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Populists: Elections of 1892 and 1896
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Our country needs cleaning up badly.
I think both parties have failed in a lot of ways. And we
sometimes wish that we could have another party.
Americans are taking a serious look at our two major parties.
We're supposed to be here telling the politicians, we're not
happy with you.
With surprising regularity third parties or independent
candidates have identified new, more passionate concerns
among voters.
Are you people creating a third party in Indiana?
Yes ma'am, we are.
You are? What is the name of your party?
[UNINTELLIGIBLE PHRASE].
If they get away from the moral issues or the family value
issues, I definitely see a third party.
When Americans demand a third choice, it often changes and
renews the major parties, making winners into losers and vice
versa.
Hello, I'm Ben Wattenberg, moderator of the public television
series Think Tank.
More often than you might think Americans have looked beyond
the two major political parties and reached for a third choice.
When they do, big things often happen in American politics and
in American life.
Let's start at the beginning. First, why two parties? In fact, why
parties at all?
In the beginning the Founders agreed. They wanted no parties in
their new country.
There is nothing I dread so much as the division of the Republic
into two great parties, each under its leader. John Adams.
Ignorance leads men into a party and shame keeps them from

getting out again. Benjamin Franklin.
If I could not go to heaven but with a party, I would not go
there at all. Thomas Jefferson.
When the framers met in Philadelphia in 1789, the constitution
they drafted made no mention of parties and all.
I think the Founding Fathers were operating from a perspective
where they had the English experience in view, they had the
experience of the Italian city-states, the Roman Republic, the
Greek polis, where they felt that parties tend to be illegitimate.
There was still a feeling in the air that to systematically oppose
the people that were in charge of the government-- which is
what an opposition party does, typically-- was somehow
illegitimate and you really shouldn't do that.
Despite that, the seeds of today's two party political system
were soon planted, during the first administration of the first
American president, George Washington.
Washington's cabinet included two brilliant and powerful men
with opposing views of America's future. Thomas Jefferson, the
Secretary of State, and Alexander Hamilton, the Secretary of the
Treasury. Jefferson hoped America would remain a nation of
independent farmers and yeomen like those in his home state of
Virginia. And so, he wanted to limit the federal government and
leave important decisions to the states.
I am for preserving to the states the powers not yielded by them
to the union. Thomas Jefferson.
Hamilton thought America should become a unified industrial
nation which required a strong federal government able to stand
equal to the great powers of Europe.
Let the thirteen states, bound together in a strict and
indissoluble union, concur in erecting one great American
system able to dictate the terms of the connection between the
old and new world. Alexander Hamilton.
Over the course of his presidency, Washington grew
increasingly worried that the rift between Hamilton and
Jefferson would develop into what was called factions.
Let me warn you in the most solemn manner against the baneful

effects of the spirit of party. George Washington.
The Founders were universally and unanimously against
political parties. George Washington's farewell address warned
America about two things. Beware entangled alliances, that is,
be isolationist in the world. And the second one was beware the
baneful influence of party. So our father of our country voices
this warning eight years into the republic, at the end of his two
terms of office, at the very moment when the parties are
forming.
Just as Washington had feared, by the election of 1800, parties
had formed. The Democratic-Republicans rallied behind Thomas
Jefferson. The Federalists, who supported Hamilton's ideas,
backed incumbent president John Adams. Jefferson won.
America now had two parties. Why not more?
The rules of the game are stacked against third parties in this
country. And I don't think it's because the Founders
intentionally understood or decided that they were going to
make it a two party system. In fact, the Founders didn't even
talk about parties in any of the documents or debates.
Simply put, any system of elections where winner takes all by
plurality is a system that favors two parties.
Winner-take-all elections. Here's what it means. Let's say you
have two candidates running for president. If candidate A gets
51% of the vote in a state and candidate B gets 49%, candidate
A gets 100% of that state's electoral votes and candidate B gets
nothing.
This literally discourages new parties because of the psychology
of the wasted vote. If there are two guys running and there's a
third guy comes along, he has no chance of winning but I prefer
him-- in those days they were all him-- then it's better to cast
your vote for the lesser of the two evils between the two major
guys.
And so despite the Founders' early intentions, America ended up
with political parties. Two of them. And the rules of the game
made it difficult for any additional party to win the allegiance
of voters. Difficult, but not impossible.

In 1826, a third choice party emerged. It was founded on a
conspiracy theory concerning a secret society that built this
monument to its most famous member, George Washington.
That society was the Masons.
The original 13 colonies had restricted voting rights to white
male property owners. But the new states to the West extended
the franchise to workers, tenant farmers, and artisans. One by
one, the older Eastern states followed their lead. Alas, women
and blacks were still excluded.
Third parties have risen up usually in situations where one or
really both of the two parties leave a kind of vacuum, leave a
major political point of view in this diverse country
unrepresented in a political contest.
The first third party tapped into just such an unrepresented
political view, the resentment by new voters toward the
American establishment. Many in that establishment were
members of the exclusive Masonic Order, a powerful secret
society devoted to good works and what we might today call
networking. In fact, most of the Founding Fathers had been
Masons, including Washington, who was sometimes portrayed
wearing a Masonic apron and used a Masonic Bible to take his
oath of office.
Unless you were a Mason you could not advance in law, you
could not advance in business, could not advance in anything.
Many of those shut out of the system began to believe there was
a plan, a conspiracy, to shut them out. And then something
happened to confirm their worst fears. A renegade Mason named
William Morgan disappeared.
He got into a quarrel with his fellow Masons and threatened to
reveal the secrets of the Order. He was arrested on trumped up
charges, I think. And eventually he disappeared. And we believe
he was taken from prison and drowned in the Niagara River.
The disappearance of Morgan and his presumed murder aroused
the people of Western New York to such a fever pitch. And this
developed almost instantaneously into a political move to get
rid of all Masons in public office. At least that was something

the people could do.
Anti-Masons like New York political boss Thurlow Weed
suspected a Masonic conspiracy to protect those charged with
the crime.
We labored under serious disadvantages. The people were
unwilling to believe that an institution so ancient, to which so
many of our best and most distinguished men belonged, was
capable of not only violating the laws but of sustaining and
protecting offending men of the Order. Thurlow Weed.
As anti-Masonic feelings rose the two major parties were going
through big changes. By 1832 the Federalists were gone. The
Democratic-Republicans split into two parties, each lined up
behind a powerful national figure. Followers of president
Andrew Jackson were Democrats. Supporters of senator Henry
Clay were Whigs. They complained that Jackson was trying to
increase the power of the presidency, and they called him King
Andrew.
In the election of 1832 it was Jackson versus Clay.
His supporters told him to renounce his membership in the
Masonic Party, which he refused to do. And of course Andrew
Jackson was considered, quote, a Grand King of the Masonic
Order. So the Masonic groups could not have anything to do
with him, they had to get a third candidate.
So they formed a third party, national party. They had state
parties by that time. And they held the first national nominating
convention, and ironically put up a former Mason in William
Wirt. And he took votes from both candidates.
How did the Anti-Masons fair? The Democrats won the election
of 1832. Struggling against the third party wasted vote
syndrome, the Anti-Masons won just 8%. But that doesn't mean
they were a total failure. Membership in the Masonic Order
dropped from 100,000 to 40,000, largely due to Anti-Masonic
pressure.
This is one of the things about American political society that I
think we are prone to, the conspiracy notion. You see, if we
don't get what we want, we are not satisfied with the answer,

there is a conspiracy here. There's a conspiracy to get us into
the Civil War, there's a conspiracy to get us into World War
Two, there's even a conspiracy in assassinations. The most
recent, of course, and most probably most famous is the
assassination of John Kennedy.
The Anti-Masons didn't stick around long. By 1840, they were
history. They never did build a national constituency. And that's
a pattern that many third parties have since followed. But the
Anti-Masons did inspire the two major parties to compete for
those newly enfranchised workers and farmers.
Soon, the Whigs and Democrats started breaking apart over a
far more important issue, slavery. That opened one of the most
important debates in American history.
And it begins the story of the only third party candidate to
actually win the White House. That remarkable man was
Abraham Lincoln, whose life began in the backwoods of
Kentucky and ended right here at Ford's Theatre, in downtown
Washington, DC.
Mid-19th century America was divided into three political
regions: the free states of the North, where the Industrial
Revolution was blooming; the slave states of the South, where
cotton was king; and the wild West.
The overriding political question of the day was whether slavery
would be allowed in the West. Under the leadership of South
Carolina Senator John C. Calhoun, Southerners dominated the
Congress. But they worried that if too many Western territories
entered the Union as free states, the balance of power would tip
to the North's advantage and slavery would ultimately be
outlawed nationwide.
Southerners felt obliged to be united, in public at any rate,
behind the institution of slavery. Nobody could afford to come
out in the South and say slavery is wrong or we ought to do
something to end it, we ought gradually to emancipate.
The slavery debate cut across party lines. Both the Democrats
and the Whigs faced bitter differences within their parties.
Anti-slavery Whigs were called the Conscience Whigs, in

contrast to the Cotton Whigs, the Cotton Whigs being those into
in league with, as the anti-slavery people said, the lords of the
loom and the lords of the lash, in other words the people who
produced cotton and the people who made cotton cloth.
Increasingly the Democrats became the party of the pro-slavery
South. The Whigs remain divided. In a time of political
upheaval small new parties began to spring up, like the anti-
slavery Free Soilers and the anti-immigration American Party.
Then, in 1854, Congress passed the infamous Kansas-Nebraska
Act. It allowed those two states to decide the slavery question
for themselves.
To anti-slavery people this was a signal flag that something
very wrong had occurred. There had been, they felt, a moral
decision to keep slavery out of those territories. And it didn't
take a lot of imagination to say, OK, if you can bring slavery
into Kansas, Nebraska, these areas in which slavery had always
been prohibited, what was to keep slavery from going
elsewhere?
In the North anti-slavery activists began to hold assemblies. A
lawyer named Alvan Bovay called a meeting in Ripon,
Wisconsin, on March 20, 1854.
We went into the meeting Whigs, Free Soilers, and Democrats.
We came out Republicans. Alvan Bovay.
Republicans because they believed that they were the true
descendants of Jefferson's Democratic-Republican Party. In
1856 the new Republican Party met in the Musical Fund Hall in
Philadelphia. They nominated Colonel John C. Fremont, the
popular California senator, to be their first presidential
candidate. Their slogan was Free Soil, Free Speech, and
Fremont.
Remarkably, Fremont came in second in a three-way race. The
Republicans, in the space of just two years, had replaced a
major party, the Whigs.
By 1860 things had changed considerably, because by that point
it's clear that a Republican, if a strong candidate, is surely
going to win. So a lot of Republicans who'd been hiding behind

the bushes in 1856 now suddenly emerge and they are all really
all gung-ho.
In all of this hullaballo, Abraham Lincoln and his friends
watched circumstances very closely. And they made this kind of
judgment, that is, that Lincoln would appear on the scene as the
first choice of only Illinois and possibly Indiana. He, on the
other hand, might be the second choice of a great many of these
other candidates. And when they got into the convention they
would in effect kill each other off and there
[UNINTELLIGIBLE] is Abraham Lincoln standing as the only
survivor. And that is exactly what happened, just according to
Lincoln's schedule.
The election of 1860 was a four-way race. Lincoln faced a split
Democratic Party. Senator Stephen A. Douglas, a Northern
Democrat, carried the official designation. John Breckenridge
ran as a Southern Democrat. Senator John Bell carried the
banner of the new pro-slavery Constitutional Union Party.
Lincoln won the election by carrying the North. He got 39.8%
of the popular vote, the smallest percentage ever to propel a
candidate into the White House. Southern secession now seemed
inevitable. The stage was set for the Civil War.
Lincoln's great and tragic presidency changed American politics
and American life. The Civil War raged for four years. 620,000
Americans were killed. But Lincoln had signed the
Emancipation Proclamation, which freed all Southern slaves.
And the defeat of the South by Lincoln's army finally settled the
slavery issue.
So for the first and only time in our history a third party
replaced one of the major parties and saw its presidential
nominee elected to office. Abraham Lincoln's assassination did
not mean the demise of the new Republican Party, quite the
contrary. After the war the Republicans remained vibrant, one
of the country's two dominant parties. Therefore, what? While it
is very hard for a third party to prevail in our two party system,
it can be done.
For the Republicans of the 1850s it took an issue that was

beyond compromise, slavery, which fatally weakened a major
party, the Whigs. And it took one of America's greatest leaders,
perhaps the greatest, Abraham Lincoln.
America settled back into the old two party system, but these
two parties would soon be tested by new issues.
The Industrial Revolution went to full throttle. Huge numbers of
Americans moved West. The railroads bound the country
together.
By 1890, 125,000 miles of track stretched from coast to coast
and from North to South. But power, money, production, and
political influence became concentrated in the Northeast. Both
the Republican and Democratic parties were accused of falling
under the sway of financiers.
We meet in the midst of a nation brought to the verge of moral,
political, and material ruin. A vast conspiracy against mankind
has been organized. If not met and overthrown at once, it
forbodes terrible social convulsions or the establishment of
absolute despotism. Ignatius Donnelly.
Farmers in the West and South were hard hit by the changing
economy. They were often in debt. They were increasingly
dependent on the railroad. They blamed Eastern interests for
their plight and the same kind of anti-elitist resentments that
had fueled the Anti-Masons would now launch another political
movement.
The conditions in Kansas were pretty raw and pretty rugged.
The economy went from prosperity to poverty very quickly, and
people were astonished by it.
You had a lot of farmers who were doing everything they could
and yet could not survive. They were going to lose their
property to the banks, to mortgages. They saw banks sucking
away everything that they'd ever worked for. And so they turned
towards political candidates who spoke their language, who told
them to get out there and raise less corn and more hell.
Dozens of small parties sprang up, each with a program of
change: the Prohibition Party, the Greenback Labor Party, the
Union Labor Party, the Socialist Party, just to begin a very long

list.
It's very easy to see, for example, in the period prior to the
Civil War, the role that third parties were playing vis-a-vis the
slavery issue as a way of forcing the hand of one of the parties
on that issue. It's very easy to see in the closing decades of the
19th century as the forces of agrarianism, the forces of soft
money, the forces against railroad monopoly, were trying to
push the hand of one of the parties.
By 1892 many farmers were angry with the major parties. So
they launched their own: the People's Party, also called the
Populists. They were so-called soft money advocates, rejecting
the gold standard. They favored basing the currency on a
combination of gold and silver, which would cause inflation,
making it easier for farmers to pay off their debts.
In 1892 the People's Party ran James P. Weaver of Iowa for
president. Democrat Grover Cleveland won and Democrats
captured the Congress. The new Populist Party received 9% of
the vote.
Then came the great depression of 1893. Populist leader Jacob
Coxey led a march on Washington demanding public works
programs to provide jobs. Democrats were blamed for the
country's economic distress.
In 1893 you have the depression. In 1894 the Republicans come
back with a vengeance. But in 1896, you have Democrats
nominating a fiery young former Democratic congressman from
Nebraska, William Jennings Bryan, a great orator who steals
one of the big issues of the Populists, the issue of free silver.
You shall not press down upon the brow of labor this crown of
thorns. You shall not crucify mankind upon a cross of gold.
There is a lot of talk that the children's story The Wizard of Oz
is really a Populist fable. It was written by L. Frank Baum,
whose father was an investor in gold, and who was very
suspicious, apparently, of these Western political movements.
And if you read the story, it starts with a very bleak scene in
Kansas, farmers just eking by and terrible drought conditions.
And suddenly a tornado, a storm, rushes through the state and

sweeps everything up in its path, the way Populism swept across
Kansas.
And little Dorothy is whisked off to this strange land where
she's given a pair of silver shoes in the book, not ruby shoes as
they appeared in the movie. And she's told to follow a yellow
brick road. And this is bimetallism, silver and gold are the path
to your future.
And she encounters some strange people along the way. She
encounters a straw man who presumably represents the farmers.
The straw man has no brain.
She encounters a tin man who presumably represents the
workers. He has no heart.
And then she encounters a cowardly lion who is all roar but no
strength. And presumably he represents the radical agitators
who went around speaking for the Populist movement.
And when they finally get to Oz, they meet the wizard and he's
a carnival huckster from Omaha, Nebraska, William Jennings
Bryan's hometown. And he's a hot air balloonist, and he winds
up going off and leaving poor Dorothy stranded.
But she manages to get back home, and when she finally gets
back to Kansas in the end she says there's no place like home.
And she's not leaving again, and since the farmers will return to
the traditional parties and not be swept up into the whirlwind
because the wizard is really a phony.
Many political observers said that Bryan and the Populists
swallowed the Democratic Party whole. Bryan and the
Democrats would carry the banner of free silver.
So the Populists had responded to new issues with new ideas.
Those ideas then found a home in one of the two major parties,
the Democrats, now under the leadership of William Jennings
Bryan, who was actually called a Popocrat.
Once again the two major parties presented voters with a clear
choice on the important issues of the day. The two party system
was revitalized for a while.
Look at that animal. I feel as fit as a bull moose and you can
use me to the limit. That's what Teddy Roosevelt said as he

readied himself for a political drama that would change the
nature of America from that day to this.
The dawn of the 20th century saw a further expansion of
American industrial power. The popular view was that a few so-
called captains of industry were creating new financial empires
and far beneath them a growing and restless proletariat was ripe
for revolution.
Between the super-rich and the working masses, the middle
class felt a sense of alarm. Their concern would spark a new
political movement, the progressives.
At first glance Republican Theodore Roosevelt seemed an
unlikely champion for the progressives. He was the wealthy heir
to a New York fortune, a hero of the Spanish-American war. In
1900, he had been elected vice president on a ticket headed by
Republican William McKinley. And in 1901, McKinley was
shot and killed. Roosevelt became president.
In Congress the leader of the progressives was Republican
Senator Robert La Follette of Wisconsin.
La Follette's idea was that you put out pristine the ideal into the
legislative cauldron, be that in Wisconsin or Washington when
he was in the US Senate. And then you keep fighting for it, day
after day, year after year, until you get it in the right form. La
Follette said that TR was too much of a compromiser and was
willing to settle for half a loaf. And TR would have readily
agreed, yes, I'll settle for half a loaf rather than nothing.
But after re-election in 1904, Roosevelt became a vocal
proponent of the progressive cause. He took on the great
monopolies, regulated the railroads, and established safety
standards for food, drugs, and the workplace.
In 1908, Roosevelt's vice president and hand-picked successor,
William Howard Taft, was elected. Under Taft, the rift between
conservative and progressive Republicans deepened. Taft sided
with the pro-business conservatives. Roosevelt went off to hunt
lions in Africa. When he returned this king of the political
jungle did not like what he saw.
When he came back in 1910, he found the Party completely in

shambles and completely split between its conservative and
progressive elements, the Insurgents and the Standpatters, as
they were called. He was then urged by the progressives to get
involved on their side.
In June of 1912, Republicans gathered to choose a presidential
candidate at their convention in Chicago. Teddy Roosevelt lost.
When Taft was re-nominated, Roosevelt and his fellow
progressives took a walk. Within days, they formed a new party.
There is no danger of a revolution in this country, but there is
grave discontent and unrest. Unhampered by tradition,
uncorrupted by power, undismayed by the magnitude of the
task, the new party offers itself as the instrument of the people
to build a new and nobler government.
The Bull Moosers supported progressive reforms. These people
believed in good government. They didn't think bureaucracy
was a four-letter word. They favored voting rights for women,
regulation of big business, ending child labor, and lower tariffs.
And this was to be no mere bolt for the day. It was to replace
the Republican Party. It was to realign the party system. Why
should there be parties divided into wings? There were in a
sense four parties: progressive Democrats, conservative
Democrats, standpat Republicans, progressive Republicans.
Why shouldn't there be a Progressive Party and a Conservative
Party? So they were going along to make this realignment.
In 1912, the progressives ran strong, but by splitting the
Republican vote they allowed Wilson, the Democrat, to win
with 42%. Roosevelt, however, came in second, with 27%. And
a fourth candidate, Eugene Debs, running on the Socialist Party
ticket, got 6% of the vote.
Roosevelt thought that the period they were going through was
similar to the 1850s, when the Whig Party was breaking up and
when new parties were coming along. He had actually gotten
more votes in the 1912 election than Taft had. And he believed
that he was in the position that, say, John C. Fremont might
have been in the 1850s.
Bull Moose candidates ran for Congress during the midterm

elections of 1914. But without Theodore Roosevelt there to head
a presidential ticket, the Bull Moosers did poorly.
In the 19th century the parties existed as an entity and then
went out and found themselves a leader. In the 20th century it's
almost exactly the opposite. It's hard to imagine some of the
movements of the 20th century existing without the leader.
There would have been no Bull Moose candidacy or Bull Moose
campaign in 1912 if it weren't for Theodore Roosevelt deciding
he was going to challenge the President.
What seemed in 1912, 1914, like the beginnings of a new
political order, evaporated very quickly and had not staying
power at all. And if Theodore Roosevelt couldn't do it, then the
question was who could? Could anybody really create a third
party on a permanent basis or were third parties best to be
temporary shocks to the system, to force the major parties to
adopt issues that the third parties originated and believed in and
campaigned on?
Teddy Roosevelt's Bull Moose Party was a classic third party
enterprise. The party didn't last, but the message did. Both
major parties ended up embracing much of the progressive
agenda.
Many of Roosevelt's followers drifted back to the Republican
Party but the GOP could no longer make a special claim as the
party of reform. It was President Wilson and the Democrats who
reorganized the banking system, lowered tariffs, created the
Department of Labor, and provided federal aid to education and
farming.
Then, with almost clockwork regularity, third parties continued
to help shape America. In 1932, at the depth of the Great
Depression, another Roosevelt, Franklin Delano Roosevelt, won
the White House. The Democratic coalition he assembled would
come to dominate national politics. But by 1948, two factions
within that party, one on the right and one on the left, launched
third and fourth party bids for the White House. It was a signal
that Franklin Roosevelt's fragile Democratic coalition was very
fragile.

The Chair declares that Henry A. Wallace has been unanimously
nominated by this convention as the candidate of the
Progressive Party for the office of President of the United
States.
In 1948, the Cold War was brand new. Some Americans favored
a more conciliatory stance toward the Soviet union and some
left-wing Democrats abandoned the party to back a liberal
Henry Wallace for president. They appropriated the name of the
old Progressive Party.
Then, as if the Cold War weren't divisive enough, the
Democratic Party split over another explosive issue: civil
rights. The white South had been solidly Democratic and
segregationist since the end of the Civil War. It was thought
that no Democrat could win the White House without Southern
support, including incumbent president Harry Truman.
For generations, the Southern Democrats had had enough
leverage within the Democratic Party to suppress any issues
related to civil rights. Harry Truman broke that as president. He
came out in favor of a civil rights bill. The bill didn't pass. The
Southern Democrats in the Congress defeated it, but by 1948
Truman's record had angered the segregationist Southern
Democrats to the point that there was a rebellion.
Southern Democrats angrily walked out of the 1948 convention
and formed the new States' Rights Party. They were soon
dubbed Dixiecrats.
It simply means that it's another effort on the part of this
president to dominate the country by force and to put into effect
these uncalled for and these damnable proposals he has
recommended under the guise of so-called civil rights.
I had no idea I'd be nominated for president then. But it turned
out I was nominated, and Governor Fielding Wright was
nominated for vice president. And we accepted the nomination
in Texas later and had the ticket, that third party ticket.
So in 1948 there were three presidential candidates with roots in
the Democratic Party: President Truman, Strom Thurmond the
Dixiecrat, and Henry Wallace the Progressive. They faced just

one Republican, governor of New York Thomas Dewey.
I thought Dewey would probably be elected. Everywhere Dewey
went the press was trailing him, everybody was trailing him,
saying he's the next president. And the odds seem to be strongly
in his favor, ten out of one.
In the biggest upset in American history, Harry Truman carried
the day with 49.6% of the popular vote. Dewey got 45%. Strom
Thurmond and Henry Wallace won 2.4% each.
Pretty small potatoes, but consider this: Henry Wallace didn't
carry a single state and didn't get a single electoral vote.
Thurmond's vote was concentrated in the South and he carried
four states and 39 electoral votes. For the first time since 1876,
the solid South did not stay solidly Democratic.
15 years later the Democrats' hold on Southern voters would be
shaken again.
The interesting thing about Wallace is that he seemingly came
from nowhere. Here he was, a governor of a very small,
politically insignificant state for barely more than a year and he
suddenly was thrust into the national arena. He did it, of course,
with what he likes to talk about as his dramatic confrontation of
the federal government. Nothing more dramatic than the famous
stand in the schoolhouse door at the University of Alabama,
where he succeeded for perhaps two hours delaying the entrance
of two black students.
In 1964 George Wallace entered the Democratic presidential
primaries. An important part of his message concerned race, but
there were other themes as well.
What George Wallace found in the 1964 primary was that
people of all stripes were flocking to him. Then he was finding
when he went to rallies the response was overwhelming. Time
and again they would be talking about their own concerns, about
their jobs and about crime, about keeping their home. I think
that these people have some real concerns that were left
unaddressed for years. And George Wallace was the first one to
begin to scratch at that itch.
To the shock of many Democrats Wallace's appeal went beyond

the South. Wisconsin, 34%. Indiana, 30%. Maryland, 43%. And
then in 1968, a third party. Wallace abandoned the Democrats to
launch another bid for the presidency. His American
Independent Party hit hard on the theme of law and order, with
racial overtones.
Why are more and more millions of Americans turning to
Governor Wallace? Open a little business and see what might
happen.
As president, I will stand up for your local police and firemen
in protecting your safety and property.
It was a time of big city riots, rising crime, campus unrest, and
Vietnam War protests. Wallace spoke to those who were
terrified and angry at what was happening in America.
This country cannot survive is we allow the anarchists to ruin it.
And everybody knows that. And both national parties are now
talking about law and order. Well, they ought to talk about law
and order. They took it away from the American people by not
paying any attention to the average citizen.
I want to say one thing. You are the kind of people that folks in
this country are sick and tired of too.
I was fighting Nazism before you little punks were born, you
remember that.
The worst crime wave we've ever had in our history.
Wallace's message resonated with many voters. As in earlier
times, the two major parties moved to capture some of the
constituency of the third choice candidate.
In 1968, as Wallace was growing in the polls, climbing steadily,
reaching over 22% just a month before the election, his key
opponents, Hubert Humphrey and Richard Nixon, saw that they
had to grab some of these. And both did the same thing.
First they said their vote would be wasted if they voted for
George Wallace because he can't get elected. So elect me and I
will carry the things you want into the White House. Nixon, of
course, focused his the entire campaign in the last month on the
whole issue of law and order.
Dissent is a necessary ingredient of change. But in a system of

government that provides for peaceful change, there is no cause
that justifies resort to violence. Let us recognize that the first
civil right of every American is to be free from domestic
violence. So I pledge to you, we shall have order in the United
States.
George Wallace really frightened the major parties by the
success he had not only in the South but in places like Gary,
proving that workers were becoming more conservative. They
were no longer going to be simply a working-class component
of the Democratic Party.
Richard Nixon won the 1968 election. Many Democrats who had
defected from their party would never return.
The Wallace movement didn't last, but the Republican Party
essentially absorbed many of the elements of the Wallace
movement. They combined this with their base in the upper
echelons of the Southern economy, country club Republicans,
historically, were always there. And all of a sudden, the
Republican Party becomes competitive.
Wallace's third choice candidacy led many Southerners out of
the Democratic Party, and today, Republicans dominate the
South.
The next third party challenge would come not from the right or
from the left, but from the middle. Voters who have been called
the radical center. In 1992, many of them would find a
champion in a new compelling independent candidate. Unlike
many of his predecessors, he had never held public office nor
did he lay claim to a particular regional base. In fact, you might
even say his real base was here on the set of CNN's Larry King
Live, and subsequently on talk shows across America.
Opinion polls show voters disgusted with Washington politics,
alienated from the parties, and anxious about an economy going
from local to global. H. Ross Perot was a plain-spoken Texan
and a billionaire.
Back in 1980 the political center had been the target of another
candidate, Congressman John Anderson, a moderate Republican,
made an independent bid for the White House. He won 7% of

the vote.
How do you balance the budget, cut taxes, and increase defense
spending at the same time? It's very simple. You do it with
mirrors.
Ross Perot had gained national attention as a vocal supporter of
efforts to find Vietnam War POWs and MIA.
If we are allowed to go into the camps in the north and visit the
camps, then we will know firsthand what the conditions are in
those camps. Basically it's just another step in the long road to
the release of the men.
He claimed to be reluctant to leave private life.
I had received a call from Jon Hooker in Tennessee, who was
once a candidate for governor, prominent Democrat, and he
said, I think Ross Perot's interested in running for president. I
asked him, are you interested? And he said, no. And then during
the course of the program, about halfway in, people were
calling in, asking him questions about so many things, and I
said, are you sure you're not interested? And he said, no, I
really don't want to be president.
And with five minutes left, I asked him, are there any
circumstances under which you would run, any? And if you say
no to that, you have taken yourself out. And he said, well, if I
get on the ballot in all 50 states.
I've said for years, I'm a businessman. I was on Larry King's
show, he asked me for an hour, people called in and asked for
an hour. I finally said, look, there's one scenario and only one
scenario under which I would run. If ordinary people in 50
states went out in the streets, on their own initiative-- not
programmed, not orchestrated like rabbits, the way we try to do
everything now-- did it on their own and put me on the ballot in
all 50 states, not 48, not 49, but 50? Then I would run.
But it was Perot himself who directed and paid for a national
ballot access drive. He organized his volunteers under the name
United we Stand America.
I look at the United We Stand voter as fiscally conservative and
yet socially moderate. If you look at the Republicans and

Democrats, the Republicans want to control your life and they
want to laissez faire attitude on money. The Democrats want a
laissez faire attitude on your personal life but they want to take
your money. Now I think in the middle there's a common
ground.
Perot had a fortune of $3 billion and he didn't mind spending it.
Theodore Roosevelt in 1912 spent only about $0.60 on the
dollar of what the major parties spent. John Anderson spent
only about $0.50 on the dollar of what the major parties spent.
Ross Perot in 1992 spent nearly $73 million, which was roughly
$1.20 on the dollar that was spent by the major parties. Put
differently, he outspent the major party candidates in 1992. That
has never happened before.
Perot produced infomercials. He bought network time to talk
directly to viewers.
In effect, this is our first town hall. I thought it would be a good
idea to take the most important problem first. That problem is
our economy and jobs.
What would Ross Perot have done 20 years ago? He wouldn't
have been invited on Meet, the, Press probably, unless there was
a major issue affecting business. So he would have had to do
what? Give an interview to The New York Times and announce
that he's running? Call a press conference? I don't think it
would have been a big story.
As he got more media attention, his poll numbers went up. In
June of 1992, he led both Republican George Bush and
Democrat Bill Clinton. For a time, it seemed that Perot could
beat the psychology of the wasted vote. Then in July, a bizarre
twist. Perot dropped out of the race.
The Democratic party has revitalized itself. They've done a
brilliant job, in my opinion, in coming back. And I am hopeful
that both parties will really focus on what the people are
concerned about in this country. I hope we'll focus on
rebuilding our country. That's what the people want.
He later explained that he believed Republicans had a plan to
disrupt his daughter's wedding. But in October, Perot was back.

Neither political party has effectively addressed the issues that
concern the American people. They've asked me to run this
campaign on the issues and to assure that the problems that the
American people are concerned with will be dealt with after this
election is over.
Welcome to the first of three debates among major candidates
for president of the United States.
Perot's stature as a candidate received a major boost from his
participation in the 1992 presidential debates. I don't have any
experience in running up a $4 trillion debt. I don't have any
experience in gridlocked government, where nobody takes
responsibility for anything and everybody blames everybody
else. I don't have any experience in creating the worst public
school system in the industrialized world, or the most violent
crime ridden society in the industrialized world. But I do have a
lot of experience in getting things done. Now all these fellows
with $1,000 suits and alligator shoes running up and down the
halls of Congress that make policy now, the lobbyists, the PAC
guys, the foreign lobbyists and what have you, they'll be over
there in the Smithsonian. Because we're going to get rid of
them.
We have so mismanaged our country over the years and it is
now time to pay the fiddler. And if we don't, we will be
spending our children's money. We've got to clean this mess up,
leave this country in good shape, and pass on the American
dream to them. We've got to collect the taxes to do it. If there's
a fairer way, I'm all ears.
No other third party candidate in modern history has stood
shoulder to shoulder with the Democratic and Republican
candidates in a series of presidential debates. And over this nine
day period in October of 1992, for four and 1/2 hours 60 million
Americans saw three candidates for president. And the media
discussed it as the debate among the major candidates. That
provides a tremendous advantage.
In the context of 1992, it's hard to imagine that Perot could
have regained his momentum without his participation in the

debates. And over that nine day period Perot's standing in the
polls jumped five points, his negatives were cut in half and his
positives doubled. And the propensity of people to see him as
somebody who had viable solutions for the American economy
rose as well.
Going into Election Day, polls showed Perot with 13% of the
vote. Many experts thought his support would go down because
of the wasted vote syndrome. Bill Clinton won with 43%.
George Bush received 37%. Perot got 19%, more than earlier
polls had indicated, making him the most successful
independent candidate since Theodore Roosevelt.
Perot had a disparate group, but I think what held them
together, in a sense, is that they tended to be people beyond the
Beltway, tended to be younger people, tended to be newer
people in their communities and in the voting stream. They were
people that had fewer connections to existing institutions of
civil society where they lived and to the older political parties
than many other Americans did. They were free and unmoored.
And that, I think, left them free to go to Ross Perot and to keep
with Ross Perot after he entered the race, left the race, then
entered it again.
Perot's platform soon found its way into the mainstream
political dialogue. The Republicans' Contract with America
called for term limits, campaign finance reform, lobbying
reform, and a balanced budget.
On the matter of smaller government, the matter of reinventing
government, the matter of this , that, and the other, Perot has
nothing further to say. He did, however, perform quite a service
in influencing the agenda of both parties.
During the current period, I think we see both parties
scrambling after Perot's constituency. Both parties are fighting
to see who is going to reform government more. These are all
issues and themes that were right out of the Ross Perot
campaign in 1992. And so both parties are desperately trying to
get that constituency into their fold, and to the extent that one
of the party succeeds and the other fails, that's going to be the

signal of what the new alignment looks like. And that's also
going to cut the ground out from under Perot or any other
candidate that comes forward.
We have a hunger in this country. There's a definite
dissatisfaction with everything. Congress is unpopular. The
President is unpopular. Nobody is popular. There's nobody in
America with over a 50 Q rating, as they call it. Nobody. This is
like the first time in history.
A Q rating is how much of the public can identify you
immediately and like you. I know him. I like him. When you
have no political figure with a Q rating over 50, you have a
vacuum.
There is a possibility that both parties could become reformed.
They would have to move in from the fringes, however, I think,
to attract us. Now, how are we going to reform them? Possibly
from within, but the possibility of a third party is kind of a big
hammer that's just waiting to thud if they don't.
From the Anti-Masons to the Republicans, from the Populists to
the Progressives, from dissident Democrats to Ross for Boss,
there will be others. An infusion of new ideas, sometimes good,
sometimes not so good. Time and again the major parties have
adopted and shaped third choice ideas for their own purposes.
As they do, the two party system is renewed and refreshed,
changing American politics and American life.
Thanks for watching. I'm Ben Wattenberg.
This has been a production of BJW Incorporated in association
with New River Media, who are solely responsible for its
content.
Presentation of this program was made possible by the
Corporation for Public Broadcasting.
By Saptarishi Bandopadhyay, under supervision of Charles R.
Nesson

July 2015
The Color of Police Action in these United States
Case Study
HLS cases are developed solely as the basis for class discussion
and participation. Cases are
not intended to serve as endorsements, sources of primary data,
or illustrations of effective or
ineffective legal representation.
Copyright © 2015 President and Fellows of Harvard College.
No part of this publication may be reproduced, stored in a
retrieval system, used in a spreadsheet, or transmitted in any
form or by any means—electronic, mechanical,
photocopying, recording, or otherwise—without the permission
of Harvard Law School.
http://casestudies.law.harvard.edu
_____________________________________________________
_____________________________________________
This case was prepared by Saptarishi Bandopadhyay, under
supervision of Professor Charles Nesson. Cases are
developed solely as the basis for class discussion and are not
intended to serve as endorsements, sources of primary
data, or legal advice. Copyright © 2015 Harvard University. No
part of this publication may be reproduced, stored in a
retrieval system, used in a spreadsheet, or transmitted in any
form or by any means – electronic, mechanical,
photocopying, recording, or otherwise – without permission.

This case is designed to familiarize students with a major,
ongoing controversy in the United
States: the killing of unarmed, black men at the hands of law
enforcement across the
country. Thematically, the case has two parts:
The first part offers an account of the deaths of two African
Americans, Michael Brown and
Eric Garner, at the hands of police officers in Ferguson,
Missouri, and Staten Island, New
York, respectively. It studies the decisions reached by the
Grand Jury, in each case, with
respect to whether or not the officers involved in the killings
should be indicted on criminal
charges. It also describes the nationwide protest movement
which emerged in response to
these events, bringing with it a murky legacy of promise,
ambiguity, and violence.
The second part presents a pair of overarching and often
ideologically tinged interpretations
of these events, both of which have found significant purchase
in the public imagination.
A Lethal Afternoon in Ferguson
Minutes before noon on August 9, 2014, Officer Darren Wilson
was on patrol in his vehicle,
when he received a dispatch, radio transmission of a robbery in
progress at a nearby
convenience store. Soon after, he encountered Michael Brown
and a friend walking down
the middle of the street and asked them to use the sidewalk
instead. Based on the
description of the robbers conveyed over radio Wilson
suspected that Brown and his friend

may have been involved in the crime. He called for assistance
and, pulling up ahead of them,
blocked the street with his car (as shown on the left side of the
diagram below). From this
point on, the narrative skews in various directions based on
conflicting witness testimony,
lack of corroborating evidence, and conflicts between witness
testimony and forensic
analysis of the scene. The official narrative now established by
the Department of Justice
(DOJ) Report on the incident (hereafter “Brown DOJ Report”),1
reconciles these conflicting
narratives by favoring the results of forensic analysis and
parsing through the witness
testimony to find details that fit this scientific evidence.2 While
the DOJ report ignited
1 Given the many diverging accounts surrounding the incident,
this case will rely on the (now generally
accepted) United States Department of Justice Report Regarding
the Criminal Investigation into the
Shooting Death of Michael Brown by Ferguson, Missouri Police
Officer Darren Wilson (March 4, 2015),
hereinafter “Brown DOJ Report.” For a summary of the US
DOJ’s findings and conclusions, see Appendix I.
The full report is available at
http://www.justice.gov/sites/default/files/opa/press-
releases/attachments
/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf.
2 This methodology is recounted throughout the Brown DOJ
Report in explaining the investigators
decision to prefer one narrative over another. See, e.g., Brown
DOJ Report at 5-8, noting that despite the
absence of reliable witness testimony describing the altercation
inside Wilson’s car, the bruises on

Wilson’s face, the nature of the wound on Brown’s hand
including embedded gunpowder residue, bullet
trajectory analysis, Brown’s DNA on Wilson’s collar, and the
spent bullet shell-casing being found inside
Wilson’s car, all corroborate Wilson’s account of the
altercation.
The Color of Police Action in These United States 2
emotional furor for its exoneration of Wilson, its evidentiary
basis has, for the most part,
been uncontroversial.3
According to the Brown DOJ Report, Wilson attempted to exit
the vehicle, but his car door
collided with Brown, who then proceeded to reach into the
vehicle through the open
window and assault Wilson including punching him in the face.
Unable to access any other
nonlethal weapons, Wilson pulled his primary weapon, the gun
holstered at his waist, and
struggled with Brown to gain control over it. During this
altercation, Wilson fired the gun
twice from inside the vehicle, and hit Brown in the hand at
close range. Injured, Brown fled
the scene, heading southeast down Canfield Drive. Autopsy
results, finding no entry wounds
in Brown’s back, have discounted the popular narrative that
Wilson shot Brown in the back
as he ran.1 Brown is reported to have run some 180 feet from
the police vehicle, dropping his
sandals, cap, and bracelets along the way. He then stopped and
turned to advance
aggressively back toward Wilson. Wilson, who had followed

behind Brown, fired his gun ten
times in three interrupted volleys. Wilson testified that he was
fearful that Brown was
reaching into his waistband to withdraw a gun. He struck Brown
between six and eight times
including the initial wound to the hand. One of these bullets hit
Brown in the head causing
him to collapse some 21.6 feet away from the point at which he
turned back in direction of
Officer Wilson. Eyewitness testimony corroborates that Wilson
had cause to fear for his
safety, and crime scene photographs taken soon after the
encounter show that Brown
collapsed facing Wilson’s vehicle, with his left, uninjured hand,
by his waistband. Witnesses
and cell phone videos of the aftermath establish that Wilson did
attempt to move or
otherwise interfere with Brown’s body following the shooting.
The encounter lasted all of
two minutes.
Michael Brown shooting scene, based on St. Louis County
Police exhibits and other sources2
3 This case has been scrutinized by both liberal and
conservative commentators in the United States. For a
rough survey, see E. Eckholm, M. Apuzzo, “Darren Wilson Is
Cleared Of Rights Violations in Ferguson
Shooting,” NY Times, March 4, 2015, accessed July 8, 2015,
http://www.nytimes.com/2015/03/05/us
/darren-wilson-is-cleared-of-rights-violations-in-ferguson-
shooting.html; C. Friedersdorf, “Conservatives
Should Start to Take the Ferguson DOJ Report Seriously,”
Atlantic, March 16, 2015, accessed July 8, 2015,

http://www.theatlantic.com/politics/archive/2015/03/conservativ
es-start-to-take-the-ferguson-report-
seriously/387835/. The non-legal, non-official fallout from the
shooting is addressed later in the case.
Following an intense investigation of the shooting, the
prosecutor for St. Louis County,
Missouri, convened a grand jury that roughly represented the
racial demographics of St.
Louis County.3 In such proceedings the prosecutor usually
presents evidence (as necessary
for the jurors to understand the facts leading up to the alleged
crime), and then recommends
an indictment. In this case, however, the grand jury was
supplied with an extensive variety of
evidence, including, three different autopsy reports, thousands
of pages of witness
accounts, an expansive array of physical evidence, and the live
testimony of witnesses
deemed to offer credible knowledge regarding the shooting.4 In
November 2014, the grand
jury voted not to indict Darren Wilson for the shooting. The
DOJ conducted its own
investigation, but concluded that there was not sufficient
evidence to pursue a federal
criminal case against Wilson.4
The Fallout
The shooting ignited large-scale public outcry in the city of
Ferguson, whose population of
67% African Americans is governed by a police department

where 50 of 53 acting officers
(including the Chief of Police) are Caucasian.5 The core of the
upheaval was a sense that the
police consciously and overwhelmingly targeted African-
American residents with
surveillance, profiling, discrimination, harassment, and
unnecessary force.
Protests in Ferguson started the day after Brown’s death,
beginning with a prayer vigil and
quickly escalating into looting and property damage. But as
police attempted to restore
order, public demonstrations quickly turned violent. In the days
and weeks following the
shooting of Brown and again after the St. Louis grand jury’s
refusal to indict Darren Wilson,
the county of St. Louis deployed its SWAT (Special Weapons
and Tactics) team which
patrolled the streets in army fatigues, body armor, and gas
masks, carrying riot gear and
assault rifles and even driving armored trucks. The heightened
tension morphed a moment
of anger and constitutional protest into a zone of high conflict
with the police deploying tear
gas, rubber bullets, and acoustic weapons designed to inflict
intense aural pain on protestors
from a distance.6 The unexpected scale and intensity of
militarized peacekeeping in an
American city during peacetime inspired nationwide uproar and
prompted Attorney General
Eric Holder to issue a statement condemning the police tactics:
At a time when we must seek to rebuild trust between law
enforcement and
the local community, I am deeply concerned that the
deployment of military

equipment and vehicles sends a conflicting message…The law
enforcement
response to these demonstrations must seek to reduce tensions,
not
heighten them.7
In an interview with USA Today Senator Claire McCaskill
voiced the concerns of many
watching the events unfold in Ferguson, noting that the
militarized police response to public
protests was a big “part of the problem as opposed to being part
of the solution.”8
4 For a summary of the DOJ reasoning, see Appendix I.
For their part, police officials insisted that their actions began
with restraint and focused on
dispersing people with verbal warnings and nonlethal physical
contact until the crowds grew
unruly and officers had to adapt to continue protecting people
and property without
endangering themselves. National Police Union official Chuck
Canterbury defended the
police department’s response noting that the so-called
militarization was a “perception” and
not reality. Challenging popular assertions that in the wake of
9/11 the goals, protocols, and
equipment of local law enforcement had expanded to include a
homeland security mandate
(dedicated to large-scale threats of terrorism), Canterbury
distinguished between military

and police action, explaining: “The military is trained to engage
and law enforcement is
trained to defuse.”9 However, this bright-line distinction was
dulled by the revelation that
the Ferguson Police Department was a part of the US
Department of Defense’s 1033 program
designed to supply community police departments with surplus
military-grade weapons,
armored vehicles (MRAPS) and equipment; from August 2010
to February 2013, law
enforcement agencies in St. Louis County, including the
Ferguson Police Department,
received 125 56mm rifles, and six .45 caliber pistols.10
In the specific context of the protests in Ferguson following
Brown’s death, a number of
veterans and serving military officials observing the scene have
interpreted the police action
as coercive and heavy-handed, noting, in one instance:
You see the police are standing online with bulletproof vests
and rifles
pointed at people’s chests…that’s not controlling the crowd,
that’s
intimidating them.11
Others have described the tactics as reflecting poor leadership
and social awareness:
The first thing that went wrong was when the police showed up
with K-9
units…The dogs played on racist imagery…it played the
situation up and [the
department] wasn’t cognizant of the imagery.12
Against this backdrop of escalating racial tensions on the streets

of Ferguson, the St. Louis
grand jury, upon weighing the evidence, voted against indicting
Wilson for the shooting of
Michael Brown.
The St. Louis prosecutor, Robert McCulloch, has been criticized
for using the grand jury
system to shield his office’s unwillingness to prosecute Wilson.
Critics have pointed out that
McCulloch could have cited the lack of evidence to explain his
refusal to indict Wilson. In the
alternative, he could have recommended that the grand jury
indict Wilson, a
recommendation, usually bolstered by the presentation of
carefully selected evidence and
testimony, that is generally followed by grand juries;13 in fact,
prosecutors hold such power
over grand jury findings that a former judge of the New York
Court of Appeals is believed to
have quipped that a prosecutor could get the grand jury to
“indict a ham sandwich” if
necessary.14 To the contrary, in the case of Darren Wilson, the
prosecutor not only turned the
case over to the grand jury but also opted to supply them with
every bit of evidence related
to the case, thereby giving the impression that neutral, average
citizens were making the
decision without governmental interference. However, the office
of the prosecutor still
remained in charge of the entire grand jury deliberation process,
including establishing the

standard of proof necessary to indict, and ultimately justifying
the jury’s decision to the
media by selectively showcasing materials that would support
the decision not to indict.
For supporters of Michael Brown’s cause, the structure and
process of grand jury
determinations—usually occurring behind closed doors, and
entirely devoid of any
adversarial mechanism to question the prosecutor’s opinions
and emphasis or lack thereof—
made it an inappropriate forum for conducting a mini trial on
the truth of the shooting.15
Critics have also interpreted the prosecutor’s unusual decision
to submit all relevant
materials to the grand jury instead of advocating for an
indictment (as is usually the norm), as
evidence of process rigged in favor of the police. One
commentator captures the resulting
imbalance in writing: “Buried underneath every scrap of
evidence McCulloch could find, the
grand jury threw up its hands and said that a crime could not be
proved.” Commentators
have also noted that prosecutors handled Darren Wilson’s
testimony, early into the grand
jury process, with soft hands and few challenging questions.
This treatment stood in sharp
contrast to the intensity with which prosecutors questioned eye
witnesses who contradicted
Officer Wilson’s account.16 Members of the Brown family’s
legal team publicly criticized the
grand jury evaluation process, summarizing the public’s
outrage:
This grand jury decision we feel is a direct reflection of the
sentiments of

those who presented the evidence…If you present evidence to
indict, you
get an indictment. If you present evidence not to indict, you
don’t get an
indictment.17
Video: Looting in Ferguson following the Grand Jury’s decision
Video: Civilian/police clashes in Ferguson following the Grand
Jury’s decision
The Ambiguous Legacy of “Hands Up, Don’t Shoot”
Following the grand jury’s decision not to indict Darren Wilson,
protests chiding police
brutality against young African Americans grew even more
violent within Ferguson18 and
sparked a nationwide protest movement that found its tempo
around “Hands Up, Don’t
Shoot,” a phrase derived from rumors that, moments before his
death, Michael Brown was
approaching Wilson with his hands raised in surrender,
appealing to the policeman to hold
his fire. The phrase quickly went viral over social media and
was prominently featured at
legislatures, universities, and entertainment and sporting events
as students, athletes,
celebrities, and citizens nationwide organized protests and
shared images of people holding
their hands up in surrender.5
5 For an elaboration of the spread of this movement, see MYH
Lee, “‘Hands up, don’t shoot’ did not
happen in Ferguson,” Washington Post, March 19 2015,
accessed July 8, 2015,

https://www.youtube.com/watch?feature=player_embedded&v=b
5_ZrN30dDg
http://www.cbsnews.com/news/ferguson-decision-grand-jury-
decides-not-to-charge-police-officer-darren-wilson-in-michael-
brown/
In early March 2015, however, the United States Department of
Justice (DOJ) released its
report on the shooting of Michael Brown, effectively
exonerating Darren Wilson of any
impropriety. The report explained that of the individuals who
had initially claimed to witness
Brown holding his hands up in surrender, several offered
testimonials that failed to match
the narrative established by the forensic evidence. Other
accounts changed over time, while
still others recanted their claims altogether, admitting they had
not actually witnessed the
shooting.19 By contrast, the DOJ investigation found that
“multiple credible witnesses
corroborate virtually every material aspect of Wilson’s account
and are consistent with the
physical evidence.”20 Most pointedly, the report noted:
The media has widely reported that there is witness testimony
that Brown
said “don’t shoot” as he held his hands above his head. In fact,
our
investigation did not reveal any eyewitness who stated that
Brown said
“don’t shoot.”21

This has led former proponents of the “Hands Up, Don’t Shoot”
movement, including noted
Washington Post Columnist, Johnathan Capehart (himself an
African American), to face the
difficult truths that: “Brown never surrendered with his hands
up, and Wilson was justified in
shooting Brown.”22 But whereas Capehart and others continued
to support the larger cause
despite their disappointment that it was built on the back of
rumor,23 observers less
sympathetic to Brown’s case have marshaled the DOJ report’s
revelations to criticize the
wider claim that police unfairly and disproportionately target
black American men. 24 In
response, supporters of the movement have reasoned that the
DOJ’s challenge to the
“Hands Up” narrative is irrelevant to the larger political
movement, for while the facts in the
Brown-Wilson instance may not be representative, there is no
dearth of evidence that young,
http://www.washingtonpost.com/blogs/fact-
checker/wp/2015/03/19/hands-up-dont-shoot-did-not-
happen-in-ferguson/.
“Hands Up, Don’t
Shoot” in Congress
Source: L. Larson, “Four
Members of Congress do
‘Hands Up’ gesture on
House floor,” New York
Daily News, December 2,
2014, accessed July 8, 2015,

http://www.nydailynews.c
om/news/politics/member
s-congress-hands-gesture-
house-floor-article-
1.2030010.
unarmed black men are regularly subjected to violent police
action often with little or no
cause.25
Video: Police shootings of unarmed black men across America
(Please note that the media on this link may be disturbing to
some viewers)
And even if the DOJ’s findings on Brown show him to be, after
Capehart, an “inappropriate
symbol” for the ongoing critique of police practices in the
context of racial tension, the DOJ’s
other report, scrutinizing the structure and workings of the
Ferguson Police Department,
tells a (102-page) long and damning story.
Things are Not Alright in Ferguson, and Beyond
On March 4, 2015, the same day it released the report
exonerating Darren Wilson, the DOJ
also released its report on the Ferguson Police Department,
following an investigation
“under the pattern-or-practice provision of the Violent Crime
Control and Law Enforcement

Act of 1994…the Omnibus Crime Control and Safe Streets Act
of 1968… and Title VI of the
Civil Rights Act of 1964.”26 The investigation “revealed a
pattern or practice of unlawful
conduct within the Ferguson Police Department that violates the
First, Fourth, and
Fourteenth Amendments to the United States Constitution, and
federal statutory law.”27
More specifically, the report concluded that:
Ferguson’s law enforcement practices are shaped by the City’s
focus on
revenue rather than by public safety needs. This emphasis on
revenue has
compromised the institutional character of Ferguson’s police
department,
contributing to a pattern of unconstitutional policing, and has
also shaped its
municipal court, leading to procedures that raise due process
concerns and
inflict unnecessary harm on members of the Ferguson
community. Further,
Ferguson’s police and municipal court practices both reflect and
exacerbate
existing racial bias, including racial stereotypes. Ferguson’s
own data
establish clear racial disparities that adversely impact African
Americans. The
evidence shows that discriminatory intent is part of the reason
for these
disparities. Over time, Ferguson’s police and municipal court
practices have
sown deep mistrust between parts of the community and the
police
department, undermining law enforcement legitimacy among

African
Americans in particular.28
To this extent, the report not only accuses the Ferguson Police
Department of malicious
motivations and institutional corruption, but also offers a
narrative to explain the rage that
erupted on the streets of the city following the shooting of
Brown and subsequent grand
jury decision to exonerate Wilson. In Attorney General Eric
Holder’s words:
Seen in this context — amid a highly toxic environment,
defined by mistrust
and resentment, stoked by years of bad feelings, and spurred by
illegal and
http://www.washingtonpost.com/blogs/post-
partisan/wp/2014/09/29/the-terrifying-police-shootings-of-
unarmed-black-men/
http://www.washingtonpost.com/blogs/post-
partisan/wp/2014/09/29/the-terrifying-police-shootings-of-
unarmed-black-men/
misguided practices — it is not difficult to imagine how a single
tragic
incident set off the city of Ferguson like a powder keg.29
With respect to racial bias the report noted:
Ferguson’s approach to law enforcement both reflects and
reinforces racial
bias, including stereotyping. The harms of Ferguson’s police

and court
practices are borne disproportionately by African Americans,
and there is
evidence that this is due in part to intentional discrimination on
the basis of
race….
In a revealing snapshot of the culture animating the legal and
administrative infrastructure of
Ferguson, the investigation found that:30
• From 2012 to 2014, African Americans in Ferguson accounted
for
o 85% of vehicle stops;
o 90% of citations; and
o 93% of arrests
• In this small working class city, African Americans “are more
than twice as
likely as white drivers to be searched during vehicle stops even
after
controlling for non-race based variables such as the reason the
vehicle
stop was initiated, but are found in possession of contraband
26% less
often than white drivers…”
• African Americans are also “more likely to be cited and
arrested following
a stop regardless of why the stop was initiated and are more
likely to
receive multiple citations during a single incident.”

o Data pertaining to incidents between 2012 and 2014 showed
that
the city’s police department “issued four or more citations to
African Americans on 73 occasions, but issued four or more
citations to non-African Americans only twice.”
o In the two years preceding this period (i.e., 2011-2013),
“African
Americans accounted for 95% of Manner of Walking in
Roadway
charges, and 94% of all Failure to Comply charges….”
• With respect to the use of force by police officers: Almost
90% of
documented incidents involved police action against African
Americans
residents, and “in every canine bite incident for which racial
information
is available, the person bitten was African American.”
• Before municipal courts, similarly, African Americans were
found to be
“68% less likely than others to have their cases dismissed,” and
“more
likely to have their cases last longer and result in more required
court
encounters.”
o African Americans were also “at least 50% more likely to
have
their cases lead to an arrest warrant, and accounted for 92% of
cases in which an arrest warrant was issued by the Ferguson

Municipal Court in 2013.”
o And of people arrested “because of an outstanding municipal
warrant,” 96% were African American.
Accordingly, the DOJ concluded that:
This disproportionate burden on African Americans cannot be
explained by
any difference in the rate at which people of different races
violate the law.
Rather…these disparities occur, at least in part, because of
unlawful bias
against and stereotypes about African Americans. We have
found substantial
evidence of racial bias among police and court staff in
Ferguson. For example,
we discovered emails circulated by police supervisors and court
staff that
stereotype racial minorities as criminals, including one email
that joked about
an abortion by an African-American woman being a means of
crime control.31
Analysis: NY Times breaks down DOJ report on Ferguson by
the numbers
But the problem of racism within law enforcement institutions
is neither recent nor limited to
Ferguson and greater St. Louis. It has long been acknowledged
as a historical and national
challenge.32 It is also a problem well known to law
enforcement officers. In the wake of the
unrest in Ferguson, for instance, one former officer with the St.
Louis police department
shared his experience, telling the Huffington Post:

when you see [African-American] communities erupt across the
country, it is
based on the reality that there are officers who will knowingly
and willingly
and maliciously violate your human rights, your civil liberties,
and your civil
rights.33
While acknowledging the dangers that policemen face on the
street, he questioned the
popular defense from within law enforcement that it is unfair
for civilians to judge the day-to-
day decisions of officers:
Because the police like to say, “Well, man, you don’t know
what I have to
deal with. You don’t know what my training is. You don’t know
what I’ve
faced in a given moment,” …I’ve been shot at enforcing laws in
this state. I
sat next to you in the academy class. I know that you don’t
police in this
community the same way you can police in other
communities.34
Clearly what was a two-minute chance encounter between
Michael Brown and Darren Wilson
has revealed far deeper and more enduring crisis nationwide.
http://www.nytimes.com/interactive/2015/03/04/us/ferguson-
police-racial-discrimination.html

From “I’m tired of it. It stops today” to “I can’t breathe” — The
Tragic Final Minutes
of Eric Garner
Less than a week after the Missouri grand jury refused to indict
Darren Wilson for shooting
Michael Brown, a 43-year-old African-American named Eric
Garner stood on a Staten Island
street corner selling untaxed, loose cigarettes or “loosies” for
75 cents apiece. He was
confronted by Officer Daniel Pantaleo and another policeman,
ostensibly in furtherance of a
“quality of life” mandate from the Chief of Police to crack
down on the sale of loosies,
marijuana, and alcohol in open containers.35 Pantaleo is
Caucasian and was, at the time of the
incident, an eight-year veteran of the New York City Police
Department. Eric Garner had just
broken up a street fight when he was accosted by Pantaleo about
his involvement in the sale
of loose cigarettes. Garner had a history of arrests related to
unsanctioned cigarette sales
and marijuana possession, and was out on bail at the time of this
final confrontation with the
police.36
What transpired next was captured on video by Ramsey Orta, an
acquaintance of Eric
Garner’s, who had recorded another instance of violent police
action against another African-
American man (repeatedly hit with a baton), at the same
location on Staten Island a week
earlier.37 Mr. Orta has since been indicted on charges of
weapons possession unrelated to

the Garner tragedy.38
Video: Time interview with Ramsey Orta interspersed with clips
of Garner incident
(Please note that the media on this link may be disturbing to
some viewers)
Following his collapse, Garner can be heard desperately
repeating: “I can’t breathe.” He was
dead within the hour, en route to the hospital.
The central controversy surrounding Garner’s death involves
Officer Pantaleo’s use of a
controversial “chokehold” maneuver that was banned by the
NYPD as far back as 1991.
Pantaleo’s supporters deny that the video shows him applying a
chokehold,39 while others
think the video leaves little room for doubt that he did.40 On
the one hand, the presence of
video footage showing the events surrounding Garner’s collapse
promises to make his a very
different story than the shooting of Michael Brown, where the
facts remained difficult to
judge despite overlapping investigations at the local and federal
level. But while videos often
inspire a rush to judgment (based on the notion that they capture
all of the relevant realities
surrounding an event), the 1991 controversy surrounding the
beating of Rodney King by
officers of the Los Angeles Police Department offers sufficient
reason to pause.
In that infamous instance, which eventually enflamed one of the
worst riots in recent
American history, Rodney King, an African-American man on

parole from an earlier
conviction, led the LAPD on high-speed car chase across Los
Angeles freeways. The chase
culminated in a physical confrontation when an intoxicated
King continued to behave
erratically and refused to surrender following verbal warnings
by LAPD officers. Four
http://time.com/3016326/eric-garner-video-police-chokehold-
death/
http://time.com/3016326/eric-garner-video-police-chokehold-
death/
policemen then attempted to subdue King, first with a taser and
then, when he rushed one
of the officers (whether in panic or intentionally), by using a
“swarm” technique, not unlike
the manner in which Eric Garner was eventually subdued. At
some point during this stage of
the conflict, an amateur cameraman living across the street
began filming 81 seconds of
footage that showed four white LAPD officers standing over a
collapsed King, stomping on
him and repeatedly hitting him with batons as he tries to stand
up. The cameraman sold the
footage to local news studio, which edited it down to a crisp 68
seconds, removing blurry
footage including the bits that showed King charging one of the
officers.41 This clip played on
a seemingly endless loop until most viewers could see but a
single narrative involving a
helpless black man being mercilessly beaten by a group of white
policemen. The officers

were later acquitted when a Simi Valley jury viewed the uncut
footage. But the acquittals
ignited the infamous 1992 LA riots that continue to feature in
civil rights conversations in
America. It has never been established if the beating was
motivated or even colored by racial
prejudice. King’s case is no doubt a tragic instance of police
action, but it is not devoid of its
own backstory.
Closer in time to the Garner tragedy was a March 2014 video
taken off of the helmet camera
of an Albuquerque police officer showing James Boyd, a
homeless man living in a makeshift
camp at the foothills of the Sandia Mountains, being shot dead
by members of local law
enforcement. The officers involved claimed that Boyd was
threatening them with knives, but
the district attorney is pursuing murder charges based in part on
the video evidence which
showed Boyd turning away from the officers. The fatal bullet
was found to have entered
through his lower back, throwing further suspicion on the police
department’s account of
the shooting.42
There are, of course, many granular differences between the
cases of Rodney King, James
Boyd and Eric Garner, but if the Boyd and Garner videos appear
to tell a complete truth,
King’s case is an enduring reminder of the quality and
magnitude of influence that little
frames of video can have on the public imagination.
In July of 2014, the New York City medical examiner’s autopsy
concluded that Garner died as

a result of the “compression of neck (chokehold), compression
of chest and prone
positioning during physical restraint by police,”43 adding that
Garner’s pre-existing health
issues—including his weight (300 pounds), diabetes, and
asthma—may also have
contributed to his sudden and tragic end.44 The medical
examiner ruled Garner’s death a
“homicide,” but that designation only confirmed that his death
had been caused by others
and not that it amounted to a crime.
Following an investigation the case was submitted before a
Staten Island grand jury. Daniel
Pantaleo testified that he had applied something akin to a
wrestling maneuver and not a
chokehold. Eyewitnesses disagreed, insisting they saw Pantaleo
use a chokehold. After three
months of considering the evidence the grand jury decided that
there was not enough
evidence to commence legal proceedings against Daniel
Pantaleo.45 The same day Attorney
General Eric Holder announced that the Justice Department
would initiate a federal civil
rights investigation of the shooting. Following up on the
findings of the DOJ investigation in
Ferguson, Mr. Holder confirmed his sense that the incident was
part of a larger problem:
Mr. Garner’s death is one of several recent incidents across the
country that

have tested the sense of trust that must exist between law
enforcement and
the communities they are charged to serve and protect. This is
not a New
York issue or a Ferguson issue alone. Those who have protested
peacefully
across our great nation following the grand jury’s decision in
Ferguson have
made that clear.46
Protestors in New York and across the country quickly
appropriated Mr. Garner’s parting
words, “I can’t breathe,” into a rallying cry against police
brutality, a trend that many insist
reflects a systemic problem of institutionalized racial prejudice
and resulting inequality across
the United States. Viewed along these lines, however, it may be
Garner’s instinctive retort—
“Every time you see me, you want to mess with me. I’m tired of
it. It stops today”—that
offers a more powerful narrative.
Ways of Seeing
While there are myriad nuances that distinguish instances of
police action against young
African-American men, the controversy described here is
commonly approached in one of
two ways that sometimes overlap.
The Structural Inequity and Systemic Racism Approach
No two deaths are the same, least of all so when they occur
from violence. But the legacy of
Michael Brown, Eric Garner, James Boyd, Tamir Rice,47 Henry
Davis,48 Michael Stewart,49 and

numerous others50 begs the question: coincidence? Or, are
these deaths markers on a larger
map of oppressive historical and social mechanisms constantly
reinforced by fictitious legal
categories such as “excessive force,” that often struggle to
explain the chaos and trauma of
real world violence.
A commentator on NPR, for instance, has described the multiple
levels at which racism plays
in America society, noting:
Talking about how you can’t get a cab is not the same thing as
talking about
how you live in an impoverished neighborhood or go to a failing
school. It
sort of makes the way racism works in America seem sort of
quaint, people
are being mean to you, as opposed to things that are
consequential and
things that are systemic.51
Cornell Williams, president of the National Association for the
Advancement of Colored
People (NAACP) has explicitly made the point that even minor
offenses by black men are
often met with lethal force, summarizing, “We need not look for
individual racists to say that
we have a culture of policing that is really rubbing salt into
longstanding racial wounds…”52
Such characterizations of the problem have gained significant

credibility owing to cell phone
and Internet technology allowing for a deeper, if inadvertent,
scrutiny of law enforcement
activities nationwide, showing that the problem is not limited to
Ferguson. In Florida, for
instance, four police officers shared a film-trailer like video
donning Ku Klux Klan apparel, and
making racist chants against President Obama in particular, and
black, Hispanic, and gays
more generally.53 The officers also engaged in lengthy text-
message conversations not only
criticizing the appearance, grammar, and efficiency of their
black coworkers, but also writing:
“I had a wet dream that you two found those niggers in the VW
and gave them the death
penalty right there on the spot,” and “We are coming and
drinking all your beer and killing
niggers.”54 The Fort Lauderdale police department that employs
these officers has drawn a
fine distinction in its statement to the press, noting that
There was no criminal behavior detected during this
investigation, however,
the four officers’ conduct was inexcusable and there is zero
tolerance for this
kind of behavior in the Fort Lauderdale Police Department.55
All four officers patrolled predominantly African-American
neighborhoods, bringing
significant credibility to the concern that racially motivated
shooting by police is indeed a
systemic problem in American society. For instance, across the
country in Oakland, California,
out of the 45 police shootings taking place from 2004 to 2008,
37 involved black victims. For
a third of the 45 shot, the encounter proved lethal. None of the

victims were white. None of
the shooting resulted in criminal charges against the officers
involved.56 Data from other
major American cities showcases an eerily similar pattern of
violent police action against
blacks and Hispanics across variations in socioeconomic class
and geographical location.57
The systemic problem approach has received considerable
support from leaders of African-
American communities as well as citizens nationwide gradually
learning about the ongoing
spate of police shooting. Even President Obama, who was wary
of taking a strong position
on racial conflicts during his first term in the White House
(noting, at one point, “I’m not the
President of Black America”), has, in his second term, spoken
out against the killings of black
men such as Brown and Garner, describing racism as “embedded
deeply in society.”58 In
addition to promoting initiatives like Bill Clinton’s
“conversation on race,” Obama’s White
House seems focused on reforming policing practices by
creating a task force and welcoming
the idea of requiring all police officers to wear body cameras.
Explaining his administration’s
motivations, Obama has said:
The task force that I formed is supposed to report back to me in
90 days —
not with a bunch of abstract musings about race relations, but
some really
concrete, practical things that police departments and law
enforcement
agencies can begin implementing right now to rebuild trust
between

communities of color and the police.59
In September 2014, the White House also established the “My
Brother’s Keeper” initiative,
encouraging civic communities across the country to implement
“a coherent cradle-to-
college-and-career strategy for improving the life outcomes of
all young people to ensure
that they can reach their full potential, regardless of who they
are, where they come from, or
the circumstances into which they are born.”60
Thus far some 200 mayors, tribal leaders, and other civic
administration executives across the
country have shown their support for the initiative.
Supplementing these efforts the Legal
Fund of the NAACP is pressuring the DOJ to require police
departments receiving federal
funding to implement racial bias training for their officers.
In the meantime, the racially charged atmosphere across
America has led to increased
instances of violence against police officers: two unidentified
officers nearly died from
gunshots sustained during the Ferguson riots61 while another
pair, NYPD Officers Rafael
Ramos and Wenjian Liu, were recently shot dead inside their
vehicle outside a housing
project in Brooklyn. Their killer, Ismaaiyl Brinsley, committed
suicide soon after, leaving
behind a trail of social media messages explaining his anger at

outcome of the Michael
Brown and Eric Garner cases.62
The faith in law enforcement approach
The other major approach to the controversy calls for sensitivity
to, and a better
understanding of, the dangers and demands of a life in law
enforcement. In the wake of the
Staten Island grand jury’s decision in favor of Officer Pantaleo,
Peter King, Republican
representative from New York, called for calm, reminding New
Yorkers “that no organization
has done more to safeguard the lives of young African
Americans in New York City than the
NYPD.” Proponents of this position find it difficult if not
downright unfair for the public at
large to second-guess the decisions of law enforcement officers,
particularly when there is
any ambiguity as to the factual circumstances.
One version of the faith in law enforcement approach frequently
fissures into a scrutiny of
how the alleged victims of police action may have contributed
to their fate. Perhaps the most
shocking instance in recent memory revolves around the death
of 12-year-old Tamir Rice shot
to death in a Cleveland park near his home where the boy was
playing with a toy gun.
Responding to a 911 call, police officers sped onto the scene
and killed Rice within two
seconds of their arrival. In the ensuing federal lawsuit by Rice’s
family, city officials defended
the actions of the accused officer (who had been discharged
from a previous security-related
job for being emotionally unstable) by accusing the victim of

“failure…to exercise due care
to avoid injury.” Others such as Steve Loomis, the president of
the Cleveland Police
Patrolman’s Association, tried to explain the officer’s reaction
by distorting Rice’s physical
appearance stating: “He’s menacing. He’s 5-feet-7, 191 pounds.
He wasn’t that little kid you’re
seeing in pictures. He’s a 12-year-old in an adult body.”63
In the case of Eric Garner, Representative King has argued that
“if [Garner] had not had
asthma and a heart condition and was so obese, almost
definitely he would not have died for
this.”64 His opinion is mirrored in another oft-heard skepticism
that had Garner “not resisted
the lawful order of the police officers placing him under arrest,
this tragedy would not have
occurred.”65 Of course a tragedy like Eric Garner’s which
began as an instance of preventive,
“quality-of-life”-focused policing, raises the question of how
such critics might weigh the
deeper concern that poverty, poor health, lack of education,
resentment of and instinctive
frustration with police scrutiny, when visible nationwide, must
be understood as symptoms
of a deeper “quality of life” malady as much as they may be
chided as causes of social unrest.
Speaking against such structural interpretations of the
controversy, Rudy Giuliani, former
mayor of New York City and a prominent defender of law

enforcement action, has argued
that “93 percent of blacks in America are killed by other
blacks,” and that this uncomfortable
reality justifies the volume of white police presence in
neighborhoods predominantly
populated by African Americans.66 However, as noted by a
fellow panelist in response to Mr.
Giuliani’s analysis:
most black people who commit crimes against other black
people go to
jail…they are not sworn by the police department as an agent of
the state to
uphold the law. So in both cases, that’s a false equivalency...67
But Giuliani is certainly not alone in his assessment: a more
guarded but undoubtedly related
narrative emerged during the DOJ’s investigation of law
enforcement in Ferguson when city
officials defended the city’s governance culture as a response to
“a pervasive lack of
‘personal responsibility’ among ‘certain segments’ of the
community.”68 In the case of
Ferguson, however, the DOJ’s investigation found that “the
practices about which area
residents have complained are in fact unconstitutional and
unduly harsh.”69 On this basis, the
report reasoned that
the City’s personal-responsibility refrain is telling: it reflects
many of the same
racial stereotypes found in the emails between police and court
supervisors.
This evidence of bias and stereotyping, together with evidence
that Ferguson
has long recognized but failed to correct the consistent racial

disparities
caused by its police and court practices, demonstrates that the
discriminatory
effects of Ferguson’s conduct are driven at least in part by
discriminatory
intent in violation of the Fourteenth Amendment.70
The DOJ’s findings have not been the last word on this
enormously complex conflict. A
broader and, arguably, more cautious perspective has recently
been offered by James
Comey, the current director of the FBI, in a well-received
speech that Ron Hosko, president
of the Law Enforcement Defense Fund, evaluated as “more
balanced” because it examined
“all the sociological pieces” instead of simply being “heavy-
handed on the cops.”71 Comey,
whose grandfather was a police chief, and who himself once
served as a prosecutor, is part
of the American law enforcement machinery, but these same
credentials also made his
surprisingly direct and evenhanded analysis of the controversy
appealing. For instance,
Comey acknowledged the ubiquity of harmful stereotypes across
racial and ethnic lines that
often inform everyday law enforcement judgments, and noted
that “at many points in
American history, law enforcement enforced the status quo, a
status quo that was often
brutally unfair to disfavored groups.”72 At the same time, he
raised the structural issue that in

high-crime neighborhoods African Americans grow up “in
environments lacking role models,
adequate education, and decent employment,”73 which often
inspires a turn to criminal
activity.
But inscribed in Comey’s thoughtful account is a paradox that
speaks to the heart of the
ongoing conflict: on the one hand, he offered the eloquent
message that “it is hard to hate
up close,” and insisted that police officers get to know and
empathize with the people they
both surveil and protect. On the other hand, Comey
acknowledged the importance of
gathering statistical data aggregating and categorizing myriad
instances of conflict between
law enforcement and civilians, a methodology that has a long
history of dehumanizing
governance by replacing the nuances of personal stories with
the anonymizing shine of big
data. The extent to which such recommendations can be
reconciled may ultimately depend
on the success of the democratic process in its quest to rein in
and shape government action.
Video: FBI Director’s Speech at Georgetown University
Finally, given the importance of the democratic (electoral)
process in determining the course
of such controversies, it is worth noting that, in terms of
aggregated opinions, there is
evidence that Americans relate to this controversy surrounding
the relationship between law
enforcement agencies and African Americans more strongly in
terms of their political (party)
affiliations than their own racial background. So, for instance, a

2013 Gallup survey found that
“Republicans rate the honesty and ethical standards of police
officers, clergy, military
officers, and pharmacists higher than Democrats do. In turn,
Democrats are more positive
about judges and TV reporters.”74 Another poll finds that when
asked if Darren Wilson should
have been indicted for shooting Michael Brown, more
Caucasians than African Americans
responded negatively; Republican voters, however, were
invested in Wilson’s exoneration
even more than white respondents generally.75 A similar
statistical spread presented on the
question of whether participants in the poll approved of the
police department’s handling of
the protests in Ferguson.76 These measures need to be weighed
against wider electoral
trends that find white citizens increasingly voting
Republican,77 while a majority of African
Americans eligible to vote continue to identify as Democrats.
Coda
The rioting in Ferguson has ceased. Wilson has resigned, Daniel
Pantaleo faces a slew of civil
(wrongful death) suits, and the Ferguson law enforcement
apparatus may be substantially
restructured. But the protest movement that is the legacy of
Rice, Brown, Garner, and so
many others continues to force a reckoning with one of the most
uncomfortable subjects in
everyday American life. And it’s a good thing too, because, as
of this writing, it’s happened
again: on April 7, 2015, the New York Times published a video
showing Michael Slager, a white
South Carolina police officer, kill Walter Scott, a middle-aged

black man, by shooting him in
the back as he was running away.78 Slager has claimed that
Scott grabbed his stun gun
https://www.youtube.com/watch?v=sbx4HAm6Rc8
thereby escalating a conflict that began as a mere traffic stop.
However, the video shows
that Scott had already been shot with the taser when he began to
flee. It also shows an
unknown object drop to the ground during the initial scuffle
between the two men.
Moments after Scott was shot and fell to the ground, Officer
Slager returned to the site of
the initial scuffle, recovered something from the scene and then
deposited an unknown
object near Scott’s corpse. Beyond this, the details remain
opaque, and there are already a
number of theories as to what the video doesn’t show. 79
The South Carolina Law Enforcement Division, the FBI and the
DOJ have all initiated inquires,
and the mayor of North Charleston recently announced that
Slager will be charged with
murder.
APPENDIX I: The DOJ’s assessment and conclusions regarding
the shooting of Michael
Brown

Based on its factual narrative, the United States Department of
Justice decided to not pursue
a legal indictment against Wilson, explaining:
Even if federal prosecutors determined there were sufficient
evidence to
convince twelve jurors beyond a reasonable doubt that Wilson
used
unreasonable force, federal law requires that the government
must also
prove that the officer acted willfully, that is, with the purpose
to violate the
law.80
Specifically, the Unites States Attorneys’ Manual (USAM)
requires the commission of a
“federal offense”81 and an expectation that the “admissible
evidence will probably be
sufficient to sustain a conviction.”82 In the case of the shooting
of Michael Brown, on the first
issue, the DOJ concluded that Wilson had not committed a
federal offense within the
meaning of the federal criminal procedure statute.83 Instead,
his actions fell squarely within
the realm of “well-established Fourth Amendment [legal]
precedent,” which establishes that
“it is not objectively unreasonable for a law enforcement officer
to use deadly force in
response to being physically assaulted by a subject who
attempts to take his firearm.”84
Accordingly, on the related issue of sufficient evidence, the
DOJ Report concluded:
Darren Wilson’s actions do not constitute prosecutable
violations under the

applicable federal criminal civil rights statute…which prohibits
uses of deadly
force that are “objectively unreasonable,” as defined by the
United States
Supreme Court. The evidence, when viewed as a whole, does
not support the
conclusion that Wilson’s uses of deadly force were “objectively
unreasonable” under the Supreme Court’s definition.
Accordingly…it is not
appropriate to present this matter to a federal grand jury for
indictment, and
it should therefore be closed without prosecution.85
1 United States Department of Justice Report Regarding the
Criminal Investigation into the Shooting Death
of Michael Brown by Ferguson, Missouri Police Officer Darren
Wilson (March 4, 2015), accessed July 8,
2015, http://www.justice.gov/sites/default/files/opa/press-
releases/attachments/2015/03/04/doj_report
_on_shooting_of_michael_brown_1.pdf, at 7. Hereinafter
“Brown DOJ Report.”
2 Wikimedia Commons user “Cwobeel,” “Michael Brown
shooting diagram,” accessed July 8, 2015,
http://commons.wikimedia.org/wiki/File:Michael_Brown_shooti
ng_scene_diagram.svg.
3 Kim Bell, “Grand Jury in Michael Brown Case: 3 black
members, 9 white,” St. Louis Post-Dispatch, August
22, 2014, accessed July 8, 2015,
http://www.stltoday.com/news/local/crime-and-courts/grand-
jury-in-

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