Police

New York Times reporter Matt Apuzzo has a fascinating story about Dr. William J. Lewinski’s work as an expert witness in police shooting cases.

When police officers shoot people under questionable circumstances, Dr. Lewinski is often there to defend their actions. Among the most influential voices on the subject, he has testified in or consulted in nearly 200 cases over the last decade or so and has helped justify countless shootings around the country.

Apuzzo’s story is reasonably balanced, but I’d like to talk about a number of red flags when it comes to Lewinski’s work.

His conclusions are consistent: The officer acted appropriately, even when shooting an unarmed person. Even when shooting someone in the back. Even when witness testimony, forensic evidence or video footage contradicts the officer’s story.

My guess is that most police shootings are justified — at least from the point of view of the officer pulling the trigger — but if Lewinski is reaching the same conclusion every single time, then what exactly is he bringing to the table? How much expertise is he contributing when you could replace him with a guy holding up a sign reading “The officer acted appropriately”?

Consistently finding that the officers acted appropriately also raises the issue of bias, which is the next red flag:

He has appeared as an expert witness in criminal trials, civil cases and disciplinary hearings, and before grand juries, where such testimony is given in secret and goes unchallenged. In addition, his company, the Force Science Institute, has trained tens of thousands of police officers on how to think differently about police shootings that might appear excessive.

That’s a pretty big conflict of interest. He runs a company that gets most of its money from police departments to train police officers, and then he offers expert testimony on police conduct in court cases which could send police officers to jail and cost police departments millions of dollars in damages. If he testifies against an officer in a shooting, he risks alienating the sources of his income.

Many policing experts are for hire, but Dr. Lewinski is unique in that he conducts his own research, trains officers and internal investigators, and testifies at trial.

When it comes to the credibility of an expert, doing original research can go either way: On the one hand, it can be a good sign because making original contributions to a field of knowledge requires you to understand it in great detail. On the other hand, it can be a bit of a red flag because it’s easy to cross the line between original science and making up your own special science. (See, for example, forensic bite-mark “expert” Dr. Michael West.)

Lewinski’s personal “About” page says this about him:

Dr. Bill Lewinski is one of the world’s leading behavioral scientists whose work has focused primarily on the intensive study of the human dynamics involved in high stress, life-threatening encounters.

And his Force Science Institute “Who We Are” page describes his research this way:

Dr. Lewinski is conducting the leading research on human behavior in force encounters. His current focus is on action/reaction parameters, perception, attention & memory and judgment. His research has been published in national law enforcement publications, websites and e-news lines. This research has been highlighted on 48 Hours Investigates and the BBC’s Panorama.

Those are not exactly scholarly publications. In fact, of the nineteen published research papers listed by Dr. Lewinski, sixteen are in law enforcement publications. On the other hand, the remaining three papers appear to be genuine research published in legitimate peer-reviewed journals. The man has a Ph.D. and he taught college courses for decades. He’s been involved in some real research.

Still, this is not the research output of “one of the world’s leading behavioral scientists.” For instance, a quick search shows that his most-cited paper was referenced 23 times. By comparison, my old college adviser has a paper that was cited 94 times, and while he was a great teacher, he wasn’t a leader in his field either.

It’s also hard to say what Lewinsky contributed to his two most-cited peer reviewed papers because he wasn’t the lead author for either of them. That was Professor Joan N. Vickers from the University of Calgary Kinesiology department. She has dozens of peer-reviewed publications, many of which have been cited hundreds of times, which means she probably is the kind of scientific leader that Lewinski wants people to think he is.

Apuzzo’s article discusses some criticisms of his research, but I have no way to tell how valid they are. It appears that much of his research is about human behavior under stress in situations typical of police shootings. For example,

In 1990, a police shooting in Minneapolis changed the course of his career. Dan May, a white police officer, shot and killed Tycel Nelson, a black 17-year-old. Officer May said he fired after the teenager turned toward him and raised a handgun. But an autopsy showed he was shot in the back.

Dr. Lewinski was intrigued by the apparent contradiction. “We really need to get into the dynamics of how this unfolds,” he remembers thinking. “We need a lot better research.”

He began by videotaping students as they raised handguns and then quickly turned their backs. On average, that move took about half a second. By the time an officer returned fire, Dr. Lewinski concluded, a suspect could have turned his back.

That seems plausible to me. I don’t know enough about human perception and reaction to know if that particular example is correct, but I do know there’s been a lot of research in this area. We’ve learned a lot about the limits of human perception and behavior, including that we overestimate our ability to understand what happened, and it all gets worse under stress.

That’s why I think it’s wrong to impose severe criminal punishments on people when they make ordinary human mistakes, even when the consequences are unusually tragic, and I see no reason not to extend that principle to the police. Civil damages are a different matter. After all, the officer still made a mistake, and someone still got hurt who didn’t have it coming.

Somewhat disturbingly, Dr. Lewinski doesn’t see it that way. He doesn’t think the officers made mistakes. He the thinks the limitations of human perception and reaction are a justification for a frightening shoot-first policy:

The shooting looked bad. But that is when the professor is at his best. A black motorist, pulled to the side of the road for a turn-signal violation, had stuffed his hand into his pocket. The white officer yelled for him to take it out. When the driver started to comply, the officer shot him dead.

The driver was unarmed.

Taking the stand at a public inquest, William J. Lewinski, the psychology professor, explained that the officer had no choice but to act.

“In simple terms,” the district attorney in Portland, Ore., asked, “if I see the gun, I’m dead?”

“In simple terms, that’s it,” Dr. Lewinski replied.

That’s not the first time we’ve encountered cops who shot people for doing exactly what the cop told them to do. It seems like a no-win scenario for motorists.

“A batter can’t wait for a ball to cross home plate before deciding whether that’s something to swing at,” he told the Los Angeles deputy sheriffs. “Make sense? Officers have to make a prediction based on cues.”

Lewinski is talking about the generally uncontroversial observation that human physical actions are faster than reactions. A bad guy deciding to shoot a cop has the advantage of surprise, so he can be pulling the trigger before the officer has time to recognize what’s happening and respond. This is a real concern for police officers, but Lewinski’s recommendation that officers should solve that problem by shooting before they see a clear threat is deeply disturbing.

Just imagine what it’s like for the black motorist in this story. A cop stopped him, and for whatever reason he had his hand in his pocket. Yes, the smart thing would have been to hold both hands where the cop could see them, but he goofed, and now the cop is screaming at him. What is he supposed to do?

If we accept Dr. Lewinski’s evaluation of the situation, it doesn’t matter if he keeps his hand in his pocket or pulls it out. Either way, the cop should shoot him, because waiting to see if he has a gun would put the cop at risk. So neither of the motorist’s choices will get him out alive. The simple act of putting his hand in his pocket was a fatal mistake from which there is no escape.

On the other hand, what if the motorist did have a gun in his pocket. Then he might be able to survive the encounter with this cop by pulling the gun as fast as he can and shooting first, before the cop can shoot him.

If someone is trying to murder you, even if it’s a cop, you have the right to self defense. Of course, you can’t be doing something wrong at the time — robbing a liquor store, mugging an old lady, breaking into someone’s home — you have to come into the situation with clean hands. But the only thing the motorist does wrong in this scenario is having a hand in his pocket, which is not a crime.

(The paradoxical thing is that having a gun might violate the law, which might mean he can’t claim self-defense, but not having the gun would leave him clear to defend himself, but he’d have no means of doing so.)

You might argue that the motorist has no reasonable belief that the cop is going to kill him: Just because an armed cop is standing outside his car screaming at him doesn’t mean the cop is going to murder him for no reason. That seems like a pretty good argument, but Dr. Lewinski refutes it for us:

“In simple terms,” the district attorney in Portland, Ore., asked, “if I see the gun, I’m dead?”

“In simple terms, that’s it,” Dr. Lewinski replied.

By Lewinski’s own logic, the black motorist can’t afford to wait too long to decide whether or not the cop is going to kill him. By the time he sees the muzzle flash, it’s too late. Best to shoot the cop first, just to be safe, right?

(Reminder: I’m not a lawyer and this isn’t advice. This is a hypothetical argument in a blog. For God’s sake, don’t go thinking it’s okay to shoot cops!)

You might still think it’s not reasonable for the black motorist to believe that the cop will kill him for no reason. Yet that’s exactly what Lewinski is claiming the police officer should do: Kill the motorist before he sees a clear reason to do so. So not only is Dr. Lewinski providing a self-defense argument for black motorists to shoot cops, he’s also providing empirical justification for believing cops are likely to shoot them for no reason, because that’s what he’s telling them to do.

We could apply Dr. Lewinski’s argument more broadly: If you’re a white guy walking down the street and you see a young black male walking toward you, how can you be sure he’s not going to shoot you? Best to shoot him first, just to be sure. After all, if you see the gun, you’re dead, right?

Of course, if you’re the black guy, and you see a white guy coming toward you, shouldn’t you shoot him first? After all, he’s probably thinking about shooting you first. Or maybe not, but can you afford to wait until you’re sure? Dr. Lewinski doesn’t think so: If you see the gun, you’re dead.

We could follow this line of reasoning as far as we want, until we’re gunning each other down in the streets for not showing empty hands and hurtling nuclear bombs across the oceans because we fear our enemies might do the same.

My real point is this: The reason we can justify so much mayhem with Dr. Lewinski’s argument is that Dr. Lewinski’s argument is morally bankrupt. It fails the “What if everyone did that?” test. He’s not telling cops to kill to protect themselves from danger, he’s telling them to kill whenever they can’t be sure they’re safe. And no one can never be sure they’re safe.

A few years back, I wrote about one of those puppycide incidents that went really bad:, and I asked why police couldn’t use less lethal methods to subdue the dog. Someone defending the police told me it would be nuts to go on a drug raid with pepper spray instead of a gun. (Apparently it’s an either/or thing.) My response was that if this was true, then by choosing to conduct drug raids with gun in hand the police have also chosen in advance to meet all resistance with lethal force: Could be a bad guy with a gun, could be a lady with a baseball bat, could be a 10-year-old boy with a hammer. They all get a bullet.

If that’s really the case, then maybe police shouldn’t be conducting so many raids. And if we accept Dr. Lewinski’s argument that cops doing traffic stops should be able to shoot anybody who might be a threat, then maybe they shouldn’t be doing so many traffic stops.

I think it’s telling that you only really hear this argument as a defense after the fact. No police department issues up front warnings to citizens that they will be shot if they fail to put their hands up as an officer approaches. That’s because they know this is a shameful policy, and they don’t want to claim it unless they have to.

Getting back to my example of cops who run into a frightened 10-year-old with a hammer during a drug raid, despite all the bad stuff we’ve seen cops do over the years, I’m confident most officers would find a way to handle that kid without shooting him. Because nobody wants to kill a child.

So maybe the best way to get police to stop unnecessary killings is to find a way to make them want to stop unnecessary killings. Maybe cops will find better ways to stop motorists that are less risky for everyone. Or maybe when a cop who sees a black motorist with his hand in his pocket, he will just roll with it and hope he doesn’t get shot. After all, that’s what the black motorist is doing.

(Hat tip: My co-blogger Ken helped me to characterize the legitimacy and influence of Dr. Lewinski’s research.)

New York Times reporter Matt Apuzzo says that the Justice Department’s investigation into the Ferguson, Missouri police has found extensive racial problems:

Police officers in Ferguson, Mo., have routinely violated the constitutional rights of the city’s black residents, the Justice Department has concluded in a scathing report that accuses the officers of using excessive force and making unjustified traffic stops for years.

The Justice Department […] says the discrimination was fueled in part by racial stereotypes held by city officials. Investigators say the officials made racist jokes about blacks on their city email accounts.

This is the official answer to the question of why the protestors in Ferguson were so quick to assume that Darren Wilson was a racist murderer. The department’s racial problems would have been obvious to black people in Ferguson. They would have seen it in the way they were treated, the things that were said at the side of the road when the police stopped them, the way cops treated black people on the street. It would have been a regular topic of discussion in the black community.

So when the story of the Mike Brown shooting broke in Ferguson, this is how it looked: A member of a police department with a history of racism, equipped with a sidearm, possibly body armor, and several non-lethal weapons, confronts an unarmed and comparatively vulnerable black man on the street, and despite having a car which can be used for either cover or escape, he gets out and chases the black man down the street and shoots him multiple times, killing him. You can’t blame anybody for at least suspecting that this was a racially motivated killing.

As it happens, after a thorough investigation, which probably wouldn’t have happened without the protests, it turns out there’s some convincing evidence that Mike Brown attacked Officer Wilson. It appears to have been a reasonably justifiable shooting. But in the early days it only made sense to assume the worst — that the shooting was part of the long racist pattern of policing in Ferguson.

When I read Spencer Ackerman’s story in the Guardian about a Chicago Police “black site” right here in the city — where CPD supposedly keeps people in secret to interrogate them without access to a lawyer — I was skeptical. Scott Greenfield is too:

How is it possible that this off-the-books facility existed for so long, and yet nobody, no lawyer, no judge, raised its existence, whether in a criminal proceeding following an illegal interrogation, or at arraignment when a beaten defendant appears with no cognizable explanation for the imprint of the Glock on his face?

What about a civil suit?  Where are the § 1983 actions for the deprivations of civil rights?  Even if the state courts were part of some conspiracy to keep this black site out of the courtroom, are the federal courts part of the conspiracy as well?  And what of the family of the “at least” one dead guy?  Didn’t they go to a lawyer to address this little detail, that their father or husband turned up dead?

Scott doesn’t like when people speculate in his comment section, so I’ll do it here.

Part of the answer to Scott’s question of why this hasn’t come out is that this is Chicago and that’s how we roll. Former Commander Jon Burge tortured people for years before it came out. Actually, it came out all the time, but just from criminal scumbags, not anyone that the good people of Chicago were willing to believe.

I’m sure this place really exists, and I’m sure people are occasionally interrogated there. I’m also pretty sure there have been some shenanigans about whether or not somebody’s client is actually there. However, I also think that calling it a “black site” is just hype for the Guardian.

Big city police departments have lots of buildings that aren’t technically police stations — armories, administrative centers, supply depots, specialized units, stuff like that. It’s not hard to imagine that if you’re a cop who’s grabbed somebody up and you want to talk to them without the distractions of a busy police station (or their lawyer) you might want to take them to one of these buildings. It’s police-controlled, but it’s not the first place someone will look.

Or suppose you’re a cop attached to one of those special units that operates out of that Chicago-Police-building-that-is-not-a-station, maybe a unit with some kind of intelligence function. You’re trying to develop an informant, so you pick the guy up and bring him to your office. Or you happen to stumble on a crime in progress and make an arrest.

In any case, meanwhile, somebody trying to help the guy you picked up — perhaps his mother — might call 1-800-LAW-REP4 and a lawyer like Eliza Solowiej (mentioned in the Guardian story) might try to visit him. She can’t find him at any of the stations, but being a somewhat infamous thorn in the side of the Chicago Police, she knows to try Homan Square.

Since it’s not a police station, it’s probably not set up to receive the public, including lawyers looking for their clients. And the cops there are even more surly than usual because they’re not used to people walking up and asking questions. It’s probably not normally used to hold people either, so the folks guarding the doors don’t really know how to deal with it. Easier just to tell the lawyer he’s not there and hope she goes away. Or maybe she gets a cop who knows the rules and he lets her in.

(Both things happen in the Guardian story. Besides, you don’t need a “black site” to make cops lie to defense lawyers.)

By the way, the Chicago Police say that Homan Square houses the Bureau of Organized Crime, the SWAT Unit (which would explain the military-ish vehicles), Evidence Technicians, the CPD ballistics lab, and a few units that have undercover officers. I’m pretty sure it’s also where you go when someone steals the radio out of your car and the police call you to say the found it. And from other information, I think it includes city-wide anti-prostitution and anti-gang functions. Most of these aren’t exactly street cops who arrest people all the time, so it’s not the first place people think of when they’re looking for someone who’s been arrested.

I imagine they all got a memo from headquarters about what to do if a lawyer drops in. Followed by a word-of-mouth warning that there are going to be reporters around, so for God’s sake don’t do anything stupid.

Update: My laptop battery was running out of juice when I wrote this (It went into hibernation in the middle of the page refresh after I clicked Publish!), so it was kind of a rush job. I wanted to clarify that when I say that the Homan Square building isn’t really a station, what I mean is that it’s not one of the 22 district stations that Chicagoans think of when we talk about “going to the police” to report a crime or a car accident or something like that. CPD still calls it a station.

One of the implicit assumptions I make here is that the criminal justice system is not exempt from the general principle that social institutions enforce social norms. In a society hostile to minorities, giving authorities another law to enforce is giving them another way to punish minorities. Even a law intended to help minorities can end up hurting them if the intended effect is overwhelmed by oppressive enforcement.

This especially applies to laws against hurting people’s feelings, such as laws that punish “bullying” or offensive (but non-violent) behavior, or even laws that increase the punishment for “hate crimes.” Although these laws are nominally intended to protect the powerless, they are part of a system that tends to protect and support the powerful, often harming the powerless in the process. That latter effect can swamp the intended purpose of the law and do more harm than good.

I think I first really understood this after hearing about Canadian anti-pornography laws premised on the feminist theory that pornography was a form of hate speech which harmed women. Among the first people to be prosecuted under these laws was the owner of a gay and lesbian bookstore — no doubt to protect women from the inherent misogyny of the materials sold there.

I’m  bringing this up because of a recent proposal for extending the federal hate crime law:

Violence against police officers that is motivated by anti-police bias should be prosecuted as a hate crime, the nation’s largest police union is arguing in a letter to President Barack Obama and Congressional leaders this week.

“Right now, it’s a hate crime if you attack someone solely because of the color of their skin, but it ought to be a hate crime if you attack someone solely because of the color of their uniform as well,” said Jim Pasco, the executive director of the National Fraternal Order of Police.

I’ll bet supporters of hate crime legislation didn’t see that coming. It never occurred to me that in the face of increasing complaints about police militarization and rough treatment of citizens, police unions would agitate for greater punishment of people who attack them.

I’m not sure it even makes sense to talk about “anti-police bias.” I know they mean someone who hates cops, but it’s not as if cop is an innate human attribute like race or gender, and it’s not a system of belief or a group you can join like a religion. Cop is a job description. There’s nothing wrong with criticizing either the requirements of a public service job or the way particular employees perform at it.

“Enough is enough! It’s time for Congress to do something to protect the men and women who protect us,” Chuck Canterbury, the president of the union, said in a statement Monday. The group has long lobbied for harsher punishment for those who harm law enforcement officers.

Indeed they have, and very successfully. Anyone who kills a police officer is already subject to the harshest possible punishment, which is often the death penalty, and that’s only if they live long enough to be captured. So what do the union bosses really want?

I assume much of it is just grandstanding for the rank-and-file. That tends to explain a lot of bombast by the heads of any organization. But I think there’s probably more to it.

The FOP newsletter mentions several murdered police officers, and some dodgy news coverage talks about treating “killing cops” as a hate crime, but the language used by the union bosses talks only about “violence” and “attacks.” Furthermore, as near as I can tell, the federal hate crimes laws apply to a pretty broad range of aggressive acts that fall far short of murder, and some hate crime laws apply even to relatively minor property damage (to address things like spray painting swastikas on a synagogue). It sounds like even minor crimes against police could be treated as hate crimes if there was evidence the offenders didn’t like cops.

To me, this seems pretty clearly targeted at protesters. There’s certainly nothing wrong with charging them when they do something violent or destructive, but it’s important to keep a sense of proportion. With the proposed changes, if the laws are interpreted broadly enough — and you know police will interpret the laws broadly — every thrown object, every shove at a riot shield, and maybe even every vandalized patrol car could be charged as a hate crime, subject to the same kinds of harsh punishments we intended for Nazi skinheads and Klansmen who burn crosses on people’s lawns.

On Saturday in New York City, 28-year-old Ismaaiyl Brinsley reportedly shot and killed police officers Rafael Ramos and Wenjian Liu while they were sitting in their patrol car. This tragic shooting has quickly become politically charged because it happened amid nationwide protests against police violence in the wake of several controversial shootings shootings of unarmed black people. Brinsley killed himself, so nobody can ask him why he did it, but there is apparently some evidence that he believed he was avenging those killings. The story is still developing.

I knew there would be people who would take Brinsley’s reputed motive and use it to smear protesters and activists who had spoken out against police abuse. I wanted to write about that, so I looked to one of my better sources of stuff to blog about, Jack Marshall at Ethics Alarms, and he did not disappoint. [Update: An earlier draft of this post included several examples of people smearing activists, but the post was getting so long that I deleted them, and through carelessness I ended up with this paragraph that basically calls Jack’s post a “smear,” which is a bit too far. However much I disagree with Jack, his post was a legitimate opinion piece. Sorry, Jack.] He has posted some observations about the shooting that I’d like to respond to.

1. The dangerous escalation of rhetoric and the persistent misrepresentation of facts by civil rights advocates, activists, journalists and pundits made this kind of episode nearly inevitable. You cannot flood the airwaves with constant references to “police shooting unarmed black men” as if there was an organized racist liquidation of blacks by police in the streets and not risk sparking violence from the hysterical, the deranged, the angry, the lawless and the desperate.

There wouldn’t be constant references to police shooting unarmed black men if police were not, in fact, shooting unarmed black men. Michael Brown, John Crawford, Ezell Ford, Tamir Rice, Rumain Brisbon, Dante Parker, Eric Garner, Akai Gurley. All African Americans, all reportedly unarmed, all killed by police. (Police killed Parker and Garner by means other than shooting, and Rice was too young to be called a man, but neither of those things makes it better.) Some of the killings may have been justified, or at least understandable, but they were killings of unarmed black men nonetheless. It’s not like the civil rights advocates, activists, journalists, and pundits are just making stuff up.

2. The irresponsible “hands up” protests did not cause these deaths, but they probably helped create the conditions that led to them. The shootings of the two NYPD police don’t make the false “hands up” lie—which continues to assert that Michael Brown was executed when the evidence indicates he was not, and that there was racial bias involved, when there is no evidence of this at all—any more unethical, reckless or irresponsible than it already was. It was wrong from the beginning. It was wrong to assert these things before what happened in Ferguson had been investigated, and it was wrong to keep asserting them after it was clear that they were unsubstantiated or false.

Jack might have a point about “hands up” now. Although most witnesses do say his hands were up, there’s a reasonable argument that it was a posture of attack, not surrender. And since the grand jury declined to indict Wilson, suggesting that they found the shooting to be justified, it seems likely that they didn’t believe Brown was surrendering.

However, Jack’s assertion that Michael Brown activists should not have made accusations before the investigation was complete is hypocritical nonsense. He is making that assertion in the middle of a post in which he accuses civil rights leaders and activists of creating the atmosphere that motivated cop killer Ismaaiyl Brinsley. In other words, just hours after the shooting — long before the NYPD investigation could possibly be complete — Jack claims to know who the murderer was, why he did it, and the identity of the people whose anti-cop rhetoric supposedly influenced him to do it. Jack is doing exactly the same thing he’s criticizing others for doing. The next time a cop kills an unarmed black man, should we hold Jack accountable for creating the conditions that made the cop fearful?

I think the answer is obvious: Of course not. Jack is entirely justified in commenting on this incident. Vigorous discussion of matters of public interest is not just allowable in our free society, it is necessary for the proper functioning of a democratic government. By discussing these issues, Jack is being a good citizen, as are the people who are criticizing the police.

3. The response to the shootings by those who have continued to suggest racist murder by police in specific incidents absent any proof, and in Brown’s death, in defiance of the known evidence, continues the theme. Al Sharpton, who is a prime offender, wrote..

“I am outraged at the killing of 2 police officers in Brooklyn. That is why we stress non violence as the only way to fight for justice.”

Despicable. “Justice,” in this context, suggests that the killings are in response to injustice, and that the injustice is the intentional and racist killing of unarmed black men.

How much do you have to hate Al Sharpton to get angry at him for denouncing the use of violence against police? Geez.

Sharpton’s use of “justice” of late is well-publicized: “Justice for Mike Brown, ” “Justice for Eric Garner,” Justice for Trayvon.”  This phrasing, setting off the murders of the police with “fight for justice” continues the lies, misrepresentations and manipulation of public opinion, especially among African Americans. There is no evidence that Brown or Garner, or other shooting victims like John Crawford or 12-year old Tamir Rice were shot because they were black, except that they were black, which for Sharpton and others like Eric Holder, is enough.

This is not the first time Jack has criticized activists for claiming there was racial bias in the Michael Brown shooting when “there is no evidence of this at all.” Technically speaking, Jack is plain wrong. As Jack more-or-less admits, the simple fact that a white police officer shot an unarmed black teenager is evidence of racial bias. It’s not very strong evidence, and it’s subject to interpretation and possible refutation by other evidence and testimony. But it’s still evidence.

In addition, shortly after Brown was shot, several alleged eyewitnesses claimed that Wilson shot at Brown’s back, and that Brown’s hands were raised in surrender. These witness statements are evidence too. They are subject to interpretation, impeachment, and refutation, of course, but remember that these statements were undisputed by any other public witnesses for months. (There were some accounts of witnesses making contradicting claims in private statements, but these were second- or third-hand, not on-the-record statements to the press.)

Granted, even if Wilson had shot Brown in the back as he was fleeing, that wouldn’t prove a racial bias — he could have murdered him for some other reason — but it’s not an unreasonable inference. More generally, just because Wilson wasn’t shouting the N-word while shooting a fleeing Mike Brown in the back and wearing a “White Power” T-shirt doesn’t mean that the incident was entirely free of racial bias.

Jack seems to be laboring under a common misunderstanding of what activists are complaining about when it comes to police treatment of black people. Activists are not accusing police of a coordinated conspiracy to murder helpless black people. And for the most part, they’re not even saying that the individual police officers who killed unarmed black men did so to fulfill their desire to murder a black guy. They realize that even the Ferguson police are not the KKK.

(Of course, some people have said these things — the world is full of people saying stupid things — but that’s not the thrust of the main activist movement. Likewise, there certainly have been cops who probably murdered black people out of racial hatred, but those aren’t the people that most police supporters are defending.)

The main accusation against police is not that they are racially-motivated murderers, but that as former FBI agent William W. Turner wrote in The Police Establishment in 1968, “Since its inception, the police establishment has conducted itself more as the agent of the power structure than the servant of a pluralistic society.” Here in the U.S., that tends to play out along racial lines.

In white neighborhoods, police see their role as protectors of the community, cracking down on criminals who would disrupt the peace and harm the good citizens. But in black neighborhoods, so the argument goes, police see their role as keeping the population under control. Thus black people have stories of being questioned while sitting on the stoop of their own homes, or of being stopped for walking with their hands suspiciously in their pockets, or of being ordered to disburse for daring to gather in small groups on the street corners. In the past few months, police in Ferguson arrested black people for stopping while walking on the sidewalk and tear-gassed black people standing in their own fenced-in yards.

Activists argue that this disregard for black people makes cops less hesitant to escalate the level of force. If Tamir Rice had been a white 12-year-old boy instead of a black one, would Cleveland police officer Timothy Loehmann and his partner have approached the scene in a way that gave them more time to assess the situation instead of driving right up to Rice and jumping out to shoot him? If John Crawford had been a white guy carrying a toy gun through Walmart, would the cop who shot him have given him more of a chance to explain himself and surrender instead of shooting him almost immediately?

If Eric Garner had been an overweight white guy like me instead of an overweight black guy, would New York police have taken his complaints about not being able to breath a little more seriously? If Michael Brown had been a white teenager, would Officer Wilson have made the same decision to chase him down the street, knowing that he would have to kill Brown if he resisted arrest? If Ezell Ford had been a mentally ill white man, would police have struggled to control him long enough for help to arrive instead of shooting him?

You don’t have to be a cop hater to think that in at least a few of these cases, things would have turned out differently if the cops had been dealing with white people. That is the essence of the general complaint about racial bias by the police. That is why protesters say black lives matter.

Each of these is also a separate case in which “justice” is a complicated mess of facts and law, with no societal conclusions to be drawn or clarified by considering them together.

That’s true for criminal cases, which must be considered in isolation. But it’s not true for broader concepts of justice when considered as a matter of public policy. In policy analysis, patterns matter. Medical science does not allow us to determine which particular cigarette gave a smoker lung cancer, but we know damned well that smoking causes cancer. Just because we can’t point to a specific cop who killed a black man and say with certainty that it is a racially-motivated murder doesn’t mean that we can’t observe the pattern of cops killing unarmed black men and say that there’s something damned wrong going on.

Similarly, Ferguson protest leader Deray McKesson tweeted…

“I do not condone the killing of the two NYPD officers today. I do not condone the killing of unarmed black people. I do not condone killing.”

Also despicable. He, like the alleged shooter Brinsley, is drawing a false equivalence between what may be legal shootings by police unrelated to color and the killing of the two officers, who were not black, in response.

Jack’s reaction to this is just unhinged. McKesson and Sharpton are both denouncing the killing of police officers. They are saying that killing cops does not serve their cause. And in Jack’s mind, this is linking the police killings to the cause in some sort of false equivalence.

Granted, the cold blooded murder of officers Ramos and Liu is a terrible crime, without question. But some of the things police officers are being accused of are pretty terrible too, even if they don’t quite rise to the level of first degree murder. As Jack points out, the police killings may in fact be legal, but then again, they may not be. (Officer Peter Liang, for example, looks like he might do time for killing Akai Gurley, although that crime doesn’t seem to have any racial component.)

And even if the killings are legal, that doesn’t mean they’re morally right. Lots of terrible things that people do to other people are perfectly legal and yet terribly wrong. This is an argument not that these things are acceptable, but that the laws should be changed.

Another point is that McKesson and Sharpton are not the ones who linked the cop killings to their cause. That was done by everybody from Governor Pataki to former Mayor Giuliani to the head of the NYPD union. Activists like McKesson, Sharpton, and the rest are responding to that by saying they oppose violence against the police as much as they oppose violence against black people. This does not seem like a bad thing.

5. The deaths of police officers in the wake of the ongoing, high-profile campaign to demonize police and the justice system for political advantage were predictable.

It’s always possible that rhetoric will incite crazy people to do terrible things. But censoring yourself because of how a crazy person might respond is a madness of a different kind. No one would ever be able to change anything if they took responsibility for how everyone in the world might react to what they say. That’s no way to live your life.

And if you want to talk about the consequences of rhetoric, the police union appears to have circulated a memo saying that the NYPD is now a “wartime” police department. Remember that the next time an NYPD cop shoots someone.

More such deaths are also likely, unless the rhetoric from civil rights and political leaders becomes responsible and fairly represents the facts and the law. Public figures, activists and journalists who continue  the “hands up” lie or who link Garner, Crawford, Rice, Brown and Trayvon Martin in a manufactured conspiracy of the justice system to profile and kill unarmed black men are accountable for what happens next.

Jack, the activists are saying there’s systemic racial bias and injustice; you’re the one who’s created the strawman of a racist conspiracy.

Further, as with most social movements, unrest in Ferguson started at the bottom, with people from the neighborhood taking to the streets the evening of Michael Brown’s shooting. Sharpton and other national civil rights leaders didn’t show up until later. (A cynical person might even say that they saw a chance to get in front of something that they could use.) When you portray the protesters as blindly following the rhetoric of political leaders like Sharpton, instead of admitting that they might be reacting to their own lived experience, you are denying the agency of thousands of people. We saw the same thing in the 1960’s, when establishment apologists sought to blame black unrest on agitators and communists (really) rather than admit that millions of black people were angry because there was something sick about the way our society treated them.

After a pretty good Thursday night, things got tense on Friday. Cops were guarding some stores, but they were attacked by a few of the protesters and several officers were injured. The police then retreated to a perimeter, which resulted in a situation eerily reminiscent of the 1992 L.A. riots, when the police withdrew from whole areas of the city, leaving residents to fend for themselves.

A bunch of teenagers began looting some of the stores, and Ferguson residents moved to block the looters and protect the stores, essentially providing their own police protection. They weren’t entirely successful and some of the stores were heavily looted. At one point a fire broke out in one store, and residents entered it and used bottles of soda to extinguish it, thus also taking on the duties of the fire department.

(I was watching some live streaming video from a guy with a cell phone, and I got to see one of the young black men guarding a storefront get a call from his mother and then turn the phone over to an Al Jazeera correspondent who had been interviewing him. The correspondent then assured the women that her son was behaving “very responsibly.”  The 21st century is a very strange place.)

I’ve since heard that the police retreat was arranged between community leaders and the police commander, but it was weird having cops posted close enough to antagonize people but not doing anything to, you know, fight crime.

Friday, Missouri Governor Jay Nixon declared a state of emergency in Ferguson, and imposed a curfew from midnight to 5 am. I really don’t understand this police obsession with people being out late at night. First of all, it’s Saturday night, and they want everyone to be home by midnight?

And are there no night jobs in Ferguson? I know there’s a 24-hour Walmart, but it looks like that’s in St. Louis. Still, there must be gas stations or convenience stores. And of course bars, although police probably consider them to be part of the problem.

Anyway, I followed events on Twitter last night, and the curfew went about as well as you’d expect. Tell the people of Ferguson they have to be off the streets at midnight, and everybody interprets it the same way: There will be a clash between protesters and cops at midnight. It was like the governor had announced the schedule for a sporting event.

Team Black showed up early in the evening, as usual. Community leaders such as Antonio French urged residents to go home before the curfew, as did the New Black Panthers, who also formed a buffer zone at times between protesters and the cops to try to keep things peaceful.

By midnight there were only a few hundred people in the streets, and a large portion of the press was packed into a sort of First Amendment pit at one end of the protest area. A number of reporters had defied the curfew by moving out into the neighborhood, and the folks at VICE News were live-streaming video from their position in the crowd, thus blatantly documenting their disregard for the curfew.

Team Blue took the field shortly thereafter, as rather a lot of cops with riot gear and armored vehicles gathered in front of the journalist holding area. One of the vehicles had a sniper-looking guy on top, although SWAT snipers also function as observers, so this wasn’t necessarily as threatening as it appeared. They began clearing the street with smoke rounds and then, in violation of an earlier promise made by Capt. Johnson, they fired tear gas as well.

Afterwards, the police explained that as they closed in, someone in the crowd began shooting — seriously wounding another person in the crowd — and the police used tear gas in response. They were unable to capture the shooter.

The night was pretty much quiet after that. The curfew will be in effect again tonight, so I expect everyone to set it off around midnight again.

I tried, I really did. When I first heard about the shooting of Michael Brown by a Ferguson, Missouri police officer, I tried to give them the benefit of the doubt.

A lot of police shootings are perfectly legitimate, stopping bad people from doing bad things. Beyond that, there are cases where the victim didn’t deserve to get shot, but you can understand why it happened — people who were holding toy guns, cops who mistook a harmless object for a gun, accidental discharges, confusing situations, shots that miss the target and hit someone else. These may involve various degrees of recklessness or risk on the part of the shooter, but they aren’t straight-up murders.

The most prominent witness, Dorian Johnson, describes something that sounds an awful lot like a murder:

Brown made it past the third car. Then, “blam!” the officer took his second shot, striking Brown in the back. At that point, Johnson says Brown stopped, turned with his hands up and said “I don’t have a gun, stop shooting!”

By that point, Johnson says the officer and Brown were face-to-face. The officer then fired several more shots. Johnson described watching Brown go from standing with his hands up to crumbling to the ground and curling into a fetal position.

That sounds pretty bad, but there’s no way for me to tell if Johnson is mistaken or even lying. For all I know, he never even met Brown; it wouldn’t be the first time a supposed witness had completely fabricated a story to get attention. It was certainly possible that this was just a terrible mistake. In theory.

Then we all got to see how police work is done in St. Louis County, and in Ferguson in particular. For several nights, peaceful protesters have been met with heavily armed riot cops. On Wednesday, police announced that protests would be allowed during the day, but that a curfew would be enforced at night.

Why? Why should people not be able to go outside late at night in their own neighborhood? As Lt. Max Geron of the Dallas police says,

“Most protesters will meet, protest, and go home when they feel they’ve made their point. If they aren’t breaking any laws, they can be left to express themselves.” Establishing a dispersal time then gives protesters something to rebel against. “When you establish arbitrary rules that have no basis in law, the police then feel they have to enforce those rules or they look illegitimate. They can set these rules with the best of intentions, but they just end up creating more problems for themselves.”

The police in Ferguson did set a curfew time, and to deal with the problems they created, police sent about a platoon of SWAT (-ish) officers, complete with armored vehicles and a sniper on the roof, as seen in this shot by The Huffington Post‘s Ryan Reilly:

As night fell, the police tried to move the protesters off the streets. They started with a sort of Jedi mind trick, thanking the protesters for leaving before they actually left, and then telling the protesters that they should join their friends who had left. It was pretty funny in a sort of creepy not-getting-the-joke kind of way. (“You should probably leave now. All the the really cool people have left. You don’t want to be a loser by staying…” wasn’t actually what they said, but that was the undertone.)

Then came the teargas, followed by a handful of Molotov cocktails from the protesters, followed by more teargas. For an example of what that’s like, check out this video taken a little later in the night by Polarbear Productions of the police trying to drive off a crowd standing in the street. It starts with the loud chirp of an LRAD crowd control weapon in warning mode — followed by a barrage of smoke or teargas and rubber bullets.

This is no way to treat people who are just hanging out in their own neighborhood. “Not disbursing,” regardless of how they charge it, isn’t what you’d call a real crime.

The police in Ferguson also expended a lot of effort trying to stop people from recording them or reporting on what they were doing. Ryan Reilly was detained with Wesley Lowery from the Washington Post while they were hanging out at a McDonald’s restaurant tweeting and recharging their phones. (For God’s sake, somebody get these people external battery packs!) The police told them they were being arrested on trespassing charges, but after Matt Pearce from the Los Angeles Times called the police chief for a statement about it, they were kicked loose without any paperwork.

I think it was probably arresting the reporters (and also St. Louis Alderman Antonio French who was tweeting from the scene) that drew a lot of mainstream media attention. More politicians have weighed in on the matter, and the Missouri State Police have moved in to replace the St. Louis County police.

Stunningly, that seems to have changed everything. The state troopers are led by Capt. Ron Johnson who (a) is black and (b) has really good leadership skills. He seems to have taken a page out of Salt Lake City Police Chief Chris Burbank’s protest playbook, because he and his men showed up in regular uniforms rather than riot gear, they didn’t bring rifles or armored vehicles or tear gas, and they just began mingling with the crowd, talking to them and marching down the street with them. (From some of the reports, it sounds like the police are staged nearby and are keeping an eye on the area, because there were a few minor incidents and the cop cars showed up immediately to deal with the problem.) After a while, a lot of the cops just left the area, and the residents of Ferguson had their streets to themselves. Just a bunch of people hanging out at an outdoor event in the neighborhood.

Maybe I’m just fooling myself, but based on what I’m reading on Twitter, it felt last night like the situation had settled down. The reporters gave up hunting for conflict and shuffled off to their hotels. Obviously, things could still have gone wrong — there are rumblings on Twitter all the timee — and it could still slip out of control with another fatal gunshot, but it no longer feels like that fatal gunshot is imminent.

So the immediate threat of violence has abated, and the long-term solution to American race relations is still a work in progress. That just leaves the original problem that started it all: The circumstances of Michael Brown’s death. To give you some idea of where I’m going with this, up until last night — before Capt. Ron Johnson filled the world with brotherly love — my original title for this post was “Fuck Tha Ferguson Police In Particular.”

Given how badly the police have handled everything else in Ferguson — and I realize it was the St. Louis County cops who deployed their SWAT team, not the Ferguson cops, but it’s all happening on Ferguson’s patch and to the people the Ferguson cops are supposed to protect and serve — I don’t see any reason to think they give a damn about the people of Ferguson. At least not the black ones. This seems like exactly the kind of environment that would tolerate the kind of cop that would someday lose his temper and execute a young black man. And then try to cover up the crime.

At this point, I’m pretty sure the Ferguson police are capable of anything. We know they attack peaceful protesters, I think they’re harboring a murderous cop, and frankly, I’d like to know where all of them were when Biggie and Tupac got shot.

This tweet actually sums it up pretty well:

I had to go to sleep before I could finish this post, and now I see that the night was fairly peaceful, and that the Ferguson police department has made good on their promise to reveal the shooter’s name, which is Darren Wilson.

They’ve also picked this moment to reveal that they believe Michael Brown was a suspect in a what is either a strong-armed robbery or shoplifting at a nearby store. Obviously, as everyone is tiresomely point out, that’s not a reason to kill him. However, if it’s true, it makes it more plausible that he responded violently when confronted by Wilson. Ferguson police also say Dorian Johnson was involved in the same robbery/shoplifting incident, which would cast doubt on his credibility as a witness.

That said, the Ferguson police have not, as far as I know, said anything to contradict Dorian Johnson’s account of the shooting, which is that Wilson shot Brown in the back from some distance and then shot him again while he was surrendering. Nothing Brown did beforehand could possibly justify that.

Which makes it kind of weird that the police would release the report about Brown at this time. It’s almost like they were pissed off at having to reveal the shooter’s name, so they decided to smear Brown’s memory in retaliation, even though it has very little to do with officer Wilson’s behavior.

You know, after Capt. Johnson’s performance at calming things down last night, I was wondering how the Ferguson police would attempt to snatch defeat from the jaws of victory. Sigh. Hopefully the peace will hold for another night.

One other note: Police initially refused to name the officer who shot Brown, claiming there were security concerns, and earlier I said that sounded reasonable. But now that I think about it, I’m not convinced. We’ve known that NYPD officer Daniel Pantaleo apparently killed Erik Garner in New York for weeks, and he’s still okay. Out of all the thousands of officers who have killed people, how many times have any of them been the victim of retaliatory violence? Heck, FBI sniper Lon Horiuchi shot and killed Victoria Weaver at Ruby Ridge, an event which angered an awful lot of people, including a large number of well-armed right-wing nut jobs, and he’s still fine 22 years later.

The news out of Ferguson, Missouri has had me riveted to Twitter. St. Louis Alderman Antonio French has been tweeting and posting Vine videos from Ferguson for days, and Wesley Lowery from the Washington Post has been tweeting regularly and he’s got an article up. If you haven’t been following the story, Dara Lind at Vox has a pretty good summary.

When this story first broke, I found myself conflicted over how to react to it. I was angry that a police officer shot Michael Brown for no good reason…if that’s really what happened. There’s been no definitive information either way, but subsequent events have not exactly painted a rosy picture of the Ferguson Police Department.

About a year and a half ago, I blogged about Colin Flaherty’s racist slant on news reports of black violence:

You can see what Flaherty’s doing here. He has obsessively curated a collection of reports of violent incidents at establishments frequented by black people, probably because they are in black neighborhoods. These are real incidents — sometimes an idiot cutting in line at a sale, and sometimes a dozen or so kids who might be gang members — but Flaherty tries to portray these incidents as mob action by attributing the violence to every black person in the building. Thus a fight between a handful of teenagers in a mall food court becomes, in his mind, a riot by every black person in the mall.

I’ve seen a bit of the same thing on Twitter and in some news reports regarding the events in Ferguson. The first night, right after the shooting, everything actually went pretty smoothly in Ferguson and the protests ended somewhat peacefully. However, there were several reports of protesters chanting “Kill the police!” But from what I could find, it sounds like at most a handful of protesters might have yelled that, and some people just attributed it to all the protesters.

On Sunday night some protesters were looting stores, at least one of which was set on fire.

Monday night’s protests were more peaceful, but the police responded in force, apparently using Warrior Cop as a guidebook for dealing with protesting citizens. They eventually cleared the streets with tear gas and some kind of non-lethal projectiles. They also ordered the press in particular to leave the area — even calling press offices and telling them to call in their reporters — which doesn’t sound legal.

It’s not generally a good sign when government forces don’t want the press around, although it’s hard to believe they thought they could keep anything shady out of the news in an age when so many people have cell phones. For example, Ray Downs at the Riverfront Times has protester-recorded video of cops reportedly launching tear gas at people standing in their own yard. (Note: There is rather a lot of swearing.)

That’s not to say the professional press hasn’t been getting some good pictures. In part, that’s because the protesters are making an effort to set them up. I’m particularly impressed by this emerging protest tactic captured by Ben Kesling of the Wall Street Journal.

Here’s another one by journalism student Markia Holt:

I think that’s just brilliant. By holding up their hands and yelling “Don’t Shoot,” they are submitting to authority, and yet because Michael Brown was supposedly doing the same thing when he was shot, they are rather vividly calling to mind the police violence that started it all. They’ve managed to add an undertone of “fuck you” to a surrender ritual. It’s almost Gandhi-esque.

One more example, this time from Whitney Curtis of the New York Times. I’ve been seeing this everywhere:

That photo image is a little fuzzy, but in tribute to the late Joel Rosenberg, firearms instructor and a one-time co-blogger here, I think I have to make one particular comment: Get your finger off the trigger, dumbass!

It’s still not clear what the hell happened Saturday night between Michael Brown and the officer who killed him. As I’m writing this, St. Louis County Police have not released many details from their investigation. As is usually the case, they haven’t even released the name of the officer who shot Brown. Given the unrest in the streets, I can understand their concern for the officer’s safety, especially if he has a family. On the other hand, you know what we call it when anonymous government functionaries kill citizens without consequence? A death squad. Let’s hope the St. Louis County police eventually see their way toward transparency.

One thing the police have revealed about the shooting is their contention that Brown attacked the officer in his car and tried to take his gun. As I mentioned before, this kind of close quarters struggle over a weapon is just about the only situation that could justify shooting an unarmed man.

In an interview with Trymaine Lee at MSNBC, a friend of Brown’s named Dorian Johnson tells a very different story:

Now, in line with the officer’s driver’s side door, they could see the officer’s face. They heard him say something to the effect of, “what’d you say?” At the same time, Johnson says the officer attempted to thrust his door open but the door slammed into Brown and bounced closed. Johnson says the officer, with his left hand, grabbed Brown by the neck.“I could see the muscles in his forearm,” Johnson said. “Mike was trying to get away from being choked.”

“They’re not wrestling so much as his arm went from his throat to now clenched on his shirt,” Johnson explained of the scene between Brown and the officer. “It’s like tug of war. He’s trying to pull him in. He’s pulling away, that’s when I heard, ‘I’m gonna shoot you.’”

“I seen the barrel of the gun pointed at my friend,” he said. “He had it pointed at him and said ‘I’ll shoot,’ one more time.”

A second later Johnson said he heard the first shot go off.

“I seen the fire come out of the barrell,” he said. “I could see so vividly what was going on because I was so close.”

Johnson says he was within arm’s reach of both Brown and the officer. He looked over at Brown and saw blood pooling through his shirt on the right side of the body.

“The whole time [the officer] was holding my friend until the gun went off,” Johnson noted.

Brown and Johnson took off running together. There were three cars lined up along the side of the street. Johnson says he ducked behind the first car, whose two passengers were screaming. Crouching down a bit, he watched Brown run past.

“Keep running, bro!,” he said Brown yelled. Then Brown yelled it a second time. Those would be the last words Johnson’s friend, “Big Mike,” would ever say to him.

Brown made it past the third car. Then, “blam!” the officer took his second shot, striking Brown in the back. At that point, Johnson says Brown stopped, turned with his hands up and said “I don’t have a gun, stop shooting!”

By that point, Johnson says the officer and Brown were face-to-face. The officer then fired several more shots. Johnson described watching Brown go from standing with his hands up to crumbling to the ground and curling into a fetal position.

It sounds plausible, and the struggle at the car comports with police claims. I think it’s possible that the officer and Brown got into some kind of struggle — perhaps when the officer pulled up and grabbed him — and perhaps the officer got angry and shot… Or perhaps, from his standing position outside the car, Brown started to get the better of the officer, who felt the need to pull his gun and defend himself… I can almost make this work as a terrible misunderstanding…

But not if the rest of Johnson’s story is true. Not if the officer shot a fleeing man in the back and then gunned him down as he surrendered. That would be murder.

Of course, Dorian Johnson could be lying. I have no way of knowing. I’ve heard that other witness accounts are similar, but I don’t know much about them.

The police are supposed to be investigating, but they’ve been behaving a little strangely. For one thing, as of earlier today they still haven’t interviewed Johnson, according to his lawyer. I don’t know how the police normally handle these kinds of investigations, but I would think a close eyewitness is someone they’d want to talk to. Even if they think Johnson is a lying little weasel who’s covering for his dead friend, wouldn’t investigators at least want to get his statement to lock it down?

Then there’s the autopsy, about which something was just released:

It shows he died as the result of gunshot wounds. Police won’t specify how many times the teen was shot.

The autopsy was done by the St. Louis County Medical Examiner’s office on Sunday, the day after Brown was shot.

Police won’t release any further details of the autopsy, pending the results of toxicology tests. Those should be available in the next four weeks.

I’m not sure why the police would be delaying the release of this information. They’re going to have to release the body to the family pretty soon, at which point the family will be able to get their own answers.

One of the things I’ve been trying to understand is why this killing has produced such an explosive reaction. There wasn’t this much of a reaction when NYPD Officer Daniel Pantaleo apparently strangled Eric Garner. And there wasn’t this much protesting when Beavercreek, Ohio police officers Sean Williams and David Darkow shot John Crawford III after he failed to put down a realistic-looking air rifle. But then I guess I’m answering my own question. There has been a rash of killings of black men by cops, including Ezell Ford, killed in LA on Monday. Not all necessarily the result of evil intent, but killings nonetheless.

Meanwhile, night has fallen on Ferguson, and Twitter is full of rumors of a shooting.

I hate this kind of story.

Reportedly an as yet unnamed police officer in the St. Louis suburb of Ferguson, Missouri has shot and killed an unarmed 18-year-old black kid named Michael Brown. Area residents gathered in the street, there was shouting, police assembled to try to keep order, there was a bit of a riot, and eventually things quieted down without too much damage.

The most important word in that last sentence was “reportedly.”

The early reports on breaking stories like this are often inaccurate. Some eyewitnesses have said Brown was surrendering, others say he was running away. At least one eyewitness has said the officer walked up to Brown while he was lying on the street and shot him in the back a few more times.

Who do we believe? The police? The eyewitnesses? Given what we know about eyewitness testimony, and the fact that their stories conflict, which eyewitness should we believe? We don’t even know if they really were eyewitnesses. That account of a cold-blooded street execution seems like something someone would make up to cause trouble. In a crowded urban area with thousands of people, there’s got to be at least one person crazy enough to want to insert himself into the story by running up to the first reporter on the scene and making up an exciting story. Or they could be completely honest witnesses who saw a cop commit a horrifying crime.

But unless the officer deliberately killed Brown, it’s probably not a murder, in which case it might be some lesser crime having to do with recklessness or depravity or some manner of culpable error. Or it might fall into the category of what I’ve sometimes heard called an “excusable” shooting, meaning that the victim didn’t deserve to die, but that the officer isn’t to blame. That is, he made an honest mistake.

(Shooting someone who was wielding a realistic-looking toy gun is a classic example of an excusable shooting. The resulting death is wrong and unnecessary, but you can understand why the officer believed he was doing the right thing at the time.)

On the other hand, if Michael Brown really was unarmed, which seems likely (but not certain) since the police haven’t reported finding a weapon, then there’s almost no way this can turn out to be a justified shooting. If this were a justified shooting, that would mean we thought the officer did the right thing, and if another officer found himself in the same situation, we would want him to do the same thing. If this were a justified shooting, that would mean the officer was in fear for his life and shot in self defense. Which seems unlikely, given that Michael Brown had no weapon.

Unless…

The only way I can think of that the officer would be justified in shooting an unarmed person is if that unarmed person attacked the officer at close quarters and tried to take his gun. Then the officer might have no choice but to shoot to defend himself.

Which brings me to this:

An unarmed teenager killed Saturday by Ferguson police, spawning continuing community unrest, had struggled for an officer’s gun in a patrol car first, officials announced this morning.

So the story being told by the police is exactly the one that would justify the shooting. It would exonerate the officer, justify his actions, and make it more difficult for Brown’s family to sue the city. Which is convenient for the cops.

But that doesn’t make it untrue. Maybe the cop who shot Brown is telling a self-defense story not because it’s the only one that clears him but because self-defense is the only reason he would shoot an unarmed kid.

I hate this kind of story.

I should point out that calling a shooting “justified” or “excusable” is not legal terminology, at least not the way I’m using it. I don’t remember where I first heard the terms used that way to classify non-murderous shootings, but it seems to me like a helpful way to think about the right and wrong of lethal force.

I should also point out that by the time you read this, and maybe even before I publish this, some important part of the story could change, and some or all of the possibilities I discussed above could be ruled out by events. That won’t stop people with agendas from picking sides before all the facts are known.

I really hate this kind of story.

Update: Just so I don’t come across as a complete narcissist, I am angry that a cop gunned down an unarmed black kid for no good reason…if that’s what happened. Fuck. I think I should be angry. In fact, I’m pretty sure I should be angry. Heck, I practically want to be angry. But I don’t know if I should be angry. Crap. I hate this kind of story.

NYPD Police Commissioner Bill Bratton has been taking a lot of crap, deservedly so, for his comments after Eric Garner died while being arrested for selling untaxed cigarettes on the street. In a news conference, with mayor Bill de Blasio standing at his side, Bratton came out full-authoritarian:

According to Mayor de Blasio and Police Commissioner Bratton, the NYPD will continue to strictly enforce laws against loosie peddlers and subway dancers. “I can understand why any New Yorker may say, that’s not such a big offense,” de Blasio said. “But a violation of the law is a violation of the law.”

Commissioner Bratton added, “We need the public’s help also to appreciate that when an officer does approach you to correct your behavior, that you respond. That’s what democracy is all about.”

I think I sort of understand what Bratton was getting at. I think he was trying to say that we live in a democracy, and that out of respect for that venerable institution, good citizens should cooperate with the people enforce its laws. Of course there’s also the point that democratic government is supposed to exist to serve the people. People like Eric Garner.

I think there are several observations I can make about this whole affair:

  1. Police Commissioner Bill Bratton is a tone-deaf asshole. Right after officers under your command have killed a guy for selling loose cigarettes is not the best time to be lecturing everyone else about their civic duty to cooperate with the police. Bratton and his officers should be thinking about how better to fulfill their own duty to protect and serve.
  2. Laws are sometimes enforced by assholes. Psychopathy is not just for criminals — many psychopaths function well enough in society to stay out of prison. Some of them become businessmen, some of them become politicians, and some of them become cops. Some of them become Sheriff of Maricopa County, Arizona, or Police Commissioner of New York.
  3. It was not the intent of the legislature in enacting cigarette taxes that violators be killed. Bratton’s point about democracy may justify the initial decision to confront Garner, but it doesn’t justify killing him. However that happened, even though it’s probably not murder, the officers were not carrying out the will of their democratic leaders.
  4. Law enforcement is inherently violent. All laws are ultimately enforced through violence. Nobody goes to jail voluntarily. Usually the mere threat of violence is enough to make people cooperate with the justice system — they get into the police car, they show up for court, and they go to jail — because they know that if they refuse to cooperate, they will face violent and even deadly enforcement.
  5. It wasn’t a quality-of-life crime. “Broken windows” enforcement is about going after people who commit minor quality-of-life crimes in order to discourage a cultural of lawlessness. Selling untaxed cigarettes is not a quality-of-life crime, it’s a revenue crime. Garner was improving the quality of life of the people he sold to. But he was depriving the government of revenue.
  6. “Broken windows” isn’t what they say it is. The theory behind “broken windows” enforcement comes from an academic study in which people were more likely to commit a crime if they had reason to believe that nobody cared, such as a nearby broken window. However, as former NYPD Deputy Commissioner Jack Maple discusses in The Crime Fighter, “broken windows” works mostly as a type of pretext stop: Bust a guy for selling loose cigarettes and you get to take his life apart to look for other crimes.
  7. Legislators should know all this. I’m sure if you asked the legislators who passed the law that Garner allegedly broke, they’d tell you they never intended cops to kill people over it, yet the fact that some cops are assholes who kill people is no great secret. The legislators knew the kind of people who would be enforcing their laws and they passed them anyway. The resulting deaths are statistically inevitable. As I’ve said before, I wish legislatures would think about how laws are enforced before they pass them.
  8. If “broken windows” works, they should try it on cops. Maybe if they prosecuted the crap out of these cops and hit them with truly pants-shitting prison sentences, it would discourage the NYPD’s culture of lawlessness.

Sorry for the rant. Just had to work it out of my system.

 

Here’s how I imagine my traffic stop going:

Officer: License and proof of insurance.

Me: Here you go.

Officer: Do you know why I pulled you over?

Me: Uh, no I don’t, officer.

Officer: You were doing 75 in a school zone.

Me: I’m sorry to hear you experienced that. I place the highest priority on safe driving, and I have passed all state-required driving requirements. I’ll investigate my recent driving behavior and I’m committed to learning any lessons that may arise from the results of my investigation.

Officer: Seems fair. Have a nice day!

Inspired by this horror, but we’ve all heard the same responses from police departments when their officers are accused of brutality. I’m sure that’s just what they’re looking for from me, right?

(Hat tip: Maggie McNeill)

Radley Balko reports with some astonishment that a grand jury in Burleson County, Texas has refused to indict a man who shot and killed a police officer who was conducting a SWAT-style raid on his home:

Last December 19th, nine of the 10 members of the Burleson County Sheriff’s Department staged a raid on the rural home of Henry Magee. […]

By the time the raid was over, Deputy Adam Sowder was dead. Magee shot him as Sowder and his fellow deputies attempted to force their way into Magee’s home.  Magee was arrested and charged with capital murder — the knowing and intentional killing of a police officer.

[…]

Earlier this month, District Attorney Julie Renken presented the case against Magee to a grand jury. “I made a very thorough presentation on Texas law on cap murder and Texas self defense law,” Renken told me in a phone interview. “There were over three hours of testimony. I did not make a recommendation either way. I just wanted to present the law and evidence very fairly.”

Remarkably, this week the grand jury returned a “no-bill” on the murder charge. That is, they found that Henry Magee had acted in self-defense.

As Radley notes, this is a remarkable ruling:

“I don’t know of any other case where someone shot and killed a police officer in the course of a drug raid has been no-billed by a grand jury,” [Magee’s defense lawyer Dick] DeGuerrin says. “At least in Texas.” Over the course of about eight years of covering these raids, I don’t know of one outside of Texas either.

Scott Greenfield notes how remarkable it is, but he’s worried that the wrong people will get the wrong message:

Yet, this scares me to the core.  How many fans of the John Bad Elk decision, incapable of grasping that it is not good law, have been chomping at the bit for a “no bill” like this?  There will be armed men and women in tin foil hats with their fingers tightly grasping their weapons praying for someone to walk through that front door so they can put them down.

To the nutjobs, this story proves what they have been thinking, saying, all along.  This proves they have the right to kill cops. This proves they can defend their home from the thugs with shields. This proves it.

I agree. We surely don’t want crackpots getting the message that it’s now okay to kill cops.

But…I wouldn’t mind if some cops got that message. That is to say, I think it would be a good thing if more cops realized that it is possible to cross the line — that in the course of their job, there are acts they could engage in that are so hazardous to citizens, and so lacking in justification, that a grand jury would conclude that they were no longer entitled to the protection of the law, because they were no longer the good guys.

I just want to send that message without any more people getting killed.

Matt Brown is a little peeved at Tempe, Arizona’s crackdown on college drinking:

The gist of the article is that people visiting Tempe last weekend were going to see a massive police presence as officers from nine agencies teamed up for the “Safe and Sober” campaign, something that as near as I can tell is intended to violate the constitutional rights of hundreds of innocent people in a valiant effort to make college suck.

As far as he can tell, it doesn’t seem to make sense:

Tempe is a great place to live and work, but looking at the numbers, the “Safe and Sober” campaign certainly doesn’t make me feel any safer. It doesn’t make being sober like the totalitarian hypocrites who made it happen want seem all that appealing either. Thinking about all those cops ignoring real crimes to harass a few college kids is depressing.

Well, I don’t know for sure why police departments do things like that. I suppose it could just be a way to make it look like they’re Doing Something About The Problem. However, many years of watching the War on Drugs have taught me a few things about police priorities, and after reading Matt’s blog post, I had some strong suspicions about what was going on.

You may be surprised to hear there is a revenue angle:

[Tempe Police Chief Tom Ryff] said he is working on plans on how to sustain the task force by asking the Tempe City Council to authorize overtime for officers and asking the Governor’s Office of Highway Safety, which helped fund the Safe and Sober campaign, for additional federal grants.

I think that pretty much explains what’s going on, and why so many law enforcement organizations decided to make life suck for ASU students: The Governor’s Office of Highway Safety pays them to do it. What police commander is going to turn down more money for his department? At the very least, it will free up some of their budget commitment, maybe to buy some cool new SWAT gear, and if they play their cards right, they might even fund some overtime.

There’s a little more to it than that, however. The Arizona Governor’s Office of Highway Safety website has a Grant Opportunities page which mentions “DUI Abatement” grants. The Arizona Criminal Justice Commission offers this explanation:

Overview – The Oversight Council on Driving or Operating Under the Influence Abatement grant program provides grant funds for two types of programs as authorized by ARS §28-1303:

  • for enforcement purposes, prosecutorial and judicial activities, and/or alcohol abuse treatment services related to preventing and abating driving or operating under the influence occurrences in a motor vehicle or a motorized watercraft as defined in ARS §5-301; and,
  • for innovative programs that use emerging technologies to educate, prevent, or deter occurrences of driving or operating under the influence in a motor vehicle or a motorized watercraft as established by ARS §28-1304.

The goal of this program is to fund Arizona programs and services in order to reduce occurrences of driving under the influence.

The funding methodology is described a little further down:

Funding – Funding availability is dependent on the additional assessment assessed and collected per A.R.S §§ 28-1382 and 1383.

Enforcement Program: Seventy percent (70%) of the monies in the abatement fund will be awarded to political subdivisions and tribal governments for enforcement purposes, prosecutorial and judicial activities and/or alcohol abuse treatment services related to preventing and abating driving or operating under the influence occurrences in a motor vehicle pursuant to ARS §§28-1381 and 1382 or a motorized watercraft as defined in ARS §5-301.

So I look up ARS 28-1382 and 1383 and guess what? Those are the DUI laws.

I’m not sure I’m reading this right (and my tolerance for reading statutory English is about used up) but it looks like 28-1382 is the “extreme DUI” law, and it specifies a $250 fine ($500 for a second offense) paid to the abatement fund, with ARS 28-1383 adding another $250 for aggravated offenses. Looking at the funding section, I think there’s a similar fee structure for drunk boating (extreme and aggravated). In addition,  the fund gets a flat 5% of all restaurant liquor licenses.

I’ve written about the evils of profitable punishment and the distortion it creates for law enforcement before, and this sounds like more of the same. Not only are the police commanders getting money to harass college students, but the harassment pays for itself. Over the first two weekends, Operation Safe and Sober made 66 arrests for extreme DUI and 22 arrests for aggravated DUI. If I’m doing the math right, that’s $22,000 that will flow right back into the DUI abatement fund, to be used to cover the costs of more enforcement. And if you don’t think the law enforcement agencies that put the most money into the fund are going to get the most out of it, you don’t know how government works.

I doubt that $22,000 defrays the entire cost of the Safe-and-Sober operation — even with the restaurant licensing money thrown in — but if you’ve got the cops on the payroll anyway, it’s more money than they’d bring in doing their usual jobs like, you know, patrolling the neighborhoods or responding to 911 calls.

I recently read a story about two cops who arrested a 74-year-old woman they claimed had attacked them — although video of the incident doesn’t match with their account. If I were writing about this incident, about all I could say is that it looks like the cops overreacted and then exaggerated to cover the asses. To some extent, that’s just common sense, but it’s a fair criticism to point out that I’m not a police officer, and I don’t know much about police tactics, rules, training, or the reality of life on the mean streets.

ExCop-LawStudent, on the other hand, is an experienced police officer, and his commentary is scathing:

According to one report, the Trooper had difficulty filling out his report at the Travis County Jail.  That is a typical problem when the arrest is not actually for a crime, but for Contempt of Cop.  In addition, state troopers tend to have an attitude that requires their directions to be obeyed without question or hesitation, and they tend to get irritated if they perceive that someone is not moving fast enough.  Finally, troopers are extremely reluctant to admit that they made a mistake, as they perceive that as a sign of weakness.

In any event, it is easy to look at this and determine what happened.  The Trooper did not think that this little old lady was moving quickly enough and decided to yank her out of her chair even as she was gathering her belongings.  Once she challenged him (“you’re hurting me”) he likely decided that she needed to be shown her place and be arrested.  This led to the charges.  If you look at Northington’s arms, it is fairly clear as to who used force, and it wasn’t the little old lady.

Again, there are problems with this.  According to the arrest affidavit, she resisted arrest by grabbing her seat.  OK, even if we give the trooper the benefit of the doubt, if she is resisting arrest, there has to be an underlying charge.  What was she being arrested for in the first place?  Second, any assault on a peace officer is a felony, even if that is just by contact (i.e., an offensive touch).  Without video, it is the trooper’s word against the suspect.  Here, Northington supposedly slapped the trooper with an open hand.  Yet the black trooper does not make a move to help the trooper who was just “assaulted” by Northington.  I’ve been in those situations where an officer gets slapped.  Every officer that is there immediately jumps in to control the suspect when that happens.  That did not happen here, and is indicative of a COC arrest.

The department spokesperson has a particularly galling response:

“Our DPS troopers work every day to ensure that all visitors and staff at the Texas Capitol remain safe and that order is maintained,” [DPS spokeswoman Katherine] Cesinger wrote. “It’s unfortunate that some find it is easy to pass judgment on the officers who are risking their lives every day to protect and serve Texas.”

Even ignoring that a representative of an institution that routinely handcuffs and cages people (and not always with good reason) is complaining that mere criticism is passing judgement, I still wonder: Do police officers who say things like that realize how stupid it sounds?

I mean, if a cop stopped me for speeding and I explained that I’m a taxpayer and a productive member of society, would he let me go? If I give a lot of money to charity, will cops let it slide if I occasionally duck out of restaurants without paying? If a pediatric cardiac surgeon murders his wife, does the homicide squad give him a walk because of all the children he saved?

No. Of course not.

Look, it’s not the “risking their lives…to protect and serve” that’s pissing people off. That’s the police activity that we like. That’s why we hire them and give them pension plans. It’s the abuse, the unnecessary beatings and tasings, the dog shootings, and the occasional killing of random innocent people that make us angry, and rightly so. If the police don’t like us passing judgement on them, they should behave themselves.

We can laud people for their good works while also criticizing and punishing them for their transgressions. We can be pissed off at police behavior we dislike, and we can also be thankful for officers who respond to emergency calls and protect us from criminals. There’s no contradiction here.

Update: In a couple of tweets, @whattheada, who’s a prosecutor, comments,

Maybe cops won’t let someone go bc they’re a surgeon or donate to charity, but PDs expect lienency from ADAs…

and

…im just saying – that’s a terrible argument. those ARE mitigating factors used ALL the time.

This wasn’t a lawyer arguing for leniency for a client who had been found guilty (or was negotiating a plea), this was a police spokesperson trying to discourage criticism in the press — essentially trying to shutting down further inquiry into the matter.

It’s one thing to say “Our guy behaved badly, but he’s otherwise a very good officer, so we’ve decided to give him a break.” When done honestly, that’s an acceptable judgement call. What this police spokesperson is saying is more like, “He’s a very good police officer, so how dare you question his behavior!” Now that’s a terrible argument.

Five and a half years ago, when the beating of 24-year old bartender Karolina Obrycka by Chicago Police Officer Anthony Abbate first made the news, I argued that the beating itself wasn’t the real news story:

…It is rumored that some cops offered Obrycka a bribe if she would back off, and then threatened to plant drugs in the bar and in Obrycka’s car if she didn’t back off…

When Abbate attacked Obrycka, he wasn’t on duty, he wasn’t doing police work, and he wasn’t using police powers. He was just a drunk jerk that beat up a woman, and he happened to also be cop. With 13,000 cops in this city, there are always going to be a few troublemakers. To borrow a phrase from the Rodney King trials in California, it appears Abbate didn’t commit any of his crimes under color of authority. In a sane world, his barroom brawling has nothing to do with Chicago police in general.

But if Abbate’s buddies really are trying to bribe and intimidate witnesses, we’re no longer talking about one guy with a bad attitude. We’re talking about a criminal conspiracy within the police department[.]

Yesterday, that conspiracy cost the City of Chicago $850,000 when the federal jury hearing Karolina Obrycka’s lawsuit against the city of Chicago more-or-less agreed with me:

Chicago police adhere to a code of silence protecting fellow officers, a federal jury ruled Tuesday in a lawsuit filed by a female bartender whose videotaped beating by a drunken off-duty officer went viral online.

Officer Abbate was convicted long ago, and under normal circumstances, it would have ended there. But as Scott Greenfield explains, it’s the code of silence that cost the city so much:

Absent the machinations of police to conceal and silence the witnesses against him, the City of Chicago would have no liability for his conduct, it then being merely another vicious drunken cop beating a woman.

I realize that no cop wants to arrest a fellow officer for a crime, but I’m also sure that no one (outside of a few psychopathic cops) believes that police should be able to commit crimes with impunity.

The City of Chicago, and other police forces around the country, need to do something about this. It’s not a new or unexepected problem. “Who watches the watchers?” is one of the oldest questions about professional policing, and solving it is one of the fundamental duties of government.