In Ferguson, Missouri, outrage over the shooting death of teenager Michael Brown roils on. Attorney General Eric Holder visited Ferguson yesterday, promising Brown’s family and the concerned public that a federal investigation would ensure justice. If Darren Wilson, the white police officer who shot and killed Brown, willfully deprived the young black man of his constitutional rights to be free from unlawful deadly force, Wilson could be convicted under federal civil rights law, in addition to any possible state charges.
Much of the outrage over Brown’s death is rooted in the belief that Wilson responded to Michael Brown as he did because of Brown’s race. The case calls up a painful history of racist white men murdering black men under color of law. I don’t dispute the existence of that history, and I humbly acknowledge that, as a white woman, I will never feel the same pain associated with that history that black men and women will. Even so, I wonder about what in this particular case leads so many observers to conclude that racism obviously caused Wilson to shoot and kill Brown — not simply to conclude that Wilson was unjustified in his use of force for non-race-based reasons, or to be suspicious of the circumstances surrounding the use of force.
How could we distinguish a set of facts where a white police officer improperly kills a black teenager without racial bias from one where a white officer improperly kills a black teenager because of racial bias? Do we have a picture of criminal violence by a white officer against a black teenager that is wrong, but not wrong for any reasons that involve race?
To be clear, I accept the following as true (and truly terrible):
(1) White police officers sometimes kill people without adequate justification.
(2) White police officers sometimes kill black people without adequate justification.
(3) White police officers who kill black people without adequate justification are sometimes motivated by racism.
Are white police officers who kill black people without adequate justification always motivated by racism? I say “no,” even though I believe it is true that white officers who kill black people without adequate justification are sometimes motivated by racism. I would answer “no” to this particular question even if white officers are often motivated by racism, and even if white officers who kill black people are motivated by racism most of the time.
If there is at least one case of a white police officer killing a black teenager where the officer’s use of force violated the law, but did not involve racism, then we should be able to formulate a picture of what it would look like. It should look different from a case that did involve racism, somehow. If white police officers who kill black people without adequate justification are not always motivated by racism, what set of facts should we expect to see in such a case? How does that picture compare to the picture in Brown’s case?
Suspicion of racism should be proportional to the evidence of racism. How much suspicion of racism is there in the Brown case? An awful lot apparently. (See Elie for further details.) How much evidence of racism is there in the Michael Brown case? America’s long legacy of racial hatred must not be dismissed, but it alone can’t answer the questions in this case. Neither should the public ignore evidence of systemic problems in Ferguson, including eports that Ferguson and other municipalities near St. Louis “stopped black drivers disproportionately for traffic violations, fining them in court sessions that were closed to the public, and jailing them when they were unable to pay.” These facts matter, but they are hardly conclusive evidence of racism’s role in the Brown case.
Does Darren Wilson’s past behavior suggest racial bias? The Washington Post reported today that Wilson is 28 years old, born in Fort Worth, Texas. He graduated from St. Charles West High School in Saint Charles, Missouri, where he played varsity hockey and was on the yearbook staff. The Post also reports that Wilson is a six-year police veteran with no disciplinary issues on his record, who apparently got a commendation earlier this year from the Ferguson Police Department. Nothing the public knows now tells us that Wilson had a personal history of racism. Nothing seems to tell us he did not.
What facts, if any, does the public know about Darren Wilson’s conduct on the day of the shooting that would lead a reasonable person to conclude that racial animus or bias caused him to use force against Michael Brown that he would not have used against a white teenager, or that it caused him to use greater force against Brown than he would have used against a similarly situated white teenager?
Sources disagree about whether Brown was surrendering when Wilson shot Brown, or whether Brown was charging at Wilson when Wilson shot Brown. Sources disagree about whether Brown beat Wilson before the shooting, about what injuries Wilson sustained, if any. If the sources claiming that Wilson did not need to shoot Brown, or did not need to shoot Brown in a manner likely to cause death, are correct, that means that Wilson is criminally liable for killing Brown. However, that alone does not show racial bias or animus caused the murder. There might be additional facts in this case that would show that Wilson is racist and that his racism caused him to murder Brown. But, again, what are those facts?
My questions are not rhetorical. Facts are in short supply so far, and I have many doubts. Police rarely get the benefit of any of them. If investigators show that Darren Wilson posted online screeds decrying black men as thugs, or that he spewed racial epithets at Brown before shooting, I won’t resist the conclusion that race played a role in this death. If Darren Wilson’s racial bias contributed to Michael Brown’s death, I will be sad and angry, but I will not be surprised. But I am waiting for the specific facts that show this. I can hold my judgment until I know more.
America’s history of brutal, dehumanizing racism weighs on every American, though not in equal ways. Maybe the burden white law enforcement officers must bear is the presumption of racial bias any time they use force against a black suspect. Maybe that is Wilson’s inheritance from generations of violence by human beings who fit his description against human beings who fit Brown’s description. If Wilson must carry that burden, it surely is not as heavy as the burden young black men must carry — namely that they automatically look more dangerous to many law enforcement because of their skin color. I don’t suggest that white cops suffer more racial injustice than black suspects.
If Wilson is presumed racist until proven otherwise, though, let’s see this presumption for what it is and what it is not. It is not enlightenment. It is not justice. It is not a victory for American race relations. It is its own sad form of racism. “Because of your race, I assume that I know you, even without knowing you. Because of your race, I assume your character is poor. Prove to me that you are not as bad as your racial identity tells me you are.” If Wilson faces this presumption in the public’s mind, that is one more of the many ways Ferguson reminds us that we have a long way to go before we reach a post-racial America.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at email@example.com