Richard A. Epstein: Race Baiting and Ferguson

The DOJ was determined to make a big deal out of the various misdeeds of the Department. In so doing, it set back race relations in the United States by sending out the unmistakable message that while the DOJ could not get Wilson, it could surely get the city for which he had worked.

Richard A. Epstein writes: The most recent news from Ferguson concerns what Eric Holder has rightly called the “ambush shooting” of two police officers outside the city’s police department. This incident occurred in the wake of two detailed reports released by the Department of Justice. The first report deals in depth with the shooting of Michael Brown by Ferguson police officer Darren Wilson. The report recommended that the case against him be closed. The second DOJ report contained a scathing indictment of the sad state of affairs within the entire criminal justice system of Ferguson. The combined effect of these two reports is likely to make matters worse in Ferguson by combining the back-handed exoneration of Darren Wilson with the unstinting condemnation of the City of Ferguson.

“The two DOJ reports do not cohere. The first shows that Wilson’s use of force against Michael Brown was fully justified. The second uses that incident to launch a scathing attack against Ferguson, leading to the resignation of its key officials for conduct that looks on balance to be no better or worse than that in other cities around the country.”

Let’s start with the DOJ report that exonerated Wilson. The federal prosecutors ran an exhaustive review of all the physical, forensic, and testimonial evidence in the case. It is necessary to state its final conclusion in full: “Darren Wilson’s actions do not constitute prosecutable violations under the applicable federal criminal civil rights statute, 18 U.S.C. § 242, which prohibits uses of deadly force that are ‘objectively unreasonable,’ as defined by the United States Supreme Court. The evidence, when viewed as a whole, does not support the conclusion that Wilson’s uses of deadly force were “objectively unreasonable” under the Supreme Court’s definition. Accordingly, under the governing federal law and relevant standards set forth in the USAM [United States Attorneys’ Manual], it is not appropriate to present this matter to a federal grand jury for indictment, and it should therefore be closed without prosecution.”

“The serious consequence of the second high-profile report is to keep alive the image that racial injustice is alive and well in the United States. What the report fails to understand is that it is as dangerous to exaggerate the risk of racial injustice as it is to ignore it.”

The legal conclusion is surely correct, but the tone of the report’s findings are slanted against Wilson. It is not just the case that there is insufficient evidence to support a criminal prosecution. It is that, beyond a reasonable doubt, the evidence supports that Wilson’s conduct was fully justified. During the initial encounter, Brown had tried to wrest Wilson’s gun from him by reaching into Wilson’s Chevy Tahoe SUV.

“What the DOJ now has to do is to acknowledge that the killing of Michael Brown was a justifiable homicide. It must abandon its contrived legalisms and defend Wilson, by condemning unequivocally the entire misguided campaign against him, which resulted in threats against his life and forced his resignation from the police force. Eric Holder owes Wilson an apology for the unnecessary anguish that Wilson has suffered.”

Wilson’s story was corroborated, to quote the report, “by bruising on Wilson’s jaw and scratches on his neck, the presence of Brown’s DNA on Wilson’s collar, shirt, and pants, and Wilson’s DNA on Brown’s palm.” Later on, the evidence also showed that Brown was running toward Wilson at the time Wilson fired the fatal shots, not knowing whether Brown was armed or not. The incident was far clearer than the oft-ticklish situations in which the courts have to decide whether a police officer used excessive force against a person who was resisting arrest, as with the controversial grand jury decision not to indict any police officer for the killing of Eric Garner. Read the rest of this entry »