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Five years after Ferguson, has anything changed?

It has been half a decade since Darren Wilson killed Mike Brown, sparking nationwide protests. But few real solutions have been reached.

Five years ago, on August 9th, 2014, Mike Brown was shot dead by an officer in Ferguson, Missouri. The details remain disputed to this day. What is not disputed is that Mike Brown was unarmed, aged 18, and shot six times by officer Darren Wilson.

As is common in cases where American police kill someone, the officers involved were not prosecuted in a criminal court. Like the death of Eric Garner, who was killed by police in New York after being caught selling loose cigarettes – a misdemeanor offence in NYC – Brown’s death was classed as a “justified killing” It is exceptionally rare that officers are successfully prosecuted in a criminal court for such deaths, if they are prosecuted at all.

Black men being shot dead by American police is not unusual, nor is officers being exonerated in the aftermath of these deaths, but these particular deaths marked a sea-change on this issue and the events that followed were the catalyst that drove the Black Lives Matter movement to prominence.

Video footage of both deaths went viral, in both cases clearly showing unarmed black citizens who were not being violent, dying at the hands of white police officers. What had hitherto been tacitly known, was now shown and shared with millions of people – sparking collective outrage.

Protests in Ferguson grew rapidly into unrest and rioting, lasting for several weeks. They were met with an aggressive police response, further emphasising in the public eye the fact that police didn’t hesitate to use violence openly, in full view of the global media and with apparent impunity. 

Ferguson became a focal point for protests during the summer of 2014, and they erupted again in November when a grand jury declined to indict Darren Wilson on the grounds that he shot Mike Brown in ‘self-defense.’ The usage of the BLM hashtag on Twitter went from 48 per day before the killing to 1,677 after the killing, and 92,764 in the four hours after the decision not to indict Darren Wilson was announced.

Five years on, has there been change?

Those two deaths are only a small part of the picture. Whilst they appeared to represent flashpoints, times when society sat up and paid attention, they were – and remain – far from isolated cases. They are the product of structural and systemic features in US policing, justice and governmental organisations. They are normal.

What was new was that social media enabled watchers for the first time to share information, to join the dots between the scores of fatal cases viewable online and see that these weren’t individual cases, but part of wider systems of practice.

Being able to measure the parameters of an issue through the generation and analysis of data is a precondition to understanding it and effecting change. In the aftermath of Mike Brown’s shooting, it became clear that there was no accurate federal data on the number of citizens who died after contact with the police in America, a fact acknowledged in October 2015 by the then FBI Director, James Comey.

In late 2014, the Guardian and the Washington Post began constructing databases to count these deaths. In 2015, the Guardian’s ‘The Counted’ website began updating numbers on a daily basis. By the end of that year, the first annual count established that no fewer than 1,146 people had been killed by US police – a rate of three a day.

For the first time, journalists had been able to construct an accurate count of these deaths – something that was apparently beyond the ability of the federal authorities in the world’s largest economy. Comey called it “embarrassing”.

This type of data-gathering is not beyond the capacity of the FBI, so we’re forced to come to another explanation about why they were not officially tallied. Perhaps these deaths were thought so mundane they didn’t need to be counted.

‘The Counted’ further established the relative disproportionality of these deaths. In 2016, it found that while white Americans accounted for the majority of deaths that year, with 574 dying as a result of police violence, Native Americans were approximately 300 per cent more likely to die at the hands of police than white Americans; black Americans were approximately 200 per cent more likely to die, and Hispanic Americans 50 per cent more likely to die, relative to their representation in the population.

Radley Balko’s influential book “Rise of the Warrior Cop” was published the year Eric Garner and Mike Brown were killed. It examined the growing use of paramilitary SWAT (Special Weapons and Tactics) teams across the US; how their practices and tactics resembled that of military occupiers; but also how their existence affected policing culture more widely by legitimising the use of force.

From the 1990s onwards, as the US administration prosecuted the War on Drugs with increasing vigour, it prioritised funds to SWAT teams and encouraged police to take an increasingly aggressive approach to their work. In the aftermath of 9/11, the War on Terror meant that law enforcement agencies were now effectively fighting two ‘wars’ on domestic soil. As any commander knows, to fight two wars you need a substantial amount of military hardware and highly trained and motivated personnel to use it.

Responding to the unrest in Ferguson, Obama commissioned the President’s Task Force on 21st Century Policing. It reported in 2015 and focused on a central question: were American police guardians, or warriors? Guardians in the sense of being peacekeepers who serve and protect citizens; or warriors who use force to enforce criminal justice issues?

Obama’s Task Force was concerned that police in the US had become more like warriors, and its recommendations focused on instilling more of a guardian ethic and practice into American policing. Academic writers on policing view the roles of warrior or guardian as representing an eternal paradox of policing, noting that police regularly undertake both roles, sometimes within the same encounter with citizens.

In his book ‘Chokehold’, Paul Butler notes that in 2013 the vast majority of warrants for minor infractions in Ferguson were issued to black citizens. A city of 21,000 residents – 67 per cent of whom were black – had a total of 32,975 outstanding arrest warrants. If there was any doubt about whether Ferguson police had adopted a warrior or guardian mindset, the fact that there were significantly more crimes than citizens in the city should rapidly dispel it.

National myths

None of this is new. Law enforcement is part of the national myth of America. The sheriff creating order in the Wild West by threat of force is central to the American narrative; the Colt 45 pistol was known as “The Peacemaker.”

It was lethal force that ensured the genocide of Native Americans, isolated their remnants into remote reservations and gifted the land for settlers to ‘civilise’ America. It was brutal force that kept black Americans yoked to the plantation system of slavery, enabled thousands of lynchings to occur, and enforced Jim Crow throughout the southern states until only 50 years ago.

That we do not know how many Native Americans or black Americans died during these periods of history is not a coincidence when one considers ‘who counts.’ The successes of the civil rights movement in the 1960s did not eradicate the issue.

Large-scale rioting in the mid to late 1960s was often the result of police using brutal force on black citizens. The Watts riots in LA in 1965 lasted for nearly a week, 34 died and 4000 were arrested. In Detroit, the 1967 riot left 43 dead, 7200 arrested and led President Johnson to send in two US airborne divisions in to re-establish order. In the aftermath of the beating of Rodney King in 1991, the LA riots led to 53 deaths and – again – two US army divisions being called in.

Numerous writers have noted the growing numbers of US ex-service personnel serving in police departments; this is largely due to overt policies aimed at attracting such personnel. On the one hand this appears bizarre, as the role of police is quite different to that of the military – until one considers the examples listed above. If policing requires officers who are trained snipers, can use heavy machine guns, or are experts with grenades (all standard issue hardware for SWAT teams) then it seems entirely logical.

At the same time, the use of force has increasingly been legitimated through police training schools. Officers are taught that if they draw their gun, they should be prepared to use it by shooting repeatedly at the middle of a person’s mass. Another training school staple is the “21 foot rule”. This states that if an assailant comes within 21 feet of an officer, and the officer believes them to have aggressive intent, they are justified in using their gun, because at that distance the assailant can be upon them in a split second.

In training, officers typically spend 110 hours on firearms training and self-defense, but 8 hours on conflict management and de-escalation: another manifestation of the warrior/guardian split in priorities. Balko notes that “these policies have given us an increasingly armed, increasingly isolated, increasingly paranoid, increasingly aggressive police force in America.”

The prevailing fearfulness of police encourages them to prioritise their own safety rather than that of the citizens they’ve sworn to serve and protect. A common saying in US police culture is “better to be judged by a jury of 12 than carried by 8” – ie, hesitating to use your gun might result in your death, while using it will almost certainly be seen as justified by any jury in the land. Contrast this saying with one common in black communities: “If you’ve got a problem and you call the police, you’ve got two problems.”

In democratic societies, the theory is that police operate with the consent of the population – as distinct from coercing them into behaving in a peaceable and lawful manner. Consent is given on the basis that police conduct themselves in a way that appears legitimate to the public. If things go wrong, the public has a legitimate right to ask police departments why and how it happened, and to seek reassurances that lessons are learned that prevent future errors. The principle of accountability stems from consent and legitimacy. Remove accountability, and legitimacy and consent become damaged.

Who watches the watchers

The lack of accountability when US police kill a person is manifest on a number of levels. The overwhelming majority of deaths after police contact are investigated by local police agencies. Once the case has been investigated – and this can take as little as a few days – the file is typically turned over to the District Attorney to consider whether a criminal indictment should be made. Again, the vast majority of these cases are found to be “justified killings”.

Once this decision is made it is almost impossible for a criminal case to be pursued against officers in relation to that death. The DA has a close working relationship with their local police force due to the nature of their work – preparing evidence for prosecution in court on a regular basis. Were a DA to put an officer on the stand for shooting a citizen dead, it might jeopardise that relationship. Families of the victims of police violence have told me they view the DA being “wired at the hip” to the local police department.

Denied the possibility of pursuing these cases through criminal courts, families of those killed by police have resorted to pursuing them through the civil court system in an attempt to get some form of official answers or acknowledgement about the death of their loved one. As a result, financial settlements are widely used by governmental administrations in these cases, essentially to muzzle the families and make them go away.

Families sign non-disclosure agreements meaning they cannot talk about specific aspects of the case – usually aspects which would be highly embarrassing to the police, and also to the DA who found the killing to be “justified”. Financial settlements in excess of $1m were agreed with the families of both Eric Garner and Mike Brown. In 2018, the City of New York paid out a total of $228m in settlements for cases of police malfeasance; in the same year, Chicago paid out $113m.

Justice in the US comes at a price, and that price can be calculated. In fact, it can be budgeted for. The people who die can apparently be counted in fiscal terms, underlining the relative importance of this issue in political and legal terms.

There have been changes as a result of the deaths of Eric Garner and Mike Brown in the summer of 2014. Clearly there is greater awareness of these deaths as a result of the Black Lives Matter movement, publically asking critical and vocal questions about the status quo. We now have more accurate data on the number of people who die, and about the circumstances in which they die.

As more light has been focused on this issue, there has been more discussion about how measures such as body worn cameras might reduce the number of fatalities; similarly there is a growing awareness about how police officers are trained, particularly in relation to de-escalating situations rather than using force. That the president’s Task Force on Policing unambiguously makes a case for police to be more legitimate, more community focused, and more akin to guardians than warriors is important – to a point.

As American policing is characterised by fragmentation and localism, many of the potential positives set out above must be seriously questioned. The recommendations from Obama’s Task Force are entirely aspirational – they cannot be enforced, because no agency exists to enforce them, and there are no plans for such an agency to be introduced. Similarly, the desire to improve the quality of training – whilst laudable – is unlikely to translate into widespread reality on the ground.

With 18,000 police forces and no national body to oversee the delivery or implementation of training it’s unclear how, when, or even if it could happen. Whilst the use of body worn cameras is becoming more common, recent estimates suggest that half of police departments do not use them at all, whilst the remaining half use them for some officers, some of the time. There are also a significant number of cases where officers have turned the camera off before using their weapons, and of footage disappearing in the aftermath of lethal incidents.

On the other hand, the recent successful prosecutions of officers in the shootings of Jarad Damond (in Minnesota) and Laquan McDonald (in Chicago) suggest that the legal system is slowly starting to consider more punitive responses to officers who use lethal force on citizens. In the former case, officer Noor was jailed for 12.5 years, in the latter officer McDonald was sentenced to serve nearly seven years. The real threat of serving time might perhaps make more officers think twice about being “judged by a jury of 12.”

Tipping-points

Certain events catch our attention. They demand we look at issues that were previously overlooked or are wilfully blind to. Five years ago, the deaths of Eric Garner and Mike Brown put a spotlight on the police use of lethal force in the US and raised awareness about the issue of deaths after contact with police. There is little doubt this led to increased focus on police and their interactions with non-white citizens. But the conditions which led to police using force are deeply rooted in political, legal and societal structures in the US. Those conditions simply do not – cannot - alter in the space of five years.

In 2012, James Gilsinan, an academic at the University of St Louis suggested that police are used to dealing with crises of public confidence as part of their institutional practice. When beset by a crisis, he said, they initially make the right noises about responding to public concerns in order to acknowledge the need for consent and legitimacy; then they wait for the crisis to blow over before carrying on as normal.

Why do the US police take this approach? Because they have good reason to consider they operate with both political and societal consent. Opinion polls consistently show police to be one of the most trusted institutions in the US. In a 2013 Gallup poll, 57 per cent of people said they either had “quite a lot” or “a great deal of” confidence in the police. The summer of 2014 had some impact on that, with the number dropping to 52 per cent in 2015. But by 2017 the levels of confidence had returned to 57 per cent.

Of course, this headline figure overlooks figures from black and Hispanic communities in the US with confidence at 30 per cent and 45 per cent respectively, both groups having declined since 2013. (Another demographic with decreasing confidence in police was the 18-34 age group.) While one might argue that these groups don’t reflect the majority of the US population, and therefore societal consent is still granted to police, one might also argue that the demographic shift in population in the future might further dent public confidence in policing, and tilt the political conversation more towards re-imagining the police more as guardians.

If policing in America is to rebalance from a warrior mindset to a more guardian-based approach, there needs to be a political will to effect change. Police are not going to change significantly until they are either forced or persuaded to do so. It is commonly said that society gets the type of police it wants, and US society overall still considers police to be a trusted institution.

In a society where gun ownership is so prevalent, we cannot expect police to go unarmed. It is entirely possible that the majority of the US population accept that the police should adopt a warrior-like approach to law enforcement. We can be reasonably certain that more than 5000 citizens have been killed by police in the United States since the summer of 2014. Plenty of other cases have caught the public’s attention in similar ways to the deaths of Eric Garner and Mike Brown. But there appears to remain a baseline public tolerance – if not appetite – for police to use force on citizens, if it means that in the grand scheme of things that order is maintained. In this sense, the use of violence to create and maintain ‘civilisation’ is still apparent in America today.

Piecemeal changes like body worn cameras and exhortations to improve training are not going to do much to change this state of affairs. In the absence of a political will to promote change, and this seems unlikely, it would seem we’re left simply waiting for a demographic shift in the US population, and hoping that criminal prosecutions of officers might act as some sort of deterrence to the excesses of police violence.

The relative lack of importance of these deaths to wider US society can be seen in the lack of data on them;the lack of a police or regulatory response to widespread protests and the voicing of legitimate concerns; the use of financial settlements to sweep them under the carpet; and ultimately, the apparent disinterest in trying to learn lessons that could prevent future deaths. Violence and guns are part of the fabric of America. Killing and preventable deaths are considered normal.

David Baker is a Senior Lecturer in Criminology at Coventry University. His research focuses on people who die after contact with the police.