Ferguson: footnote or transformative Event?

• Author: Mitchell, S. David
• Position: Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson

Hands to the Heavens, no man, no weapon Formed against, yes glory is destined Every day women and men become legends Sins that go against our skin become blessings The movement is a rhythm to us Freedom is like religion to us Justice is juxtaposition in us Justice for all just ain't specific enough One son died, his spirit is revisitin' us Truant livin' livin' in us, resistance is us That's why Rosa sat on the bus That's why we walk through Ferguson with our hands up When it go down we woman and man up They say, "Stay down" and we stand up Shots, we on the ground, the camera panned up King pointed to the mountain top and we ran up (1) I. INTRODUCTION

"Ferguson." No longer does this name simply represent the geographical boundaries of a city in St. Louis County formed initially by white flight from St. Louis City (2) and that has become increasingly African American over time. It has come to represent so much more.

For some, it symbolizes another U.S. jurisdiction in which an unarmed African American, (3) more often than not young and male, (4) but not exclusively, (5) was killed by a police officer. For some, it has come to symbolize the repression of peaceful protests that seek to call attention to the loss of African-American life at the hands of police officers. (6) For some, it has come to represent a criminal justice system that is flawed in the manner in which it pursues justice for African-American victims that are killed or harmed by police officers. (7) For some, it symbolizes the lack of consistency in the office of the prosecuting attorney by failing to recommend charges to the grand jury, (8) and by providing an overwhelming amount of evidence through which the grand jury had to sift through to determine whether the probable cause standard had been satisfied. (9) For some, it represents the poor planning of local officials who elected to announce the no bill on an indictment at night without regard for the potential result of violence, even though citizens had asked that the decision be made during the day. (10) For some, it sparked discussions about the militarization of local law enforcement agencies (11) and about economic policing. (12) From the events in Ferguson, a new language of protest and resistance was born. The events gave voice to a new generation of protesters under the banner of slogans and hashtags such as "Hands Up! Don't Shoot!" (13) and "#Black Lives Matter." (14) Ferguson has become a part of the cultural and popular lexicon referenced in popular song. (15) And yet, the reactions of "some" are but one perspective when Ferguson is mentioned. For others, there is a different and altogether contrary response.

For others, Ferguson represents a rush to judgment to convict a police officer who reasonably feared for his life. (16) For others, it was a situation where the use of force by the police officer was not excessive but was justi- fied because of the perceived threat to his safety. (17) For others, it symbolizes the lawlessness of looters who violated the rule of law, engaging in conduct that endangered lives and resulted in the destruction of property. (18) For others, it indicates misplaced sympathy and empathy for an alleged criminal who attacked a police officer. (19) For others, it represents the danger that law enforcement faces when trying to respect the rights of protesters and remain safe in an unsettling and dangerous combination of events. (20) And still, for others, it has been invoked to distinguish events in other jurisdictions from the actual shooting itself to the response of law enforcement and local authorities to such events. Because Ferguson represents so much more than a geographical location on a map, it was selected as the topic of the 2015 Missouri Law Review Symposium, "Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson."

The purpose and goal of the Symposium was to continue the dialogue of the many issues that surfaced with respect to Ferguson and to take a critical look at the aftermath of the tragic event and the civil unrest that followed. (22) Each panel on February 27, 2015, along with the Works-in-Progress Conference the preceding day and the Student Writing Competition, was designed to consider one of the many aspects of the complex issues surrounding the events in Ferguson. (23) At the end of the Symposium and over a year later, there remains a question to be answered: What will be the impact of Ferguson? Or, simply, will Ferguson be a footnote or a transformative event?

2. A FOOTNOTE OR A TRANSFORMATIVE EVENT?

   In considering whether Ferguson is a footnote or a transformative event, it is necessary to begin with the triggering event.

   A. The Tragic Event and the Aftermath

   On Saturday, August 9, 2014, Michael Brown, an unarmed black teenager, was shot and killed by Darren Wilson, a white police officer, in Ferguson, Missouri, a suburb of St. Louis. The circumstances of Michael Brown's death were disputed. Earlier reports indicated that Wilson initially approached Brown for jaywalking, and the interaction escalated into an altercation. Ferguson police state that Brown was shot while leaning into Wilson's car and struggling for the officer's gun. Some witnesses maintained that Brown's hands were raised, indicating surrender, when Wilson fired the fatal shots. (24)

   The killing resulted in a series of protests throughout the community, both peaceful and violent. (25) In addition to outrage over Brown's death, local and county police were widely criticized for a forceful and militarized response to the protests, including the use of armored vehicles, smoke canisters, and tear gas to dispel the crowds. (26)

   With the ongoing investigation, Prosecuting Attorney Robert P. McCullough, in what many characterized as an unusual move, (27) provided the grand jurors with an unprecedented amount of evidence to sift through during the process. Moreover, the prosecuting attorney did not recommend any charges. (28) Furthermore, in another extraordinary turn of events, the defendant, Darren Wilson, elected to testify before the grand jury. (29) Having received a wealth of information and no direct guidance from the prosecuting attorney, the grand jury returned a no bill of indictment for Darren Wilson. (30) The grand jury found that the evidence, as presented by the State, failed to satisfy the probable cause standard to issue an indictment. (31)

   Following Michael Brown's death, and concurrently with the State's investigation, the Federal Bureau of Investigation and the Civil Rights Division of the U.S. Department of Justice ("DOJ") launched a criminal investigation into alleged civil rights violations surrounding the shooting. (32) On September 4, 2014, after nearly a month of protests and heightened police responses, U.S. Attorney General Eric Holder announced that he would launch a separate investigation into the conduct of the Ferguson, Missouri, and St. Louis County police departments. (33) The investigation reviewed complaints involving the police and how the department operated. (34) During Attorney General Holder's press conference, he cited an overwhelming amount of mistrust between the Ferguson community and law enforcement officials, as well as the lack of diversity on the police force. (35) The City of Ferguson, a majority African-American suburb, (36) has only three African-American officers out of fifty- three members of the department. (37) At the conclusion of the investigation, the DOJ issued a scathing report criticizing the Ferguson Police Department and the municipal court system in Ferguson, as well as provided recommendations for reform. (39) The question, however, is whether the report and the responses to the unrest will result in profound changes and lessen the mistrust between citizens and police or will merely be ignored.

   B. Ferguson--A Footnote?

   From the outset, it is important to state unequivocally that a discussion of whether Ferguson will be relegated to a footnote in history does not trivialize the fact that Michael Brown needlessly lost his life. If Ferguson is relegated to a footnote in history, then it is important to examine the reasons why it would be regarded in that way.

   The first reason, and one which has been remarked upon repeatedly since Michael Brown's death, is the number of African Americans that have either been killed, injured, or subjected to excessive use of force by police. (40) And, as one report has indicated, many of those have been unarmed. (41) Some of these events have garnered similar high-profile attention as that of Michael Brown's death, such as Eric Gamer in Staten Island, (42) Tamir Rice in Cleveland, Ohio, (43) or Samuel DuBose of Cincinnati, Ohio. (44) The reality, however, is that the death of African-American males by police officers, and the readily overlooked death of African-American females by police officers as well, is neither unique nor uncommon. (45) Furthermore, the death of African Americans in this way is also not a recent phenomenon. And while the empirical data fails to provide an exact accounting, the stories and the numbers can no longer be discounted as either anecdotal or anomalies. Ferguson is merely the next chapter of an old story. (46) And so, because it appears that nothing has changed, it leaves the impression that Ferguson too will be forgotten. Once these investigations have concluded and the media has moved on to other topics, Ferguson, as a symbol for so many things, will fade from the public consciousness. (47) However, there is a belief that Ferguson is the genesis of a new civil rights era or a re-genesis of the civil rights movement as the facade of a post-racial society is dismantled. (48) And yet, Ferguson may be more than a mere footnote. It may be a transformative event with a long-lasting and profound impact. (49)

   C. Ferguson--A Transformative Event?

   Throughout history, transformative events have had a profound...