If truth and justice had been done August 9th in Ferguson, Michael Brown would be alive and facing charges for strong-armed robbery: He wouldn’t be dead. If truth and justice had been done subsequently by the grand jury, Officer Darren Wilson would be facing charges for killing Brown: He wouldn’t be free and exonerated.
Millions of words have been written about Ferguson. Almost all aspects of the topic have been touched on: Ferguson and Race; Ferguson and police methods; Ferguson and the American Culture of Violence; Ferguson and Local Government Tyranny; Ferguson and Federal Solutions; Ferguson and Respect For the Police.
The case has been taken apart and pieced together by many excellent writers. My favorite is probably Ezra Klein at Vox, who with his colleagues has separately looked at Wilson’s testimony, Dorian Johnson’s testimony, the way St. Louis County Prosecutor Bob McCullough handled the case, and the protests that have accompanied the story from the beginning. That is a lot of links to one source, but Vox is doing a tremendous job in its chosen role of “explainer.”
Breaking news and recent revelations get most of the press coverage. There’s another perspective that hasn’t gotten much attention in urgent drama of the Michael Brown case. And that is the vast disconnect between what Americans want (and deserve) and what the laws and legal procedures provide. The Constitution promises . . . well, you can read for yourself what the Constitution promises:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
There are some who believe that the Ferguson grand jury’s decision was “justice.” No one thinks there has been “domestic tranquility” around Ferguson these last few months. And darn few would agree that the rioting and anger and division are signs of a perfect union. And my contention is that whoever is pointing a finger in any direction, they should point it at the Constitution, too,
(I write this after the grand jury decision has been announced and full transcripts of all the testimony have been released. I’ve read Officer Wilson’s testimony and watched his interview with George Stephanopoulos. Wilson’s certainty that he did the right thing runs through his training for the local police department back through years of case law all the way to the Constitution.
The 4th Amendment guarantees citizens freedom from unreasonable searches and seizures. But since it only says those few words, history and case law have decided what is reasonable and what is a seizure.
The relevant law is based on several Supreme Court cases, including Graham v. Connor (1989), which says in part that the court should not use the benefits of hindsight. In other circumstances we believe that the best decisions in life come when we consider all the evidence that is available. But Graham v. Connor holds the police to a different standard. It doesn’t matter if subsequent investigation turns up evidence that the policeman’s snap judgment was wrong. If what he did seemed “reasonable” at the moment, then it was legal.
I don’t pretend to be able to parse legal language. I have to rely on the interpretations of experts. In this case, one of the resources for understanding Graham v. Connor is a recent article in Police Magazine, which says,
“The officer’s force should be applied in the same basic way that an “objectively reasonable” officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene.”
The article really ought to have said “the perceived threat faced by the officer.” Because the officer’s perception of circumstances during the moment are the critical issue.
There’s a saying in French that goes: Cet animal est très méchant, Quand on l’attaque il se défend. Translated, it reads, “That is a very wicked creature. When I attack it, it defends itself.”
We have it directly from Wilson that he swung his car door open vigorously to push Brown away (“Quand on l’attaque”), Brown retaliated by pushing the door closed again (“Il se defend.”) Never mind that it may not have happened that way. Wilson’s own testimony is enough to show that he interpreted Brown’s (or Dorian Johnson’s) actions as threatening. And that right there opened the door to his use a moment later of deadly force.
Another important case is Tennessee v. Garner (1985). Tennessee law at that time stated, “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” That last phrase (“all the necessary means”) was uncontroversial under old common law when few officers carried guns.
Tennessee v. Garner tested whether Tennessee’s law was still proper under more modern conditions, and found that it wasn’t. But far from saying police ought not to shoot people on the street, the Tennessee v. Garner case only changed from allowing the police to use “all the necessary means” to allowing them to use deadly force whenever it is “reasonable.” That word “reasonable” comes from the 4th Amendment, and the judges decided that it applies here. But the writers of the Constitution didn’t explain clearly what was reasonable, and neither did Justice White in the Tennessee v. Garner. That has always been left pretty wide open.
At the time, the Tennessee case seemed conducive to fewer police shootings. It did, after all, add stipulations. But from today’s perspective it still seems to leave the door wide open. A policeman who provokes a citizen into a defensive reaction can then, with all legal justification, shoot that person.
I’m not confortable with that. Are you?