In plain sight, yet ignored by choice or habit.

by Chuck Ramsay

I recently saw a post on Facebook that shared an experience I’ve had many times. I’m sure many of you have too: “I was at a protest and a couple of white women chided us, saying the ‪#‎BlackLivesMatter‬ message was irrelevant and we need to "get over" ourselves because slavery and racism in America ended long ago.”

The version I most often hear is “Why can’t they let it go? I’m tired of all of this. Why can’t we go back to the way it was?” Hmmm. Who are they, and who are we? And why does a group of people exercising their First Amendment rights threaten or irritate others? There is a general level of discomfort among many whites whenever blacks push back from the systemic prejudice, discrimination, racism, and oppression they have received for hundreds of years. For my white readers, remember that feeling uncomfortable is a necessary part of unlearning oppressive behaviors. So, if you occasionally feel uncomfortable with your African-American brethren or anyone of color, that’s a tip-off that you (like most people of any color) have a degree of implicit bias.

One way to learn more about these issues and to look into the mirror, so to speak, is to read about them. This website as two reading lists – online articles and a book list HERE.

You can also download a PDF of the United States Justice Department’s Ferguson Report HERE. This Justice Department report identifies the many illegal and racists practices and policies Ferguson employed against African Americans, which was duplicated in many of the surrounding municipalities throughout the St. Louis region, and in some cases has not been reformed yet.

Or the report developed by the Ferguson Commission HERE. The Ferguson Commission not only identified the problems that have lead to racial dis-harmony in our region, but provide common sense calls to action that could resolve those issues.

To learn more about the Department of Justice report, take a few moments now to read the introduction found in the paperback version of The Ferguson Report. It is very telling and contains a brief history of how we got to where we are at racially by a civil rights lawyer and law professor.

The following is the introduction found in the soft cover version of The Ferguson Report issued by the United States Department of Justice. It was written by Theodore M. Shaw, former director-counsel and president of the NAACP Legal Defense and Educational Fund, is the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Caroline School of Law at Chapel Hill.

While most fatal shootings of unarmed black people do not lead to uprisings, riots, or rebellions, for decades now, almost every major urban uprising or “race riot” in the United States has begun with an interaction, often fatal, between a black man and the police. The Harlem race riot of 1964, the 1965 Watts race riot, the 1967 Newark race riot, the 1980 Liberty City, Florida, race riot, the 1992 Rodney King riot in Los Angeles, the 1996 St. Petersburg, Florida, race riot, the 2001 Cincinnati race riot, and the protests following the killing of Oscar Grant in Oakland in 2009 all started the same way. As we prepared to go to press, with the death of Freddie Gray, Baltimore became yet another city that has erupted in violence following allegations of excessive force against black men by law enforcement.

In August 2014 a policemen in the St. Louis suburb of Ferguson, Missouri, shot and killed an eighteen-year-old, unarmed black man. As conflicting versions of the event circulated through the majority black town, tensions escalated. Aided by social media and amplified by the twenty-four hour news cycle, news from Ferguson flashed across the nation and around the world. In the hours, days, weeks, and months that followed the death of Michael Brown at the hands of Officer Darren Wilson, protest ensued, mostly peaceful but some violent enough to have become known as the Ferguson riots.

Ferguson did not happen in a vacuum. Police killings of unarmed individuals are, unfortunately, not uncommon. While the facts of each case are different, there is a numbing familiarity when an unarmed black boy, teenager, or man is killed by a police officer. A well-worn script often unfolds in the aftermath of each death: The police officer recounts a threat to his life, which allegedly includes a weapon. The dead black man is dehumanized and demonized through the release of any record of past wrongdoing in an attempt to implant the worhy-of0-death notion in the public’s mind. In most instances, state and local authorities do not bring charges against the officer. In the rare circumstance when there is an indictment, the officer is more often than not, cleared of wrongdoing. In many cases the family of the decedent and community activists seek federal review and prosecution, usually without success. For the families of the unarmed dead, there is rarely any semblance of justice.

Many black people are bone weary and cynical about a broken criminal justice system that is quick to incarcerate individuals from their communities, even when it countenances the harassment and even the killing of unarmed individuals by law enforcement. A black woman, Marissa Alexander of Jacksonville, Florida, unsuccessfully invoked Florida’s “stand your ground” law and was sentenced to twenty years in prison for firing a warning shot, allegedly in defense against an abusive husband; George Zimmerman, a “neighborhood watch” volunteer, successfully invoked Florida’s “stand your ground” law to allow him to kill unarmed, seventeen-year-old Trayvon Martin with impunity.

The survivors of the unarmed and innocent dead include a bereaved network of mothers and fathers, sisters and brothers, widows and girlfriends, widowers and boyfriends, and children. Some have become involuntary activists who, long before Michael Brown died in Ferguson, ceaselessly voiced anguish over the deaths of their unarmed loved ones and pursued a seemingly futile quest for justice. Others live with a dull ache and a hole in their spirits and in their hearts, dug by the despair that is the child of hopelessness.

While the Justice Department has investigated excessive force in a number of police departments, what may distinguish Ferguson is the fact that on March 4, 2015, the United States Department of Justice, Civil Rights Division, issued a 102-page report on policing in Ferguson. The report is comprehensive, objective, factual, and damning. Investigation of the Ferguson Police Department illuminates a municipality that is dependent on practices and policies that criminalize its majority black populations through traffic violations, municipal ordinances, false arrests, charging practices, and impositions of penalties for petty violations and charges that lead to debt and imprisonment. As the Department of Justice report concluded: 1) “Ferguson’s police and municipal court practices both reflect and exacerbate existing racial bias, including racial stereotypes”; 2) “Ferguson’s own data establish clear racial disparities that adversely impact African Americans”; and 3) “[t]he evidence shows that discriminatory intent is part of the reason for these disparities.” In summary, the Ferguson Report reveals a pattern or practice of unlawful conduct within the Ferguson Police Department that violates the First, Fourth, and Fourteenth amendments to the United States Constitution, and federal statutory law. Over the years there have been a number of investigations and reports on the causes of and events surrounding racial violence in American communities; the Ferguson report stands out both for its comprehensive detail and as a twenty-first century reminder that we have not left this kind of unrest in our rearview mirror.

The events in Ferguson in the summer of 2014 were bigger than Michael Brown and Darren Wilson. And the Ferguson protests ignited a multiracial campaign, if not a movement, captured in the refrain “Black Lives Matter,” reminding us of a long, sordid history of violence by private actors and law enforcement against African Americans and the devaluation of black lives, stretching from slavery and reconstruction to the present.

In 1944 the Swedish sociologist Gunnar Myrdal, his classic study of race in America, An American Dilemma, wrote that he was convinced that “the Southern police system . . . represents a crucial and strategic factor in race relations.” Myrdal wrote that “the most publicized type of police brutality is the extreme case of Negroes being killed by policemen.” Seventy years later, these observations remain sadly true, even in the wake of the Ferguson report. Mere months after the report’s initial release the nation was bombarded by the video of the shooting death of Walter Scott in North Charleston, South Carolina, shot in the back by a policeman after a traffic stop.

But going beyond these “extreme” cases, and citing sociologist Arthur Raper, Myrdal further identified a more insidious force at work: “the dynamics of the fee system,” in which “all the minor court officials, and in some instances the prosecuting attorneys get their pay out of fines.” This system,” Myrdal explained, “. . . puts a premium upon making those arrests and getting those convictions which will yield fees and costs without jeopardizing the political  popularity of the fee-getting officials.”

There is an element of common corruption that preys upon the vulnerable in a manner that may not be driven solely by considerations of race, but by a kind of venality that, when combined with the racial prejudices of municipal employees, including the police and court system, is both banal and toxic. In Ferguson, the Department of Justice found just such a toxic Combination, concluding that “over time, Ferguson’s police and municipal court practices have sown deep mistrust between parts of the community and the police department, undermining law enforcement legitimacy among African Americans in particular.” In a perfect illustration of Myrdal’s “fee system,” the Ferguson report found that:

“Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a patter of unconstitutional policing and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harms on members of the Ferguson community.”

The report continued,

  “Partly as a result of City and [Ferguson Police Department] priorities, many officers appear to see some residents, especially those who live in Ferguson’s predominantly African-American neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue.”

Ferguson, Missouri, as it turns out, is Myrdal’s “fee system” on steroids.

Ironically, on the same date that it released Investigation of the Ferguson Police Department, the Department of Justice released a second, 86-page report, on the Michael Brown shooting itself. The Michael Brown report found no basis on which to disagree with the decision by local prosecutors to clear Police Officer Darren Wilson of all local charges, or on which to bring federal charges against Officer Wilson. For reasons detailed over the course of the report, the Department of Justice found that “Wilson’s conduct in shooting Brown as [Brown] advanced on Wilson, and until he fell to the ground, was not objectively unreasonable and thus not a violation of 18 U.S.C. Sec. 242.”

Many people were disappointed in the Department of Justice’s conclusion that it could not pursue federal charges. And not everyone feels compelled to wait until the dust clears and the facts are determined. For those who are familiar with the applicable federal law in Officer Wilson’s case, however, the Department of Justice’s conclusion was not a surprise. I have been a civil an human rights lawyer for thirty-five years. As an African American, I share in the grief, frustration, and anger each time the life of an unarmed black person is lost as a consequence of excessive force wielded by police. As a lawyer, though, I have learned that a rush to judgment in a specific case rarely holds up over time, and things are almost always more complicated than they first appear. We are called upon to sift through the facts, unmoved by passion, keeping an open mind until we are able to arrive at as objective a conclusion as possible.

In the case of Michael Brown, the law requires a showing that Officer Wilson acted “willfully,” that is “for the specific purpose of violating the law.” This is a high standard to meet. The officer could have used poor judgment, but that flawed judgment would not satisfy the Sec. 242 standard, which requires an adjudicator to get into the mind of the actor and prove that he took his action not just recklessly or negligently, but that he took it for the specific purpose of violating the law.

The fact that federal prosecutors concluded they did not have the requisite proof to support federal charges against Wilson, however, did not bar the Department of Justice’s Civil Rights Division from examining the City of Ferguson’s overall policing practices and policies. And the fact that the Department of Justice did examine those practices, in a clear-eyed and ultimately scathing way, is both historic and a cause for optimism.

Ironically, systematic issues concerning race and policing came into even more stark relief than they might have been if Wilson had been indicted. The Department of Justice was free to pursue an investigation of the city, the police department, and the judicial system of the City of Ferguson in an attempt to understand the context in which the events following the shooting of Michael Brown took place. Even if Darren Wilson was not criminally indicted, in a broader sense the City of Ferguson, Missouri, stood indicted for its unconstitutional and racially discriminatory actions, deeds, and omissions in its daily treatment of its African American citizens.

The killing of Michael Brown fell into a deep and ancient American fault line. Race has always been America’s deepest dilemma, and it remains so today, even in “The Age of Obama.” Maybe especially in “The Age of Obama.” Many Americans believe that black people are collectively over-sensitive, and perhaps unjustifiably paranoid, un-objective, obsessed, and even distorted in their views when it comes to race. I have come to believe that when groups of people are subjected to oppression, subordination, discrimination, collective violence, and even genocide, those experiences are “crazy-making.”

When Jewish people continue to say “Never Again”, and warn of a rising tide of anti-Semitism, many others often react with skepticism and hostility, especially if they perceive, rightly or wrongly, that many Jews are empowered in one way or another. Jews, however, know full well that, whatever degree of power or wealth some may have had in mid-twentieth century Germany, they were not protected against the Holocaust. They may seem paranoid, but they are not crazy.

African Americans are not crazy when they see racial discrimination and racism, although their experiences with race and racism may sometimes lead them to conclusions that are premature or misplaced. As a parent, I struggle with what to teach my children. I do not want them to walk around perceiving racial bogey-men where they do not exist. On the other hand, I do not want them to believe naively that we have reached racial nirvana, only to have them shot in the back, asphyxiated, or their spine broken by the police force paid to protect them.

Whatever the merits of any individual instance in which law enforcement kills an unarmed black person (and in recent cases, these “merits” have included allegedly stealing cigarillos, running away from a traffic stop, and running away after “making eye contact” with the police), black people are not crazy or “crying wolf” when they view law enforcement with suspicion and doubt. New York mayor Bill de Blasio, father of a bi-racial teenaged son, in the aftermath of the deaths of Michael Brown in Ferguson and Eric Garner in Staten Island, talked publicly about the painful wisdom regularly imparted by parents of black boys from an early age, which certainly includes counseling young black men not to assert their constitutional rights in encounters with the police, lest those young men end up another sad statistic. The head of New York’s police union, tone deaf or blissfully steeped in ignorance and denial, charged that de Blasio “threw cops under the bus.” Sadly, when law enforcement officials and union leaders dismiss legitimate concerns born out of the lived experiences of African Americans, they alienate themselves from a portion of the community they are charged to serve.

Some commentators also seem unable to distinguish between violence within populations plagued by the dysfunction endemic to concentrated poverty, on the one hand, and violence against unarmed individuals perpetrated by those charged with protecting those communities, on the other. These commentators seem to suggest that African Americans forfeit the right to protest police brutality because of some theory of collective responsibility for criminal behavior within black communities. Perhaps these arguments are intended to be a distraction. Taken at their word, however, those who advance such arguments reveal a poverty of thoughtfulness that should disqualify  them from serious public discourse.

To be sure, policing is a difficult and often dangerous job. The tragic shooting deaths by a mentally ill assailant of two New York City police officers, allegedly in retaliation for Michael Brown’s death, underscored that reality. In the demonstrations following Michael Brown’s death some news outlets reported that some protesters explicitly called for violence and police officers’ deaths. It should hardly seem necessary for people with legitimate concerns about police misconduct to have to condemn the deeds of individuals who advocate or perpetrate violence against police officers.

But while it is wrong for protesters to use incendiary language that calls for violence against police, it is also wrong to blame peaceful protestors, responsibly exercising their First Amendment rights, for violence against police. All law enforcement officers do not use excessive force against African Americans, and most protesters are not irresponsible in their exercise of their First Amendment rights. However,  a culture within police departments of silence among good officers, tears at the fabric of the relationship between law enforcement and the communities they police. Likewise, a failure by those protesting police brutality to condemn and distance themselves from calls for violence against police, compromises their protest.

Among the direct evidence of racial bias found in the Justice Department investigation were racist emails and other communications between court  and law enforcement personnel, including crude “jokes” aimed at president Barack Obama and his wife. These crude and racist depictions of the first African American president and First Lady are the tip of an iceberg that we have glimpsed since 2008. A congressman from a state with a history of racial extremism shouts out at the State of the Union Address, calling the President of the United States a liar. A governor of a western state deigns to lecture the President of the United States on the tarmac of an airport, wagging her finger in his face as if he were not the highest office holder in the land. The Senate minority leader, upon Barack Obama’s election as president, announces as his number one priority, in a tone dripping with hostility, at a time of great financial crisis and during a war on terrorism, his goal of ensuring that the president would be unsuccessful, setting out on a path of political obstruction that surpasses anything in living memory. A chief judge of a federal district court circulates racist jokes by email, including one about bestiality and the president’s mother. A New England sheriff calls the President of the United States the “n” word and although the sheriff is forced to resign, he refuses to apologize. A former big city mayor with a history of disdain for African Americans, who never saw a killing of an unarmed black man by a policeman he did not defend, engages in a tirade against the president that drips with disdain and criticism over the president’s concern about Ferguson. The list goes on and on.

In the story of Ferguson lies the great contradiction of “The Age of Obama.” In “post-racial” America, racism is alive and well. The glow that accompanied Barack Obama’s election in 2008 is long gone. Its power was in the fact that with the election of the first African-American president it appeared that we had overcome America’s greatest demon. But that impression was only a partial reality. The United States has crossed a Rubicon. The election and re-election of President Obama signaled an irrevocable turning point in American history, partly attributable to changing attitudes among white Americans, and partly to changing demographics. Yet the election of Barack Obama has unleashed forces of reaction and racism that are reflected in the racist jokes, disrespect, and disdain directed at the First Family and at African Americans more generally. Black people see it and feel it, as do many other Americans. Ferguson, Missouri, embodies all of these forces, some subterranean and many undisguised. These are dying gasps and political convulsions on the part of an old order that will not pass easily from the American stage.

Some years ago I took a taxi from Detroit’s airport to Ann Arbor with a young man from Wales. I shared with him that I was a civil rights lawyer, and he shared with me the most unexpected thing he had learned about the United States: the persistence of race. “Race,” he said of American, was “like a civil war you hold under your breath.”

The United States Department of Justice Investigation of the Ferguson Police Department, conducted under the administration of an African-American president and an African-American attorney general, is an objective, unblinking, and factual inquiry into a twenty-first century American city caught between the past and the future. It is proof that the election of Barack Obama was a turning point in American history, but that systemic racism and inequality did not disappear the moment President Obama was elected President of the United States.

The Ferguson Report will take its place on the shelf with other important governmental reports–the 1968 Report of the Advisory Commission on Civil Disorders, the 1969 Final Report of the National Commission on the Causes and Prevention of Violence, the Report on the Assassination of President John F. Kennedy, the 9/11 Report of the National Commission on Terrorist Attacks Upon the United States, and others. These reports and investigations bear silent witness to some of the most important issues of our times; the use of deadly force against unarmed African Americans remains one of those issues. The Department of Justice’s scathing Investigation of the Ferguson Police Department deserves to be read and heeded by all Americans, so that we can begin the process of turning the tragedy of Ferguson into a turning point for our country.

Ferguson puts the lie to twenty-first-century America’s claim of post-racialism. It is a reminder that our most long-lasting dilemma, the flaw that has stained our nation even before its independence and over which we fought a civil war, has not yet been consigned to the dustbin of history. Ours is a Dickensian dilemma. It is the best of times; it is the worst of times. We have a black man as President of the United States; we have back men incarcerated at historic rates, again and again killed by law enforcement while unarmed, and missing in huge proportions from the communities and families from which they come. Ferguson is the tip of an iceberg, shaped by the legacy of the slavery-to-Jim Crow continuum that even today accounts for eight out of every ten days that people of African descent have spent in what is now the United States. It reminds us that, in spite of the extraordinary progress our nation has made, we are not far removed from the legacy as we would like to think. One of the hallmarks of American racism has been the devaluation of black lives. Out of Ferguson’s tragedy and turmoil comes a protest and refrain voiced by people of all races and backgrounds: Black lives matter. Yet even after Ferguson, unarmed black men continue to die at the hands of police. The Department of Justice’s report on Ferguson has not brought an end to these deaths, but it bears witness to the systemic issues that, in at least one small town, have allowed racism to flourish in the new millennium.

 

Fun Facts

Want to meet the women who created #BlackLivesMatter? Go HERE. You’ll find they are not the radical figures you’ve been told HERE.

 

True: Protests, if peaceful, should always be legal. It is a Right guaranteed by the First Amendment of the U.S. Constitution. While they may be loud, they are still legal. Civil rights protesters don’t want something you don’t already enjoy, they want equality; to be able to enjoy the same respect, privileges, opportunities, and guaranteed rights you do – but have been denied because of their color or financial standing in society.

 

Untrue: All protests are violent.

 

True: Even African Americans who have not completed the same education level as you are not stupid. They are intelligent, feeling human beings who recognize prejudice and bias and racism when it is directed to them and their families.

 

Untrue: The crime rate in predominantly black neighborhoods has nothing to do with the high rate of unarmed black men who are shot by police or die in police custody.

 

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