When the St. Louis District Attorney’s office, in a rare gesture, released the grand jury testimony of the fatal shooting of Michael Brown by Ferguson (MO) Police Officer Darren Wilson – typically, grand jury transcripts are not a matter of public record – I felt compelled to withhold my own opinion until I read the entire transcript. It was a daunting task: 24 volumes, a total of 4799 pages.
In the meantime (it took me close to two weeks, reading in between all of my other tasks), another grand jury was assembled to determine whether New York City Police Officer Daniel Pantaleo acted unlawfully (i.e., used excessive force) while attempting to arrest Eric Garner, who died at the scene. Both instances involved white police officers and dead, unarmed, African-American male victims, and in both cases, the grand juries exonerated the policemen.
ANGELS AND MONSTERS
To get a better sense of the numerous issues at hand which – as usual – exceed the parameters of the specifics, what better way to understand the nuanced than in relative comparison to the extreme? Case in point: angels and monsters.
On Sunday morning, September 15, 1963, four little angels were murdered by four monsters. Addie Mae Collins (age 14), Denise McNair (age 11), Carole Robertson (age 14), and Cynthia Wesley (age 14) died in the explosion of a bomb at the 16th Street Baptist Church in Birmingham, AL. The girls were there to pray. They did nothing wrong. They didn’t hurt a fly. They were four, innocent angels. Those who planted the bomb – in an act of hate and unspeakable cruelty, were Thomas Blanton, Frank Cash, Robert Chambliss, and Bobby Frank Cherry. They were the four monsters: four members of the Ku Klux Klan, and their intent – however they justified it in their own minds – was unmistakably racist. Certainly, it was neither the first nor the last act of racism in our nation’s history, but unlike other incidents about whose racist motives are disputed, there is no such ambiguity regarding the Birmingham Bombing.
RACISM AND STEREOTYPING
Before proceeding to discuss racism, it is important to distinguish it from racial stereotyping. Sometimes, the two are inaccurately conflated – or perhaps it is for the sake of expedience: after all, “racist” is only two syllables, whereas “racial stereotyping” is a whopping seven, far beyond the time and attention many Americans care to devote. But there are very profound differences, indeed. Racism, like with the Birmingham Bombing, involves the hatred of a particular race, and/or the belief of its inherent inferiority (physical, mental, emotional, etc.) to another race(s).
Racism varies in terms of the degree of damage it can cause. Consider an angry white father, one less open-minded than Spencer Tracy in Guess Who’s Coming to Dinner, who might say: “I don’t want my daughter marrying a black person. I don’t want grandchildren who are black. I don’t want our race mixing with their race.” Even if we take this statement in its worst connotation, “I don’t want the superior white race mixing with the inferior black one,” which is clearly a racist statement, its damage, though bad, is not as bad as the racists who bombed the church in Birmingham. Bombs are far worse, of course, but words are hurtful, too.
Racial stereotyping, on the other hand, is a race-based evaluation that does not involve feelings of hatred or superiority. It, too varies in its consequences. For instance: “I want my kid’s math tutor to be Asian – they’re the best in math, you know.” If anything, that is admiration for an entire race, based on a purported (and obviously misguided) notion that “all” Asians excel in mathematics. On the other hand, if the belief is that Asians are biologically superior – they were born with better mathematical brains than anyone else – then the comment is a racist one, even though it was meant as a compliment.
Suppose, instead the comment is: “I don’t want my kid’s driving instructor to be Asian – they’re all such horrible drivers!” Is that racism or racial stereotyping? It the belief (also misguided) is that Asians are in some way inherently inferior (brain, motor skills, etc.) to grasp the concept of driving as well as people of other races – then it is a racist statement. If instead, the belief is that it is a consequence of nurture – that Asians are raised in a manner that does not place particular emphasis on mastering driving skills, then it is stereotypical rather than racist.
RACISM IN AMERICA
The two biggest misconceptions about racism in America are that: 1) it is rampant; and 2) that it is extinct. Even if only 1 in 500 people in this country hated another person simply because of his or her race (some say there are a lot more), that would make racism seem rare – but it’s really not: it still would mean that of the 330 million people in the United States, there are 660,000 racists. Isn’t that still far too many for a 21st century civilized society – particularly one that calls itself the world’s greatest country?
Most people, of course, would like to live in a world where racism is extinct – but part of the reason we haven’t gotten there yet is extremism on both sides: the inciters and the deniers. They often make generalizations about specific incidents – such as the tragedies in Ferguson and Staten Island – to perpetuate their broader argument. The inciters will insist that, the shootings undoubtedly were based on race. The deniers will argue the opposite – that they had absolutely nothing to do with race. As is often the case, the truth sits somewhere in the middle.
Now, to the 4779 pages of grand jury testimony… One would think that 24 volumes of material would provide reasonable certainty – and it does. Not as to whether Officer Wilson was justified in shooting Michael Brown, but insofar as if this case had gone to trial, it is almost certain that Wilson would have been found not guilty. Not necessarily because he is innocent or guilty, and not necessarily because it is more likely that he is innocent than guilty, or vice versa. But because in a criminal case, the standard of proof is very high: beyond a reasonable doubt.
The nearly-5000 pages of testimony, in which about five dozen witnesses are interviewed, points to enough versions of the story that Brown and Wilson were “tussling” or “wrestling” while Brown stood outside Wilson’s police car with Wilson sitting in the driver’s seat, and that Brown, after running away with Wilson in pursuit, turned around, without his hands raised in surrender, continued to walk – even charge – toward Wilson, seemingly undeterred even by the fact that Wilson was shooting at him at the time.
Moreover, there is testimony that Brown was sufficiently “high” from a powerful dose of marijuana found in his system, and additional testimony that his gunshot from the struggle at the car, judging from the bullet’s location, would have made it particularly painful for Brown to raise his hands up in the air, as others testify that he did.
None of this evidence is conclusive. But it doesn’t have to be. In fact, the testimony does not even have to be more likely true than false. Nor would it matter if there were just as many witnesses, or even more, who said the opposite. It only has to be enough to cast a reasonable doubt as to Wilson’s guilt. That is the standard of proof required for a criminal conviction.
CIVIL V. CRIMINAL
A civil suit, on the other hand, is one that could, say, be brought by Michael Brown’s mother, against Wilson, and even against the City of Ferguson as a whole. Unlike a criminal suit, whose purpose is to convict and punish the defendant (usually by imprisonment in cases involving felonies), a civil suit seeks compensation for the plaintiff. In this case, Brown’s mother would file a wrongful death claim, seeking monetary damages to compensate for the loss of her son. In that type of suit, it would be somewhat easier for her to prevail and for Wilson to be found liable, because then it would be a matter of which version of the story is more likely than not to be true. Case in point: consider the now 20 year-old O.J. Simpson criminal trial – in which the football legend was charged with the double murder of his ex-wife, Nicole Brown Simpson and her friend Ronald Goldman. The jury found Simpson not guilty.
But three years later, in 1997, a different court – this time a civil court – heard the wrongful death case brought by Goldman’s father, who sued Simpson for $33.5 million, which he was awarded.
Same defendant, same victims, same set of facts, different verdict. But, why, how? Quite plainly: it wasn’t a case of “violating double jeopardy” (doesn’t apply from criminal to civil), or “they had it in for him and got him anyway” (then why didn’t he lose the more serious criminal trial?), or “he’s a celebrity and his high-priced lawyers got him off the hook” (then why couldn’t his lawyers help him the second time?). Instead, it had to do with standard of proof: beyond a reasonable doubt versus a preponderance of the evidence. Simple as that.
Consider these numbers as an example, to illustrate: a jury in a civil case only needs to feel 51% sure of their decision and 49% unsure, and that decision stands. Whereas in a criminal trial, even if the jury is 80% sure and 20% unsure of what they think – that is not enough to convict, because 20% is still a reasonable doubt.
Other aspects of the Ferguson testimony, ones that stood out as difficult to believe, were: 1) that Wilson, sitting in the driver’s seat, pulled the 6-foot-4-inch 295 Brown into the car. It might have looked that way from afar, but what possible logic could there be in a potentially life-threatening situation to pull your attacker into you, while you are seated, so as to give him additional leverage? If anything, it would have made obvious and instinctual sense for Wilson to distance himself from Brown, at which point Wilson would have the advantage because he was armed; 2) that Brown was shot while on his knees. The overwhelming majority of witnesses – even those who say Brown was surrendering, say that Wilson shot him while Brown was standing and Brown fell to his death. To have been shot several times while on his knees and then rise up and continue to move forward is as close to a logical impossibility as there is; and 3) that Wilson, by his own testimony, said “what’s wrong with the sidewalk?” as opposed to the version given by Brown’s friend who was with him at the time Dorian Johnson, who said Wilson’s words were “get the f*** on the sidewalk!” The latter seems more likely in terms of having pushed Brown’s buttons to the point of becoming confrontational.
Though to date no one has produced a video capturing Brown’s killing by Wilson, there is a video depicting Brown’s robbery of some packages of cigars (referred to as “cigarillos”) a short while earlier, in which Brown shoves aside a much smaller clerk who it seems is asking for payment (Brown and Johnson are walking out of the store without paying). When the clerk takes a step toward Brown again, Brown looms in his direction, intimidating him and compelling him to retreat and leave Brown and Johnson to exit the store without having paid for the merchandise. Robbery is larceny (theft) by force or threat of force. While the evidence about whether Wilson was justified in shooting Brown is unclear, the evidence that Brown committed robbery is quite clear. Unlike the four young girls in Birmingham, Brown was not an angel. By the same token, unlike the Birmingham bombers, Brown was not a monster, either. A cocky, young bully, yes – but he did not deserve to die.
The death of Eric Garner in Staten Island – other than it involved the death of an unarmed African-American at the hands of a white police officer – is entirely different from Michael Brown’s killing. First of all, from an evidentiary sense – there is a video of the incident, which clearly shows what happened. Garner is visibly upset as he argues with police to stop “hassling him,” but at no time does he appear violent. Though Garner was a very large man – 6-foot, 3 inches tall, 350 pounds – and the officer closest to him was clearly much smaller, there were at least five other officers there. Even if Garner was violent – and again, he did not appear to be – he was vastly outnumbered. The officers moved in to arrest him, and he waved them off with his arms, saying “don’t touch me.” He did not punch them – maybe just a half-shove to shoo their arms away. Pantaleo then grabbed Garner from behind the neck and brought him down. Some insist it was a chokehold (which is illegal nowadays), whereas others say it wasn’t. Either way, Garner said “I can’t breathe” several times, then had a fatal seizure.
Also clear is that unlike Wilson – who maintains that he was shooting Brown to save his own life – Pantaleo and the other officers were not trying to kill Garner. That was never the question. The issue is whether they were criminally negligent by using excessive force to subdue him.
Unlike in the Wilson case, the Pantaleo grand jury transcript to this point has not been made publicly available. Then again, we have a video – so it seems there is little more that we need to see.
Garner was agitated and uncooperative. Not violent, but hostile. He, too, was not an angel, but also certainly not a monster. He, too, certainly did not deserve to die, and it is exceptionally tragic because a few more minutes of calm conversation could have led to a peaceful outcome – and Eric Garner would be home with his family today.
Inciters speak of “white privilege” in America, deniers say there’s no such thing. Once again, the truth sits somewhere in the middle. But the real privilege is not white, it is blue: as in the color of the uniform of the police. Consider this undeniable two-part fact: 1) over 99% of grand jury hearings result indictments, but 2) over 99% of grand jury hearings involving police officer defendants do not. That means, forget the color of the officer, or the victim: out of every 100 on-duty fatal shootings by police officers, 99 of those cops escape indictment.
The reasons are obvious: the prosecutors and the officers are on the same crimefighting team. It is a case of policing of the police by the police. Again, the deniers proclaim there’s not a bad cop in the entire bunch, whereas inciters insist that cops are a bunch of thugs with badges who can kill with impunity. The prosecutors are supposed to bring the case for the people as a whole, not the direct victim (because in a criminal case, the plaintiff typically is “The People of the State of ___”). They are probably not likely to be extra-tenacious to prosecute their partners in crimefighting. And they face the defendant/officer’s personal attorney, whose job is to fight vehemently for his/her client. Needless to say, except for the most egregious of circumstances, it is an uphill battle to indict a cop.
Aside from whether Wilson and Pantaleo deserved to be indicted, did race have anything to do with it? As with everything else, the answer is not as simple as yes or no. No one except those who allow emotion to trump logic think that either of these officers woke up on those fateful mornings and actually thought to themselves “I’m gonna go out and kill myself a n***** today.” Accordingly, Wilson and Pantaleo aren’t monsters, either. On the other hand, that doesn’t mean race had no role in this.
If we remove from the equation any notion that homicide was either officer’s intended goal, then we can say that there was some element of combatting a threat. What was it, then, that made Brown and Garner seem so threatening? The color of their skin? Their gender? Their youthful (or relatively youthful) age? Their massive size? Surely we don’t think that the cops have ever shot or choked Maya Angelou, Toni Morrison, or Joycelyn Elders, do we? On the other hand, would Brown and Garner have felt as threatened had they tangled with a 6-foot-4 300-pound white guy? Moreover, to bring racism into the equation does not necessarily mean the cops involved hate black people; instead, it could mean that on some level, when there is no mass white outrage, it makes some feel that it is not based on solidarity with the police, but rather that black lives are not thought to matter a whole lot.
These, then, are the nuances. The non-Birhmingham Bombing nuances. The types of conversations about race that are healthy, and help us grow and progress as a nation.
I will never forget that a few years ago, when I was dean of what at the time was the largest two-year Criminal Justice degree program in New York State, I sat in a lecture given by one of my colleagues, an African-American police officer who taught courses in the evening, and he made a compelling case for why the police did the right thing in another tragic situation: the death of 23 year-old Amadou Diallo at the hands of the four NYPD officers, who shot him 41 times when they believed that the wallet ID he was about to show them was a gun. A grand jury did indict those four officers, but they were acquitted at trial. My colleague explained why – based on his many years on the force – he agreed with the decision: that the officers only did what they were trained to do.
The question, then, is – should they be trained differently, or is this the most effective way to fight crime, even though from time to time it can lead to awful, unintended consequences?
These are the types of rational, grown-up conversations we all need to have, with unity, not divisiveness.
And above all, let us neither wreck our law enforcement system, nor turn a blind eye to its flaws. For unchecked authority leads to tyranny, and neutralized authority leads to lawlessness.
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