Law Links - October 2014

After the Ferguson tragedy, looking at the law

Figuring out Ferguson panelists included professors Luis Chiesa, Anthony O’Rourke, Athena Mutua and Guyora Binder.

A Sept. 17 forum of Law School professors shone a legal light on the racially charged police shooting that has brought so much heat to bear on the St. Louis suburb of Ferguson, Mo.

Four professors brought their expertise in criminal law and critical race theory to the forum, titled “Figuring Out Ferguson: A Conversation on Race, Law Enforcement Authority and Self-Defense.” The event was sponsored by the Buffalo Criminal Law Center, the Buffalo Criminal Law Society, the Black Law Students Association and the Latin American Law Students Association.

Professor and Vice Dean Luis E. Chiesa, who directs the Buffalo Criminal Law Center, served as moderator. The other panelists were Professors Guyora Binder and Athena Mutua, and Associate Professor Anthony O’Rourke. About three dozen were in attendance.

At issue was the fatal Aug. 9 shooting of unarmed black teenager Michael Brown by a white police officer, Darren Wilson. The resulting community unrest was compounded when the police department released surveillance video allegedly showing Brown stealing cigars and shoving a convenience store clerk moments before the police shooting.

Acknowledging that the facts of the case are still unclear, Binder reviewed the 1985 U.S. Supreme Court decision in Tennessee v. Garner, a case that confines the use of deadly force in arresting fleeing felons to those posing a threat of death or serious physical injury. The Missouri code permits the use of deadly force against any fleeing felon, but the only felonies for which Officer Wilson could have arrested Michael Brown would have involved a threat of death or serious physical injury.

Three possible felonies in the Brown case present themselves, Binder said: a felony assault on the police office, resisting arrest with the threat of violence, or the second-degree robbery of the convenience store. As it is not apparent that Wilson knew of the robbery, Binder said, Wilson “might argue that Michael Brown reached for the officer’s gun during their confrontation and therefore resisting arrest involving the threat of death or serious physical injury.”

Mutua took up the question of the police department’s release of the surveillance video, done on the same day it was ordered to release Officer Wilson’s name to the media. “Why are you releasing this video if you yourself don’t believe that the police officer knew about this supposed robbery at the time he shot Brown?” she asked. Though it is probably standard procedure to initially report on police actions from a perspective that puts the officer’s actions in the most favorable light, “the release of the video seems to be part of a larger playbook that the police” and this society uses in these kinds of cases.

“As we saw in the Trayvon Martin case,” the first play in the playbook “is to tarnish the reputation of the victim by implying that the victim deserved to be killed; the victim is a criminal; the victim did something wrong, even if it’s unrelated to the shooting incident.”

The second play is “to attribute community protest after such a shooting to “outside agitators” and then attempt to minimize and divert the conversation away from the police killing of an unarmed black youth to one about “black on black crime.  As others have indicated, if there is such a thing as black on black crime then there must be such a thing as white on white crime, as most whites are killed by whites and most blacks killed are killed by blacks.” 

Referring to studies by cognitive psychologist and others, Mutua also indicated that bias, stereotyped thinking, and attitudes that both devalue black life and privilege the prerogatives of those who occupy traditional white male authority positions, likely played a role in the shooting. She also questioned whether police receive adequate and appropriate training.

One topic that has arisen in the aftermath of Ferguson is the militarization of civilian law enforcement. “I find this militarization of the police very troubling,” Chiesa said. “I find military officers particularly intimidating, especially in a normal setting. Both in Mexico and in Colombia I’ve been stopped in the street and on the road by military people dressed in military garb with rifles, and that is a harrowing and intimidating experience. I found it reassuring that that’s not the kind of thing that happens in the United States. We have resisted this, but we have been yielding to the pressure to militarize law enforcement.”

For his part, Binder sees a bigger story than the flow of tanks, assault weapons and body armor from the federal government to local law enforcers. ‘There was a concerted effort to reduce the number of antagonistic encounters between police and ordinary citizens, and particularly African-American citizens in big cities,” he said. “But today you find, on a much larger scale, police encounters on the street with citizens in the form of stop-and-frisks. Arrest rates are enormously higher today than they were in the 1950s. That’s more important than equipment.”

O’Rourke noted that economics also factors into this calculus. “Some cities use the criminal law as a source of revenue,” he said. “Cities can actually generate revenue by issuing warrants, imposing a fine and making you show up in court.” Ferguson, he said, earned $2.6 million last year in income from court fines, many of them for minor offenses such as a broken taillight. The effect is that of a regressive tax, because a $50 or $100 fine hurts a lot more in a poor household than in a wealthy one. This factor likely contributed to an environment of distrust between Ferguson residents and city officials. 

Overall, Chiesa said, “this feels like an important moment to me, and it’s up to us whether we run with it and continue making these issues a priority. I think the fact that the president has chimed in on this is important. I don’t think that would have happened in the past. This is a moment we can seize.”