Eric Holder and Ferguson- Part 3

Kendall Coffey on Eric Holder and Ferguson

Eric Holder and Ferguson- Steve Malzberg and Kendall Coffey Spinning the Law 8/21/14

Part 3

Read Part 2 here:


Kendall Coffey: That’s the version of the facts that the local police believe and is resonating throughout police communities in this country. We don’t know what actually happened but if a jury were to get this someday, and he might never be arrested or prosecuted, we’re all getting ahead of ourselves to talk about what happens if there is a prosecution.

But if a jury believed that there had been a felony perpetrated on the officer, and lets start out with that for a minute, because that sounds technical. But it can be important. That is to say, an officer’s gun is grabbed in the course of a physical alteration with a suspect. And then, after briefly attempting to retreat, that same suspect comes back charging at the officer. And despite the officer saying stop, or telling him what to do, it’s ignored and he’s coming right on top of the officer.

In that case I think a jury is going to have a, if the jury accepts that narrative, it’s going to create a reasonable doubt as to whether excessive force was reasonably necessary and there could very well be an acquittal in that scenario.

The other thing about the scenario I just described, and you’ll see some technical arguments about this, if- and again- all this is if Steve- we know eye witnesses disagree, but let’s accept the police officer’s narrative. Whether or not what occurred in the convenience store was a misdemeanor, whether it was strong armed robbery, whatever you want to call that alleged theft, grabbing a police officer’s gun and struggling physically with a police officer is a felony by itself. So at that point could certainly argue that there was probable cause to believe that he was dealing with- in effect- a violent felon. So that’s a part of this that is also going to play out in terms of the legal tests for excessive force.

Steve Malzberg: That’s what I want to ask you Kendall. Not to interrupt, but we have two minutes left. This is it, the fleeing felon law or rule, when the debate was that the cop who drove up knew and thought that Michael Brown was a suspect in the robbery and he ran, I heard lawyers on TV say that he had a right to shoot him as he ran because they would have believed that he was a fleeing felon, but, forget the robbery now, what if just he got punched by this guy, and the guy grabbed for his gun, and it went off, and then he runs, is that a fleeing felon and does he have the right to say stop, stop and if he doesn’t does he have a right to shoot him as he’s fleeing?

Kendall Coffey: Well in this scenario, and I’ll try to speak fast, where all you know is that somebody stole something from a convenience store but you don’t know whether there was a violent act…

Steve Malzberg: No no, forget that. Just the experience with him, just the hitting him in the eye and the grabbing for the gun, is that enough?

Kendall Coffey: Right. Under the constitutional standard that may well be enough. Because now you’re stopping the escape of someone you have probable cause to believe is a violent felon.

Steve Malzberg: Gotcha.

Kendall Coffey: And that is why I think that that part of the officer’s narrative is going to get more important as this case evolves.

Steve Malzberg: Gotcha. Very good, and I didn’t mean to put you on the spot but you did it very well and very thoroughly. Didn’t mean to give you a short shrift on that. Kendall, great talking to you, you answered a lot of my questions and I thank you very much. Always a pleasure.

Kendall Coffey: Thanks for having me on.

Steve Malzberg: Kendall Coffey ladies and gentlemen. By the way, Spinning the Law is not just the name of this segment, it’s the name of his book. I say that every week. It’s been many years, several years, since the book has been out. Find it. It’s amazing the cases that Kendall has been involved in and cases that have affected the United States of America very strongly.