Ferguson Update

In an earlier post I offered my perspective on Prosecutor Robert McCulloch’s conduct in directing the St. Louis County grand jury investigation that found no basis for indicting officer Darren Wilson in the shooting death of Michael Brown. There, I argued that based on the information then available the prosecutor acted correctly in not seeking an indictment, a position now borne out by the U.S. Department of Justice’s report on the shooting, which found that: Wilson’s use of force was not “objectively unreasonable” under the applicable federal statute, and thus no federal grand jury indictment was warranted. However, a second DOJ report blasted the small city of Ferguson, Missouri (the location of the incident) for various forms of racism, not related to Brown’s death.

Before proceeding further, we would be wise to consult the analysis of the DOJ reports offered by Professor Richard Epstein, one of the preeminent scholars now working in the classical liberal tradition. With respect to the report concerning Wilson, he notes that based on the facts and circumstances he cites, “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.” In other words, it is clear that he acted righty in defense of his own life and in defense of the public at large (what would have happened if Brown had walked away with the officer’s gun?).

Epstein also shreds the charges of institutional racism against Ferguson’s criminal justice system. In response to the DOJ claim that the city “polices for profit,” he notes that while this allegation appears to be correct, exactly the same could truthfully be said about a countless number of other cities, municipalities, and state governments.[1] Not only do many other jurisdictions rely on revenue from traffic offenses, parking fines, etc., but also pad their coffers with the proceeds from civil asset forfeitures. Given that Ferguson’s adoption of such dubious practices are unrelated to the Brown shooting, there is no reason to single it out apart from the need to claim a political “scalp.” One can well ask why Eric Holder and other “liberals” weren’t calling out such governmental overreach before the Brown killing.

The DOJ also considers it damning that, “Despite making up 67% of the population, African Americans accounted for 85% of FPD’s [Ferguson Police Department’s] traffic stops, 90% of FPD’s citations, and 93% of FPD’s arrests from 2012 to 2014.”  But as Epstein rightly notes, this fact constitutes a “gross abuse of statistical evidence” because, first, it ignores the most crucial question, namely: “did African Americans commit these various offenses at a higher rate than the rest of the population?” If so, there is nothing sinister about blacks more often being stopped and arrested.

Second, Epstein notes the DOJ does not allege that a higher incidence of black stops and arrests is anything unusual, and in fact, “The Bureau of Justice Statistics’ 2011 Police-Public Contact Survey indicates that, nationwide, blacks were 31 percent more likely than whites to be pulled over for a traffic stop.” So, here again, there is no reason to single out Ferguson for criticism. Either Ferguson is simply a tiny, representative part of a racist nation or police generally have some reason to be more suspicious of black motorists. [2]

What is the broader take-away from Epstein’s evisceration of the two DOJ reports? First, the racial grievance industry is not only responsible for unjust governmental policies that harm millions of innocent Americans, such as thinly disguised admission quotas for blacks and other favored minorities (at publicly-funded universities) euphemistically called “affirmative action,” and set asides for minority contractors, but it destroys the lives of ordinary people in a more direct manner. Officer Wilson was forced to resign his position and go into hiding because in the lawful performance of his duties he was forced to defend his own life against an aggressive thug. Where does he go to get his life back?

Also, many innocent merchants and property owners in Ferguson suffered great economic damage as the misguided “protests” against Brown’s killing enabled criminals to use this as cover to burn and loot local businesses.  These businesses will either have to close or pass such incremental costs onto their customers, harming the innocent members of that community.

Finally, the DOJ report on the city of Ferguson illustrates the dangers of “disparate impact” analysis now employed by the federal government to sue businesses and local governments under the Civil Rights Act. Under this theory, for example, even absent any proof that a business intentionally discriminates in its hiring, it may still be guilty of violating the law if the composition of its workforce varies significantly from the demographics of the population from which it recruits. Remarkably, despite the fact that the players in the NBA are overwhelmingly African-American, the DOJ does not appear to believe that the owners of NBA teams are unconsciously discriminating against whites in their recruitment and hiring program.

All of these manifestations of the racial grievance industry are anathema to libertarians because they violate the injunction of always treating persons with dignity and respect, and never merely as a means to some supposedly greater good, like “diversity.” Nothing better illustrates how far away our country has strayed from this ideal as the recent events in Ferguson.

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[1] It is perhaps worth a passing note that any racial discrimination committed by Ferguson personnel against African-Americans was the work of a governmental unit, under pressure to finance its bloated spending, and not the “evil” private sector.

[2] The DOJ report also cites various racist emails sent by members of Ferguson’s police department, but Epstein puts them in the proper perspective:

But here, again, it is important to note that isolated emails from various officials, however reprehensible in and of themselves, do not indicate any pervasive forms of misbehavior that suffices to indict an entire police force. Nor is there any evidence that these offensive emails sent between 2008 and 2011 indicate present abuse that could have contributed to poor police practices.

Of course, there are many racists here, but the US is not institutionally racist. If we were, I don’t think we would be electing blacks to national and state-wide offices, and clinging so tenaciously to affirmative action and set asides that made sense as rectification of the effects of the Jim Crow South, but have long since reached their sell-by date.


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