POLITICS

Ask An American: Explaining Ferguson, Eric Garner And Tamir Rice To Canadians

12/09/2014 04:47 EST | Updated 12/09/2014 05:59 EST
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As a wave of protests against police brutality toward African Americans sweeps across America, many Canadians are once again questioning what exactly goes on in the minds of our southern neighbours.

How was it possible for the police officers who killed Michael Brown and Eric Garner to escape trials? Why does this keep happening? Will anything ever change?

We asked HuffPost U.S. politics columnist Jason Linkins to do some explaining.

Canadians grow up reading American history. We’re well versed in the violent legacy of slavery and Jim Crow. We know that discrimination against African Americans by police is both pernicious and persistent. Ferguson has been front page news here. What we perhaps don’t understand as well is: why now? What has made this year different than the years that came before? Why has rage boiled over into popular protests across the nation?

I was actually vacationing in Canada during the summer of 2013, when a jury in Seminole County, Florida returned its not guilty verdict in the Florida v. George Zimmerman case. It was all any Canadian wanted to ask me about (well that and guns in general).

I have a feeling that most Canadians have the same sort of sense as we do that something's been building in the recesses of America's consciousness for some time, in the way that African Americans are routinely victimized either by police specifically or by the criminal justice system more generally. (This abuse doesn't just play out in instances of police brutality -- Matt Taibbi's book "The Divide" is a good primer on the way the criminal justice system at all levels tends to mete out substantially heavier penalties to the poor than it does the wealthy, to blacks more than whites.) In quieter moments, the issues of police militarization and reforming some of the more egregious criminal justice practices, such as mandatory minimum sentencing, had been becoming topics of discussion with greater frequency.

The quiet soon ended. In July of 2014, Eric Garner was choked out by a police officer named Daniel Pantaleo in Tompkinsville, a neighborhood in Staten Island -- an act of police brutality that was vividly captured on video.

And then, Michael Brown is shot by Officer Darren Wilson in Ferguson. In August. Which may have played a role, actually. In America, August is famed for being the "slow news month" in which things are rarely slow, and often terrible. And this particular August, there was a lot of volatile stuff sloshing around in the transom, waiting to be catalysed.

And the catalyst seems to have been the response of the police in Ferguson. In the immediate aftermath of the shooting, the St. Louis County Police Department rolled out to the scene of the shooting, police dogs in tow, seemingly more prepared to conduct a crowd-control exercise than to conduct an investigation into a shooting. Michael Brown's body had already been treated with supreme indignity: it lay in the street for four hours, as if it were a sack of trash. As Mark Follman reported, once the body was cleared, neighbors erected an ersatz memorial on the spot where he fell. Police at the scene allegedly allowed one of their dogs to relieve itself on the memorial. Later on, they drove over it. It was almost as if they wanted to antagonize the neighborhood.

The following night, everything exploded in a confrontation between protestors and police clad in riot gear. What began as a candlelight vigil ended in mayhem: looters hit several area businesses; a gas station and a Quik-Trip convenience store were set on fire. There's no doubt that police had to act to stem the tide of these events, but they hardly stopped there -- over the course of several days, cops went at protestors with brute force and teargassed entire neighborhoods. Some people were teargassed standing in their own yards. By week's end it was becoming increasingly clear that the police response was over-the-top -- all those discussions we'd been having about police militarization were now playing out in living color on every laptop. Former veterans of the armed forces who had the chance to examine what police were doing in Ferguson were routinely appalled by the police's tactics, training, and behavior.

Flash-forward to November. In Cleveland, a cop named Timothy Loehmann, responding to a 911 call about a kid at a public park waving a gun around (that was "probably fake," according to the caller), rolled up on 12-year old Tamir Rice and killed him, easy as you like, without so much as a second thought. The cop just put him down like he was a rabid animal. As it turned out, the gun wasn't real. And, as it turned out, the cop was something of a known incompetent. Which is par for the course in the Cleveland area … again, as it turns out. (This isn't the only recent incident in which a shoot-first-ask-questions-later cop killed an African American holding a toy gun -- in August, John Crawford III went into a Walmart in Beavercreek, Ohio, picked up a toy air rifle, continued shopping, and ended up being shot by police while milling around the store, unaware that he was doing anything that might attract the attention of law enforcement.)

And now we've sort of come full circle. If the Garner incident was feeding the national psyche in the days before Michael Brown was shot, then the Ferguson grand jury's decision to not indict Wilson returned the favor when a New York grand jury failed to indict anyone in Garner's death. Now it's national.

The officers who killed Eric Garner and Michael Brown won’t be charged because of grand jury rulings. Canada got rid of its last grand juries 30 years ago. They seem open to serious manipulation by prosecutors. Why are they still around and is there any way to get rid of them?

Grand juries play roles both symbolic and practical in the criminal justice system. All of which are arguably vestigial. From a practical standpoint the grand jury proceedings allow a prosecutor to lock down sworn testimony from witnesses (to guard against their stories changing), and make a test run of the case in front of a jury pool. Symbolically, the grand jury is supposed to be a guard against prosecutorial misconduct -- ordinary citizens essentially vet the case and, in theory, this is supposed to guard against a rogue prosecution. Additionally, America's governing bureaucracies at all levels tend to allow "activity" to pass for "achievement." Grand juries are supposed to serve as proof that the justice department is working. After all, prosecutors are out there, getting indictments!

If you've read Thomas Wolfe's book "The Bonfire Of The Vanities," then you have probably encountered the saying, "A good prosecutor could indict a ham sandwich." The phrase is attributed to a judge named Sol Wachtler, who learned this the hard way when he was himself indicted for extortion.

The Huffington Post's Sam Stein recently hosted an edition of his "Drinking And Talking" roundtable series about the Michael Brown/Eric Garner cases, in which two of his guests -- civil rights attorney Donald Temple and civil attorney Doug Sparks -- discuss the results of the grand juries in both cases. I recommend readers check it out, but their salient point is that a grand jury will do whatever a prosecutor leads them to do. It would appear in the Ferguson case that the prosecutor, Bob McCulloch, simply did not want to indict a cop. So the evidence was presented in a way that favored Wilson's point of view. Typically, a prosecutor just uses the grand jury to determine whether there is probable cause -- a reason to have a trial. I don't think the evidence in Michael Brown's case necessarily made for a slam-dunk prosecution of Wilson. Still, I would have preferred to have a trial sort all of that out.

McCulloch's behavior was pretty unusual for a prosecutor. In the tedious, twenty-minute oration that he gave when releasing the grand jury's decision, McCulloch made it clear that to his mind, it was simply ridiculous that anyone even asked for an investigation into the killing of Michael Brown. To McCulloch, Brown's death was simply the natural order of the universe, and questioning that was inconceivable. He made that point, over and over again, along the way blaming the national press and "social media" for essentially perverting what he saw as the natural order of things. The grand jury, McCulloch said, "gave up their lives" to render a decision in this case -- clearly he thought the entire matter wasn't worth even a moment of skepticism, and those who humored the skeptics made great sacrifices.

But prosecutors of all stripes have a fairly cozy relationship with the police. This is somewhat understandable -- the police help prosecutors make cases, after all. But what happens when the suspect is a cop? A grave imbalance, as it turns out: as Trevor Timm, making the case for reforming the grand jury system in The Guardian, notes: "If you are an ordinary citizen being investigated for a crime by an American grand jury, there is a 99.993% chance you’ll be indicted. Yet if you’re a police officer, that chance falls to effectively nil."

Will we get reform? I think it will be discussed in some circles, and reforms will be proposed, and then those reforms will quietly die on the vine.

Canada recently had its own case of alleged police brutality caught on tape. Teenager Sammy Yatim was shot eight times while isolated on an empty streetcar with a knife. The officer has been charged with second-degree murder. It’s hard to see what’s different between this and the Garner case. What’s different?

What's different is culture, plain and simple. I can't speak to the way Canada was like at its foundation (alas, we were not asked to learn Canadian history in school), but I'm aware of the fact that for as long as I've been alive, inclusion and multiculturalism has been pursued in Canada as a matter of national policy. In America, we don't do much reckoning with our past, and it's considered gauche to apologize for it. We'll all have electric cars and Apple devices hard-wired into our corneas long before we do a thing like make "multiculturalism" a national policy.

In the United States, we have a devil of a time understanding that society, and the policies that govern it, do not have to be a zero-sum game in which benefits exclusively accrue to some only at the expense of others. This is why the persistent criticism of marriage equality, among its opponents, is that gay marriage will somehow devalue all other marriages. It's why discussions of sexual consent are met with fearful reprisals: "You're criminalizing flirtation! You rape survivors just want to dine out on your victimhood!" (Columnist George Will believes that women seek redress for sexual assault solely because being an assault victim is a "coveted status." His concern is literally about a perceived loss of status among people who've not been sexually assaulted.)

The reason that the Affordable Care Act, commonly known as Obamacare, was so fervently opposed was simply because many people just can't stomach the idea that affluent Americans should in any way subsidize the health care of poor Americans. Nevermind the fact that the cost of treating every poverty-stricken, insurance-lacking citizen who ends up in our emergency rooms is passed on to everyone else anyway -- to our minds, that's not a "tax." We've actually had socialized health care in America for as long I can remember -- we've just had the most brutally inefficient form of it.

Take a look at Twitter, and you'll see that many people are responding to the #blacklivesmatter hashtag with this #alllivesmatter hashtag. In the minds of those who promote #alllivesmatter, the #blacklivesmatter hashtag is allowing black people to receive attention at the expense of the attention that everyone else deserves to get!

Once you understand our difficulty in seeing the world in any way other than a set of zero-sum circumstances, a lot of what America does in domestic and foreign policy starts to make sense. (Let's use the word "sense" loosely.) You see it on all sides of what happened in Ferguson. To the police, questioning the decision to shoot Michael Brown represented a total, existential threat to their authority. To a portion of the protestors, rioting and looting and burning property seemed like a logical response, because doing so represented the chance to impose a concomitant, playing field-levelling "cost" on society. (A cost that would, in turn, train the police to behave better. It's possible to contend that this makes some sort of economic sense, but I would suggest that this, too, is brutally inefficient.)

Many police forces are considering or actively pursuing the use of body-worn cameras in the wake of Yatim’s killing. Obama has pledged funding to do the same in the U.S. after Ferguson. Does this seem likely to be adopted by most police? Are Americans concerned about privacy or misuse? Is that part of the debate yet?

If there's any reform that could arise from these tragic events, I'm most optimistic about the possibility that more police will wear body cameras. It's something that Obama wants to pursue, but remember, he can do little more than propose the measure and maybe allocate some money to aid in the effort. It will be up to other policymakers and local governments to actually implement the wearing of body cameras. And it wouldn't surprise me at all if the early adopters tend to be the police departments that are already practicing their craft responsibly.

I think body cameras are a good idea. I'd argue that they offer communities a bit more transparency. I'd wager that many cops might proceed with somewhat more restraint knowing that their actions are being filmed. And one of the big selling points of body cameras is that they also protect the police officers themselves -- and could potentially help them make cases. But I wouldn't get too Panglossian about them. Remember, in the case of Eric Garner's death, we don't want for clear video footage. Still, the grand jury did not indict. And I don't think that more body cameras is going to result in more indictments -- cops will continue to insist that we shouldn't believe our lying eyes, even after caught in the harsh light of a digital lens. It's possible that more cops, wearing more cameras, will do little more than increase our awareness of grave injustices. That's not nothing! But it's cold comfort for the loved ones of future Eric Garners.

You ask if "Americans concerned about privacy or misuse." Americans can be fairly surveillance-averse in certain instances. The National Security Agency has its stans, but we're not the sort of people that would easily submit to live under the conditions you find in CCTV-crazy London, for example. For some, the prevalence of cameras that catch speeders and red-light runners represent an intolerable affront to liberty. I've not heard such arguments against police body-cameras yet -- in general, Americans are okay with more people watching the Watchmen. But I shouldn't be surprised if the argument surfaces.

I think a lot of Canadians think of the U.S. as red states and blue states and assume that the red states are where most of the discrimination happens. But Eric Garner was killed in New York. Is it an illusion that this sort of discrimination is concentrated in certain states?

Oh, yeah! It's absolutely an illusion. Eric Garner was killed in New York City.* Tamir Rice was killed in Cleveland. These are two of the most liberal cities in America. New York City is the capital of American elite liberal culture. There were nine precincts in Cleveland where Mitt Romney didn't get a single vote. If you think that high concentrations of liberals or Democrats means you're entering some sort of racial discrimination-free zone, I've got news for you: No, no, no, no, no.

(*Yes, technically Garner was killed on the more-conservative Staten Island, of which Saturday Night Live head writer Colin Jost quipped: "Staten Island is 80 percent white, 95 percent cops and the other five percent are split between firefighters and the members of the Wu-Tang Clan." But New York City in general is where stop-and-frisk flourished. As the aforementioned Matt Taibbi book makes clear, you can do a lot of reporting on the systemic injustices meted out to America's black community without traveling outside of Manhattan and Brooklyn.)

Even Fox News' Bill O'Reilly has said that Eric Garner didn’t deserve to die. Media on the right and left seem pretty lined up against the recent police brutality. Is that having an effect? Or is there still a significant segment of the population that thinks Eric Garner was to blame for his own death?

Well, remember when I said that more cameras might increase awareness of injustice even if it doesn't lead to a measurable increase in justice itself? The fact that even the conservative Bill O'Reilly finds Garner's death to be manifestly distasteful demonstrates the utility of video footage. I can all but assure you that if Garner's death had not been recorded in the way it was -- if there was any gray area in which to stash the possibility that the police had responded legitimately, you'd have more people taking the cop's side of things. The conflict in Ferguson boils down to two competing narratives -- one in which Brown surrendered and one in which Brown posed a legitimate, imminent threat to Officer Wilson's safety. If you're inclined to take a policeman at his word, there's no visual evidence to dissuade you. But in Garner's case, the confrontation looks avoidable and his death looks unjust.

But if you want to look for people who do think Eric Garner was responsible for his own death, they are out there. It's not a collection of people who I would accuse of being America's top thinkers.

So there are now federal investigations into the Eric Garner and Michael Wilson cases. Could you explain how these probes are different from the grand jury cases? Is there much hope that they will result in punishment for the officers involved?

Generally speaking, the feds face a high, and potentially daunting threshold in making a case against the police in these cases. My understanding is that they will need to prove that the cops in each case willfully intended to deprive Brown/Garner of his civil rights. And federal action will have higher stakes as well -- it's going to be about Obama, about frequently embattled Attorney General Eric Holder, or Holder's Senate confirmation-pending replacement, Loretta Lynch. Anything the Justice Department does will be politicized out the yin-yang.

The people who are leaking the internal deliberations of the Justice Department to the media are saying that determinations have already been made that Federal prosecutors "do not have a strong enough case to bring civil rights charges against Darren Wilson." The Garner case appears to have greater possibilities, thanks to the video footage. Still it will not be an easy case to make, nor will it be a swift one.

The Justice Department may not have the final say in these matters. It's very possible that both the Michael Brown shooting and the Eric Garner chokehold death will result in civil suits. The two attorneys who participated in the aforementioned "Drinking and Talking" panel discussion have a lot to say about what a civil case might look like. I'll recommend that readers watch that part of the video to get a more detailed, expertise-laden point of view on the matter than I can provide, but the short story is that plaintiff's attorneys in civil cases have a lower threshold to surmount than criminal prosecutors. They also have the leeway to pursue new evidence in discovery, and the latitude to question the defendants' accounts in a more aggressive manner than was apparently pursued in either of these grand juries.

Is this at all a hopeful moment generally? Is there a sense that the outrage and protest could lead to meaningful change?

I don't think that we've reached some hopeful moment yet, it is still pretty much a moment of anger and outrage. I think there's a decent chance that you'll see more body cameras in the field. I think you'll also see people doing more to record cops on the street, as you saw with Eric Garner. I think we're in the midst of a moment where any further cop-killings will add to the current convulsion.

More broadly, the actions of the police in Ferguson have re-engaged a discussion about police militarization specifically, and excesses more broadly. "Last Week Tonight" did segments on both police militarization and civil asset forfeiture abuses, all of which must have warmed the heart of my former colleague, Radley Balko, who (literally) wrote the book on the rise of the warrior cop (it's called "The Rise Of The Warrior Cop"), which deals with all of this.

For the last generation the Republican Party has branded itself as the "law and order party," but the recent libertarian strain in the conservative caucus is forcing a re-think of supporting police and prosecutors unquestioningly. There is a possibility that Senators like Ted Cruz (R-Texas) and Rand Paul (R-Ky.), and Representatives like Raul Labrador (R-Idaho) can help create bipartisan reforms to the criminal justice system that would change the way non-violent drug offenders are sentenced, ending the practice of mandatory minimum sentences. It's not like Eric Garner's death had a lot to do with these things that we are close to reforming -- but sympathy for a man unjustly killed could nevertheless inspire a heroic act of legislation. Or, nothing will happen, because conservative legislators won't want Obama to get "credit" for signing a legacy-boosting sentencing reform bill into law. (There's that zero-sum thinking again!)

But look, you have really come to the wrong person if you want optimism. It wasn't long ago that the shocking video of James Foley's death at the hands of ISIS inspired the nation to once again get its war on. These days, I'm still watching execution videos -- but the killers aren't people who flamboyantly cast themselves as the enemies of our way of life. Rather, they are the police we assign to protect it. And these cops demonstrate a similar level of brutality, and an equal lack of remorse, in and for their actions. What's lacking is the effort to really do something about it. I don't expect that to change.

I recently read a blog post from the mother of a mixed-race family -- her two sons, Owen and Kyle, were adopted from Haiti. () Two days before Thanksgiving, she wrote, "Today, we are dealing with the Ferguson decision. It is another sad, sad day for mamas of black boys. Deeply demoralized and shaking scared, we keep on fiercely loving them, and wait and hope for the world to see them as we do." This is a rare instance of a white mother who is able to empathize -- not merely sympathize, empathize -- with the fear that African-American women who raise sons and daughters (but especially sons!) live with every day. Fostering empathy is brutally impossible work, I recommend her piece as a tool in at least doing the necessary thought-exercises. I fear, however, she has much longer to wait. As do we all.

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