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August 09, 2017

The Legal Fallout of Ferguson

James D. Macri – October 8, 2014

Since the shooting death of Michael Brown on August 9, 2014, a wide array of legal questions and issues surrounding race, use of force by law enforcement officers, and the rights of the public to protest in America have been brought to the forefront. On that fateful day, Brown was shot multiple times and killed by a Ferguson, Missouri, police officer. Brown, an 18 year old African-American male, was unarmed at the time of his death. The officer was white.

While it remains unclear, and hotly debated, exactly what transpired that afternoon, one thing is certain: the tragic event that ended a young man’s life was just the start. Following the shooting, numerous protestors have been trying to bring attention to what they call another instance of police injustice. Some protests, namely those in Ferguson, led to violence, rioting, looting, and countless arrests.

The incident, ensuing protests, and government response have led to many legal questions. The officer’s actions are being criminally investigated. The police response to protests resulted in two ongoing federal investigations: 1) by Congress on police use of military equipment, and 2) by the Department of Justice (DOJ) into potential civil rights violations by the entire Ferguson Police Department. Protests, especially those in Ferguson, have raised questions about First Amendment issues, including the rights to peaceably assemble and to film on duty police officers.

One recurring question, and a factor in spurring the recently announced DOJ investigation, is how the practices of the Ferguson Police Department may have caused the shooting itself. The DOJ is investigating whether the department has engaged in a pattern of civil rights violations. The investigation not only probes into claims of excessive force but digs deeper by looking at hiring and training practices. Currently only 3 of 53 officers on the force are African American, despite the city’s 67 percent African-American population.

Missouri officials have even commented on issues of diversity and racial tension. The Governor, Jay Nixon, commented that "[t]his feels a little like an old wound that has been hit again….These are deep and existing problems not only in Missouri but in America.” Ferguson’s Police Chief acknowledged that the police force was in a “constant struggle” with diversity.

Ferguson residents, the press, the President, and many others are saying the police force has committed multiple constitutional violations in its response to the protests. President Obama, after noting the militaristic response to the vandalism and protests, said that “[t]here is also no excuse for police to use excessive force against peaceful protests or to throw protesters in jail for lawfully exercising their First Amendment rights. And here in the United States of America, police should not be arresting or bullying journalists who are just trying to do their jobs.”

President Obama was referring to the police reaction to events that unfolded after the shooting. Reports suggested that law enforcement officials were overly aggressive with protestors and those filming the police and the events. Countless images and videos have been released depicting officers responding to calls with military equipment, such as mine resistant vehicles, fully-automatic weapons, and body armor. Officers were heavily armed even when responding to peaceful gatherings with some images showing officers aiming their weapons at unarmed, innocent citizens. At the height of the riots, Governor Nixon declared a state of emergency, deployed the National Guard to Ferguson and instituted a mandatory curfew.

At the same time, officers have been accused of forcefully preventing the media and citizens from filming. In fact, two reporters, one from the Washington Post and one from the Huffington Post, were arrested for seemingly doing nothing while recharging their gear in a McDonald’s near the protests.

Activists, including the ACLU, have categorized the government and police response as a suspension of our Constitutional rights. Many, including the ACLU, consider our First Amendment rights as among our most important. The First Amendment allows us to speak freely, assemble peaceably, and disseminate information about government officials. That includes the freedom to film police officers while they perform their duties in public, so long as the filming does not obstruct those duties. The Ferguson police and Missouri Governor’s response restricted First Amendment rights by preventing filming, arresting reporters, and breaking up protests.

There is no doubt a strong police and government response was needed to handle the looting and rioting. However, there were also clear instances in which actions went too far. According to the ACLU, the curfew and police lockdown of the city were part of the problem rather than the solution. The overbroad order imprisoned citizens in their homes and suppressed their opinions. The organization went on to say that such a response was not a measure to promote peace or dialogue, but instead an unprecedented action that “cannot be divorced from the history of law enforcement officials treating communities of color as the problem rather than an indispensable part of the solution.”

The tragic situation in Ferguson is an example of where diversity and the law meet. While wrong doing exists on both sides of the events, the overpowering response raised a number of legal issues which quite possibly could have been avoided altogether. The lack of racial diversity has been a struggle for police forces around the country for decades. This struggle has on a number of occasions, including Ferguson, built tension that culminates in a tragedy. However, these tragedies have often led to new growth for our nation by raising civil rights, constitutional, and criminal issues that highlight the ongoing importance of diversity in America.

Keywords: JIOP, litigation, Ferguson, ACLU, Michael Brown, police, civil rights, protest, First Amendment

James D. Macri – October 8, 2014