Ferguson and the Rule of Law

Richard Epstein*



As most people by now know, on August 9 of this year, 18 year-old Michael Brown, a black man, was shot and killed by Darren Wilson, a 28 year-old white police officer in Ferguson, Missouri. On November 19, the Ferguson Grand Jury decided not to indict Wilson. Few events this year have attracted more attention than the fatal interaction between Brown and Wilson and the grand jury decision to not to prosecute Wilson for any criminal offense from manslaughter to murder.

The chorus of criticism in response to these events in Ferguson has been harsh, widespread, and unrelenting. To many activists and social critics, Ferguson reveals that racism remains unabated in the United States 50 years after the passage of the 1964 Civil Rights Act. Eric Holder, our Attorney General, has announced that the federal government will investigate the Ferguson police department for racial discrimination in its overall operations. Nicholas Kristof in his latest column, “When Whites Just Don't Get It, Part V” has called for “A Truth and Reconciliation Commission” patterned on the one in South Africa after the end of apartheid in 1994.

Given how emotional the issue is, I think we need to establish some distance and skepticism by reviewing the arc of events from the killing of Brown to Wilson’s recent, but fully expected, resignation from the Ferguson police force, which was motivated in part out of fear for his own safety. Wilson will receive noseverance package from Ferguson.

Let’s start with some simple legal fundamentals. The law that governs police behavior fully recognizes the risks that officers face in the ordinary course of their duty. In one of its most revealing decisions, Terry v. Ohio (1968), the Supreme Court held that an officer could stop and frisk a subject for weapons when there was reasonable suspicion of the commission of a crime.

Chief Justice Earl Warren, a former California Attorney General, who wrote the Court’s decision at the peak of the civil rights movement, agonized over a rule that gave extensive protection to a white officer confronting a black suspect. But he refused to back off.

Justice John Marshall Harlan, among the wisest Supreme Court justices, wrote: “There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.”

Brown’s death did not arise from a simple stop and frisk, but out of a far more dangerous forcible encounter that erupted when Wilson asked him to stop walking in the middle of the road. That request came when Wilson was on a routine mission unrelated to Brown, but after he had received notice of a theft at Ferguson Market, which Brown had in fact committed. By Wilson’s account, Brown responded with a shower of epithets and walked away. Wilson then backed up his car, and Brown reached in through the window, after which there was a struggle between the two men in which Brown sought to wrest Wilson’s gun away. Wilson is 6 foot four inches tall, and weighs about 210 pounds. Brown was the same height but weighed 292 pounds.

Brown then started to flee, at which point Wilson fired after him.  Shortly thereafter, Brown suddenly turned back and ran toward Wilson, who fired several shots in Brown’s direction. At this point, there is a huge dispute as to what happened next.  Wilson then fired several shots that hit Brown, and he claims that he ordered Brown to lie down, which Brown did not do.  By Wilson’s account Brown kept charging and he shot him again, this time fatally.

But a serious factual dispute about this final sequence remains unresolved.  Did Brown raise his hands in surrender while coming toward Wilson? Or was he prepared to attack? He was unarmed at the time of the confrontation, but it is not clear that Wilson knew this, given that Wilson reports that Brown had his hand inside his waist while charging him. Wilson then shot Brown several more times, killing him.

What are we to make of this rapid and unclear chain of events? All persons, including police officers, are entitled to act in self-defense. Police officers have still greater latitude in the use of force to prevent the commission of other crimes. In my view, the prior physical altercation in the car between Brown and Wilson cannot be ignored in judging Wilson’s fatal decision to shoot moments later. Perhaps Brown did not intend to attack Wilson, but it is Wilson’s subjective perception of danger that matters, which in the heat of the moment was shaped by the previous attack. It is hard to condemn his choice as unreasonable, especially if Wilson is entitled to the benefit of the doubt.

To gain a conviction on this conflicting evidence would be highly unlikely. Neither the physical nor testimonial evidence is squarely in favor of the prosecution, which has to prove its case beyond a reasonable doubt. On this record, I think that the grand jury was right not to indict.

To be sure, there are ways to attack this conclusion. One line of attack is that Wilson’s story makes no sense, because no rational person would take the foolhardy course of conduct that Wilson attributed to Brown. The opposite line of attack is that Wilson, a trained police officer, should have anticipated the potentially irrational actions of an 18-year-old teenager and avoided the confrontation, which he did not do. But the ultimate question is not whether Wilson took all the right steps. The question is whether his errors, if any, were of sufficient magnitude to support a conviction of murder or manslaughter, which does not seem to be the case. Hence, the want of probable cause needed for the grand jury to indict.

Of course, one could also insist that the unconventional proceeding before the Ferguson grand jury was something of a farce. In the usual grand jury case, the prosecution presents the evidence that it thinks warrants the indictment, which the grand jury duly returns after quick deliberations. Indeed, one common objection to grand jury proceedings is that they rubber stamp the prosecutor’s decision and thus offer the accused, whether white or black, no protection from prosecutorial abuse. Prosecutor Robert P. McCulloch certainly did not fall into this camp. Instead, he allowed an open-ended session to take place over weeks, and was roundly criticized for doing everything that he could to aid in Wilson’s defense and nothing to advance the case for prosecution.

My best guess is that McCulloch chose this flaccid course of action because he did not think that there was sufficient evidence on this record to convene the grand jury at all. Normally, a prosecutor who does not want to press charges before the grand jury just folds his hand and goes home. No one to my knowledge has ever claimed that prosecutors must forge ahead in any individual case when they think that their evidence is too weak. Those decisions not to prosecute are, moreover, virtually nonreviewable.

Once McCulloch made his decision to hold back, Missouri Governor Jay Nixon could have forced him out in favor of a special prosecutor, but he did not, which was wise. The decision to replace McCulloch would have had major drawbacks of its own. First, who should be appointed as special prosecutor, and why? The experiment with special prosecutors, operating outside of the usual constraints on the prosecutor’s office, proved itself to be a massive failure at the federal level. The U.S. Office of the Independent Counsel, created with fanfare in 1978, was shut down without regret in 1999, when its functions were taken over by an Office of Special Counsel that was consciously located inside the Department of Justice. If McCulloch had stepped aside, the pressure would have been unbearable on Nixon to appoint a zealous special prosecutor who would have moved heaven and earth to secure an indictment, whether or not supported by the evidence. Indeed if McCulloch had to step aside, better to hand the case over to the number two in his department.

But I doubt that he should have stepped aside solely because his father was a police officer killed in the line of duty by a black assailant. In the absence of some reason to think that this fact influenced this decision, he should have stayed put, as he did, for otherwise the same charge of unconscious prejudice would have been raised against him in the prosecution of any black person for murder. By accepted legal standards, there is no showing of impermissible bias.

No one is of course happy about the ad hoc procedures that were used in a grand jury proceeding that, on balance, should not have been brought at all. What is more troublesome, however, are the lessons that people are purporting to draw from this incident. Whatever the situation is in the United States on the matter of race, it bears scarce resemblance to the institutional racism under apartheid that prompted the Mandela Truth and Reconciliation Commission, which did much to put South Africa on a better course after its own tragic past.

But the Ferguson incident was not an organized plot by the FBI, the city of Missouri, or the Ferguson police to selectively attack young black men. The event does not herald a return to the bad old days of Jim Crow and lawless lynchings. It was a chance and tragic encounter that resulted in an unnecessary death.

There are of course many shooting deaths by police officers in the United States, often of young black men. Sometimes these are tragic mistakes and overreactions. Sometimes they are justified under the circumstances of the case. Occasionally, they involve the deliberate use of excessive force, as in the senseless killing of Eric Garner by the New York City police. Better policing practices may help solve these problems. But it would be a mistake to think that in a nation the size and complexity of this one that individual tragedies like Garner’s will not happen. Unfortunately, the law of large numbers means that some terrible incidents will happen no matter what anyone says or does.

In this situation, we do not need to court trouble by starting from the premise that this nation suffers from deep-seated institutional racism. Public officials, activists, and commentators should not work overtime to tear down the institutional fabric of the nation, but should instead celebrate the continued willingness of most major institutional players to correct problems of racism as they arise. It does no good whatsoever for Eric Holder to continue to investigate Wilson, in search of racist motives, since it does not square with the record developed in the case. Similarly, his institutional investigation of the Ferguson police force is not credibly triggered by that single tragic event.

What is now needed is less attention paid to the Ferguson police force, and more attention given to the violence in Ferguson that has led to, among other things, black churches being burned down. On that score, we desperately need more leadership from President Barack Obama, whose tepid condemnations of the violence shows yet again his own tin ear on matters of race relations. Obama and other activists forget how easy it is to tear down the institutions that maintain order and the rule of law, and how hard it is to shore them up so that our nation can continue to prosper.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.