Analysis of the Supreme Court's last decisions of the term and the impact of a vacant seat on the bench.
More than a week after the shooting of unarmed black teenager Michael Brown, the city of Ferguson, Missouri is still in turmoil. Protests became increasingly violent this weekend, prompting the governor to impose a midnight curfew and deploy the Missouri National Guard to the city. Brown’s death has reignited the anger of many who say minorities today are still disproportionately targeted by law enforcement. In the wake of several other recent deaths at the hands of police, there are also renewed calls for a review of when lethal force against civilians is justified. We discuss police tactics, minorities and the use of deadly force.
- Walter Olson senior fellow, the Cato Institute Center for Constitutional Studies.
- Anthony Cook professor of law, Georgetown University Law Center. He teaches courses in constitutional law, civil rights and African-American critical thought.
- Andrew Ferguson associate professor of law, University of the District of Columbia School of Law. He teaches and writes in the areas of criminal law, criminal procedure, and evidence.
- Rich Roberts public information officer, the International Union of Police Associations. He served in law enforcement for many years before taking on his current role.
- Devlin Barrett reporter, security and law enforcement, The Wall Street Journal.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Following the shooting death of Michael Brown, anger continues to boil in Ferguson, Mo. over police tactics and treatment of minorities. A particular concern is how and when lethal force is used by police against civilians. Just weeks before Brown's death, a New York man was killed in an apparent chokehold by a police officer.
MS. DIANE REHMJoining me to discuss all of this: Devlin Barrett of The Wall Street Journal, Anthony Cook of Georgetown University Law Center, Walter Olson of the Cato Institute and Andrew Ferguson of the District of Columbia School of Law. And we will take all of your calls, as many as we can, throughout the hour. Join us on 800-433-8850. Send an email to firstname.lastname@example.org. Follow us on Facebook or sends us a tweet. Thank you all for being here.
PROF. ANTHONY COOKThank you.
MR. WALTER OLSONThank you.
MR. DEVLIN BARRETTThank you.
MR. ANDREW FERGUSONThank you.
REHMGood to see you all. Devlin Barrett, catch us up on what happened last night, over the weekend and this morning.
BARRETTWell, it was a weekend of essentially escalating conflict and escalating violence on the streets of Ferguson, principally at night, culminating in last night when we saw large groups of people and large use of tear gas and heavy equipment by the police in response to that. And overnight, the governor decided to call in the National Guard, the state's National Guard, to try to bring some order and calm to the streets.
REHMHave the demonstrations gone totally gone out of control again?
BARRETTWell, on Saturday night, they had a protester shot by someone else. It wasn't a police-protester interaction. But they responded to that with force, and last night was -- there was a lot of mayhem. There's differing reports, and I think it'll take some time to sift through the differing reports to understand the exact sequence.
BARRETTBut what police say is that they had a shooting around about 8:30 on the street, and then, over time, as the night progressed, they saw more and more violent activity on the part of some of the people, among the protesters. And that caused -- they then decided to do a large offensive with tear gas and armored vehicles and people in riot gear.
REHMAnthony Cook, there have been two autopsies. There is now about to be a third by the FBI. What have we learned from those thus far?
COOKWell, the second autopsy reveals that there were, I believe, six shots, two of them to the head. And right now they're trying to determine whether or not there was any gun powder residue on the clothing. And I guess that'll be pretty much interrogated and looked at by the Justice Department.
COOKWe don't know yet, you know, what the range was, how far Michael Brown was actually standing from the officer. The circumstances are a little unclear there. There are conflicting witness testimony here with regard to the altercation. You know, this whole issue of the use of excessive force and deadly force is governed, you know, significantly by the Fourth Amendment, which protects us and our individual liberties against the use of unreasonable searches and seizures.
COOKAnd, of course, when you use deadly force, you have exercised the, you know, ultimate, you know, form of seizure as a police officer. And the only way that's permitted is that if it is reasonable -- and the court has consistently said that the reasonableness standard is one in which you've got to show that the prudent officer under similar circumstances would've reacted in the same way by using deadly force in this particular situation.
COOKWell, when you've conflicting testimony and you're uncertain as to what those situations were, it's kind of difficult, too, to make that call. But from what we know from the entry wounds, as I'm looking at it, even if you take a best case scenario that there was some kind altercation and that Michael Brown was, you know, in fact, at a distance from this officer, you know, once the danger had been contained, it seems to me, I would make the argument and just believe that six shots with two to the head would count as excessive and unreasonable.
REHMNow, the police officer involved, Officer Darren Wilson, has been put on administrative leave. I understand there have been calls for his arrest. From your perspective as a professor of law, what do you think should be happening to Officer Wilson at this moment?
COOKWell, you know, a lot of this is a function of the evidence and the information that the police authorities have gathered, right? So we're all kind of playing, you know, armchair theorist in this regard. I would think that in a situation like this, though, where there is so much turmoil, so much anxiety, so much distrust where the chasm is so significant between the community on the one hand and the authority on the other that I would probably err on the side of putting Mr. Wilson under arrest to send a clear signal to the community that, you know, we are doing all that we can to make sure that this is a fair and unbiased approach to looking at this matter. I think it would go a long way.
REHMWalter Olson, would you agree with that?
OLSONWell, I don't have all the information at hand that the authorities would need to have to make that decision. And just as the civil liberties of the population in general must be respected, so arrest should take place only after a certain threshold has been reached. So the information seems to keep developing day by day. The autopsy added some. The inspection of the clothes will add more. The eyewitness accounts are clearly in conflict with each other. And that introduces a judgment factor because assessing how much weight to give to the conflicting accounts is going to be part of a calculation of whether there's probable cause.
REHMNow, one element that's been introduced is all of this extraordinarily heavy military equipment. Where has this equipment come from? How did the town of Ferguson get hold of it and why?
OLSONThis is part of a nationwide trend. Police departments across the country have been arming themselves with these sorts of weaponry and equipment that we usually associate with the military and, indeed, often is military surplus. Now, there is a number of federal programs that have accelerated this. There is one called 1033 that distributes military surplus to states and cities, sometimes almost for free.
OLSONThere are also Homeland Security programs that subsidize the purchase of new equipment. Now, we know that St. Louis, of which Ferguson is a part, availed itself of some of those programs. We have not entirely sorted out which pieces came from where and which were locally purchased. But in militarizing in this way, Ferguson and St. Louis County are, for better or worse, part of a big nationwide trend that's been going on for more than 10 years.
REHMAndrew Ferguson, why do towns and cities feel the need for this kind of equipment?
FERGUSONWell, I think part of it is that there are certain circumstances where it might make sense, a bank robbery, an ongoing shooter investigation where you'd want to have those armored vehicles and you'd want to have well-armored response officers. I think the problem is that once the technology, once the armor, once the vehicles are available, they get used in situations where it might not necessarily be appropriate.
FERGUSONI mean, here we have a protest about deadly force where the response is sort of a doubling down of deadly force. It's very hard to begin a dialogue on healing when you're looking at officers who are armed to the teeth. They're in armored cars. That is more about occupation than communication. And I think that there is a legitimate First Amendment protest that's going on here.
FERGUSONThere's also legitimate law enforcement need to stop and control the crowd that is acting violently, but the choice -- I think we've seen the consequence. The choices of having that large display of force come in has been only to inflame the community rather than quiet it and move forward into a way where, you know, that community lost a son.
FERGUSONThe police officers have now lost a colleague who's not working there. And we aren't moving toward healing. We're moving toward conflict, in part because of the optics of this imposing force. You know, if watch CNN, you watch the images from Ferguson and the images from Iraq and it's not that -- I mean, it's very close -- the same technologies and the same use of force is right in front of you and it's really jarring, I think, for most Americans.
REHMAnthony Cook, the concerns about this kind of equipment, to what extent have they actually inflamed the reaction?
COOKWell, you know, I think that when you've got a First Amendment right to peacefully assemble and to protest and you have signs that that is going on, that people are trying to do that, when you show -- when you have such a strong and, I would say, imbalance show of force, it only escalates the tensions, the anxieties and the level of distrust that historically exists there. And that's been a problem.
REHMAre you saying that the protests became violent only after that equipment came on the streets?
COOKNot only, no. I mean, I think that in any kind of altercation, situation like this, any war, whether it's real or fabricated, you always have opportunists and that those opportunists are going to take advantage of situations that exist and it's the role of law enforcement to try to deal with those opportunists. But let me say that, you know, many times, as King once said, you know, violence is the voice of the unheard. There is frustration that leaks out in this way.
REHMAnthony Cook, professor of law at Georgetown University, he teaches courses in constitutional law, civil rights and African-American critical thought. Short break here, and we'll be right back.
REHMAnd welcome back as we talk about the situation in Ferguson, Mo. after the killing of Michael Brown, an unarmed black man, by a white police officer in that town. Devlin Barrett, the proportion of white police officers to that predominately white -- black town raises questions, lots of questions in people's minds.
BARRETTWell, sure. I mean, I think any police force should be a part of the community. And I think the question that Ferguson rightly raises is, if you have a community that's two-thirds black and your police force is maybe on its best day 10 percent black, that you don't have...
BARRETTYeah, I mean, they dispute the numbers. And I guess my point would be, if you're trying to argue about between, like, four or five human beings, like, you're already sort of in a bad spot. And so I think there is that issue of, you know, is the police department genuinely part of the community, which it has to be for it to work properly.
REHMWere the protests peaceful before the equipment was brought in? What turned the tide?
BARRETTThe sequence of this was on Saturday you started seeing protests. And on that day, there were some odd bits that just -- I found jarring which was, for example, the bringing out of dogs on a line of riot cops with dogs on them. Dogs are -- have been a completely sort of discredited tactic for crowd control for a long time. First of all, it looks crazy. Second of all, it doesn't work very well. And you can go back to the March on Washington.
BARRETTThe March on Washington, President Kennedy said, I don't want any dogs in part of the police operation in this because it looks terrible, and it doesn't -- it's not a good idea. So I think as much as the modern militarization issue is important, I also think the reliance on what many police executives in other cities will tell you are just frankly outdated tactics that have been -- that they would argue don't work is a big part of this issue.
REHMOutdated tactics, Anthony Cook?
COOKAnd see, all of this involves imagery of the past, of the Birmingham campaign and the unleashing of dogs on pregnant women and innocent civilians of the Edmund Pettus Bridge and the march for voting rights. You know, it tells us that although we are here celebrating the 50th anniversary of the Civil Rights Act, that a lot of these tactics and a lot of these feelings and perspectives, they still exist.
COOKThis is what connects to the frustration of the population, the community in Ferguson and communities like it throughout the nation though. The real belief that, you know, although we're 50 years past the Civil Rights Act of '64, in many ways we have not advanced much at all. And perhaps in many ways we have regressed. That conversation is not being had. And so when people are not addressing those issues on any kind of systematic basis, there's a lot of anxiety, frustration and anger associated with it.
OLSONClearly police -- the relations in Ferguson had been unusually troubled before the shooting. But the tactics, I will join in in criticizing the tactics because the key police objective has to be to separate the small number of people who are up to no good, who are out to loot or to do something else bad to attack the police from the larger number of people who are out there to protest, to let off steam, to let their views be known.
OLSONThe tactics that are used, whether it be the dogs or the tear gas, don't differentiate between the smaller number of people up to no good And tend to turn the community into, you know, itself an adversary. They're tear gassing people in their own backyards.
OLSONAnother dimension of it is the role of the press because again and again you saw confrontations in which the press seemed to be under attack itself in which the police would not reveal their badges or their names, partly because the military equipment concealed it. And all of these things are reminiscent of an older age but unacceptable to most people watching one of these disturbances now.
FERGUSONYou know, I think that the reason why Ferguson has become such a symbol, a rallying cry, is it brings together three ongoing problems between police and communities across America -- one is the use of stop-and-frisk policies. All of this incident arises from the very physical, very intimidating, and very confrontational policy of police officers who go up to individuals on the street and stop them, occasionally frisk them. In this case, it ended in excessive force.
FERGUSONBut you have that problem in addition to what is perceived as a racially discriminatory use of stop-and-frisk policies, and then the escalation to deadly force. And all three of those things combine in Ferguson, and they're a problem. And they're an ongoing problem. And we've seen a series of deaths that have resulted from a basic strategy of policing that's very physical. Right now, there is the situation between that officer and a young man that's happening somewhere in America where there's this physical connection.
REHMAnd the deeper question becomes, are blacks being disproportionately terrorized, approached, frisked, shot by police?
COOKYes. There's no question about it. I think every, you know, study after study has indicated that is the case, whether it's the ACLU study of the stop-and-frisk policies in New York. Blacks and Hispanics are disproportionately stopped for driving while black, walking while black. And then they are disproportionately, once stopped, frisked and searched and disproportionately brought into police offices, disproportionately prosecuted, disproportionately sentenced. And if there is a question of the death penalty, they are disproportionately sentenced to death.
COOKThis runs throughout the criminal justice system. America is 5 percent of the world's population, but we house 25 percent of the world's prisoners. We have more people incarcerated in this country than China and Russia and other totalitarian governments throughout the world. And this is simply unacceptable. And although it is not being perhaps articulated as it should by citizens of Ferguson and other areas, it is part of that longstanding frustration that makes encounters with the police ones that are fraught with the potential for confrontation.
FERGUSONAnd it's true in Ferguson as well. The Atlantic reported in 2013 there were 5,384 stops by Ferguson police. Four thousand, six hundred and thirty-two of them -- 86 percent of the stops were African-Americans. The population of Ferguson is 67 percent. But notably of that group of African-Americans who were stopped, only 10 percent were arrested, which means nine out of 10 people were stopped police and then let go.
FERGUSONBut the let go isn't just no harm, no foul. There's a level of resentment, a level of personal frustration, humiliation, when you're stopped by police over and over again. I mean, if you just look at the raw numbers, in this last year, there were almost -- there were over 3,000 young men, probably mostly of color, who were stopped by police, who were walking around resentful of being stopped for what was apparently the wrong reason.
OLSONPeople could argue back and forth about the statistics, and yet there is a wider consensus that we have a real problem in America. You heard it from Sen. Rand Paul of Kentucky saying very frankly that experience with justice is different if you're African-American. And you also see a lot of people from many different political views asking why we have so much incarceration. What is it about our system that takes people who may have -- just be in the middle as far as how rambunctious they are and puts them on a track toward more and more trouble with the law? That's something that we need to fix aside from arrest.
REHMDevlin, this mistrust between police forces, not just in Ferguson, Mo. but across the country between police forces and those within their communities, what's going on?
BARRETTAbsolutely. Well, I think -- there's a spectrum, right. And there's also a pendulum. And this stuff -- public perception of the relationship with police officers shifts over time. And I think, for a lot of folks, the Garner case in New York was pretty alarming because that's the case where an officer choked a man to death on video tape.
BARRETTAnd if you watch that video, it is an incredibly awful thing to watch, especially because what was at stake there was so really meaningless. The guy was at -- in the worst case scenario, the guy was selling loosies which is, you know, individual cigarettes in the back of his store. This is not the issue that anyone should be dying over, no matter what the circumstances.
REHMAnd he cried out, I cannot breathe.
REHMJoining us now from Sarasota, Fla., Rich Roberts. He's with the International Union of Police Associations. Thanks for joining us Rich.
MR. RICH ROBERTSI'm happy to be here.
REHMFrom what you've seen, what do you make of the handling of the protests in Ferguson?
ROBERTSThe first thing you need to take a look at are comments about the First Amendment, absolutely critical portion of our Constitution, our rights, but the phrase is peacefully assemble. Much of this is not protest. It's rioting and looting, and that has to be addressed. And it has to be addressed with force. So, you know, you've got to be clear about your parameters here.
ROBERTSThe use of so-called military gear -- and some of it is military surplus -- is absolutely essential at two levels, one, to contain the situation and, two, to protect the officers' safety. Body armor, armored vehicles when people are throwing Molotov cocktails and firing, these are absolutely essential to officers' safety. So I think people are not taking a realistic look at what's being dealt with here.
REHMWhat do you make of how long it has taken police to release details and the manner in which those details were released?
ROBERTSThe details being released by any of the parties involved are often conflicting. And that will have to take time to be resolved. The information is just all over the place. And so there's some question about which amount of information is accurate. And that's the whole point behind a good investigation is winnowing out the truth from all the scattered comments that get made.
REHMI would certainly agree with that however there were questions about releasing the video of Michael Brown at the same time the name of the police officer was released. What was your reaction?
ROBERTSAny time there's a use of force on the part of a law enforcement officer, it is investigated. We maintain -- the International Union at our headquarters, we maintain a complete law office. We have a 24-hour hotline in case an officer is involved in use of force because they will be investigated. As a matter of fact, in the course of a death as the result of an officer's action, the internal affairs unit will investigate. Homicide will investigate separately. Several other agencies may be brought in ranging from state to federal to investigate. A grand jury will investigate.
ROBERTSAnd if the officer is proven innocent, the officer still faces civil suits. So there's no free ride in law enforcement when you use force. So this -- what should have been done, but the public didn't allow it, would've been a cold -- of the incident itself separate from all these other social theories. Once that was resolved, they would determine not just whether the officer was guilty, but they would determine what they need to do to avoid and prevent any future incidents like that. And that prevention comes from adequate training.
ROBERTSAnd one of the problems agencies face is their training budgets are not controlled by the agency itself completely. The amount of money they have for any operations including training is usually decided by civilian officials with little or no law enforcement experience and unwilling, in many cases, to listen to the law enforcement agency about training.
REHMAnd you're listening to "The Diane Rehm Show." I think Prof. Cook has a question or comment for you, Mr. Rich.
COOKWell, you know, we talk about these issues as though they, you know, exist in a vacuum with regard to kind of parsing the specific details of the particular event at any point in time. But they are connected, as other panelists have said, to, you know, race and class and mistrust issues that are endemic and pervasive, right.
COOKOne of the problems with regards to the normal framework in which your caller is questioning an investigation take place is that I believe the Supreme Court has established a very standard list understanding of what objective reasonableness is. And because it provides a lot of leeway and discretion to fact finders, it's very, very difficult, I think, to show that officers are liable. And the Rodney King incident is one such example.
COOKWe sat and watched the attorneys for the officers take that video strip of Rodney King on the ground, right, and break it up into frames in much the way that we do this discourse, in his dialogue in question about these issues here, and show that frame by frame, you know, Rodney King was getting up, or he was being aggressive. And therefore excessive force was necessary.
COOKDon't you see his left arm moving here? He's about to, you know, charge the officers. They did that time and time again, and they convinced the juries in -- the jurors in Simi Valley that excessive force, this force was justified and reasonable because they were able to fragment what we saw in that way. Don't we do that with this discourse?
REHMRich Roberts, do you have a comment?
ROBERTSYes. As far as video -- everybody says, oh, video doesn't lie. My concern is, how carefully is it analyzed and how accurately? And in many, many cases, opponents of the police do almost worse things in terms of selecting pieces that prove their supposed point. So, you know, video alone is not a total reliable source of information.
REHMLet me ask...
ROBERTSPartial source of information.
REHMAll right. Let me ask you finally, Richard Roberts, what you think about police being equipped with cameras.
ROBERTSThere again, you run into the same situation. The camera doesn't always show you what occurred before the event and rarely shows you what occurred after the event. So cameras, again, they have a mixed value. Cameras, whether they're body-mounted or dash-mounted, only give you a certain amount of information.
REHMOn the other hand...
ROBERTSAnd you have to go beyond the film. You have to go beyond the tape.
REHM...I wonder whether, Andrew Ferguson, you see cameras as somehow deterrents to rash action on the part of police.
ROBERTSWell, from a law enforcement officer's standpoint, the real value in cameras is twofold. Number one, it can absolve the officer from false charges. And, number two, they're an extremely effective training aid.
REHMAll right. I want to hear Andrew Ferguson's comment.
FERGUSONWell, I agree with those latter two points, that they do offer a level of transparency and accountability. And I think one of the frustrations of the community in Ferguson is this lack of transparency and accountability. And what we've seen with those few jurisdictions that have used this body camera, so, for example, in Rialto, Calif., all 115 of the officers, the uniformed officers were outfitted with these small cameras.
FERGUSONAnd in the first -- in 2012 when they did it, public complaints dropped by 88 percent. The use of force of the officers themselves dropped by 60 percent. Why? Because people were being watched. And people knew they were being watched at the time. And that kind of accountability is incredibly important.
REHMAll right. We've got to take a short break. Rich Roberts, thank you so much for joining us. When we come back, time to open the phones for your comments and questions.
REHMAnd it's time to open the phones as we talk about the ongoing situation in Ferguson, Mo., after the shooting death of Michael Brown, an unarmed black man, by a Ferguson police officer. Let's go to Joey first in Greenville, S.C. You're on the air.
JOEYHi, Diane. I have a question for the -- your law panelists about the authority of police officers. You know, I've seen a couple of YouTube videos recently where a police officer was asking someone either to disperse or to move over or to do something, but the person -- the civilian seems like they're well within their rights. And my question is, can police officers ask people to do this? And if you disobey, are you breaking the law?
OLSONI'm going to defer to the actual law professor (word?)
REHMOK. All right. Andrew Ferguson.
FERGUSONWell, of course, as in most things, it depends on the context. So as you saw and many people saw, The Washington Post reporter who was arrested in McDonald's by an officer who was asking him to leave, at that time, the officers were clearing out the McDonald's. There apparently was some exigency, some circumstance that was allowing them to do that. The Washington Post reporter was protesting.
FERGUSONAnd again, it depends on what their authority is. In a normal course, in a normal protest, obviously we all, as citizens, have rights to protest and be in places. But there are circumstances -- during a state of emergency, obviously the police have ability to clear the area because the law, the state of emergency, has changed the normal course. So unfortunately, it depends on the context. And so it depends on where we're talking.
REHMAll right. And here's an email from John. "Can your panel please address the fine line between a police force and a paramilitary force?" Walter Olson.
OLSONWell, that's one of the key questions of this whole episode because the police force is supposed to be of the community. It is going to be there over the long term and needs to have an organic relation with the community. Paramilitary force is usually used for a while against a hostile insurgency or opposition group. And it is armed lethal and wide-ranging purposes because it needs to be readier to use force.
REHMAnd one wonders whether that apparent paramilitary force heightened the violence in this situation, Walter.
OLSONWell, you know, the situation in Ferguson has been two steps forward and three steps back. It has gotten worse and yet there have been days when it got better. And one of the days when it got better was when the new squad came in dressed in blue rather than camouflage, joined the protestors and talked to them and listened and mingled and expressed fellow feeling. Now, that didn't solve everything, because about 10 different things have gone wrong, and that was only one of them. But it did help that night.
REHMAnd here's an email from Antonio who says, "I would like to address the violence and destruction by African-American protestors in Ferguson. As a concerned citizen, it scares me." And what do you think about that, Anthony Cook?
COOKWell, you know, of course as I said, in any kind of, you know, confrontation situation like this, there will be opportunists. And that's the case with every war that we have known, whether it's the Civil War and Sherman and the rebels and renegades who were looting, you know, while they were on their march to the other sea. Whether or not it's the war on drugs with regards to the confiscation of property by police officers and the sale of that property for their own personal good. This happens all the time.
COOKAnd it is the role of a duly-appointed authority to try to segregate out those individuals from those who are trying to engage in peaceful protest. And that is a very important function that they have to play, because we have to protect First Amendment rights and the rights of people to protest. It is disturbing, yes. But it can be dealt with.
REHMAll right. Let's go to Andrea in Goshen, Ind. You're on the air.
REHMYes. You're on the air. Go right ahead.
ANDREAI was calling because my husband has been a police officer for 27 years. And I'm really discouraged by the tone of the conversation sometimes that pits the police officers, it seems like people are acting like that, you know, they're against the police officers and the police officers are against us. And that's not the way it is with a majority of the officers on the force. You're going to have some that abuse their power or, you know, don't follow the rules. But I have -- it breaks my heart to watch my husband watch this whole thing play out.
ANDREAAnd of course he wants to defend his brother police officer. But he also said this, you know, if he did this wrong, he should be arrested fairly quickly. You don't just, because he's a police officer, drag out an investigation. And if this was a young black man who had shot a police officer, he wouldn't be sitting somewhere waiting. He would...
REHMAll right. Thanks for your call. Andrew Ferguson.
FERGUSONI think everyone on this panel -- I think everyone recognizes how difficult the job is of a police officer to make discretionary calls in dangerous situations day after day, especially in the situation where there isn't as much training, there isn't as much resources that they need. And so I think your husband and the law-enforcement officers out there deserve to be commended.
FERGUSONHowever, the problem is, just as people commit crimes and are held accountable, when police officers act and take a life, there needs to be some accounting. It doesn't have to be an accountable, criminal prosecution necessarily. But there must be an accounting for all of society to come together and recognize that we lost a person in our community. And we need to have a process that goes forward to resolve that. And sometimes people make mistakes.
REHMSo what are the legal possibilities in this case, Anthony Cook? You've got both the local and the FBI authorities looking at this.
COOKThe legal possibilities with regard to what happens to...
REHMYes, to what happens in regard to the police officer.
COOKOh. Well, you know, if -- it depends again on what the investigation reveals, right? You may have a situation where this individual is subjected to an indictment for first-degree murder, second-degree murder, manslaughter. There are both, you know, state remedies and civil rights remedies at the federal level and criminal provisions that would permit the Justice Department to come after him if he were acquitted at the state level.
COOKThat happened in the Price case back in the '60s with regard to the three civil rights workers who were killed in Mississippi. So, I mean, there are multiple levels on which this happens. And we won't know which track really is the most efficacious and the most justified one until we get a bit more information.
BARRETTAnd there's a key legal distinction between what the state authorities can do and the federal authorities can do. Because the state can charge manslaughter and reckless endangerment homicide. And that -- and the federal government, if they choose to bring a civil rights case, they can only charge intentional taking -- depriving of this man's civil rights.
BARRETTIt's essentially -- the federal office essentially only has intentional murder in its toolbox. Whereas the state can bring this sort of excessive use of force argument...
BARRETT...which is very different and is arguably an easier case to make, particularly in the circumstances where there's, as far as we can tell, some sort of confrontation that escalates very dramatically.
BARRETTIt's a big distinction between these two investigations.
REHMTo Charlottesville, Va. Hi, Andrew. You're on the air.
ANDREWHi, Diane. Thanks for taking my call.
ANDREWI'm curious as to who is advising the governor to send in the National Guard. Because it seems to me that increasing the militarization in the area was not going to go very far in deescalating the situation.
BARRETTWell, I think one of the things that the last week has shown us is that all the different levels of federal -- of government -- state, local and federal -- are not on the same page on a day-to-day basis. And so I think the governor's decision is essentially based on the notion of, we have lost control of the situation, therefore we need to deploy more resources. I think the governor has sort of tried -- he's tried to sort of -- let's calm things down. Let's back off and cool off a little bit.
BARRETTAnd clearly by going to the National Guard, he's decided that, for the time being, that isn't working. But one of the things you see repeated day after day is different parts of the government thinking, we should be doing this next. And then some other part of the government saying, actually, no. We're going to go and do this next. And I think that has probably not helped the situation.
COOKWell, Rep. John Lewis, right, suggested that President Obama should federalize the National Guard and send them in, been doing so for -- for days. I think the theory was that, you know, if you have the National Guard intervening, at least you have a force there that looks as though it's going to be more neutral when the opinion and perspective of so many in the community right now is that the police force itself is biased against the community.
COOKThis has been helped and assisted, of course, by the African-American highway patrolman who, I think, made a very impassioned, personal and wonderful speech the other day, identifying with the community and quelling those concerns. That kind of stuff should have been happening from the very beginning.
REHMOf course. Walter Olson.
OLSONBut federal intervention, I think, is a very bad idea. But on this issue of coordinating the various local governments, we've seen textbook examples of doing it wrong so far. Because they called in the Missouri Highway Patrol, and yet did not brief its own leader about what they were releasing that same day as information, he was blindsided by the news developments on his own story.
OLSONNow highway patrol may not be the most obvious choice. The National Guard is what traditionally governors have called in. And they're a higher level. They are not necessarily more militarized because that depends on what you send them in with. They also can be relatively community oriented in the tactics they use, or they can be militarized.
REHMAnd it would seem that public officials need to be careful about what they say. Here's an email from Thomas who says, "The irony is that all of this publicity may make it harder to convict the police officer who shot Michael Brown. Congressman Lacy Clay, whose district includes Ferguson, has publicly stated, the officer who shot Mr. Brown is guilty of murder. These comments were widely reported and have probably compromised the potential pool of jurors in any trial of the officer." Andrew Ferguson.
FERGUSONI think that's probably true. I think that one of the realities of such publicity is that you'd be very hard pressed to find an objective observer from the community of Ferguson who hasn't taken a stand here. And that will affect the jury pool, if it ever gets that far. I mean, we're sort of jumping ahead. I think that, like in many of these cases, there will be a grand jury investigation.
FERGUSONThere will be an investigation about what happens. And the law on excessive force for police officers is pretty forgiving to police officers. They're really -- you look at the belief, at the objective, reasonable belief of the incident, and it really is going to come from the officer who will testify, likely, about it -- what he believed and why he felt he had to do it. And it's hard for a jury to discredit that beyond a reasonable doubt.
OLSONWe are going to get years of process ahead in this case...
OLSON...which, in some ways, will protect Officer Wilson from being railroaded -- in other ways, may ensure that, you know, he won't be sued and sued, even if he gets an acquittal. What we need to think about for a moment is all of the hundreds of cases which have not become a national-cause celeb because often they will not be given so much due process. Often they'll be treated in a much more perfunctory way, by whatever courts look at them.
REHMAll right. To Jonathan who's in St. Louis, Mo. Hi, you're on the air.
JONATHANThanks, Diane. I'm a big fan.
JONATHANTo show my bias, the only time I've ever been asked for my passenger's ID is when my passenger has been black. So my question is this -- I was in St. Louis. The store video was released, according to the chief of police, by a FOIA request. According to witnesses at the scene, they said their cameras were confiscated as well as a security camera in the apartment complex. My question is, if they can release that store video to bias Michael Brown so fast, why can't they release the security video that would show exactly what happened on the murder?
REHMAnd you've used the word, murder, by the way. Go ahead.
BARRETTNot to quibble with the caller, I'm not aware of a video that actually -- of any video existing that actually captures the shooting itself. If there is, I'm happy to be corrected on that. It would probably resolve a lot of issues for a lot of folks.
REHMJonathan, where did you hear that there was indeed a video?
JONATHANIf you look on YouTube under -- if you search, you know, witnesses, Michael Brown witnesses, you can find three specific people -- two women, one male, the male that was with him. And then the witnesses, one of the women was -- lived right there. And she partially captured on video on her camera. She said that was taken. Her camera was taken. And then they watched. The people in the complex watched the police confiscate the cameras and the tape.
BARRETTI -- I'll check into it. I'm not aware of anyone capturing the actual confrontation in which the shots are fired. There is some -- there is some stuff out there that suggests they got audio of the shots being fired, without the actual visuals of the shots being fired. Happy to look into it further. But I think, look, the whole issue of the release is that they have come to view the release of information from the official channels as biased in favor of the officer. And that's a big problem.
BARRETTAnd that's part of the reason why you're seeing the feds get so much more publicly, openly active. Because part of what they're trying to do is reassure the public that this is a serious investigation, that it's not a predetermined outcome.
REHMAnthony Cook, what happens from here going forward? I'm not just talking about Ferguson, Mo., but rather has the attention been really raised about black men being targeted by police officers?
COOKIt has been raised. I just don't know if it can be sustained, you know? After things have quelled and you've got your commission and task force set up, people, you know, tend to go back to their jobs and to their daily lives. And if there is no kind of institutional or organized response to this that investigates these issues over an extended period of time, and it puts forth real recommendations and solutions to the problems, I'm not that terribly optimistic that things will change.
COOKBut these are the things that should change. One, you know, the pendulum has swung too far in the direction, I think, of officers with regard to their discretion and the discretion that they can use with regard excessive and deadly force. The Supreme Court standard to me is a standardless one. And that has to be redressed. If you've got an individual that it is clear, clearly is unarmed, you know, an attempt to disable them should be first and foremost and not, you know, deadly force being used to kill them.
REHMLast word, Walter Olson.
OLSONWe've got the democratic process. It will assert more civilian control in Ferguson and St. Louis County because people will go to the polls and vote for more civilian control.
REHMWalter Olson, Anthony Cook, Andrew Ferguson, Devlin Barrett, thank you all.
REHMAnd thanks for listening. I'm Diane Rehm.
ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Denise Couture, Susan Casey, Rebecca Kaufman, Lisa Dunn, Danielle Knight, Allison Brody and Alexandra Botti. The engineer is Toby Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts and podcasts. Call 202-885-1200 for more information. Our email address is email@example.com. And we're on Facebook and Twitter. This program comes to you from American University in Washington D.C. This is NPR.
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