ILLUSTRATION BY CHRIS PHILPOT
Even the classification of the confection is a source of controversy. On August 19, 2014, just 10 days and less than 3 miles removed from Michael Brown’s body lying in the hot sun, 25-year-old Kajieme Powell walks out of the Six Stars Market in North City without paying for two Monster energy drinks and some type of pastry. In a 911 call at 12:18 p.m., the store clerk says he took doughnuts. “He just a tall black guy walking out with the stuff,” the clerk tells the dispatcher. The initial police report will identify the stolen property as “breakfast muffins,” assigning them a value of $3.50. Several witnesses will describe an agitated Powell arguing with store employees on the sidewalk and throwing a “honey bun” into the street. Media reports will refer to a stolen “snack cake.”
Whatever the treat, the shoplifting triggers a series of events that lead to Powell’s death, much as it did for Brown. At 12:20 p.m., St. Louis Alderwoman Dionne Flowers places a call to police from her nearby barbershop. She describes a man in khaki pants and a blue hooded sweatshirt who “seems very upset. I don’t know what he’s getting ready to do.” She tells the dispatcher that he has a knife in his right pocket.
A cellphone video picks up the action a few minutes later. Gil Scott-Heron could not have been more wrong: The revolution will absolutely be televised, and it will very likely include, as he put it, “pictures of pigs shooting down brothers on the instant replay.” Cellphone videos of police shootings have become a galvanizing force for the Black Lives Matter movement, and cops must always be vigilantly professional, lest their unguarded actions wind up on YouTube.
The phone’s owner, Michael Hassell, laughs as he narrates the scene. “Damn, this shit’s crazy!” he says. “He just stole two sodas, like, ‘F—k them’… He just straight put them on the ground, bruh, like, daring someone to touch them.” Powell paces back and forth, his right hand buried in his pocket, while the store employee stands several yards away with his hands on his hips, looking profoundly annoyed that he has to deal with this today. “What’s up, dude?” he says to Hassell. Powell warns the amateur videographer to stay away. The scene is tense, onlookers clearly aware that Powell is behaving in a strange and erratic way, but also casual, with people strolling past as if nothing is happening.
A police SUV pulls up on the far side of the street, then makes a U-turn around the grassy median. As the front tire jumps onto the sidewalk, Powell backs away. Officer Ellis Brown steps out of the driver’s seat and draws his 9mm Beretta. Officer Nicholas Shelton comes out on the passenger side and draws his gun as well.
“Get your hand out of your pocket!” they call out. “Drop the knife!”
Powell walks toward the officers, holding the knife at his side, and says, “Shoot me! Shoot me!” Much has been made of his manner of walking. Does he meander? Does he charge?
“Oh, shit,” Hassell says.
“Come on, bro,” the store employee says. “Drop it, bro.”
About halfway to the officers, Powell breaks off to the left, stepping over a retaining wall. For a split second, it appears, he might back down. But then he turns again, taking a step straight at the officers. They fire. Powell falls after the first shot or two, toppling toward the officers as they continue to shoot. Each officer fires six times, for a total of 12.
“Oh, here we go again,” Hassell says. “They just killed this man.”
The second-guessing is instantaneous. A guy walking by wonders why the officers are handcuffing Powell when he’s already dead.
“He didn’t even have a gun,” Hassell says. “They could have Tased that man.”
Another witness adds, “That shit, over a f—king honey bun?”
It’s less than two weeks after the Brown shooting, but the public relations mistakes made by the Ferguson Police Department are already apparent. St. Louis Police Chief Sam Dotson, hoping to prevent more riots, attempts to avoid repeating them. Officers expedite the process of moving Powell’s corpse to the city morgue, sending it away without first having the medical examiner come to the scene.
Next, Dotson calls a press conference, just hours after the shooting, aiming to show that the department has nothing to hide. The chief explains the details of the case—that a man stole from a store, that police were called to the scene, that the man came at the officers with a knife, and that the officers shot and killed him. Dotson also says that Powell raised the knife over his head, that the officers did not draw their weapons immediately, and that Powell got within 3 or 4 feet before they fired. None of this is true, which will become apparent a few days later, when Dotson releases the cellphone video, another rare step taken for the sake of transparency. Dotson is accused of lying and has to publicly correct the record.
Two years later, Dotson says he doesn’t regret trying to be as open with the public as possible, even before all the facts were available. “Post-Ferguson, I don’t think the news cycle could stand it if we waited 24 or 48 hours to make a statement,” he says. “Everybody realizes the vulnerability of going out early with a story, but the public’s desire to know and right to know outweighs that risk right now.”
A few weeks after the Powell shooting, in September, Dotson announces the formation of the Force Investigation Unit, a new division within the police department dedicated to reviewing officer-involved shootings. “Our officers are among some of the best-trained in the state. Our officers go out and do a dangerous job every day,” Dotson says. “When they are put in situations where they are required to use deadly force, I want to make sure of two things: one, that force was appropriate, and two, that we take whatever lessons we can from that situation.”
It might seem hard to believe, but before the summer of 2012, there was no formal process for reviewing police shootings in the city of St. Louis. The department’s internal affairs office looked at the cases and generally declared them justified without a second thought. On rare occasions, the department would seek the opinion of federal authorities, though technically speaking, homicides are not within their purview. Circuit Attorney Jennifer Joyce’s office was never involved.
Now that will change, too. Initially, it’s decided that after the FIU finishes, it will turn the file over to the circuit attorney’s office, which will complete its own investigation. (After the first couple of cases, including Powell’s, it becomes apparent that this process is taking far too long, so Joyce decides to move to parallel investigations, examining each case at the same time as, but independently of, the FIU.) “I think it’s really, really important that someone else reviews these cases other than the police department,” Joyce says, “and having that ability is something that I’ve been fighting for.”
Illustration by Chris Philpot
This diagram shows the scene where Jason Flanery shot VonDerrit Myers. Prosecutors concluded that the evidence confirmed Flanery’s version of events. Activists aren’t so sure. Flanery said Myers shot from the top of the hill, but all of Myers’ shell casings were by the gangway.
The first case to receive the FIU treatment is the killing of 18-year-old VonDerrit Myers Jr. On October 8, in the city’s Shaw neighborhood, Officer Jason Flanery, who was working a secondary shift as a security guard, shot and killed the black teenager. The shooting prompts massive protests, adding #ShawShooting to #Ferguson. On October 10, Flanery and his attorney meet with Lieutenant Roger Engelhardt, head of the FIU, to give Flanery’s version of the events. (Unlike the Powell shooting, Myers’ death isn’t caught on video; later, the department will begin a body camera pilot program.) The interview lasts 59 minutes.
Flanery says he was assigned to patrol Flora Place for GCI Security. He left that street and drove north toward the Shaw Market to “see who the players are for the night.” Flanery says that as he drove, he noticed three young men, one of whom was bouncing a basketball. After making a U-turn, he saw that the men had run, one of them holding his pants in a way suggesting that he might be carrying a gun. The officer doesn’t say why he decided to chase them. Publicly, Dotson later says that Flanery was attempting a “pedestrian check.”
Flanery first pursued in his car, then got out and ran after one suspect on foot. He says he was yelling, “St. Louis police! Stop! You’re under arrest!” (For what, he doesn’t make clear.) He lost their trail. Flanery says perhaps the suspects were hiding in bushes. A few minutes later, he saw another group of young men and thought that one in a hooded sweatshirt, VonDerrit Myers, might be the same person he’d been chasing. Flanery says he tried to stop Myers, but the teenager responded with “F—k you.” Flanery drew his gun, and Myers backed into the street, grasping his waistband. Then Flanery says Myers came at him, so Flanery put his gun away and they engaged in a short wrestling match. Flanery tried to force Myers to the ground, but Myers slipped out of his sweatshirt and ran.
According to Flanery, Myers tried to go up an incline into a front yard but slipped and fell. Flanery ordered him to stay on the ground, but he stood back up and pulled out something silver that “I pretty much a hundred percent believe to be a firearm.” Flanery says Myers turned and pointed the gun at him, but the officer didn’t shoot, “just because of the climate going on right now with Ferguson.” Myers fell down again, then scurried to the top of the hill, where Flanery says Myers turned around with both hands on a gun and fired. Flanery ducked and returned fire with “the better part of 12” shots. Myers ran into the gangway. Flanery continued to shoot, crouching to use the hill as “concealment.”
Flanery says he saw Myers lying in the gangway with the gun still pointed. Flanery fired a few more shots, then took cover again and reloaded. He told Myers to drop the gun, then came around the corner of the house, saw that the weapon was still in Myers’ hand, and fired two more rounds. Finally, the gun fell from Myers’ hands. Flanery radioed for backup and retrieved Myers’ gun.
Though he doesn’t mention it in his initial narrative, it’s later revealed that in the middle of the gunfight, Flanery noticed that Myers’ gun had jammed. This detail largely goes unnoticed in a storm of misinformation about the Myers case that fills social media. Protesters say that Myers was carrying only a sandwich and that he begged for his life. Flanery’s supporters spread rumors about Myers, only some of which are true. Like a game of Telephone, details become twisted. On the basis of Flanery’s comment about bushes, a police spokesman says that Myers jumped out of them at the officer, prompting snarky tweets accompanied by photos of the scene of the firefight, conspicuously devoid of shrubbery.
On December 18, 2014, I receive an email from a man named Bill Harmening, who’s heard that I’m interested in the Powell case. He’s chief special agent in the Illinois Securities Department, specializing in white collar crime. He’s also an adjunct professor at Washington University, teaching forensic psychology. In the early 1990s, he served as an instructor at a police academy in Illinois.
Harmening has been telling his students since the beginning that Darren Wilson was clearly justified in shooting Brown. In the following months, a county grand jury and the Department of Justice will confirm his conclusion. The Powell case, he says, is different. We meet to discuss it.
In explaining why officers Brown and Shelton were justified in shooting Powell, Dotson invoked the “21-foot rule.” It’s a reference to the Tueller Drill, named for Sgt. Dennis Tueller of the Salt Lake City Police Department. He found that a knife-wielding attacker could cover 21 feet in less than two seconds, which is just enough time for a police officer to draw his gun from its holster, aim, and shoot. At distances less than 20 feet, the assailant could reach the target before he could get off a shot.
Harmening argues that it’s unreasonable to apply the Tueller Drill to the Powell case. He does some quick math on the back of a sheet of paper. In a surprise attack, an officer would need to perceive the threat (which, according to research cited by Harmening, requires 0.58 second), draw his or her weapon (between 0.56 and 1 second), decide to shoot (another 0.56 second), and then pull the trigger (0.25 second). That process would take a total of about two seconds. But with Powell, Harmening argues, the officers had already perceived the threat, drawn their guns, and decided to shoot if he came too close. All that was left to do was to pull the trigger. And anyway, Powell wasn’t sprinting toward the officers. Therefore he concludes that 6 or 7 feet, not 21, would have been a more appropriate danger zone. The officers shot Powell at a distance of 15 feet.
That isn’t Harmening’s only problem with the officers’ actions. He says that although police officers receive plenty of training on when to starting shooting, they receive very little on when to stop. “There is this belief that the only justification required is the first shot,” he says. “No, every shot has to be reasonable.” In the Powell case, the officers shot for roughly three seconds, more than enough time, Harmening argues, for them to perceive that the threat had ended and stop. Especially troubling, he says, is a split-second pause before the final two shots. “I think it’s a case of contagious shooting,” he says.
He also suggests that the officers should have tried to use Tasers, dismissing Dotson’s statement that they don’t work through thick clothing; that the officers should have considered that they weren’t facing a machete but rather a small steak knife; and that the officers should have tried to de-escalate the situation rather than charging in with their guns, because Harmening believes that it was obvious that Powell was mentally disturbed. (One of the officers had undergone crisis intervention team training, designed to prepare him for handling these types of volatile situations.)
At least one other expert agrees. In a trade-journal article, Melvin Tucker, the former police chief of Tallahassee, Florida, argues that training officers on the 21-foot rule makes them irrationally fearful of the danger posed by knife attacks, leading them to use deadly force unnecessarily. He cites a statistic showing that a police officer hasn’t been stabbed to death in Missouri since 1946. Only 1.8 percent of assaults against officers have been carried out with knives, and of those, 83 percent didn’t result in injuries. He also asserts that the danger involved in the police profession is overstated; fishermen, loggers, and truck drivers all die in the line of duty at higher rates.
Of Powell, Tucker writes, “He was killed even though two officers were present, arrived at the scene together in the same vehicle, and had an opportunity to plan their actions. Both officers were equipped with a TASER… Was their use of deadly force instead of the TASER because of fear of physical harm? If it was, it was an unreasonable fear.”
I call David Klinger and ask him to take a look at Harmening’s conclusions, which he put together in a “force analysis” report. A professor of criminology and criminal justice at the University of Missouri–St. Louis, Klinger worked for several years as a patrol officer in Los Angeles, where he shot a suspect who was attacking his partner with a knife, before going on to earn his Ph.D. in sociology. He also serves as a senior research fellow at the Police Foundation in D.C. and is a nationally renowned expert on police use of force. Dotson hired him to help create the FIU.
He doesn’t pull any punches. “He should be embarrassed,” Klinger says of Harmening. “This notion that you should let the person get within 6 or 7 feet is idiocy.”
Klinger says three things come into play when an officer seeks to incapacitate someone with gunfire. Reaction time, as analyzed by Harmening, is only the first one. Second is the accuracy of gunshots. “We know that most of the time, when police officers shoot, their bullets don’t strike the intended target,” Klinger says. If the officers had let Powell get within arm’s length and then missed, he could have stabbed them. Third is terminal ballistics, which Klinger defines as “the properties of bullets that have struck something,” including “what bullets do inside the human body.” It’s an inexact science. Klinger knows police officers who have been shot in the heart and still managed to kill the suspects. He knows police officers who have shot suspects in the head only to have the suspects keep fighting. Just because you hit your target doesn’t mean that the fight is over, “so this notion of 6 or 7 feet is foolishness, and he should know better,” Klinger concludes.
As for Harmening’s other points, he finds no more validity in them. He rules a Taser out quickly because it’s effective up to only 15 feet, which is inside the 21-foot danger zone. Klinger defends the officers’ decision to handcuff Powell. Even when the suspect is down and the immediate threat has ended, “I still need to be concerned about the ongoing threat.” It’s never over, he says, until the suspect has been physically secured and searched.
He agrees with Harmening that a police officer must cease shooting immediately once the threat has ended. “If you are the type of person who can’t make a determination between an individual who is presenting a threat and an individual who is lying on the ground doing nothing other than getting struck by gunfire, you shouldn’t be a cop,” Klinger says. But he doesn’t think that applies in the Powell case: Neither officer emptied his magazine, indicating that once he perceived that the threat had ended, he stopped shooting. Further, Klinger says, perceptual anomalies are common in these stressful situations. When asked about a shooting, one officer might say that the suspect fell immediately, whereas the other says he continued to charge.
“It looks to me as if officers start to shoot, they continue to shoot as the suspect is falling down, some number of shots are delivered after the suspect is down, but he’s not been down for very long. To me, it’s just reaction time.”
Even if you can figure out which expert has the better argument, that’s less than half the battle. Next comes determining which of their points, if any, are relevant to whether the officers should be charged with a crime. It’s one thing to say that they should have given more consideration to using a Taser. It’s quite another to say that their not doing so is enough for a prosecutor to charge them with murder. (It’s Circuit Attorney Jennifer Joyce’s policy not to charge anyone unless she is convinced beyond a reasonable doubt of his guilt, because that’s the standard her prosecutors will be faced with in court.) Just because an officer followed his training doesn’t mean that he didn’t commit a crime, and likewise, just because an officer violated his training doesn’t mean that he violated the law.
Section 563.046 of Missouri law sets the parameters for an officer’s use of force in making an arrest. It restricts the use of deadly force to situations in which an officer “reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested (a) has committed or attempted to commit a felony; or (b) is attempting to escape by use of a deadly weapon; or (c) may otherwise endanger life or inflict serious physical injury unless arrested without delay.” If the officer’s life is threatened, self-defense laws may also come into play.
There are also (at least) two relevant rulings by the U.S. Supreme Court, one of which conflicts with (and therefore invalidates) part of the Missouri statute. In the 1985 case Tennessee v. Garner, the court ruled that a law enforcement officer may not use deadly force to prevent the escape of a fleeing felon unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” So in the above statute, sections (a) and (c) should rightly be joined by an “and,” not an “or.” The Supreme Court revisited police shootings in 1989, in Graham v. Connor. In that case, the court ruled that the Fourth Amendment required applying a “reasonableness” test to an officer’s actions. Because reasonableness is to some extent in the eye of the beholder, “proper application requires careful attention to the facts and circumstances of each particular case.”
In some ways, it’s a difficult legal tangle. (St. Louis County Prosecutor Bob McCulloch learned that the hard way during the Michael Brown case, when his prosecutors first explained the law incorrectly to grand jurors and then had to go back and explain it again.) But in another sense, it couldn’t be simpler. One must ask only: What would a reasonable officer have done in this situation? The problem is, the answer might say as much about the person doing the analysis as it does about the one being analyzed.
Joyce first attempts to answer this question in the Myers case. On December 5, 2014, the FIU turns the case over to the circuit attorney and requests that no criminal charges be filed. On May 18, 2015, Joyce’s office releases a 51-page report announcing that Flanery will not be charged. It includes analysis of a variety of evidence, including Flanery’s statement, other witness statements, the autopsy report, ballistics reports, surveillance video, gunshot residue reports, DNA and fingerprint analysis, and information taken from a court-ordered GPS monitoring device that Myers was wearing as a consequence of a previous case in which he was charged with unlawful use of a weapon and resisting arrest.
On the basis of data recovered from that device, prosecutors determine that Myers was at home, where he’d returned to retrieve a jacket after buying a sandwich with his friends, during the time Flanery says he was chasing a man with a basketball. So when Flanery later stopped Myers, it was a case of mistaken identity. Still, because Flanery alleged that Myers was grasping his waistband, the officer had the right to detain the suspect, prosecutors write.
They are convinced that Myers was carrying a gun and that he fired it at Flanery. Witnesses described seeing muzzle flashes coming from two different directions. Ballistic evidence included bullets and casings from two guns. And Flanery recovered a 9mm Smith & Wesson from Myers. In a photo lineup, the owner of that gun identified Myers as the person who stole it. Photographs of Myers holding a similar gun were posted to social media. According to the CAO report, “The location of bullets, casings, bullet tracks and damage are consistent with [Flanery’s] and other witnesses’ version of events.”
Another witness described yelling “stop” out the window at the sound of the shooting, which might have been the origin of the false report that Myers had begged for his life. Two young men who were with Myers that night and who had previously given statements to the police initially agreed but ultimately declined to speak to the circuit attorney, following the advice of their attorneys. Joyce attempted to compel their testimony by subpoenaing them to appear before a grand jury, but they both invoked their Fifth Amendment privilege. In their statements to police, those two acquaintances and one more were consistent in saying they thought Flanery was a security guard, not a police officer. Flanery declined to be interviewed again.
The autopsy report noted that Myers had been shot eight times, the bullets matching Flanery’s weapon. Six shots hit Myers in the back of the legs, entering on an upward trajectory. Two additional bullets hit him on the right side, one in the hip and one, the fatal shot, in the head.
In the end, with respect to the use of deadly force in making an arrest, prosecutors write that Flanery’s “actions were reasonable under Missouri laws.” Further, they determine that he acted legally in self-defense: “[Flanery] had reasonable belief at several stages that deadly force was necessary to protect himself against death or serious physical injury.” In conclusion, “Prosecutors have determined a criminal violation could not be proven beyond a reasonable doubt.”
Bruce Franks isn’t convinced. A “day one Ferguson protester,” Franks owns two small businesses in South City, and he’s running for state representative in this month’s primary elections. When the Department of Justice came to Ferguson, it wanted to form bonds between the community and officials, so Franks was asked to meet with Joyce and Dotson. “I’ll sit down with anybody,” he says. “Chances are, we won’t agree, but they need to hear my perspective. I would like to hear their perspective, face to face, because you can only tell if somebody is real if you look them in the eye.”
With his face tattoos and street swagger, Franks might seem like an odd confidant for a self-described “white middle-aged prosecutor lady,” but Joyce says she values Franks’ opinions. And he keeps telling her that she got it wrong: Jason Flanery murdered VonDerrit Myers, he says. He has a dog-eared, highlighted copy of the report, pointing out every discrepancy in Flanery’s story.
Franks isn’t sure what happened that night. Maybe Myers didn’t have a gun. Maybe he did and didn’t shoot. Maybe he did shoot, but only after Flanery shot him in the back. What Franks feels confident of is that Flanery’s story isn’t true. Franks says officers have learned to follow a script after a shooting: He pointed a gun. I was scared for my life. He finds it suspicious that so many dead young black men in St. Louis—Cary Ball Jr., Mansur Ball-Bey, Isaac Holmes—were said to have pointed guns at police officers but never fired. “I’m from the ’hood,” Franks says. “Ninety percent of us ain’t pointing a gun at an officer—and we’re not pointing a gun at anybody and not shooting, period.”
Harmening thinks he knows who shot first, and it wasn’t Myers. He disagrees with prosecutors’ assertion that the ballistic evidence supports Flanery’s version. When I first meet with him about the Powell case, Harmening says he thinks the Myers shooting was justified. Then he digs into it a bit further and changes his mind. (In the interim, Harmening signs on as an expert witness with Jermaine Wooten, a lawyer who’s representing the families of Powell, Myers, and others in wrongful-death lawsuits. When asked whether that makes him biased, Harmening says he’s objective, emphasizing that he’s written reports both criticizing and supporting officers’ actions in recent police shootings.)
Harmening points out that all of Myers’ shell casings were discovered near the gangway. None was found atop the hill. In his opinion, that means Flanery’s statement that the first shot was fired by Myers on the hill can’t be true. Harmening concludes that Flanery must have shot Myers six times in the back of the legs as he ran up the hill toward the gangway, at which point Myers was fleeing but not a felon. Then Myers returned fire, getting off four shots before his gun jammed. At that point, Flanery reloaded and fired his final two shots.
Klinger cautions that although the position of shell casings is important evidence, it shouldn’t be taken out of context. Most semiautomatic handguns eject their shells back and to the right, but tilting the gun even slightly can change where the shells end up. When people move, shells can be kicked or displaced.
Dotson says he’s not a ballistics expert, so he can’t tell whether Myers or Flanery shot first. But ultimately, it’s irrelevant: “Pointing a gun at a police officer is still illegal. The individual had a gun. There is ballistic evidence that indicates that he fired a shot at a police officer.”
Harmening also sees significance in Myers’ “stovepiped” gun, with the last casing lodged in the top of the weapon: If Flanery knew that his gun was jammed before his deadly final shot, Myers no longer posed a deadly threat, especially down and wounded. Dotson and Klinger disagree, arguing that it takes just a second to correct that malfunction and have the gun back in working order.
For Franks, the bigger issue is Flan-ery’s character. In high school, Flanery was charged with unlawful use of a weapon. He made racist comments online. In another recent case, Flanery’s partner accused a man named Keyon Bennett of pointing a gun at him. Flanery didn’t testify to back up his partner, and the jury found Bennett not guilty on every count. Bennett accused Flanery’s partner of shooting at him when he had his back turned.
In December 2015, Flanery resigns from the police force after fleeing the scene of an accident. He crashes his patrol car and his blood tests positive for both alcohol and cocaine. He later pleads guilty to driving while intoxicated. “We talk about character analysis when we talk about these young men who are killed,” Franks says. “Why don’t we go back and see that with Flanery?”
The officer was not drug tested the night of the Myers shooting. Franks says that’s not right. Joyce agrees. “If the guy who was shot gets his tox screen done,” she says, “I think the officer who shot him should have a tox screen.”
On the one-year anniversary of Powell’s death, with still no word on whether the officers will be charged, protesters organize a march to the Carnahan Courthouse, home to the circuit attorney’s office, to demand that Joyce hold the cops accountable. Demonstrators chant, “No justice, no peace, no racist-ass police!” and “Where is Jennifer Joyce?” Protesters want the prosecutor to come out and meet with Kajieme’s grandmother Mildred Powell, with whom he’d been staying at the time of his shooting. Joyce invites Mildred up to her office, but she declines to go. Then news comes across Twitter that St. Louis police have killed another young black man in North City, and the Powell protest breaks up as activists rush to the scene.
On November 3, 2015—one year, two months, and 15 days after Powell died—SLM breaks the news that there will be no charges, having acquired a copy of the circuit attorney’s report from the lawyers for Powell’s family. The report notes that Powell aggressively advanced toward the officers with a “dangerous instrument” and refused to comply with police commands. “Under the circumstances, it was reasonable for the officers to believe that Powell was advancing…to inflict physical injury or to commit the forcible felony of assault against one or both of the officers. Therefore, prosecutors conclude that the officers could have reasonably believed the use of deadly force was necessary to protect them from Powell.”
In the aftermath of the shooting, much had been made of Powell’s mental health, but the report states more than once that none of the 911 callers indicated that he was mentally ill, nor did the officers have any other way of knowing. Critics say the fact that Powell was disturbed should have been immediately apparent to the officers when they arrived on the basis of his strange behavior. Later, Powell’s relatives will be quoted as saying that he talked to himself, and when police search his bedroom, they’ll find printouts of online searches about mental illnesses.
“Certainly anybody who charges at a police officer with a knife in his hand and says, ‘Shoot me, kill me,’ has some issues,” Dotson says, “but to say he’s bipolar or to say he’s schizophrenic, I think, are huge steps that I can’t make and certainly those officers couldn’t make.”
As part of the police investigation of the case, the department hires a company called St. Louis Traffic Accident Reconstruction to conduct a “3-D spatial analysis” of the scene. The report concludes that at the time of the first shot, Powell was 15 feet from the officers and that he moved another 10 feet toward them before coming to a stop. The analysis also says that had the officers not shot, Powell could have reached them in 1.2 to 2.4 seconds. The CAO report references this analysis in drawing its conclusions.
Harmening disagrees with basically every aspect of the prosecutors’ report, but he finds their reliance on the 3-D analysis particularly galling. He emails me a long list of objections: The company that created the model specializes in traffic accidents and has no expertise in crime scene analysis. The cellphone video has 11,692 frames, but the analysis was focused on just four of them, glossing over important moments. The allegation that Powell kept moving toward the officers after he was shot is misleading, because he was simply falling forward to the ground, after which his lifeless body rolled over. And the analysis of Powell’s pace was also misleading, because it was based on an irrelevant study of pedestrian speeds that was originally done in reference to crosswalk safety.
“The circuit attorney concluded that deadly force was reasonable,” Harmening writes. “Reasonableness is a legal standard, and they were not even close to meeting it. It was in no way reasonable… The fact that the officers had 32 rounds of 9mm ammunition, Tasers, and pepper spray against a 4-inch steak knife sort of blows reasonableness out of the water.”
Franks agrees. He knows cops in his neighborhood, has seen them apprehend armed suspects. He feels confident that none of them would have shot Powell in that situation. “Policy says within 20 feet officers can use deadly force. That’s a copout,” Franks says. “They got out with their guns drawn. If those officers get out talking, that ends a whole different way.”
But by the letter of the law, aren’t the police justified in killing someone who threatens them with a knife? Isn’t it that simple? “I understand what the law says, but this perception of the law is what’s getting us killed,” he says, “because we’re looking at laws, but we’re not looking at conditions.” Just because the law gives an officer the right to use deadly force, Franks reasons, doesn’t mean that deadly force is the only solution.
Dotson calls the Powell shooting “lawful but awful. The officers’ actions were lawful, but the outcome was awful.” He says the department has stepped up its “de-escalation training,” teaching officers that sometimes it’s OK to take a step back or retreat rather than charge in head-on. “Time and distance are tools that work to police officers’ advantage,” he says. “This is a shift from a warrior mentality to a guardian mentality.”
Still, Dotson says, we shouldn’t take the second-guessing too far. Joyce has decided that the officers were justified. “From the time the first officer’s foot hit the pavement to the shot was about 15 seconds, so there are a lot of things that have to happen in a relatively short period of time,” he says.
This issue of time is emblematic of the ways in which perception influences the analysis of these shootings. To police supporters, the fact that the entire incident unfolded in a matter of seconds indicates that the officers were put in a difficult situation and had to make a quick decision to save their own lives. To police critics, the same fact means something entirely different: It shows that the officers rushed to judgment, shooting Powell before taking the time to assess the situation or consider their alternatives. Which of those arguments you find reasonable depends on your point of view.
After initially sending a one-line statement in response to an interview request for this story, Joyce agrees to meet in mid-June. I ask whether she feels that her office can review these cases in an unbiased manner, given how closely prosecutors work with police.
“I do not subscribe to the belief that we are too close to the police that we can’t review these cases,” she answers. On average, prosecutors in her office charge only about 50 percent of the cases brought to them by the police, meaning that they have to tell officers no on a daily basis. Joyce has shown a willingness to prosecute police officers and just this spring charged former Officer Jason Stockley with first-degree murder for the 2011 on-the-job shooting of Anthony Lamar Smith. And in a case where an officer involved in a shooting was a former employee of the circuit attorney’s office, Joyce called in a special prosecutor, Hal Goldsmith. “We approach a case without any preconceived notions,” she says.
But, Joyce adds, “I am not attached to the idea of this office reviewing these cases.” She’s open to a special prosecutor, “with the provision that whoever reviews these cases must be qualified to do it.” She’s just not sure who that would be. Goldsmith works for Bryan Cave, and the city probably can’t afford to use him on every police shooting. Some have suggested the attorney general’s office, but their prosecutors work closely with police officers, too. And because they’re statewide officials, they’re harder for citizens to hold accountable than the locally elected circuit attorney.
In her ideal world, Joyce says, an independent law enforcement agency, perhaps the FBI, would conduct the initial investigation. Joyce says the FIU is an improvement on the previous system—which was no system at all—but is still problematic. “I think their heart is in the right place,” she says, “but any time you have an agency investigating itself, you have the risk of bias.” She’d like the state to set up a special unit of prosecutors whose sole job would be to review police shootings. In the meantime, Joyce plans to keep doing her job until December, when she’s retiring.
It’s a popular sport in St. Louis to ascribe ulterior motives and conspiracy theories to Joyce. In the Stockley case, for instance, protest leader Anthony Shahid and police union spokesman Jeff Roorda, who never agree on anything, both called for Joyce to recuse herself, for opposite reasons. Shahid thinks she conspired with the police department to cover up that case. Roorda thinks she is too easily swayed by protesters, leading to political persecution of the police. Joyce says that’s all nonsense. “You will never meet a less politically motivated prosecutor in your life than Jennifer Joyce right now,” she says.
Joyce has gone to great lengths, she says, in her attempt to restore public trust. She releases a detailed report on every police shooting. She’s also started a “community briefing panel,” at whose meetings she talks with “members of the community who are skeptical about law enforcement” to show them all of the evidence in each case. She says she’s told them, “You can leave here and say, ‘I disagree with Jennifer Joyce’s decision,’ and you won’t hurt my feelings. I just want you to understand the basis of my decision.” She asks me, repeatedly, to mention in this article that anyone with information about these cases should come forward.
And when I ask about the Powell and Myers cases in particular, she drops this bombshell: “I don’t consider Myers completely finished yet. There were more loose ends.” She calls Flanery’s DWI “concerning and troubling” and said that it is “very frustrating” that lawyers discouraged the key witnesses from talking to her, especially when those same lawyers are critical of her conclusions in the case.
Flanery’s story might not add up, but with the evidence currently available, it would seem impossible to prove beyond a reasonable doubt that he isn’t telling the truth. Franks thinks that’s about to change. He knows the two witnesses who were with Myers that night and says they now want to tell their stories. “They want the world to know the truth,” he says, adding that he hopes they’ll be meeting with authorities “soon.”
Dotson thinks his department is often unfairly singled out for negative coverage, paradoxically, because he tries to be so transparent. He winds up in the news more often than his counterparts in St. Louis County, and he “gets a little defensive about our agency… We are certainly one of the most progressive cities in the state, and we’re probably on the more progressive edge of law enforcement around the country as well.”
He says the over-analysis of police shootings sometimes goes too far. “It’s easy to play Monday-morning quarterback” by poring over a video or interview transcript to scrutinize every little thing an officer could have done differently. But that, he argues, holds the police to an impossible standard. He says the only question should be “Given the set of facts and circumstances that the officer knew at the time he or she acted, were their actions appropriate?”
It’s a damn good question.
