Note: These essays were, of course, written before St. Louis County prosecutors and Ferguson police relented and revealed the identity of the officer sho shot and killed Mr. Brown. Both the cost to their credibility in the delay inherent in their delay and to the civil peace of that town remains relevant, however. Moreover, the problem with federal, state and local law enforcement agencies nationally trying to maintain anonymity in such incidents is on the rise. So the essays stand as argument, regardless. - DS
August 14, 2014
Mr. Thomas Jackson
Chief of Police
Regard this as an open letter in light of your department’s unwillingness to properly identify the officer involved in the fatal shooting of Michael Brown in your jurisdiction this last week.
Understand that I am someone with a high regard for good police work. I covered a large municipal department for a dozen years and spent that time writing in detail on extraordinary efforts by professional detectives and officers, and, too, on systemic and individual failures within that same agency. I am not unsympathetic to the complex truths of practical policing.
To that effect, I’m offering no judgment as to the legitimacy of the police action in the death of Mr. Brown, nor am I critiquing your department’s militarized performance with regard to the resulting civil disturbances in your municipality. I leave the former for the more careful assessments of prosecutors and, presumably, a grand jury; the latter, I am sure, will be a subject of continued discussion within your community, in Missouri as a whole, and elsewhere in the country.
But for now, let’s simply focus on the notion that you, as head of a police department accountable to the citizens of your jurisdiction, actually seem to believe — along with local prosecutors — that it is plausible for a sworn and armed officer to kill a citizen and do so in anonymity.
Regrettably, I know that you are not alone in this astonishing breach of trust. More than a decade ago, some of our most authoritative federal agencies began a tragic retreat from basic accountability, shielding their agents from any scrutiny for their use of the most signficant power that a law officer can possess — the taking of a human life as an act of personal deliberation. Following the lead of the FBI, other large urban departments have since followed suit, or attempted to do so at points.
But the cost to our society is not abstract — and the currency in which that cost is paid is trust. Your department has shown that you do not trust the public with the basic information about who specifically has, in the performance of his or her duties, been required to take a human life in Ferguson. And that same public is now in the street demonstrating that they do not believe that Ferguson law enforcement can therefore be relied upon for anything remotely resembling justice. How could it be otherwise?
If you cannot see the contempt inherent in your policy, then you, sir, may need to reconsider both your own role and the premise of law enforcement in a democratic society. You may need to yield your position to someone who retains the basic notion that your officers, armed with the extraordinary authority of using state-sanctioned lethal force on fellow citizens, are equally burdened by a responsibility for standing by their actions in full. You, your department, and the prosecutors in your jurisdiction are now running from that responsibility. In doing so, you lose the trust and respect of your citizens, your state and the nation.
I know that you wish to claim that the individual officer, if identified, would be somehow vulnerable. But this is dishonest and dishonorable, sir. Having covered a police department in a jurisdiction even more troubled than your suburban community, I am well aware of the resources available to your department to protect one of its own against retribution. Your officers are the ones with legal authority. They are all armed. And they can maintain a presence anywhere in your jurisdiction. Moreover, they have, if necessary, the support of your county’s prosecutors and judiciary, and all of the law itself to ensure the safety of a solitary officer. They are, as police in Baltimore were accustomed to saying, the biggest, toughest gang out there — so much so that the claim of violent retribution against this officer is embarrassing hyperbole. The same claim was offered by a police commissioner here in Baltimore five years ago, in an abortive effort to hide the identities of officers who took life in the course of their duties. When examined in detail, the claim of any serious threat against any officer evaporated into a series of half-baked crank calls and unsubstantiated rumor. Fears of retribution were not the issue; accountability was the real target. As it is now in Ferguson.
At this point, let’s be frank about the advantages offered to any officer in a legal examination of any use of lethal force. We both understand, I am sure, that in presenting the facts of any police shooting to a grand jury, your prosecutors will be able to offer your officer the protection of legal standards that do not in any way address whether a given shooting was justified in a moral sense, or as a measure of good and careful police work. No, the standard for justifying a police shooting anywhere in these United States has come down to this: Did the officer have a reasonable belief that in using lethal force he was protecting himself or others from serious injury. That is hole enough for a pretty big truck, sir, and it allows all but the most egregious and unjustifiable police violence to remain free of criminal prosecution, if not administrative sanction.
This may be the necessary legal standard for a world in which individual officers — even well-trained and well-meaning officers — must make life-and-death decisions in an instant. Even the best officer can give you a bad shooting; we both know this to be true. And it may be that any stricter legal standard would result in officers unwilling to risk their careers or freedom in cases where the use of lethal force was indeed necessary to save the lives of themselves, their fellow officers or other citizens. I grant you all of that.
But you must concede as well that the legal standard allows for the prosecutorial justification of all but the most outrageous misuses of police force — that the dynamic is already carefully protective of your individual officers. The game is already rigged against a legal lynching. And similarly, as already noted, anyone seeking to harm one of your officers in an extra-legal manner confronts not only a lone individual, but the combined authority and force of all of your officers, of the county and state police agencies, of your jurisdiction’s prosecutors and judges. In and out of court, no police officer ever stands alone and vulnerable — not in the manner of the average citizen. Say, Mr. Brown, for example.
Yet incredibly, you continue to hide from any accountability by speaking of retribution against an officer. But such retribution is wholly imagined on your part; the damage to accountability and transparency is actual and of the moment: Without knowing the identity of the officer involved in this incident, the citizens of Ferguson cannot measure that officer against his record. They cannot know if this is the first time he has taken human life, or the tenth. They cannot look to his overall performance as a law officer and know if he was inclined to brutality or insult in his dealings with the citizenry, or if he conducted himself with valor and respect for those he served. He is hidden not from potential retribution, as you claim. He is hidden from accountability and from the discerning assessment of the citizens you serve.
In Baltimore, I covered many police shootings, most of them necessary, if tragic, and a few that were indeed questionable or dubious, if equally tragic. But in all of those incidents, a police department that remained fully accountable to its citizenry never failed to do one basic thing when a life had been taken: It stood by the body. All of those officers who took a life owned both their authority and their responsibility. They were identified before their public, and the sunlight of public knowledge was never denied to any moment when an agent of the state, as a matter of personal deliberation and presumed professional necessity, ended the life of a fellow citizen. This was elemental, and democratic to its core. If our country is to cease its drift toward a militarized police state, it is elemental still.
And beyond the democratic imperative, one other practical cost to Ferguson of your professional failure has yet to be tallied, but is certain and fixed: Your department, in order to solve crimes and maintain order, is dependent on the cooperation of witnesses — fellow citizens willing to trust in the process of arrest and prosecution, and in their own personal safety should they properly contribute to that process. Yet by offering up the dishonorable claim that your department, and all the authority of the supporting law enforcement and judicial communities of Missouri, cannot protect a single officer from a series of unsubstantiated threats, or that the officer might be more vulnerable to public ridicule than, say, Mr. Brown was vulnerable to actual police gunfire, you have made this question entirely relevant:
If Ferguson police can’t protect one of their own — a fellow officer who is armed, who is allied with an entire department of armed comrades, who are themselves buttressed by their jurisdiction’s prosecutorial arm, who have the full weight of the law at hand in support of that officer — then how in hell are they going to protect me when I go down to the courthouse and testify? How can they ask me, an ordinary citizen with no armament, alliance or authority, to stand up in open court and be identified?
The answer is you can’t.
The decision of a police agency to hide the identities of its officers behind a veil of secrecy, while asking the public at large to risk all in open court, is not mere hypocrisy. It is cowardice. It is an abdication of your professional role and your basic integrity. Your actions, sir, stand not merely in support of your rank-and-file, or in defiance of a mob; that’s how you wish to be seen, and likely, it is how many will view you within the cloistered culture of the roll-call room. But to the greater public that you serve, your decision is, again, void of all honor or courage. You have done your uniform, your department and your city a great disservice. Some reflection and a change in policy is required before anyone in Ferguson, Missouri can be assured that you, Chief Jackson, actually remain in service of law and order in your city.
Baltimore Sun, 1982-1995