Remember Michael Brown, the 18-year-old whose fatal shooting in Ferguson, Mo., last August triggered two waves of riots, a national protest movement, death threats against the officer who shot Brown, lamentations by college presidents regarding America’s enduring racial injustice, vilification of St. Louis prosecutor Robert McCulloch for not obtaining an indictment against the officer who shot Brown, a campaign to eliminate grand jury proceedings when police officers use deadly force, the assassination of two New York police officers, and a presidential task force to reform policing? The press and public leaders don’t appear to remember Brown, now that a Justice Department report has demolished the narrative that turned him into a martyr to police and prosecutor racism. His shooting is now mentioned in passing only as a prelude to a second Justice report, also released on March 4, that preserves the meme of a racist Ferguson police force, thus providing a substitute rationale for the summer and fall rioting.
Before the Justice Department report on the Brown shooting is consigned to total oblivion, it is worth examining its findings, as well as the strategies used to marginalize them, in some detail. They bear on the ecstatically received second Justice Department report on Ferguson police racism and on the larger discourse about policing and race.
Attorney General Eric Holder was clearly not happy that his own agency had so resoundingly shredded the incendiary story of a pacific Michael Brown gunned down by a trigger-happy cop while trying to surrender. And so he provided the mechanism for sidelining his own department’s report. A few days before its release, he told Politico that he wanted to lower the standard of proof in civil rights cases. The subtext of this announcement: The decision not to pursue civil rights charges against Officer Darren Wilson for killing Michael Brown was forced on DOJ by an overly stringent evidentiary standard; under a more realistic standard, Wilson would have been prosecuted. Voilà! The media had their angle. “The Justice Department announced on Wednesday that its investigation did not support federal civil rights charges against Darren Wilson,” the New York Times acknowledged morosely in an editorial, before immediately turning to the good news: “Still, the department found overwhelming evidence of entrenched racism in Ferguson’s police force [emphasis added].” The Huffington Post said that the Justice Department had decided “not to file federal charges against Wilson for fatally shooting Brown last July.”
“Did not support”? Decided “not to file”? Such understatement massively misrepresents the content of the Brown report. This was not a question of evidence “not supporting” high-threshold civil rights charges; it’s a question of evidence eviscerating virtually every aspect of the pro-Brown, anti-Wilson narrative. Under no imaginable standard of proof could Wilson be found guilty of civil rights violations—or, for that matter, murder. As the report states: “Multiple credible witnesses corroborate virtually every material aspect of Wilson’s account and are consistent with the physical evidence.” Those “material aspects” include Wilson’s testimony that Brown punched and grabbed him while Wilson was in his SUV, that Brown tried to seize his gun, and that Brown charged at Wilson after Wilson had exited his car. Wilson had first seen Brown walking in the middle of Canfield Drive with another young man. Wilson suspected that Brown was the thief who had just robbed a convenience store and roughed up its owner a few minutes before, since he saw the stolen boxes of cigarillos in Brown’s hands. Wilson asked Brown to move to the sidewalk. Brown responded: “F— what you have to say.” Wilson called for backup and then tried to block Brown from proceeding. At that point, Brown reached into Wilson’s car and starting pounding him and grabbing his gun. Wilson fired and Brown ran off. Wilson gave chase on foot. Brown then turned and charged towards Wilson. At no point did Wilson fire at Brown when Brown’s back was turned or when he was on the ground. As for the now-iconic “Hands up, don’t shoot” claim—the DOJ report is withering:
In other words, no prosecutor with any understanding of his professional duties would think of going forward with this case, since there is no evidence to support it. This is not a standard of proof issue, it is an absence-of-any-case-whatsoever issue.
The report also explains why Brown’s body lay on the ground for four hours after he was killed before being taken away by an ambulance, another plank in the “Black Lives Matter” indictment of the allegedly racist treatment of Brown. The crime scene detectives’ efforts to process the scene were continuously interrupted by protesters who were encroaching on their work chanting, “Kill these motherf—ers” and “Kill the police.” What sounded like automatic gunfire was reported in the area, resulting in further suspension of activity until more backup arrived.
The initial news stories on the Brown killing contained several key elements of Wilson’s by-now-vindicated self-defense, but they were immediately purged from the dominant narrative. They resurfaced periodically: A caller to a local radio show in mid-August, for example, reiterated the essential facts; in October, the St. Louis Post-Dispatch reported that the autopsy and several witnesses corroborated Wilson’s account of the encounter. (A San Francisco pathologist who had seconded the autopsy conclusions for the Post-Dispatch story recanted a day later, after having come under attack for her initial assessment.) None of this had the slightest effect on the anti-Wilson juggernaut.
Eyewitnesses who corroborated Wilson’s account were under a reign of terror not to cooperate with the police. The Canfield Green neighborhood where the shooting occurred was plastered with “Snitches get stitches” signs. A 74-year-old black male who believed that the shooting was justified had told a friend two days after the incident that he “would have f—ing shot that boy, too.” He refused to give formal statements to county or federal authorities, however. He would rather go to jail than testify before the grand jury, he said, so enormous was the community pressure to support a “hands up” surrender narrative. A 53-year-old black male called a police tip line after seeing Brown’s companion lie about the incident on national television. He, too, stated that the shooting was justified, but told authorities that he would deny everything if his phone call were traced. He was served with a grand jury subpoena but refused to honor it. A 27-year-old biracial male said that it appeared that Wilson’s life was in jeopardy, describing Brown as a “threat” moving at a “full charge.” At the scene, as angry crowds were gathering and collecting false narratives about the shooting, two black women asked him to recount what he had seen into their cell phones. When he told them that they would not like what he had to say, they called him a “white motherf—er” and other racial slurs. A 31-year-old black female initially told investigators that she had seen Wilson fire shots into Brown’s back as he lay dead in the street. When challenged with the autopsy findings that revealed no shots to the back, she confessed to making up her story. “You’ve gotta live the life to know it,” she said. In fact, she then admitted, it looked like Wilson’s life was in danger as Brown was charging him. When authorities tried to serve her with a subpoena, however, she blocked her door with a couch.
The exposure of the Brown hoax should have enormous consequences for the antipolice movement. That movement’s core conceit—that police officers are the biggest threat facing young black men today—was launched off a phony story. The idea that local district attorneys are incapable of prosecuting shootings by cops derived from the claim that the grand jury’s failure to indict Officer Wilson represented a grotesque miscarriage of justice. Now it turns out that the only reason that prosecutor Robert McCulloch took the case to the grand jury at all was political. Under any other circumstances, the case would have been thrown out from the start. Yet the dangerous campaign to create special prosecutors dedicated solely to indicting cops for deadly force continues unabated.
Meanwhile, true believers are either rejecting the Brown report entirely or adopting the “it could just as well have been true” apologetics that followed the discrediting of the gang rape hoaxes at Duke University and the University of Virginia. Benjamin Crump, attorney for Brown’s parents, complained on Face the Nation that Justice was “sanitizing all these shootings of people of color who are unarmed.” Crump invoked Holder’s own complaints regarding the excessive standard of proof as grounds for dismissing the report. Democratic strategist Donna Brazile told the New York Times: “ ‘Hands up, don’t shoot’ has become a larger symbol of the desire to prove one’s innocence. In many ways, it will always resonate as a symbol of an unarmed dead teenager lying for hours on the street.” Never mind that that symbol never happened. Racist cops gunning down innocent black men in cold blood is simply too good a story to retract. Expect to see “Hands up, don’t shoot” live on among hard-core cop haters.
The mainstream media, however, have now turned their attention exclusively to the second Justice Department report, the one on Ferguson’s police department. The Brown report and its implications for the anticop crusade are out of sight and out of mind. The two reports were produced by different sections of the Justice Department’s Civil Rights Division, and it shows. The Brown report, written by the Criminal Section, in conjunction with the FBI and the U.S. Attorney’s Office for the Eastern District of Missouri, displays a striking understanding of police work. It respects longstanding legal presumptions protecting police discretion from unjustified second-guessing. The Ferguson Police Department report came out of the Special Litigation Section, known for its hostility to the police and staffed almost exclusively by graduates of left-wing advocacy groups, as Hans von Spakovsky noted in the National Interest. No wonder that it strains so hard to cobble together a case of systemic intentional discrimination out of data that show only that law enforcement has a disparate impact on blacks.
The most disturbing section of the Ferguson Police Department report consists of anecdotes about unconstitutional stops and arrests made by Ferguson officers. These accounts portray rude, aggressive cops who abuse their authority and trash talk to suspects. In a November 2013 incident, for example, an officer allegedly approaches five black young people listening to music in their car. He claims to have smelled marijuana and places them under arrest for gathering for the purpose of engaging in illegal activity. The officer allegedly finds no marijuana in the car, but detains and charges them anyway, taking some teens home to their parents, delivering others to jail. In a summer 2012 stop, an officer accosts a man sitting in a car with illegally tinted windows. The officer groundlessly accuses the driver of being a pedophile—the car is next to a children’s park—tells him not to use his cell phone, and orders him out of his car for a pat down without reason to believe he was armed. The driver refuses to allow the officer to search his car. The officer then points his gun at the suspect’s head and arrests him for making a false declaration, because the suspect initially gave his name as “Mike” rather than “Michael” and provided an address that differed from the one on his driver’s license, among other charges.
If these incidents and others are true exactly as alleged, they suggest a police agency deplorably ignorant of the Fourth Amendment and grossly deficient in courtesy and respect. The question is: Are they true and do they represent normal procedure in the department? After the implosion of the Michael Brown martyr myth, accepting one-sided accounts of officer-civilian interactions seems risky. In New York City, as a point of comparison, the Civilian Complaint Review Board, which hears complaints about the New York Police Department, substantiated only 7 percent of the complaints it received in 2014. If the Justice Department’s Special Litigation Section sought to corroborate its anecdotes or get the department’s version of the incidents, it is not letting on. Nor is it clear that these questionable arrests, even if reported accurately, represent standard procedure in the department, rather than aberrations. The report routinely uses the words “frequently” and “common” as substitutes for an actual showing of established practice. One of the targets of an allegedly unconstitutional arrest is white, suggesting that the police are equal opportunity offenders, when they allegedly offend.
The report is more persuasive in describing the department’s shoddy record-keeping and the lax oversight of beat cops. The failure to supervise officers’ use of force results in excessive resort to Tasers. Equally problematic is Ferguson’s practice of issuing a quasi-warrant known as a “wanted” without the requisite probable cause to believe that the target has committed a crime. (Many other departments abuse “wanteds,” too.) The municipal court, like the police department, is error-prone in its records and notice systems.
Had the Justice Department blasted Ferguson’s management and training failures and left it at that, it would have been on solid footing. But the imperative to racialize the problems was overwhelming, especially given Holder’s previous statements against Ferguson and the subsequent discrediting of the Brown story. So the department trots out the usual statistical analyses with which to bootstrap a charge of “intentional discrimination” against blacks. And these statistical analyses are irredeemably deficient. The Justice attorneys use population data as the benchmark for police activity, rather than rates of law-breaking. The most frequently quoted statistic from the report is that blacks constitute 67 percent of Ferguson residents but made up 85 percent of all vehicle stops between 2012 and 2014. Whites made up 15 percent of all traffic stops during that period but make up 29 percent of the population. Such figures are meaningless unless we know, just for starters, what the rate of traffic violations is among black and white drivers. Though most criminologists are terrified of studying that matter, the research that has been done, in New Jersey and North Carolina, found that black drivers speed disproportionately. On the New Jersey Turnpike, for example, black drivers studied in 2001 sped at twice the rate of white drivers (with speeding defined as traveling at 15 miles or more over the posted limit) and traveled at the most reckless levels of speed even more disproportionately. Moreover, low-income car owners are less likely to update their vehicle registration and maintain required equipment. Are black drivers in Ferguson more likely to be poor? The New York Times itself says that “economic chasms” separate black and white neighborhoods there.
A proper traffic stop study would also determine the demographics of the population on the roadways, which often differ radically from the surrounding residential areas, and which change over the course of a day and week. The Special Litigation Section attempted none of this.
The report also seized on the fact that blacks made up 93 percent of arrests by Ferguson police officers. It is unclear whether “arrests” here refers to arrests following a traffic stop or arrests for all types of crime throughout the entire city. Assuming the latter, this figure, too, is meaningless without knowing the black and white crime rates. Blacks made up 60.5 percent of all murder arrests in Missouri in 2012 and 58 percent of all robbery arrests, though they are less than 12 percent of the state’s population. Such vast disparities are found in every city and state in the country; there is no reason to think that Ferguson is any different. (The voicemail box of the Ferguson Police Department’s press office was full and not accepting messages when I tried to find out.) New York City is typical: Blacks are only 25 percent of the population, but they commit around 75 percent of all shootings in the city, as reported by the victims of and witnesses to those shootings; whites commit 2 percent of all shootings, according to victims and witnesses, though they are 33 percent of the city’s population. Blacks commit 70 percent of all robberies; whites, 4 percent. The black-white crime disparity in New York would be even greater without New York’s large Hispanic population. Black and Hispanic shootings together account for 97 percent of all illegal gunfire. Ferguson has only a 1 percent Hispanic population, so the contrast between the white and black shares of crime is starker there.
Holder’s attorneys find damning the fact that 11 percent of black drivers were searched after a traffic stop from 2012 to 2014, but only 5 percent of white drivers. Yet as the report itself notes, blacks are more likely to have outstanding warrants against them and are more likely to be arrested for an outstanding warrant. Given the higher rate of outstanding warrants, it is predictable that black drivers would be searched more often. Whites are slightly more likely to have contraband found on them after a search: 30 percent of searches of whites, but only 24 percent of searches of blacks, yielded contraband. The report says that this disparity exists “even after controlling for the type of search conducted, whether a search incident to arrest, a consent search, or a search predicated on reasonable suspicion,” but the report does not reveal how much of a disparity persisted in each type of search: Automatic searches incident to an arrest should not be used to measure alleged police bias. The analysis also does not take into account differences in driver behavior following a stop that could increase an officer’s inclination to search. This minimal disparity in the contraband hit rate is the only piece of evidence in the report, and a negligible one at that, which could support a finding of disparate treatment.
The press has also highlighted the following data as further proof of Ferguson police racism: Blacks make up 95 percent of Manner of Walking in Roadway charges; 94 percent of Failure to Comply charges; 92 percent of Resisting Arrest charges; 92 percent of Peace Disturbance charges; and 89 percent of Failure to Obey charges. Ironically, Ferguson’s most famous resident displayed many of these behaviors. A black couple driving on Canfield Drive minutes before the shooting had to swerve around Michael Brown and his friend, walking in the middle of the street, in order to avoid hitting them. “Why don’t they just get on the sidewalk?” the wife exclaimed. Another bystander told the FBI that when Wilson asked Brown to move out of the street, Brown refused and responded to the effect: “F— the police.” Even if the black and white residents of Ferguson engage in such low-level lawlessness at identical rates—a dubious proposition in light of widely documented differences in felony offending—if officers are dispatched on 911 calls more frequently to Ferguson’s “disconnected” apartment complexes (DOJ’s term), they will witness more public order offenses in that area of the city.
The Justice Department’s evidence for “intentional discrimination” is even thinner than its statistical analyses. The agency criticizes city officials who used the term “personal responsibility” to explain law enforcement disparities among “certain segments” of the community. The phrase is a code word for “negative stereotypes about African Americans,” the federal lawyers believe. In reality, denouncing any invocation of “personal responsibility” as racist is a code word for liberal blindness to underclass culture.
DOJ’s alleged smoking gun is half a dozen racist jokes emailed by two police supervisors and a court clerk. While juvenile and offensive, the emails are far from establishing that the police department’s law enforcement protocols are intentionally discriminatory.
Justice’s final salvo against Ferguson is the charge that its officials view traffic and misdemeanor enforcement as a revenue generator for the city. The revisionist history of the riots, hastily cobbled together after the collapse of the Brown execution myth, now holds that they were triggered by compounding traffic fines as much as by the shooting. But if Ferguson uses traffic violations for revenue, so do the majority of municipalities across the country. DOJ does not come close to showing that the reason that the city wants to raise money from enforcement is to discriminate against blacks.
To be sure, Ferguson’s system of fees and warrants for failure to pay those fees or to show up in court—like identical systems throughout the country—needs reform to avoid any possibility of punishing people for being poor. Making community service more available for offenders who cannot afford their fines is a good idea. But if those offenders ditch their community assignments, the court system will be back to the same dilemma of how to induce their compliance. Hapless Ferguson officials used the taboo term “personal responsibility” to try to explain to their Washington investigators why some people face an escalating series of fines for repeated failures to attend their court hearings. The DOJ attorneys were scandalized yet again. But this explanation is not unique to “racist” Ferguson. The black mayor of a neighboring town defended similar fees and enforcement methods under his own government. “Everyone is saying, ‘Oh, no, that’s cities just taking advantage of the poor,’ ” he told the New York Times. “When did the poor get the right to commit crimes?”
For the last 20 years, America’s elites have talked feverishly about police racism in order to avoid talking about black crime. The Justice Department’s second Ferguson report is just the latest example of that furious attempt to change the subject.
On March 11—hours before two police officers were shot at protests in Ferguson, either targeted directly or the unintended casualties of a gang dispute—a 6-year-old boy named Marcus Johnson was killed by a stray bullet in a St. Louis park. There have been no protests against his killer; Al Sharpton has not shown up to demand a federal investigation. Marcus Johnson is just one of the 6,000 black homicide victims a year (more than all white and Hispanic homicide victims combined) who receive virtually no attention because their killers are other black civilians.
The police could end all their lethal uses of force tomorrow and it would have almost no effect on the black death-by-homicide rate. Black males between the ages of 14 and 17 die from shootings at more than six times the rate of white and Hispanic male teens combined, thanks to a 10 times higher rate of homicide committed by black teens. Until the black family is reconstituted, the best protection that the law-abiding residents of urban neighborhoods have is the police. They are the government agency most committed to the proposition that “Black Lives Matter.” While police departments must constantly reinforce their duty to treat everyone lawfully and with respect, the relentless effort to demonize them for enforcing the law will leave poor communities vulnerable to anarchy.
Heather Mac Donald is the Thomas W. Smith fellow at the Manhattan Institute and the author of Are Cops Racist?
