I have purposely waited to comment on the Ferguson, Missouri shooting because I wanted to see how it all played out over time. Now that the grand jury has ruled that Officer Wilson will not be criminally charged, that portion of the incident is over (even though he may be later charged with federal civil rights violations).
In the interest of full disclosure I will mention that after graduation from college I went into law enforcement as a uniformed police officer and later a plain clothes investigator over a period of 12 years. Later in my career I was also the director of the state affiliate of the ACLU and obtained a postgraduate degree in Paralegal Studies.
I do not think I am qualified to pass judgment in the Wilson case, even though I have read Wilson’s entire grand jury testimony. I do, however, feel I am qualified to comment from a police perspective, as well as a civil rights perspective.
In many airplane crashes they determined that a combination of fatal factors contribute to the crash. I think a number of factors contributed to the Ferguson shooting and resulting protests.
1) Media
Most obvious is the quick and comprehensive media coverage. I don’t fault the media for doing their job. I do fault the media viewers for not thinking critically and independently. Many are quick to opine without knowing all the facts. That is why I waited to comment until more facts were available. Unfortunately (or fortunately, as the case may be), continued daily media coverage stokes the sensationalism.
2) Militarization of Police
Years back when I was a police officer there was a notion of policing called “community policing”, which essentially sought to have police officers as a part of the community. Kind of a “precincts” concept, but more in depth. Even in large cities an effort was made to get police officers out of the central command building and into facilities in the neighborhoods. Officers were encouraged to get out the car and talk to people - like walking a beat in the old days. As a young officer I thought this was a good idea and found that walking the streets, especially the downtown area, was beneficial. But, that concept was short-lived.
We have gotten away from community policing, for whatever reasons, including tight budgets, fewer officers covering more territory, laziness, etc. Over time this has led to an attitude of “us vs. them.” Even worse, police departments have become more militarized (see my blog entry “War On Us”, June 25, 2014). A uniformed police officer is striking in appearance, as they should be, however a police officer with a buzz haircut and jackboots is intimidating.
3) Affirmative Action
As the conservatives have taken over in this country, including the Supreme Court, stalwart civil rights laws have been overturned, including affirmative action in public employment and education. They throw out the catch phrase “reverse discrimination” and when applied to the hiring of police it insures that a majority of police officers will be white, even in predominately minority communities like Ferguson. I believe this is a mistake. I do not think whites are intimidated by a black or hispanic police officer, but blacks and hispanics are clearly intimidated by a white officer - and for good reason.
There is sufficient evidence that targeting and profiling of minorities exists. A good example is Maricopa County, Arizona where the courts have determined just that and placed the Sheriff’s Department under a court order to cease profiling of minorities (see my blog post “Reining In Joe”, October 3, 2013).
4) Deadly Force
As part of my police training we attended classes on deadly force. Back then it was titled “Shoot, don’t shoot.” They used a roll up screen and projector to play out scenarios of when to shoot and when not to shoot. Today I’m sure that seems simplistic, but the videos, along with classroom instructions, sticks out in my mind as the most important part of the training. I have no idea what the training involves today and it is no doubt far more sophisticated. I still wonder if it is enough today.
In my blog post “A War On Us” I wrote the following, “When we were in the Southwest this past winter there seemed to be an unusual amount of police shootings. Most noticeable was Albuquerque, where the police department allegedly has a history of aggressive and unwarranted shootings .
Records show that 26 people have been killed by city police in Albuquerque since 2010, a per capita rate of officer-involved deaths higher than New York City and Chicago. Forty people have been wounded by police over the same period of time. So far, the city has paid out $30 million in settlements and officials acknowledge that amount will grow. (CNN)”
Even as recently as November 23rd, a 12-year-old Cleveland, Ohio boy was shot and killed by a first year rookie police officer. Police say the boy was holding a replica gun resembling a semiautomatic pistol. Even though they had the protection of the police car and there were two officers, within seconds of arriving one officer made the decision to shoot.
Granted there is more media coverage, but it seems to me aggressive police actions and shootings are increasing. The power of arrest assumes an awesome responsibility, but the use of deadly force assumes an even higher duty to act judiciously.
5) Grand Jury
The grand jury's functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised. Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not. United States v. R. Enterprises, 498 U.S. 292 (1991)
It need not identify the offender it suspects, or even the precise nature of the offense it is investigating. Blair v. United States, 250 U.S. 273 (1919)
The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, 201 U.S., at 59-60, 65, 26
Nor does the prosecutor require leave of court to seek a grand jury indictment.
And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. See Calandra, supra, 414 U.S., at 343, 94 S.Ct., at 617
It swears in its own witnesses and deliberates in total secrecy, Fed.Rule Crim.Proc. 6(c), United States v. Sells Engineering, Inc., 463 U.S., at 424-425, 103 S.Ct., at 3138.
The point of these citations is that the grand jury is independent of any other judicial or governmental proceedings and that they have wide latitude. They are essentially charged with determining if there is probable cause for a suspect to be charged with a crime. In most cases a grand jury is impanelled and guided by the prosecuting attorney. This is fundamentally questionable.
In the Ferguson case, Prosecutor McCulloch allowed Wilson to testify for hours and made sure the grand jury was aware of every possible piece of evidence that could benefit Wilson. After the grand jury decision, McCulloch explained that the refusal to indict resulted from the combination of contradictory eyewitness testimony and other exculpatory evidence. Many legal experts contend that the way the prosecutor presented the evidence virtually guaranteed that there would be no indictment, and therefore no trial.
McCulloch’s final instructions to the jurors was, “You must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence.”
Years back when I was a deputy sheriff three robbery suspects were being pursued by an adjoining county deputy and they came into our county. The suspect vehicle was stopped on the side of the highway switching license plates when I witnessed the other deputy shoot at the vehicle as it sped away. He clearly knew other officers were in the area and in pursuit, including me.
I pursued the vehicle and once it crashed in an open field one suspect got out and ran. I did not shoot at him because there was no where he could go far on foot and there was another suspect in the car. When I approached the car I saw that he was dead from a shotgun blast from the other deputy. I radioed for an independent state patrol investigator. When the sheriff from the other county arrived he told me he canceled my call for an investigator and to fill out an motor vehicle accident report. I refused, telling him I knew a fatal gunshot wound from a vehicle accident. He got aggressive, but I told him he was now standing in my county and to back off. Long story short, I prevailed.
But, that isn’t the end of the story. The next day I was told by the county attorney to go out and find some men who could serve on a grand jury. When they did meet they ruled the shooting as justified within a few hours. The grand jury was guided by the county attorney and no other attorney was present to give additional evidence.
Conclusion
I believe the Ferguson shooting was a direct result of fatal circumstances, including a overwhelming white police department in a predominantly black community, thanks in part to conservative courts overturning reasonable affirmative action in hiring of police officers to more fairly represent society.
I believe Officer Wilson exercised inexcusable judgment in the use of deadly force, notwithstanding that he was stopping someone suspected of theft. Only he knows why he opted for his gun instead of his mace. He had already called for back up and should have waited to conduct a chase.
I believe the militarization of the police has led to an “us vs. them” mentality and abandoned community policing which has created a huge chasm between police and the public.
I believe the grand jury process is flawed and skewed unfairly toward the interests of the prosecutor, especially in police shootings.
These are all circumstances which will contribute to more fatal police shootings in the future, unless changes are made.
Just one day more...
