Member Groups

The Catalyst
The newsletter of the ISBA’s Standing Committee on Women and the Law

December 2014, vol. 20, no. 4

Ferguson, Missouri: Clouds and silver linings

Protest and civil disobedience is as American as apple pie. America, itself, was founded on a protest and shaped through acts of civil disobedience—from dumping tea into the Boston Harbor to sit-ins at restaurant counters. When America gets angry about laws it perceives as unjust, Americans react. Over the decades, the protests and acts of civil disobedience have ebbed and flowed from disobeying simple orders to outright rioting. When it comes to racial matters, the intensity and duration of any unrest is significantly magnified. Nearly every major city, at some time during its history, has dealt with civil unrest or riots as America struggled to redefine its relationship with African-Americans. Unlike Chicago, Los Angeles, Detroit, and other major cities, St. Louis was largely spared from civil unrest and riots motivated by race. In fact, the closest St. Louis ever came to a race riot was the 1917 East St. Louis, Illinois race riot; by the time the situation got to St. Louis, there was nothing left but sentiment. That all changed when, on August 9, 2014, 18-year-old Michael Brown, an unarmed African-American youth, was fatally shot by Darren Wilson, a Caucasian police officer. The details of the event are still emerging; however, unrest began immediately.

Initially, it was difficult for most to understand the real issue; Michael Brown was not the first unarmed African-American teen killed by a Caucasian officer. Sadly, he hasn’t been the last. Since St. Louis isn’t particularly known for its progressive attitude in regards to race relations, and comparable instances have occurred before, what made this situation ripe for the unrest that ensued? As with similar situations, the death of Michael Brown is but a metaphor for deeper issues within the St. Louis community. The usual suspects are at play here: poverty, unemployment, and lack of opportunities. But, then, that’s nearly everywhere right now. However, St. Louis offers up a special blend that is significantly different than most cities: The poverty trap. Here, one can easily become disenfranchised and dis-empowered due to poverty. Infractions usually punishable by fine can effortlessly become criminal matters due to poverty, a basic misunderstanding of the law, and an embedded distrust of the people who enforce it.1 As a result, the death of Michael Brown was not just another tragic incident; rather, it was the fuse connected to the incendiary device of long-held hurt, hate and anger. When it exploded, so did St. Louis County—finally.

If the explosion was a surprise, the initial response by all sides was alarming. Leaving Michael Brown’s body on the ground for several hours, the way in which the authorities talked to his mother when she came to the scene to find out if that was—in fact—her son, and they way witnesses were summarily dismissed were the final blows that crushed the dense dam of postponed gratification. People who were disillusioned and disenfranchised took to the street in an effort to make something good come out of something so bad. What started out as a protest quickly become looting, as angry and disrespected people felt they had absolutely nothing to lose and, therefore, everything to gain. Having broken the perceived rules of decency and civility by their conduct immediately after Michael Brown’s death, authorities tried to enforce the law. However, the lack of rules and the lack of relationships with those subject to the rules made law enforcement impossible. In response, perhaps, to impossibility, law enforcement applied pressure in the form of militarization rather than understanding—the latter tactic used by Captain Ron Johnson. Frighteningly, had they not arrested journalists who made the matter into a First Amendment issue, militarization may have worked!

Equally alarming was the response (or lack thereof) from legal and civic organizations. While not named in this article, several are members of national organizations and nearly all use an alphabet moniker as identification—whether the group is national or purely local. Some organizations immediately grabbed the press’s attention by calling meetings seemingly aimed at mobilization. Long on fanfare but short on substance, inclusion, or ability to execute, these organizations quickly wore thin the willingness of those who were immediately ready to help. Suddenly, and without warning to the public, celebrities swarmed Ferguson and the surrounding areas to “help.” Everyone from Judge Greg Mathis to Dick Gregory came to Ferguson. Even Iyanla Van Zant came to “fix” Ferguson. People and their organizations looking to participate in a constructive way were immediately overwhelmed with assisting in the new “cause célèbre.” While it was completely unclear as to how the influx of celebrities was helping, they kept coming—and people and organizations kept helping.

As details emerged about the death of Michael Brown, sky-high tension coupled with uncertainty threatened to tip things further. Ferguson is a suburb of St. Louis and is located in St. Louis County near the airport; it is a small town of just over 21,000 people. St. Louis County employs an elected County Executive and has an elected representative seat on the St. Louis County Counsel. Consequently, few mayors in St. Louis County work as full-time mayors and their city councils only deal with municipal issues. Ferguson is no exception. In small towns like Ferguson, it is highly unlikely that the mayor, police chief, or city council have the political acumen, knowledge, skill, or even experience to deal with the events occurring in the aftermath of Michael Brown’s death. Because riots had not occurred in St. Louis or its suburbs in several generations, there was no institutional memory from which to draw nor were there experienced people on whom to call. What was present, then and now, was the public’s demand for answers. But, how does one meet competing demands? For reasons that only lead to more speculation, the police chief decided to meet the competing demands for information on Michael Brown and identity of the officer involved in incident by giving all the information at once. Consequently, he released the name of the officer who shot Michael Brown and, at the same time, released the convenience store tape of Michael Brown’s alleged criminal conduct. Depending on viewpoint, it was the worst—or the best—thing the police chief could have done.

The response from community and civic organizations was absolutely astounding. In my entire professional career, I have never been so disappointed about the conversations from community leaders concerning Michael Brown’s death. The closed-door conversation within some of these organizations was that everyone should quit the demands for accountability and information. And, no further tolerance should be given to the rioters demanding change—because Michael Brown had committed a criminal act! Because the details were slow to emerge (due, in great part, to police immediately confiscating cell phones with any video documentation), more fault could be attributable to Michael Brown, since he “started it.” Therefore, because Michael Brown was not absolutely clean, political and social capital should not be expended to broker accountability and demand systemic change. Unbelievable!

Because I’m a lawyer, I knew the distinctions; because I participate heavily in the community, I understood the audience. Leveraging both, I explained that the State of Missouri already made certain decisions about crime and punishment. Assuming there was a theft, under Missouri law Michael Brown is entitled to a trial with a judge and a jury, if not a bench trial. Assuming there was a theft, anything under $500 was considered a misdemeanor in Missouri. Missouri, like other states, punishes misdemeanors by fine or jail time. In no state, including Missouri, does one get death by firing squad for misdemeanor theft. And, in no case, would such a thing have happened without benefit of a trial. Even if Michael Brown attacked Officer Wilson, if Michael Brown then surrendered and posed no threat to Officer Wilson or anyone else, the use of deadly force became unnecessary to take Michael Brown into custody for his alleged action. The time it took for civic, political, and community leaders and volunteers to gain this crucial understanding proved critical in the days ahead.

The failure by responsible citizens and organizations to immediately mobilize in response to that tragedy created a vacuum in which the national scene exploded. Groups with no Missouri roots began sending professional protesters that seemed to invite confrontation, incite challenges, and entice large numbers of followers. With local groups being cautious, these groups took to the airwaves and began giving press interviews and making demands. While civic organizations and bar associations worked through by-laws and parliamentary procedure to determine a response, “organizations” whose primary membership consisted of a loose friendship or “churches” whose total membership numbered three, were suddenly giving interviews about Ferguson to national media. The effect was that it dictated the mood and conversation on the ground. That, in turn, made more people with similar backgrounds suddenly interested in giving national interviews. As is usual in this kind of situations, some meant well, some did well, some were both, many were neither. At the same time, the intensity of the protests-from both participants and police—significantly increased.

Just when things seemed completely unpredictable, utterly leaderless, and uncompromisingly irrational, more national figures appeared. When Attorney General Eric Holder came to Ferguson, his visit was largely seen as a welcome acknowledgment from the Obama administration. The response was positive and it had a calming effect; at least for a while. Al Sharpton came to help with the positive efforts in Ferguson. His visit was met with mixed emotion. Some said he was an opportunist; others said he was heeding a call. With him came additional organizations, people, and an intense national spotlight. With him, according to friends who are elected officials in Ferguson, came resources to quietly help analyze, organize, and evaluate opportunities. What really changed my opinion to the very positive for Mr. Sharpton is the complete change in conversation and the subsequent actions his work engendered.

Before Al Sharpton came to Ferguson, it seemed that organizations’ civic leaders were waiting for some kind of break in the action, believing the protest would die down. With silence and a lack of support, protests would soon become less intense. And, when the legal system caught up with the protesters, the punishment inflicted would serve as a strong deterrent to further protests…or so the theory went. With Mr. Sharpton and his National Action Network, a steady, national spotlight rested over Ferguson. With it, seemingly, came credibility. Mr. Sharpton condemned the looters but lauded the protesters, he connected the family to the protest, and he offered words to match the feelings and sentiments of those who were working through their own feelings about Michael Brown’s death—whether they knew him or not.

While the aforementioned can easily be ignored or discounted, the change in the conversation from organizations and civic leaders was obvious. Business leaders and politicians began raising money and offering help. One group raised over $100,000 in less than two weeks to help affected business in Ferguson. Another began offering technical assistance to those mobilizing the community. As they offered help, they began asking questions. The questions quickly shifted from “What do we need to do here” to “What do we need to do to get Al Sharpton to leave”? Big Difference. It reminded me of the juxtaposition of Dr. Martin Luther King, Jr. and Malcolm X. Scholars of the 1960s civil rights movement sometimes debate whether Dr. King would have made as much progress as he is credited without Malcolm X. It seemed easier to give Dr. King what he wanted rather than be faced with the demands of Malcolm X. With the Ferguson matter, some people now wonder if the recent concessions made in Ferguson would have happened without Mr. Sharpton. It seems easier to give civic leaders and organizations what they want rather than meeting some of Mr. Sharpton’s demands.

With every cloud there’s a silver lining; and, with every silver lining, there’s a cloud. Part of the silver lining about Ferguson seems to be that the status quo of the civic leadership and community organizations—who failed to keep the riots from occurring—hold a bit less weight with business leaders and local politicians. The effect seems to be a re-shaping of the pecking order by which opportunities are given. An effort to recruit new leadership and invite new membership is being made to people who are ready to work towards tangible opportunities at real change. Another silver lining is that the public dialogue about race is open again and, this time, substantive change is being demanded. Perhaps the most sustainable silver lining is the one occurring with local organizations, whether nationally affiliated or not. Challenged, analyzed, and questioned, several organizations emerged from this experience stronger. Here’s the silver lining to the Ferguson matter for them:

*Know your Mission

Know what you, and your organization, do. Evaluate your mission and determine whether it is clear enough to encourage—or discourage—involvement when the time comes. Is your organization guilty of “mission creep”? That is, has it gradually shifted to something beyond its original goals? If its members do not know when to act, when its mission is challenged, or what its role is, or should be, you may want to refine the organization’s mission.

*Look at your internal processes

Develop an internal process for responding to emergencies. Robert’s Rules of Order and internal by-laws can be an Achilles heel when responding to an emergency. There may be no time to call a general body meeting and put things to a vote. Even if you call the meeting, you may not get a quorum. Actions can be ratified, but what are the ramifications if they aren’t? Is it better to ask for forgiveness rather than permission so that the organization can act in an emergency? Or, is it better to try and expedite the normal business practices so that the organization can act in an emergency?

*Be ready to rapidly respond

Social media and the 24 hour news cycle require a rapid response. Determine what response will occur and how. Identify subject matter experts and possible back-up early—and train them now! Rapid response time is critical to the ability to participate in on-going, real-time discussion; learned responses are essential to giving dependable information to the public. This is not an “either/or” position; it’s a “both/and” position.

*Share timely, relevant information

In emergencies requiring swift responses, relevant, manageable information—not logic—is the antidote to passion. Logical pleas about postponing gratification in favor of the greater good is not as helpful, at that moment, as telling someone how to do what they want to do within the bounds of the law. Making written material available about rights helps to ensure that people have the necessary information to act within the bounds of the law. As cooler heads begin to emerge, giving meaningful information in a relevant way better ensures that those who partake will look to your organization for credible information and leadership.

*Encourage people to vote and serve on juries

Two free things that people—especially the disenfranchised—keep forgetting! Whether pro-plaintiff or pro-defense, the power structure can’t hear you if you don’t speak when it’s time. ■

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1. For an in-depth discussion of this issue, see the Washington Post’s article “How Municipalities in St. Louis County, Mo profit from poverty” published September 3, 2014. The article, in my experience, is dead-on in its recitation and analysis of the issue.