It will take more than the Band-Aid President Barack Obama offers to staunch the bleeding wound caused by the police violence in Ferguson, Mo. The fact of the matter is the events in Ferguson reflect a broader crisis in legitimacy, a crisis brought about in large part by the federal courts.
Reacting to outrage over the shooting of Michael Brown, and to the heavy-handed reaction of the Ferguson police department in response to protests, the president wants better guidelines on the recycling of retired military equipment to local police departments. He also proposes federal funding to make sure police officers wear body cameras, the better to eliminate disputes of fact about what police are doing on the beat.
As a general rule, time spent wondering what the founding fathers would have done is time wasted, unless, of course, you are angling for a leadership position in the Federalist Society. But it is useful to refer to the debates at the time this republic was founded to mark the distance we have traveled as a nation.
The founders opposed a standing army as a threat to liberty. A citizen militia was more congruent with a republican spirit. Each stakeholder in the community would be called upon to shoulder arms in times of crisis. No permanent army would be stand on the necks of the people, consuming both resources and exerting an intimidating thrall.
Oh, how times have changed. And how the courts have aided and abetted these changing times to create the very thing the founders feared.
Virtually every community in the United States now has its own permanent police department, said departments largely created during the 19th century. In our time, we've recycled retired military gear to these communities. Small police departments now have SWAT teams, half-tracks, sophisticated weaponry, body armor. When they can't qualify for a federal give-away of used gear, they seize assets in drug raids to generate capital to buy new equipment.
Every community in the United States now supports, and is policed by, a standing army.
The courts give officers in these armies broad discretion on when and whether to use force. An officer faced with what he understands to be an imminent risk of serious harm is authorized to shoot to kill. The law does not require that the officer assess the risk correctly; it requires only that his assessment by objectively reasonable. In the fusty language of the law, that means merely that a reasonable police officer would be justified in believing a threat was immediate.
The result is deaths like Michael Brown's in Ferguson.
I've not yet had the chance to review the grand jury testimony in that case, but there was never any doubt in my mind that Darren Wilson, Brown's killer, would not be indicted. Street confrontations are tense. The law places a premium on the safety of officers. Send an armed man into an angry crowd, or onto angry streets, and it's no surprise that civilians end up dead.
A police officer sued for shooting to kill, or head-knocking, is more often than not given a pass by the courts. Qualified immunity, a judicially created doctrine that takes from juries the right to evaluate police conduct, assures it.
What has become of the doctrine of assumption of risk? Isn't policing a public service? Officers sworn to protect and serve ought not to be armed like storm troopers. Citizens have an historic right to be suspicious of the new permanent armies in our midst.
I am heartened to see the protests in Ferguson and around the country: They are a sign that the balance has to shift away from law enforcement and in favor of ordinary people. When communities regard officers as predators the solution isn't more police, cameras and better resource allocation.
The solution is restoring the rights of jurors to decide what is a legitimate use of force. Obama doesn't get it. Will it take another shooting, another round of fires, to catch the president's attention?
Read more: http://www.ctlawtribune.com/id=1202677850422/Norm-Pattis-Courts-Partly-To-Blame-for-Ferguson-Mess#ixzz3KmuNXf7Y