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Expert Opinion on Probable Cause in Michael Brown and Eric Garner Deaths

The recent deaths of Michael Brown in Ferguson, Missouri and Eric Garner in New York have alerted us to the concept of probable cause and how it is used by grand juries to reach a decision as to whether or not a crime was committed. In the cases of Michael Brown and Eric Garner, the alleged crimes were associated with excessive force and racial discrimination charges against police officers who were acting under color of authority. In both of the above situations, minor offenses had been committed, but both Michael and Eric ended up dead as police officers tried to interview or arrest them for alleged criminal activity.

Those of us who participate in the criminal justice system are familiar with the term probable cause.  If you do drunk driving cases, you know that probable cause is the standard used by police officers to stop citizens who they suspect are driving under the influence of drugs or alcohol, and deprive those drivers of their liberty (to continue driving). Probable cause is also the standard used by grand juries to determine whether or not a crime was committed and an indictment for that crime is indicated. So, probable cause is a threshold standard for initiating government or police actions against the citizen.

Probable cause has its origin in the Fourth Amendment to the Constitution of the United States. The Fourth Amendment deals with unreasonable searches and seizures, and reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Definition of Probable Cause

But what is probable cause, and how is it defined? The Fourth Amendment does not define it, it says only that probable cause is the standard required by law enforcement to initiate a search or seizure, and, as we have recently learned, the standard for a grand jury to return an indictment.

In researching the definition of probable cause, the one thing that comes across very plainly is that the courts are not enthusiastic about defining it. This is because a precise definition would never cover all of the many different circumstances a police officer encounters in the field on a daily basis. Therefore, the precise amount of evidence required to establish probable cause often depends on the circumstances of the case. A frequent example would involve a police officer who stops a driver for going through a red light. Normally, going through a red light would not provide the police officer with an adequate basis (probable cause) to search the driver and the driver’s vehicle. However, if the police officer notices that the driver’s eyes are red, that his/her speech is impaired, and that the driver is having difficulty exiting the vehicle and standing, the officer would have sufficient probable cause to detain the driver, question him/her and possibly search the driver and the vehicle for drugs.

Probable cause has to consist of more than just a hunch on the part of the police officer, but certainly less evidence than would be required to convict a citizen in the criminal courts. Although probable cause is often a subjective determination, most definitions that have appeared in the case law contain language similar to the following:

Probable cause exists with the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, and are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.  (See: Brinegar v. United States, 338 US 160 (1949)). So, like many other concepts in the law, the need for reasonableness and trustworthiness are important in forming probable cause.

Probable Cause and Michael Brown’s Death

How does the definition of probable cause enter into the grand juries’ decisions in the Michael Brown and Eric Garner deaths?

One factor that must be borne in mind about grand jury deliberations is that presentations to the grand jury are made only by prosecutors, and the defense has no say in what is presented.  Prosecutors may present as much or as little evidence as they feel is necessary to persuade the grand jury to return an indictment. One must also ask, can a prosecutor who needs the assistance of a police officer to testify at trial about the culpability of the defendant, present an objective, unbiased summary of the evidence to the grand jury? The answer is that presentations to the grand jury are neither objective nor unbiased, and these presentations have no other purpose than to get the grand jury to find the existence of the necessary probable cause that a crime was committed, and return an indictment for all criminal conduct the grand jurors conclude did occur with probable cause.

The issue in the shooting of Michael Brown is:  was there probable cause sufficient to justify the use of lethal force against Michael Brown by the police officer. The evidence has centered around conflicting eyewitness testimony and the results of three autopsies. One autopsy was conducted by the state of Missouri, one autopsy was conducted by the federal government, and one autopsy was allegedly conducted by forensic pathologist, Michael Baden, M.D., who was retained by the Brown family. The word “allegedly” is used because some suspicions have arisen as to whether or not Dr. Baden actually performed the autopsy or if the autopsy was performed by a technician.

The most relevant evidence produced by any of the autopsies involved (1) the number of wounds sustained by Michael Brown, and (2) where the entrance wounds and exit wounds were located.  Identification of the entrance wounds and exit wounds would provide evidence as to whether or not Michael Brown was facing the police officer or running away from him, both of which scenarios have been offered by the fact witnesses. Many of us know that forensic evidence is a far more powerful tool than testimony from fact witnesses, who frequently report what they think they saw rather than what actually occurred, leading to conflicting testimony in controversy, which confounds the final assessment of what actually transpired at the time of the incident under discussion.

In the Michael Brown case, there is evidence to indicate that the altercation between Brown and the police officer began in the police officer’s cruiser. Allegedly, Michael Brown’s blood was found on the officer’s gun and the officer was found to have a bruise on his face, consistent with his testimony that Brown had assaulted him. Entry wounds on the hands and arms of Michael Brown were not dispositive in determining whether or not Michael had his hands up in the “I surrender” position, which has spawned the “don’t shoot” motto that has become associated with Michael’s death, and the movement to support indictment of the police officer who shot him. However, the fact that the grand jury failed to indict the officer indicates that the grand jury did not find probable cause to conclude that the officer shot Michael Brown without an adequate basis to do so. For now, this means that they will not be a criminal trial in state court against the police officer for any type of homicide, such as murder, manslaughter, or negligent homicide. Most likely, these issues will be litigated in civil wrongful death cases where the standard of proof will be preponderance of evidence, or more likely than not, rather than the criminal standard of beyond a reasonable doubt. In such cases, the family only can hope to obtain a monetary damage award from either the police officer himself, the municipality that employed him, or both, depending upon who was sued. Certainly, the police officer does not have to fear going to prison as a result of a civil case, but a large damage award is certainly possible.

Personally, the evidence is equally strong for both the Brown family and the police officer, and that it will be quite difficult for the Brown family to prevail in a civil wrongful death action.

The other alternative open to the Brown family would be to file a federal discrimination case based on racial factors. Such a case would allege that Brown’s death was somehow associated with the fact that he was Afro-American and the police officer was Caucasian. However, on a superficial analysis, race did not appear to be a factor in Brown’s death and the major provocation for the shooting appeared to be related to the police officer’s perception and belief that Brown was coming toward him in a menacing and assaultive manner which caused the police officer to be in fear for his safety and life. Under such circumstances, the police officer believed lethal force was appropriate and kept shooting at Michael Brown until Brown fell to the ground, dead.

Probable Cause and Eric Garner’s Death

The Eric Garner case has many more aspects of law associated with it, then Michael Brown’s case, and in my opinion, is easier to analyze although the issues are more complicated and complex. First of all, with Eric Garner, I’m not sure what he was arrested for and I’m not sure that probable cause was established.

It was alleged in the press that Eric Garner had been arrested on numerous occasions for selling cigarettes without a tax stamp on them. However, from the videos of his encounter with the police, I did not see any cigarettes in his hands at the time of the altercation. That does not mean he did not have them in his possession, it just means that I could not see them from the video.  At some point in time, the police officers concluded that they had sufficient probable cause to place him under arrest and began moving towards him to handcuff him and take him into custody. One police officer sort of snuck up on them from behind, wrapped his arm around his arm around his neck, and attempted to pull him to the ground so they could handcuff him. When the police officer put his arm around Eric ‘s neck, it was not clear as to whether or not the police officer’s arm was cutting off Eric’s air supply or pressing on his carotid artery or jugular vein. Either way, Eric was pulled to the ground and put in the prone (face down) position, at which time the other officers began yelling “put your hands behind your back” and one or two of them put a knee to his back, or got on top of him and weighed him down onto the hard sidewalk. At that point in time, Eric began to yell “I can’t breathe” which he repeated several times, which became the mantra for Eric’s death as “don’t shoot” was for Michael Brown death.

A lot of media time has been directed at whether or not Eric actually was being choked or just wrestled to the ground. One of the reasons for this is because Eric was still able to call out “I can’t breathe” which indicates that Eric was still able to move air in and out of his lungs. From the videos and my knowledge of respiratory physiology, it appears that what caused Eric to stop breathing was the fact that his chest was being pushed into the hard sidewalk and he was unable to inhale and exhale, due to the weight of the officers on his back which inhibited chest excursion. This is analogous to a boa constrictor wrapping itself around you and tightening its grip around your chest every time you exhale. At some point in time, you can no longer inhale or exhale and you suffocate from lack of oxygen.

This brings up the second stage of what occurred during Eric’s death. Once he stopped breathing and the officers recognize that, they failed to do any type of CPR to restore his breathing. They did call for a paramedic or an EMS technician who was shown in the video to be looking at Eric, but not administering any type of first aid, CPR or assistance in restoring breathing. This brings up a negligence claim and a claim that the police officers failed to care for Eric while he was under arrest and in their care. When you are arrested, law enforcement has a duty to care for you and not allow you to be subject to injury or death. Probably the best-known deviation from that duty to care occurred when Jack Ruby was able to shoot Sirhan Sirhan, after he had been arrested for the shooting of President Kennedy.

So, in the case of Eric Garner, the issues appear to start with (1) what crime did Eric commit, (2) was there adequate probable cause for the officers to place him under arrest in the first place, (3) did the officers commit a negligent homicide by putting him in the prone position, and piling on his back, and (4) did they fail to care for him when he repeatedly called out, “I can’t breathe”? Next, there is the question of whether or not the EMS technician acted negligently by not taking any action to get Eric breathing again. However, by this time Eric was dead, and there may not have been anything s/he could have done to reverse that.