The Michael Brown Case, Update 12: Disparate Impact vs. The Rule Of Law

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Attorney General Eric Holder, Darren Wilson, DOJ, Justice Department, Michael Brown, President Barack Obama

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The Federal Depart of (in) Justice has finally admitted what I reported in Update 11: Injustice and Truth, there is no evidence whatever to charge former Ferguson officer Darren Wilson with a civil rights violation:   

The Justice Department announced Wednesday that it will not prosecute former Ferguson, Mo., police officer Darren Wilson in the shooting death of an unarmed black 18-year-old, while also releasing a report faulting the city and its law enforcement for racial bias.

In the criminal investigation, federal officials concluded Wilson’s actions ‘do not constitute prosecutable violations under the applicable federal criminal rights statute.’

Specifically, the DOJ said there was ‘no evidence’ to disprove Wilson’s testimony that he feared for his safety, nor was there reliable evidence that Michael Brown had his hands up when he was shot.

The report said: ‘Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson.‎ As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness’s own prior statements with no explanation, credible or otherwise, as to why those accounts changed over time.’

The decision in the Aug. 9 shooting had been expected, in part because of the high legal standard needed for a federal civil rights prosecution. Wilson, who has said Brown struck him in the face and reached for his gun during a tussle, also had been cleared by a Missouri grand jury in November and later resigned from the department.

Those wishing to read the DOJ’s report may find it here. 

As I’ve repeatedly written, this outcome is not at all surprising for those that have taken the time to be informed about this case. Note the Fox News article mentioned the “high legal standard needed for a federal civil rights prosecution.” In truth, this “high standard” is nothing more than the constitutional standard required for any crime: that there is actually credible evidence–probable cause–that the person being charged actually committed the crime and all the elements of that crime can be proved in court (proof beyond a reasonable doubt. The idea of a “high standard” suggests that there are differing standards at play in the criminal justice system, or that there ought to be. Soon-to-be ex-Attorney General Holder would certainly like that to be the case.

Suffer the little women to come unto me–for photo op.
credit: http://www.startribune.com

Holder is arguing that there should be a lesser standard in civil rights cases, in essence that the federal government should be able to convict people on a lesser standard than proof beyond a reasonable doubt. This would abandon the Constitution and the (relative) freedom from governmental oppression that have, to this point in history, characterized American justice.

Why would any AG make such an anti-American argument? Inherent in the religion of Social justice is inequality based on government-favored victim status. It is a political philosophy–for some, a religion–that gives special rights and protections to those temporarily favored by the ruling party, and that steals constitutional protections from those not so favored. It mandates prosecutions and convictions–conviction is a certainty; sentence first; trial later–for political purposes, and forces those charged with political crimes to prove themselves innocent in a system wherein those charged with political/thought crime cannot possibly prove themselves innocent. It may best be understood as whatever Progressives favor at the moment

Under such a system of “justice,” no one can know what is or is not illegal, because the goalposts are always moving. Even obeying the letter and spirit of the law is no guarantee that one will not be arrested, charged, and subjected to years of torture that destroy body, soul and finances.

As I’ve also repeatedly written, Social Justice and the rule of law are entirely incompatible. Under Social Justice, government has all power and is the master of the people. It is therefore entirely predictable that Eric Holder–a virtual clone of the brain of Barack Obama–would be arguing for such a tyrannical change in our system of justice. For them, the ends always justify the means, and the means are subject to change as may be necessary to obtain the ends they desire. This is, of course, merely a part of the fundamental change of America Mr. Obama has always threatened.

This, however, is not the end of Ferguson’s troubles:

But the DOJ, in its evaluation of the police department itself, said blacks in Ferguson are disproportionately subject to excessive police force, baseless traffic stops and citations for infractions as petty as walking down the middle of the street.

The report also cited ‘evidence of racial bias’ in emails by Ferguson officials. They included one April 2011 email that “depicted President Barack Obama as a chimpanzee.

Police officers always engage in black, politically incorrect humor. Such humor may be shocking to the uninitiated, politically correct, or perpetually aggrieved, but it is virtually never an indication of racial animus, or officer’s true feelings or inclinations. It is virtually always nothing more than a very necessary pressure release in an extraordinarily high-pressure job where officers routinely see and deal with things–the worst humankind has to offer–that would unhinge most people.  In essence, the only way to deal with horrific, black situations is through black humor.

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Google, gentle readers, “bush chimpanzee.” You’ll find not one, but hundreds of examples of oh-so sensitive progressives depicting President Bush as a chimpanzee. The sheer vileness and unbridled hatred of these expressions is actually shocking to decent people. However, no one saw that at evidence of racism. Yet a single similar incident in the history of a law enforcement agency is evidence of systemic racial bias? Actually, for progressives, it’s blasphemy, an attack on their messiah, their most sacred symbol.

Now that our investigation has reached its conclusion, it is time for Ferguson’s leaders to take immediate, wholesale and structural corrective action,’ Attorney General Eric Holder said Wednesday.

Holder said the Justice Department had two sets of immediate recommendations: increased civilian involvement in police decision-making and police misconduct allegations, and changes to the municipal court system, including modifications to bond amounts and detention procedures, an end to the use of arrest warrants as a means of collecting owed fines and fees, and compliance with due process requirements.

Similar federal investigations of troubled police departments have led to the appointment of independent monitors and mandated overhauls in the most fundamental of police practices. The Justice Department maintains the right to sue a police department if officials balk at making changes, though many investigations resolve the issue with both sides negotiating a blueprint for change known as a consent decree.

‘It’s quite evident that change is coming down the pike. This is encouraging,’ said John Gaskin III, a St. Louis community activist. ‘It’s so unfortunate that Michael Brown had to be killed. But in spite of that, I feel justice is coming.

“Justice is coming.” In the Philadelphia voter intimidation case, dismissed by Eric Holder after the DOJ already won it, New Black Panthers threatened white voters,  brandishing a club, and saying “you’re about to be ruled by the black man, cracker.” The Ferguson Police Department–mostly “crackers”–are about to be similarly ruled.

And what is the DOJ’s evidence? Fox News Reports: 

The investigation, launched after the August shooting of Michael Brown, an unarmed black teenager, found that the department violated the Fourth Amendment in instances such as making traffic stops without reasonable suspicion and making arrests without probable cause.

The report provides direct evidence of racial bias among police officers and court workers, and details a criminal justice system that through the issuance of petty citations for infractions such as walking in the middle of the street, prioritizes generating revenue from fines over public safety. [skip]

The Justice Department alleges that the discrimination was triggered at least partly by racial bias and stereotypes about African-Americans, a violation of the 14th Amendment. The report details a November 2008 email on an official Ferguson municipal account which joked that President Obama would not be president for long because ‘what black man holds a steady job for four years?’

From 2012 to 2014, the report found, African-Americans comprised 85 percent of people pulled over for a traffic stop; 90 percent of those given citations; and 93 percent of arrests.

Also, African-American drivers were more than twice as likely to be searched during a traffic stop than white drivers, but that those black drivers were 26 percent less likely to be found to be holding contraband.

The report also accuses the Ferguson police of using unreasonable force in violation of the Fourth Amendment, and that 88 percent of those cases involved African-Americans.

Overall, blacks make up 67 percent of Ferguson’s population.

The DOJ’s (extra) legal theory is known as “disparate impact.” It is a social justice theory that allows the government to find discrimination and racism where none exists, merely by the comparison of statistics absent any actual examination of their context. This is an issue I addressed at some length in Update 4.1.  In that analysis I used the fact the FPD has three black officers–about 6%–yet nearly 70% of the population of Ferguson is black. This is a statistic much quoted by social justice cracktivists. Applying disparate impact theory, this statistic is, itself, prima facie (on its face) evidence of racial discrimination. I addressed that issue, in part, thus:

To reach a staffing of black officers that exactly reflected the Ferguson population of approximately 70% black, the FPD would have to have a total of 38 black officers, or considering only the patrol force, 22 patrolmen. If the Holder DOJ follows its usual practices, that’s exactly what they’ll demand.

And why not? Wouldn’t that be diverse, sustainable and fair? Shouldn’t the public servants of every city exactly reflect the racial and/or gender makeup of its population? Of course not. Those serving the public should be the best qualified and most competent–such qualifications and competency to be based on specifically job-related criteria–regardless of race or gender. If a given job absolutely requires the ability to lift 75 pounds and carry it up two flights of stairs, that is going to exclude many women, and not a few men. If a given job requires at least a high school diploma–and such criteria have been universally upheld by the courts–that is also going to exclude millions of all races and genders.

To determine whether Ferguson discriminated against black people in hiring, it is necessary to know far more than the mere numbers of black people working in the FPD. It is, minimally, necessary to know how many black people have applied, their qualifications, test scores, and the reasons they were not hired.

By all means, take the link for the rest of the analysis. And consider this utterly insane and racially inflammatory statement from a member of the Trayvon Martin and Michael Brown Scheme Teams:

Ben Crump, the attorney for the Brown family, said that if the reports about the findings are true, they ‘confirm what Michael Brown’s family has believed all along, and that is that the tragic killing of an unarmed 18-year-old black teenager was part of a systemic pattern of inappropriate policing of African-American citizens in the Ferguson community.

The invaluable Heather Mac Donald also recently addressed the disparate impact issue at National Review: 

Justice’s Ferguson report allegedly will rest on a “disparate impact” analysis of Ferguson’s police practices. Disparate-impact analysis obviates the need to find intentional discrimination in a civil-rights case; a policy or practice can be wholly color-blind, but if, in its application, it falls more heavily on a particular racial group, it is illegal under certain federal regulations. A job requirement that employees have a high-school degree is a classic example of a policy that has a disparate impact, if the high-school-degree requirement disqualifies more blacks than whites for the job. Never mind that the employer applies his job threshold without racial bias, he can be held liable for racial discrimination anyway if he is unable to justify the high-school requirement as a business necessity.

The Obama administration’s aggressive use of disparate-impact theory against schools for their disciplinary practices has been a disaster for classroom safety and order. That school-discipline crusade has meant that schools cannot remove unruly black students from the classroom under neutral behavioral codes without triggering potential legal liability, simply because more black students violate those codes [I’ve written extensively on this issue as well; it may be worth your time].   But as destructive as the application of disparate-impact theory to school authority has been, applying it broadly to law enforcement is a recipe for anarchy. There are few criminal laws that do not have a disparate impact on blacks, because the black crime rate is more elevated than the white crime rate. Black males between the ages of 14 and 17, for example, die from homicide nationally at nearly ten times the rate of white and Hispanic males of the same ages combined, because the black youth homicide rate is similarly skewed. Blacks commit property crimes at about three times the rate of their presence in the national population, according to arrest data. And although the topic has been virtually taboo in research circles, the few studies that have looked at driving behavior, including in New Jersey and North Carolina, suggest that black drivers violate traffic laws at a higher rate than whites do.

Mac Donald is correct. My experience in law enforcement reveals that only a small portion of any population are responsible for most crimes, whether traffic violations or felonies. MacDonald’s excellent work makes clear that blacks commit crimes of all kinds, including traffic violations, at rates out of all proportion to their actual numbers in the population. If the Ferguson PD were not arresting and ticketing more black people than their population distribution, that would be cause for concern, and probably evidence of neglect of their duty, improper harassment of other races, or other fundamental corruptions.

Mac Donald continues:

In Ferguson, blacks accounted for 86 percent of traffic stops in 2013 but make up 63 percent of the population, reports the New York Times. Such numbers are meaningless as a measure of police behavior, unless one considers the underlying rate of traffic offenses. If blacks are disproportionately represented among speeders, red-light runners, and drivers without updated vehicle registration, say, then their higher rate of being stopped simply means that the police are applying the traffic laws neutrally to lawbreakers. Do not expect the Justice Department to have performed such an analysis of driving behavior, however. And discovering the underlying rate of driving offenses is just the beginning of the analysis. The demographics of roadways can differ enormously from the residential population surrounding those roadways and even vary according to the time of day and the day of the week. Using a residential-population benchmark to evaluate traffic enforcement — which the Justice Department is certain to do — is illegitimate as either a research or a legal strategy.

The New York Times also notes that black drivers in Ferguson were twice as likely to be searched, even though searches of white drivers were more likely to turn up contraband. Again, such a statistic is meaningless unless one knows the underlying rate at which black and white drivers had outstanding warrants — which will trigger a search — and what their behavior was upon being stopped.

As Mac Donald notes, the fact that blacks accounted for 86% of 2013 traffic stops is meaningless without analyzing each stop to determine if it was a valid exercise of police authority. If it is not, the race of those stopped is essentially irrelevant unless people of other races were never stopped for less than valid reasons. Of course, the DOJ has done no such analysis. That takes actual work and produces valid results that cannot be legitimately warped to obtain preferred social justice outcomes. With disparate impact theory, one only needs potentially inflammatory statistics. The same is true for the issue of stops and searches. Without knowing why people were stopped and searched, it is impossible to know whether the police are behaving improperly. The law gives them significant latitude in such matters, including the absolutely necessary tool commonly known as “stop and frisk” so despised by social justice cracktivists. Without that tool, a great deal of criminal activity goes undiscovered, and the victims of that lack of professional policing are commonly poor black communities which are almost exclusively preyed upon by black criminals.

Despite this, the usual suspects are hard at work keeping the racist fires burning. Noah Rothman at Hot Air reports: 

The Washington Post’s Wesley Lowery, the reporter who has perhaps most extensively covered the turmoil in Ferguson, filed a dispatch on Tuesday night that indicates the public’s outrage over this police department’s abuses is again set to explode.

‘Ray Charles could see the institutional racism that’s going on here in Ferguson,’ said state Sen. Maria Chappelle-Nadal. Chappelle-Nadal said she is eager to read the full report, and is outraged by details reported by the Washington Post and other media outlets. Specifically, she is incensed by statistics showing black people being bitten by police dogs while in custody.

‘I’m disturbed by what I’m reading,’ she said. ‘We’re allowing police dogs to bite people? What is this, 1955?’

An outspoken critic of Ferguson’s police chief and major, she said both should resign.

‘They need to get rid of the police chief, that’s the first thing they should do,’ Chappelle-Nadal said. ‘They should have disbanded this police department in August.

And again, what is so obvious to Chappelle-Nadal, should not be obvious at all to those seeking the truth rather than a disparate impact justification to impose social justice on Ferguson. Some black people were bitten by police dogs? How many? When? Under what circumstances? Without knowing all of these factors–and more–no reasonable person can hope to understand this issue.

A well-known law enforcement executive, who just happens to be Black, is less than impressed with Holder and the DOJ. National Review reports: 

credit; jsonline.com

Calling the new Department of Justice investigation on widespread discrimination in the Ferguson, Mo., justice system a ‘witch hunt,’ Milwaukee County Sheriff David Clarke said he was ‘not buying one word’ of the report. [skip]

‘Two words: witch hunt,’ he began. ‘The pattern is there — some of the inflammatory rhetoric we’ve heard from the attorney general of the United States, Eric Holder.’

Clarke accused Holder of having a ‘predetermined mindset going into this investigation,’ adding that ‘he’s not buying one word of his conclusion.’

‘I think it’s a sad day, I really do,’ he continued. ‘I think that Eric Holder has an animosity, a genuine hostility toward local law enforcement – specifically toward white police officers. He truly believes that every white police officer is a stone-cold racist.

I do not argue that the Ferguson Police have never made mistakes. Regular readers know I do not shy away from exposing police incompetence and corruption.  I argue only for rational means of making that determination, means that do not automatically assume guilt and impose draconian “remedies” on a police force and community to the detriment of both. Ronald Reagan was right. The most horrifying words in the English language are “I’m from the government, and I’m here to help.”

And now, in the delicious irony department: 

Michael Brown’s Mother
credit: youtube.com

Prosecutors are now considering criminal charges against members of Michael Brown’s family in connection with a violent confrontation over the sale of merchandise commemorating the late teenager, who was shot to death last year by a police officer.

The St. Louis County Prosecuting Attorney recently received the results of a months-long investigation by Ferguson Police Department detectives who probed the October 18 beating and robbery of t-shirt vendors, one of whom was hospitalized following the assault. [skip]

The decision on whether to pursue charges in connection with the ransacking of the “Justice for Mike Brown” merchandise operation…is particularly sensitive since Lesley McSpadden, Brown’s mother, is named in a police report as one of the ‘attackers’ who participated in the assault, which cops classified as a felony armed robbery.

I first wrote about this bizarre incident in Update 5. 

Louis Head contributing to racial harmony and healing
credit: nbcbews.com

As detailed in a Ferguson Police Department report, the fight over the sale of Brown merchandise occurred in the parking lot of a barbecue restaurant, where three vendors set up tables under a pair of canopy tents. One of the vendors was Pearlie Gordon, 54, the mother-in-law of Michael Brown Sr. (who is divorced from McSpadden).

According to the report, a group of about 20-30 suspects ‘jumped out of vehicles and rushed’ Gordon, Tony Petty, and Matthew Cosey. Gordon told police that McSpadden, 34, approached her tent and said, ‘You can’t sell this shit.’ Gordon replied, according to the report, that ‘unless McSpadden could produce documentation stating that she had a patent on her son’s name she (Gordon) was going to continue to sell her merchandise.’

At that point, McSpadden’s mother, Desureia Harris, began to rip down t-shirts hanging on a line, Gordon told police. Other members of the group then began ‘tearing her booth apart,’ added Gordon, who said she was knocked to the ground and repeatedly struck in the head.

Gordon told Ferguson police that McSpadden “ran up” and punched her during the melee, while also instructing a cohort to ‘get her ass.’

In addition to McSpadden and her mother, the raiding party included McSpadden’s husband, according to Gordon. Louis Head, McSpadden’s spouse, is an ex-con best known for urging protesters to “Burn this bitch down” after prosecutors announced that no criminal charges would be filed against Wilson.

Petty was transported by EMS workers to a local hospital for treatment of ‘injuries sustained during the assault,’ noted cops, who reported that suspects ‘fled the scene prior to police arrival.’ More than $1500 in merchandise and $400 in cash ‘was stolen by unknown subjects’ during the assault, according to investigators.

There’s nothing quite like family, though this one seems more along the lines of a criminal version of the Addams Family.

Final Thoughts:

As it is with George Zimmerman, Darren Wilson and his family are not free to pursue their lives. They will probably never be so at liberty. The chance of Wilson being able to ever work as a police officer is miniscule, as is the chance that he will just be left alone. Where social justice is involved, the process is the punishment, but for statist thugs like Eric Holder, even that punishment is not sufficient.

I hope that Wilson has the emotional supports and greater age and maturity necessary–factors not available to George Zimmerman–to survive this never-ending nightmare. There is every indication this may be the case. Under the American system of justice, which may or may not exist any longer, Wilson–and Zimmerman–should have long ago, after being exonerated, been left alone and able to carry on with their lives. This, too, is supposed to be one of the feature of our system of justice. Thanks to Barack Obama, Eric Holder, their followers and worshipers, and the Media, that may not be possible.

In the case of Darren Wilson, this, because he did his job, properly and lawfully, on behalf of the people of Missouri.

As always, I’ll continue to report on this case as developments warrant.