The official investigation will have to sort out the facts in the case in Missouri of shooting an unarmed black man. However, whether police end up justified in the shooting of 18-year-old Michael Brown has become almost an afterthought.
Information emerged that the teenager was involved in a robbery, but it was not clear that the officer involved even knew about the robbery. Surveillance videotapes appear to show Mr. Brown shoving a store clerk aside as he stole a box of cigarillos. However, none of that explains the shooting of the unarmed young man.
“It is smoke and mirrors,” said Benjamin L. Crump, a lawyer for the Brown family, of the robbery allegations. “Nothing, based on the facts before us, justifies the execution-style murder by this police officer in broad daylight.”
More interesting, perhaps, is the reaction, where the small St. Louis suburb exploded into riot and violence. Tensions that began a week ago renewed early this morning after protesters reportedly barricaded a major road and the police responded quickly in riot gear.
“We don’t want anyone to get hurt,” an unidentified police officer told the protesters, according to a story in the New York Times this morning. One protest called it “a police state.”
An op-ed by Elijah Anderson, Professor of Sociology at Yale University, said that what caused the riots in Ferguson exist in so many other cities.
He wrote, “The eruption of protests and violence has been a long time coming. While I certainly do not condone rioting, examining the conditions surrounding Brown’s death — and the deaths of several other unarmed black men killed by law enforcement recently — makes clear that community reactions like those in Ferguson, Mo., are bound to happen. America has continued to isolate poor black people in economically depressed neighborhoods under increasingly oppressive police tactics that breed distrust and hostility.”
He argues, “The broken windows theory, promulgated by James Q. Wilson, holds that where there is urban disarray, there is crime. Wilson argued that cleaning up trash and fixing broken windows — but also quickly policing deviants and miscreants for even small-scale crimes — would lessen crime overall. The thinking was that by taking care of the small stuff, you won’t face as much big stuff.”
However, “The use of ‘broken windows’ policing meant, in practice, increasing harassment of young black men.”
Then there is the view expressed by Andre Perry dean of urban education at Davenport University in Grand Rapids, Michigan. “In the minds of many Americans, there’s no longer any difference between a black person and a thug. And as long as public officials equate the two, unarmed black lives will be the accepted collateral damage of our biased quest for ‘protection.’ Michael Brown, 18, is just the latest victim. A St. Louis County police officer shot and killed Brown after an alleged altercation in a police car.”
“How did black and Latinos become suspect simply for being alive?” he asks. “A new study out of Stanford University suggests people who perceive the penal system as more black are more distressed about crime and more accepting of biased policing, which in turn exacerbates the racial disparity. Policy effects negative racial attitudes, and our prejudices clearly create biased policies.”
He adds, “Racially tilted policing and incarceration policy reveals our conscious biases.” Mr. Perry writes, “The split-second decisions police make in determining an imminent threat involves intuition and assumptions. Researcher Alan Lambert posits that stereotyping is not just a conscious act. Lambert found that bias could be thought of as implicit responses that are magnified in certain social settings through a loss of cognitive control. The disproportionate killing of unarmed black and brown people reveals our collective internalized fears. When threatened by the stereotype, police don’t give killing black and brown folk a second thought.”
But this issue goes beyond the instant act – there is also the reaction of authorities to the riot.
Paul Butler, a professor at Georgetown University Law Center, writes that police in Ferguson “broke the law when they stopped civilians from videotaping them.”
He writes, “For decades, civil rights activists have struggled to hold rogue police officers more accountable. Claims of excessive force, racial profiling, and illegal arrests were hard to prove. In the rare cases when prosecutors brought charges against errant police officers, jurors often did not convict. ‘The police were just doing their job’ has been a common refrain.
“But we’ve discovered we’re now holding one of the most powerful tools for social activism in our purses and back pockets. Last year, for the first time, the majority of Americans (56 percent) owned smart phones, according to a survey by the Pew Research Center. That was a landmark development with great consequences for criminal justice and citizen oversight of law enforcement. There’s been a power shift in favor of everyday citizens and it’s being recorded on iPhones and Androids – then Facebooked, tweeted and Instagrammed. Now all the world has seen how a few bad cops do their job.”
He continues, “And then there’s Ferguson, Mo. We have seen how the police responded to people who, in the main, peacefully protested the shooting of Michael Brown, an unarmed black man. We saw the police, using assault rifles, rubber bullets, tanks, tear gas, and smoke bombs, wage a ‘shock and awe’ campaign seemingly out of the Operation Desert Storm playbook.
“The world witnessed these outrages, in part, because citizens had the courage to videotape what the police were doing. It takes guts because bad cops don’t like being caught on tape and, in some recent cases, they’ve gone after the photographer.”
He adds, “The law is simple, and it is entirely on the side of the citizen photographers. The First Amendment of the U.S. Constitution protects the right of anyone to record police in a public place. The police can place reasonable restrictions on photographers by, for example, not allowing them to enter a crime scene. But they cannot stop people from standing on the street and filming them while they make arrests, detain suspects, or otherwise enforce the law.”
The professor continues, “If the police see you filming, they cannot force you to turn over your camera. They cannot make you delete what you have filmed. Of course, they can ask you to do any of these things — and the police are very good at making requests sound like orders. But all you have to do is say something like ‘Officer, I refuse to consent to you to look at my photos.’ Then you have the constitutional right to be left alone.”
Dennis Parker, Director of the ACLU Racial Justice Program writes:
Ferguson Police’s PR Stunt Poisons Independent and Impartial Investigation
The tragic killing of unarmed teenager Michael Brown by Officer Darren Wilson of the Ferguson Police Department has shocked his family, community, and the nation.
The public and the ACLU of Missouri have called for release of the police incident report on the shooting to resolve the dispute about whether the incident involved the excessive use of lethal force and illegal racial profiling, and to shed light on how many times and where on his body Mr. Brown was shot.
Instead of disclosing that information, the Ferguson Police Department today released approximately 30 seconds of surveillance footage and an offense/incident report concerning a reported shoplifting at a convenience store that police now alleged involved Brown about ten minutes before he was killed. Yet the Ferguson police chief’s own statement undermines the relevance of those disclosures. The officer who shot Mr. Brown, according to the chief, was unaware that he may have been a suspect in the shoplifting and stopped him because he was walking down the middle of a street.
The Ferguson Police Department’s actions appear misleading and remarkably cynical. They call into question the department’s commitment to ensuring an independent and impartial investigation into the killing of Michael Brown. The video and incident report released are of dubious relevance. The decision to disclose them suggests an attempt to assassinate Mr. Brown’s character by showing that he had roughly pushed a convenience store clerk on the day that he was killed. The one-sided and piecemeal disclosure of potentially irrelevant and prejudicial information, while continuing to withhold the critical police incident report that the public has demanded, suggests a desire to confuse rather than to shine a light on what happened.
Mr. Brown’s family and the public deserve better. The Ferguson police’s disclosures seem more like spin control than objective investigation. The department’s apparent attempts to impugn the character of a shooting victim while withholding potentially revealing information about the conduct of its own police officer makes a mockery of the concepts of fairness and impartiality.
Therefore, the ACLU calls for an independent and comprehensive federal investigation by the Department of Justice of the fatal shooting of Michael Brown. Without this, there can be no justice for the Brown family or honest conversation about excessive force, racialized policing, law enforcement accountability and transparency, and the kinds of systemic reforms that are critically needed to ensure fair and effective policing in Ferguson and throughout our country.
The Reporters Committee for Freedom of the Press wrote a letter to authorities:
Police Detention of Journalists in Ferguson, Missouri, and Public Access to Information
As organizations that cover news and defend the rights of journalists to gather the news, we write to express our deep concern over the unwarranted detention of two journalists on Wednesday and with other reports of police intimidation and harassment of journalists in Ferguson. It is also extremely troubling that the police have not been more timely in releasing the records surrounding these incidents and the shooting of Michael Brown.
While we understand the responsibilities of your three law enforcement agencies differ substantially in these events, we write to all of you in the hope of assuring that these issues going forward are handled in a manner that protects the First Amendment interests of the press and the public in accurate news reports out of Ferguson.
First-hand accounts indicate that Wesley Lowery of The Washington Post and Ryan Reilly of The Huffington Post were doing nothing more than sitting in a McDonald’s recharging their phones when they were questioned by police and detained. (Their respective news organizations are both signatories to this letter.) Their statements indicate they were physically mistreated, harassed, handcuffed, and denied answers to their repeated requests for information as to why they were taken into custody. In addition, Lowery was told to stop recording police in violation of his First Amendment rights.
This type of behavior is anathema to the First Amendment and to journalists everywhere. It must not continue and answers as to why it was allowed to happen in the first place must be forthcoming.
As United States Attorney General Eric Holder, Jr. said in a statement yesterday, “Journalists must not be harassed or prevented from covering a story that needs to be told.” Not only are the police in Ferguson violating the rights of journalists, but they are actively suppressing the flow of information to which the public is entitled – an issue of grave importance to many Americans across the country.
Officers on the ground must understand that gathering news and recording police activities are not crimes. The actions in Ferguson demonstrate a lack of training among local law enforcement in the protections required by the First Amendment as well as the absence of respect for the role of newsgatherers. We implore police leadership to rectify this failing to ensure that these incidents do not occur again.
As the United States Department of Justice wrote in 2012, “The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.” See Statement of Interest of the United States in Sharp v. Baltimore City Police Dep’t, Civil No. 1:11-cv-02888-BEL (Jan. 10, 2012), http://www.justice.gov/crt/about/spl/documents/Sharp_SOI_1-10-12.pdf.
This principle – that not just journalists, but members of the public generally – are free to observe and gather news about police actions has been repeatedly upheld in federal courts. The First Circuit ruled in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that the public’s right to record police in the performance of their public duties is a “basic, vital, and well-established liberty safeguarded by the First Amendment.” The Seventh Circuit in ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), likewise recognized the longstanding right of the public to record police activities.
Also of concern to media organizations is the lack of information available about the original shooting and the arrests of the journalists. Officials took nearly a week to release the name of the officer involved in the shooting, and Lowery wrote that when he asked to see an incident report on his own arrest, he was told there was not one and that one might be available in a week or two. This lack of access to basic information on a timely basis reasonably stokes suspicions in the public mind that the police have something to hide. Managing any public emergency requires openness and accountability, and withholding the officer’s name and the incident reports compromises the community’s trust in their police.
The undersigned media organizations call on the Missouri State Highway Patrol and the police departments of the City of Ferguson and St. Louis County at a minimum to ensure that:
• police officers do not intimidate, harass, or impede journalists covering the news;
• state, county, and local officials are properly educated to understand the rights of journalists and the public to record police officers in the course of performing their duties;
• information about officers involved in future incidents, and about any investigations of these recent incidents, is promptly made available to the public; and,
• if other journalists are stopped or arrested – which is always an extraordinary step in any jurisdiction and must never be motivated by a desire to suppress news – all records of their arrests or detentions are promptly made public to evaluate the legitimacy of police actions.
—David M. Greenwald reporting