It happened in one of the largest cities in America. A lone figure in uniform, walking his beat. A passerby hurls an insult, which the uniform responds to. Soon, a crowd forms, all hurling insults and taunting. A call for reinforcements, and soon eight peacekeepers, all white and all armed, stand arrayed against an angry crowd of protestors. The lead officer on the scene called for the racially diverse crowd to disperse, and was met by more jeers and taunts. The crowd was turning into a riot. Their insults turned into rocks. When one of the rocks knocked down one of the armed men, a shot was fired. Soon, all the men fired into the crowd.
In the aftermath, three men were dead – including a black man – and eleven total had been injured.
The incident lead to massive outrage in the community, which was rocked by riots and protests. Because of the inflamed passions of the populace, the officer and men involved were put on trial. And after a long trial, and thanks to the hard work of a slick defense lawyer, six of the eight men were acquitted outright, and two were convicted of lesser charges.
This didn’t happen in Ferguson, Missouri. It didn’t happen in New York City, or Cleveland.
It happened in Boston. In 1770. And the slick defense lawyer who secured the acquittals of most of the men involved became President of the United States.
In telling the story of the Boston Massacre, I’m not trying to compare what happened in Ferguson or New York to the American Revolution. What I am trying to do is put what happened in Ferguson and New York (among other places) in perspective. What is happening now is not new. There has been a tension between civilians and law enforcement for hundreds of years. Before we can begin to address the issues we face today, we need to accept and understand that these issues are not easy to solve and they have stymied us for centuries.
When you peel back the layers of race, class, education and the like and look at the fundamental issue that situations like Ferguson and New York have caused, you find the same tensions that led to the Boston Massacre – anger, distrust, frustration, and a feeling of disenfranchisement and perceptions of injustice. This has been a cyclical phenomenon – every few decades, a string of highly publicized incidents inflames public outcry against police abuse, both real and perceived. A handful of reforms are passed, and things calm down for a time, only to crop up again a few years or decades later.
The fundamental issue that we keep having to address is one of the fundamental problems in governance – what relationship do we want to have between the citizenry and those who the citizenry entrust to enforce the law? And the immediate followup to that question is one that is almost important and just as difficult to answer – when that relationship becomes dysfunctional, how do we fix it?
There is no easy answer to either question. The solution in 1770 was republican democracy – laws created by those in the community and enforced by the community, not by an unelected king thousands of miles away and enforced by the military. Today, communities create the laws and police them, but we still have similar problems.
Today, the problem has morphed into one that impacts directly our firm belief in the rule of law – the rule of law meaning that no man or woman can act outside of or above the law. We want police to live under the same rules and laws that they are tasked with enforcing. But that’s impossible, given the expectations that we place on police. In order for them to do their jobs, police have and need additional tools that your average citizen doesn’t get – from the ability to carry firearms almost anywhere, to the use of deadly force under different rules than civilians, to being able to run a red light or drive on the wrong side of the road when necessary.
This leads many citizens to get angry – fairly or unfairly – when they perceive that police are “above the law” and get special treatment that others don’t get, especially when police make mistakes and abuse the privileges they are given.
The difficulties become clearer when it comes to the courts. Many have asked lately why it seems impossible to indict a police officer, and have pointed to Ferguson and New York as examples. The conclusion many have jumped to is that this is a racial thing – and while that may be true in some situations, the more likely answer is that this is not about black vs. white, it’s about us vs. them. The “us” being those in law enforcement and criminal justice, and the “them” being everybody else. Prosecutors don’t like indicting cops, because without cops prosecutors can’t do their jobs. Most people don’t realize that when it comes to criminal prosecutions, without police, prosecutors have few tools to successfully secure convictions of criminals. Who ensures proper chain of custody of evidence? Who has the most information about the crime and the investigation and has talked to all the witnesses and been at the crime scene? Who rounds up witnesses and makes sure they show up on time? Police. Without them, prosecutors could rarely close a case successfully, whether through a trial or a plea bargain. Conversely, without prosecutors doing their jobs and getting convictions, the best police work ends up with the status quo – a criminal on the street, and no justice for the victims.
That’s the real reason why the grand jury in Ferguson seemed so odd – if this were any other case, there would never have been a grand jury at all. The prosecutors would have made their internal determination about whether the police involved shooting was justified and if it was, they wouldn’t have sought an indictment. But public pressure forced them to do so, and so they provided the grand jury with far more information than they had to, including allowing them to hear from Darren Wilson, and the jury made their decision. As the saying goes, a prosecutor can indict a ham sandwich, but before he can do that, he has to want to do that. And it’s hard to motivate prosecutors to go after police when they believe the police didn’t violate the law.
The obvious solution to get around the fox-guarding-the-hen-house theme is third party citizen review boards handling law enforcement oversight. That’s what the solution was in the 60s and 70s, the last time we had major scrutiny of police behavior, and it wasn’t a popular one. New York City, for example, has what can arguably be described as the model Civilian Complaint Review Board when it comes to holding police accountable. Their agency, which was created in 1993 after thirty years of arguments and battles between police and citizen groups over civilian oversight of police, has a multi-million dollar budget, hundreds of investigators, and works with NYPD’s internal affairs division to investigate and respond to thousands of complaints against police every year. Yet despite the fact that New York has one of the most advanced civilian oversight groups out there, Eric Garner’s death has sparked widespread protests across New York and across the country. Civilian oversight of the police hasn’t stopped the distrust and frustration.
Our federal system doesn’t make solutions any easier, either. Policing is one of the most fundamentally local government activities out there. The federal government had almost no role in law enforcement – almost nothing (except, unfortunately, fugitive slave law enforcement) for the first hundred and fifty years of the Republic. The FBI wasn’t created until 1908. Federal oversight of police didn’t really even begin until the passage of the Civil Rights Act in 1964, which gave federal authorities tools to reign in abuses at the local level by state and local officials acting under color of law. Yet some people are clamoring for a national response to his issue, and the complaints being leveled at the President and Attorney General that they are slow to act are being met with charges – that are just as valid – that the federal government should stay out of what is inherently a local issue. The current state of Washington makes a coordinated response almost impossible, and even if the bipartisan outrage over Eric Garner’s death helps loosen up the gridlock, any legislative solution (whatever good it may do) is probably years away from enactment.
While the national debate rages, you have ordinary citizens fearing police, and police feeling like they’re under siege and threatened more now than they ever have been before. This is the perfect storm of distrust and fear – on both sides – that is likely going to lead to more incidents like Michael Brown and Eric Garner’s death, and the added fuel of race is only making a bad situation worse.
Distrust, resentment, anger – this is fueling the problems on both sides of this issue, whether you side with those who are protesting or with law enforcement. And that means the solution isn’t going to come from a legislature or a city council. It has to come from each of us.
So what do we do? We keep talking – to each other and to our government. We keep watching. We keep voting. We keep praying. We keep learning.
We have been here before, and the solutions we’ve developed over time have not solved the problem. To almost everyone, the status quo right now is unacceptable. It’s also untenable. And we need to start coming together, putting aside the fear and distrust, and working to find solutions to this problem, because doing nothing is not an option. Those solutions can’t and shouldn’t just be passing a new law, or firing a few cops. It’s going to take much more – from all of us.
