In contrast, the two primary witnesses who state that Wilson instigated the encounter by grabbing Brown and pulling him toward the SUV and that Brown’s hands were never inside the vehicle are Witnesses 101 and 127. Both of those witnesses have given accounts that are inconsistent with the forensic and physical evidence. For example, both witnesses insisted that Wilson shot Brown in the back as he fled and that they saw shots hit Brown in the back. These statements are contradicted by all three autopsies, which concluded that Brown had no entry wounds to his back. Both witnesses also insist that, after he turned to face Wilson, Brown raised his hands, never moved forward, and never reached for his waistband. While Brown might well have briefly raised his hands in some fashion (see below), the physical evidence in the form of the blood on the ground establishes that he did move forward and that he fell to the ground with his left hand near his waistband. Both of these accounts are further undermined by the witnesses' physical inability to perceive what they claim to have seen. Witness 101 was hiding behind a vehicle for significant portions of the incident and Witness 127 was looking at her cell phone, attempting to make a video recording of the encounter, and driving her car. Given the deficiencies in the accounts of these two witnesses, federal prosecutors credited the accounts of Witnesses 102, 103, 104, and Wilson and concluded that Brown did in fact reach for and attempt to grab Wilson’s gun, that Brown could have overpowered Wilson, which was acknowledged even by Witness 101, and that Wilson fired his weapon just over his own lap in an attempt to regain control of a dangerous situation.
Under well-established Fourth Amendment precedent, it is not objectively unreasonable for a law enforcement officer to use deadly force in response to being physically assaulted by a subject who attempts to take his firearm. See, e.g., Nelson, 162 F.3d at 990-91 (holding that it was not objectively unreasonable for officer to shoot at a suspect through a closet door after suspect attempted to grab his gun, hit him in the head with an asp, and pushed him into closet). The government therefore cannot meet its burden of establishing probable cause to a grand jury or proving beyond a reasonable doubt to twelve trial jurors that the shots fired by Wilson at the SUV were unreasonable. These shots are thus not prosecutable violations of 18 U.S.C. § 242.
The evidence does not support concluding that Wilson shot Brown while Brown's back was toward Wilson. Witnesses, such as Witness 118, Witness 128, Witness 139 and others, who claim to have seen Wilson fire directly into Brown’s back, gave accounts that lack credibility because the physical evidence establishes that there were no entry wounds to Brown’s back, although there was a wound to the anatomical back of Brown’s right arm, and a graze wound to Brown’s right arm. Also, other witnesses who say that Wilson fired at Brown as he ran have given accounts that are not credible because significant aspects of their statements are irreconcilable with the physical evidence, such as Witness 101 and 127, whose statements are suspect for the reasons noted above. Similarly, Witness 124 claims to have seen Wilson following behind Brown while steadily firing at him. However, Witness 124 dramatically changed her accounts of what she saw between the time of her first statement to the SLCPD and second statement to the FBI. She refused to meet with the federal prosecutors to clarify her varying accounts. Also, her account was dramatically different from that of her husband, Witness 115, who was standing next to her during the incident. Witness 115 stated that he thought he saw Wilson fire once at Brown as he was running away, but other aspects of his
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