From Selma to Ferguson: How Far? Not Far Enough

The fiftieth anniversary commemoration of the change propelled by the march over the Edmund Pettus Bridge on a bloody March 15, 1965 Sunday in Selma, Alabama demands not only celebration but the nation's serious reflection. The absence of an indictment of former Ferguson, Missouri Police Officer Darren Wilson for the death of an unarmed African American teenager, Michael Brown, on a Ferguson street in 2014 shows how much more the nation is yet required to change in order to fully realize liberty, justice and equality for all.

Since there is no video recording that completely and accurately memorializes the event which resulted in the death of Michael Brown, we are left, largely, to the self serving accounting of Officer Wilson himself about what propelled him to intentionally shoot and kill Michael Brown. The basic facts are simple. Officer Wilson, while driving his police vehicle, had just heard a police radio communication that a robbery had occurred in a store when he observed Michael Brown and a friend walking in the street. Officer Wilson drove up to the young men; words were exchanged; and, ultimately, Michael Brown was shot to death by Officer Wilson.

Officer Wilson claims that, after the initial brief verbal exchange, Michael Brown reached through the driver's window into Wilson's stopped vehicle and punched Wilson and grabbed at Wilson's gun. Wilson, while still in his vehicle, then fired two shots at Michael Brown, one of which struck Michael Brown's hand. Michael Brown then ran away. After running some distance, he then turned around and proceeded to run toward Wilson. Officer Wilson concedes that Michael Brown was not holding and aiming a gun or any other weapon at Officer Wilson; and that Michael Brown never brandished any weapon at any time. Michael Brown was unarmed. Knowing absolutely nothing else, Darren Wilson, then outside of his vehicle, intentionally discharged his weapon multiple times, striking Michael Brown, who was some distance away from Wilson, killing Michael Brown.

In 1985, the United States Supreme Court held in Tennessee v. Garner that law enforcement officers were not justified in intentionally utilizing deadly force against an unarmed fleeing felon unless the individual posed a significant threat of imminent death or imminent serious physical injury to the officer or others. Neither "fright" nor convenience meets that standard. Rather, on the facts known to him at the time he fired his gun, a trained, competent police officer is required to reasonably believe that he was faced with a significant threat of imminent death or imminent serious physical injury in order to satisfy a justification defense for his intentional shooting of an unarmed individual.

Based on his own accounting, Officer Wilson's asserted justification defense for his intentional killing of the unarmed Michael Brown is questionable at best. Wilson's accounting raises more serious questions than it answers about why he believed it was necessary for him to fire his gun multiple times at a person whom he knew to be unarmed and who was at some distance from him when he discharged his gun. Because of those serious questions, the justification defense for Wilson's conduct, at the indictment stage of the criminal justice system, was irrelevant. It put the defense before the indictment (the proverbial "cart before the horse").

Where serious questions exist about the trustworthiness and viability of a justification defense for the intentional killing of an unarmed individual by a police officer (more often than not a Black or Brown male victim by a more often than not a white male police officer), the public's interest in the oversight of police officers and in holding officers accountable for their actions demands that the factual basis for the justification be tested and examined by a jury in a post indictment public trial. The oversight and the assessment of accountability cannot and should not be left to a resolution by a prosecutor in the closed grand jury proceeding; or by a prosecutor in a pre-grand jury investigation.

At a post indictment public trial, Officer Wilson necessarily would have been required to testify since he is the only person who could testify about why he supposedly held a reasonable belief that Michael Brown posed a significant threat of imminent death or of serious bodily harm to Officer Wilson. Wilson's open court testimony would be subjected to a vigorous cross-examination by the prosecutor -- unlike Wilson's presentation in the grand jury process. In open court, the trustworthiness and viability of Wilson's justification defense would be challenged and tested. It was for a jury of citizens, in a public trail, to judge whether Officer Wilson's justification defense was trustworthy and viable; and ultimately for a jury of citizens to render final judgment about whether Wilson should be held accountable for the death of Michael Brown because the jury, rejecting Wilson's justification defense, concluded that the prosecutor had proven "the people's" case against Wilson beyond a reasonable doubt. Under the circumstances of Michael Brown's shooting death, it was not appropriate and ill-conceived for a prosecutor to render final judgment on the trustworthiness and viability of Wilson's justification defense based on Wilson's self serving, untested statements.

Consequently, any prosecutor addressing Michael Brown's matter was obligated to obtain a homicide indictment against Officer Wilson under Missouri state penal law related to homicide; or absent such at the local level, under the federal civil rights law for the violation of Michael Brown's federally guaranteed right to traverse the roadways and walkways of the nation as an African American teenager without the intentional infliction of unjustified deadly physical force by a police officer (the latter being particularly so in light of the March 4, 2015 Investigation of the Ferguson Police Department report in which the United States Department of Justice concluded that the Ferguson Police Department, by whom Officer Wilson was employed, operated in a manner and fashion that was systematically racist from top to bottom).

Abolitionist Salmon Chase, a member of President Abraham Lincoln's "team of rivals" and the sixth Chief Justice of the United States Supreme Court, said about the unjust application of the law: "Every law on the statute book so wrong and mean that it cannot be executed, or felt, if executed, to be oppressive and unjust tends to the overthrow of all law, by separating in the minds of the people, the idea of law from the idea of right." The "unjust and oppressively felt" failure to indict former Ferguson Police Officer Darren Wilson for the death of Michael Brown has, to the detriment of the nation, severed "in the minds of the people, the idea of law from the idea of right." For unlike in Selma, 1965 where accountability justly followed the unjust spilling of the blood of innocents by the enactment of Voting Rights Act of 1965, no just accountability has followed the unjust spilling of Michael Brown's blood in Ferguson, 2014. How much change since Selma? Not enough. One day justice for all will be achieved. Just, not yet.

James I. Meyerson is a practicing civil rights attorney in New York City; and formerly an Assistant General Counsel of the NAACP from 1970-1981.