages of cigarillos, and shoved a store employee. Wilson, in a police vehicle, encountered Brown and another suspect after being alerted by radio. Brown reached through the window and grappled with Wilson, according to witnesses. 

After the confrontation escalated, Wilson shot Brown, hitting him at least six times. Subsequent investigation found that Wilson’s injuries, the presence of Brown’s DNA on the officer’s collar, shirt, and pants, and Wilson’s DNA on Brown’s palm supported the notion that Brown had acted aggressively toward Wilson, and multiple eyewitnesses agreed that — contrary to early reports — Brown was not shot while seeking to surrender with his hands up. 

How Missouri law defines murder

Under Missouri law, first degree murder is defined as "knowingly caus(ing) the death of another person after deliberation upon the matter." Second-degree murder is defined as "knowingly caus(ing) the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person."

But things aren’t so simple when a law enforcement officer causes the death of another person. When that happens, another Missouri law defines how the law applies to law enforcement officers’ actions in the line of duty.

Specifically, it says, "In effecting an arrest or in preventing an escape from custody, a law enforcement officer is justified in using deadly force … when the officer reasonably believes that such use of deadly force is immediately necessary to effect the arrest or prevent an escape from custody and also reasonably believes that the person to be arrested … is attempting to escape by use of a deadly weapon or dangerous instrument."

The Missouri law on justified killings by law enforcement officers is "pretty forgiving," said Frank O. Bowman, a professor at the University of Missouri School of Law who has written about the case. The way such laws are written is a reason why law enforcement officers appear to routinely be cleared when involved in the deaths of civilians.

In November 2014, a grand jury found that the details of the struggle between Brown and Wilson amounted to a justifiable use of deadly force and decided not to indict Wilson.

What the federal investigation found

After the non-indictment, the U.S. Justice Department investigated the case to see whether Wilson had committed the federal offense of depriving Brown of his rights.

On March 4, 2015, the department released a report that concluded that the case "lacks prosecutive merit and should be closed." These twin actions make it impossible to describe Brown’s killing as a case of murder, legal experts said.

"It is a legal conclusion to define a killing as a murder. And no such legal conclusion has been made here," said Jessica Levinson, a professor at Loyola Law School.

Indeed, several legal experts noted that the senators could have made their point on safer ground, including citing a separate Justice Department report that found extensive racial bias in the Ferguson Police Department.

"There are clear instances of unjustifiable police killings of black men that amounted to murder," Bowman said. "If that’s the point one wants to make, one should do one’s homework and get the law and the facts right."

Some legal experts argued that there’s a difference between being legally precise and using language more informally.

"When my grandmother read the newspaper, she would sometimes blurt, ‘It’s a crime!’ in response to a story," said Ben Trachtenberg, a University of Missouri law professor. "Everyone present realized that she did not literally mean that someone described in the article had violated a criminal statute. It seems at least possible that (Harris and Warren) wished to convey a sentiment like my grandmother once did and did not intend to apply the criminal law of Missouri as one might on a law school exam."

Finally, some cautioned that over-analyzing legal terminology can obscure the discussion of larger issues.

Melita M. Garza, author of the 2018 book, "They Came to Toil: Newspaper Representations of Mexicans and Immigrants in the Great Depression," said that it’s common for people to talk past each other on matters of race and ethnicity. "That is doubly so when contemporary events have visceral past parallels whose indelible images are still rooted in our public memory," she added. 

Joy Leopold, an assistant professor of media communications at Webster University in Missouri who has studied the Brown case, said it’s not uncommon for smaller issues such as legal terminology to crop up in controversial cases like this.

"Focusing on the language opens up the opportunity for some to discredit the conversation about police brutality and the criminal justice system in general," Leopold said.

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Our Sources

Kamala Harris, tweet, Aug. 9, 2019

Elizabeth Warren, tweet, Aug. 9, 2019

Missouri code 565.020. First degree murder, penalty

Missouri code 565.021. Second degree murder, penalty

Missouri code 563.046. Law enforcement officer's use of force in making an arrest

18 U.S. Code § 242: Deprivation of rights under color of law

U.S. Department of Justice, "Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Mo., Police Officer Darren Wilson," March 4, 2015 

U.S. Department of Justice, "Investigation of the Ferguson Police Department," March 4, 2015

Associated Press, "Timeline of events in shooting of Michael Brown in Ferguson," Aug. 8, 2019, "Elizabeth Warren and Kamala Harris’s controversial Michael Brown tweets, explained," Aug. 8, 2019

Washington Post Fact Checker, "Harris, Warren ignore DOJ report to claim Michael Brown was ‘murdered,’" Aug. 13, 2019

Email interview with Candace McCoy, professor at the Graduate Center and John Jay College doctoral program in criminal justice, Aug. 13, 2019

Email interview with Andrew Leipold, law professor at the University of Illinois, Aug. 13, 2019

Email interview with Marc Osler, a law professor at the University of St. Thomas, Aug. 13, 2019

Email interview with Ben Trachtenberg, University of Missouri law professor, Aug. 13, 2019

Email interview with Jessica Levinson, professor at Loyola Law School, Aug. 13, 2019

Email interview with Ric Simmons, professor at the Ohio State University Moritz College of Law, Aug. 13, 2019

Interview with Frank O. Bowman, professor at the University of Missouri School of Law, Aug. 13, 2019

Email interview with Jean Brown, assistant professor professional practice and director of student media journalism at Texas Christian University, Aug. 14, 2019

Email interview with Melita M. Garza, author of the book, "They Came to Toil: Newspaper Representations of Mexicans and Immigrants in the Great Depression," Aug. 14, 2019

Interview with Joy Leopold, assistant professor of media communications at Webster University, Aug. 14, 2019

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The death of Michael Brown, legal facts and Democratic messaging