Why Darren Wilson Must Face Civil Rights Charges

I see it all the time. Another clueless person says that Wilson must be innocent because of testimony given at the Ferguson Grand Jury hearings. Wilson was afraid of dying, so he had to shoot an unarmed man. The unarmed man, Michael Brown, was high on marijuana, so he mistakenly charged at the officer who was shooting at him.

There are so many errors in the Grand Jury transcript that even these true believers might notice something amiss. But these people ignore any facts that don't agree with their preconceived ideas. They believed that Obama was born in Kenya. They believed that Hillary Clinton killed Vince Foster. No evidence was ever produced to substantiate these beliefs, but the true believers still keep the faith.

The true believers read that Darren Wilson shot 12 bullets at Michael Brown, hitting him 6 times. Wilson fired at least 6 times at Brown as the young man was running away. Wilson testified that he was terrified of Brown, and that's why he killed him. Reality check: If Wilson was terrified of Brown, why did he chase him over 100 feet down the block? Shouldn't he have called for backup instead of following the man of whom he was terrified?

The true believers have perused a 800-page transcript of the Grand Jury hearing. Most of them do not know that this was not an actual trial. If it had been an actual trial, there would have been a judge there to explain the law to the jurors and stop the lawyers from using their questions to testify or explain the law. Any one of the serious errors made by the prosecutors during the hearings would be enough to reverse the verdict on appeal--if it had been an actual trial.

If the Grand Jury hearings had been an actual trial, the prosecutor would have cross-examined Wilson for hours, perhaps days, about inconsistencies in his testimony and his actions. Does Officer Wilson believe in demons? How could he recognize that Mike Brown was a demon? What was it about the face of this African-American boy that made Wilson so frightened?

So the true believers, among whom are many violent racists, can point to the Grand Jury decision not to prosecute Wilson as proof of his innocence, despite 6 credible eyewitnesses who described how they saw Wilson gun down a teenage boy because the boy had been walking in the street. True believers believe that every African-American male is a violent criminal. This decision vindicates that belief.

African-Americans and those who speak on their behalf, however, know that police officers harass, stop, arrest, and shoot young black men 10 times as often as young white men, even though it is believed that both white and black men break the law with about the same frequency. At least, the same percentage of whites and blacks in DC say they smoke marijuana, but 86 percent of the arrests are of blacks. That is why the crimes of Darren Wilson and McCullough need to be recognized and the perpetrators punished.

Dorian Johnson's Story

 A commenter on Google Plus asked, "My understanding may be wrong but policy is to shoot fleeing felons isn't it?"

Uh, no. In the first place, you're not supposed to kill a suspect. You're supposed to arrest them and bring them in for arraignment and trial.

Aside from that, the police policy is not to shoot at fleeing suspects--not felons. Remember, he's not a felon until he's convicted of a crime. In fact, it's exactly what a cop is not supposed to do, for a very simple reason. Shooting a gun is hazardous to bystanders. 

Once a bullet leaves the barrel, it can go anywhere. Hit off a rock and ricochet, or the ground, or a car. It can go through walls and kill someone sleeping in his bed.

I contest that Brown assaulted the police officer. That's not what Dorian Johnson said, who was standing right next to Brown at the time. That's what Wilson said, who had to have a reason for shooting at the back of a fleeing suspect.

Johnson said that Wilson grabbed Brown by the neck. Brown was 6'5", but Wilson was driving an SUV, so he could reach Brown. Johnson said Wilson threatened to shoot Brown when Brown tried to get out of Wilson's grasp. That would be the point at which Wilson pulled his gun. My theory is that Brown tried to deflect the barrel of the gun away from himself, which was when he was shot and wounded in his hand. All this is confirmed by the autopsy report.

Wilson's story is not plausible. Sure, you can reach into a car, but you can't reach around a cop and grab his gun, not unless it's already out of its holster. Wilson is never going to admit he already had his gun out and was pointing it at an unarmed suspect. A good attorney could have ripped his story to shreds on cross-examination. But Wilson was never cross-examined. Only one side of the story was told to the Grand Jury, which is why I call it a kangaroo court.

The Federal Case

Wilson could still be tried in a real trial, with a judge and an actual prosecutor, because a Grand Jury hearing is not a trial and a decision not to indict is not an acquittal, so there can be no double jeopardy. The governor of Missouri could appoint a special prosecutor, but he has indicated he will not. Of course not. He doesn't want to risk finding Wilson guilty after the extraordinary measures the prosecutor took in getting the Grand Jury not to indict.

There is one other possibility. There is a federal civil rights law on the books. It makes it illegal to deprive someone of their civil rights under color of law, which means that a cop or prosecutor pretends they are following the law when in fact they are breaking it. This "color of law" statute was passed in 1868 to enforce the 14th amendment. For the next 80 years, it lay dormant, as Jim Crow laws were passed in the South and African Americans were systematically denied their civil rights.

In recent years, however, the Color of Law statute has been used against Southern racists who killed civil rights demonstrators or bombed churches. You will read that the statute is difficult to enforce because the prosecutor must prove intent to deprive someone of his or her civil rights, but this is slightly inaccurate. The federal prosecutor must prove that the accused person intended, not just to murder someone, but to deprive someone of their civil rights. This is more difficult than just to prove that a police officer shot someone.

The important word in the law is willful. The prosecutor must prove that the shooter was willful in the act, that he knew what he was doing was not part of his job ("color of law"), but he did it anyway. The bad news is that this would be almost impossible to prove for a single person acting alone. Who knows what was going through Wilson's mind when he pulled the trigger on Michael Brown. He is certainly not going to give us an answer that would incriminate him. 

In his lengthy testimony before the grand jury, Wilson kept on saying how frightened he was of Brown, who looked "demonic". There are a couple of things wrong with his statement. First, he had to know that Missouri state law granted a policeman authority to shoot and kill an assailant if the policeman feared for his life. Second, he had to run 150 feet to get close enough to Brown to be attacked by him. 

The first fact makes it difficult to believe Wilson when he says he was frightened. He has a strong motivation to lie about this fact because he could face punishment if he says he wasn't frightened. The second fact also tends to contradict his statement that he was frightened because he jumped out of a vehicle, equipped with a radio and, presumably, a shotgun, and ran after a man he says he was frightened of. This is not the action of a reasonable man. The reasonable man would stay in the car and call for backup.

Wilson fired two shots in the car. One struck Brown in his hand. The other was embedded in the car door. Wilson struck Brown with five more bullets, one in the arm, three in the torso, and one in the head, the shot that killed him. We know from a digital recording made at the time of the shooting that 12 shots were fired. 

Five shots were unaccounted for. Either Wilson fired those shots as he was chasing Brown, or he fired at Brown and missed him just before he fired the shot that killed him. Since Brown was a large man and almost stationary at the time of the last shot, it seems unlikely that Wilson would miss five shots, then strike Brown with four. Rather, it is likely that Wilson fired the shots while he was chasing Brown.

Willful Action

For Wilson to be convicted under the federal statute, he had to have acted willfully to deprive Brown of his civil rights, in particular his right to live. The problem encountered by the Supreme Court in Screws v. U.S. is that depriving a man of his right to live is the same crime as murder, and murder is not a federal crime but a crime reserved for the states. In order to succeed, the court must decide that Wilson intended to deprive someone, whether Brown or someone else, of a Civil Right. That is the problem facing the federal government right now.

Make no mistake about it, the Justice Department cannot let itself be seen as helpless in the face of gross misconduct on the part of the state. The way around this problem was provided in the case of U.S. v. Price by convicting the murderers of Chaney, Schwerner, and Goodman, of conspiracy to violate the civil rights, not of the Murder victims, but of the black people of Mississippi. The three victims were working to gain voting rights for blacks when they were murdered by the sheriff of Meridien, Mississippi, and a number of Ku Klux Klansmen. The court determined that the murderers were motivated by their desire to prevent blacks from voting, in other words, to deny their civil rights.

A similar charge could be brought in this case. After the death of Brown, the Prosecutor, with the assistance of Wilson's lengthy testimony, was involved in a conspiracy to deny the people of Ferguson their right to petition for redress of grievances. The grievance was the failure of the courts to try Wilson for murder. The police department of Ferguson was involved in a conspiracy to deny the people of Ferguson their right to petition for redress of grievances as well as their right to peaceably assemble.

There is no lack of evidence of these crimes. The police sought, day after day, to suppress legitimate assemblies with truncheons and tear gas. They committed false arrests against members of the press and neutral observers. Their intent was clearly to deny the people of Ferguson their civil rights as defined in the First Amendment of the Constitution and guaranteed by the Fourteenth Amendment.

The Prosecutor released a voluminous transcript which proves that he did not make any attempt to convince the grand jury to indict Wilson. Instead, his deputies interrogated witnesses in such a manner that the grand jury had to assume that Wilson was innocent. Wilson was permitted to testify without cross-examination for hours. The substance of his testimony shows that he was either coached by lawyers on the points of Missouri law relating to police violence, or else was well aware of those details through previous experience.

There is a member of the Ferguson police force who has stated that the whole force was racially biased and prejudiced against the people they were sworn to defend. This prejudice took form in denial of many basic civil rights, such as the right to walk down the street without being harassed, guaranteed by the Fifth Amendment as freedom from unreasonable search and seizure.

All these violations of civil rights were committed by the police force and the prosecutors of the city of Ferguson. The Justice Department has a duty to see that the perpetrators are punished. Bringing these people to justice should have the same salutary effect on the respect for civil rights in Ferguson as the trial of Scherner, Chaney, and Goodman had in Meridien, Mississippi, in 1964.

A New Bill of Rights for We the People

The current Bill of Rights concerned individual rights to be protected from the government. These rights were important at the time, when a war had recently been fought against the British monarchy. The American Revolution was a clash between those who believed that one class of people, the nobility, was superior to all others, and others who believed that there should be no perpetuated classses. This was the original meaning of the Declaration of Independence, when it declared that all men are created equal.

Authoritarian governments, like the English monarchy, recognized no rights among the people, only obligations. The people had the obligation to respect the sovereign, pay their taxes, and fight for him, if necessary. The American colonists objected to this view of their rights. Many of the colonies had been opposed to the English monarchy and nobility. They objected to the King's attempt to reclaim his full rights, especially the right to tax. The original Bill of Rights addressed the abuses of the monarchy.

Events that led to the American Revolution were imposition of taxes on Americans, who were not represented in the English parliament; reorganization or abolition of American governing bodies; quartering English soldiers in America for the purpose of maintaining a standing army, which could defend or control the colonists; and seizure of arms intended for militias.

Such were the events that still troubled the minds of the Framers of the Constitution in 1789. Such were the evils that the Bill of Rights was intended to combat. But these evils were shortly diminished or rendered harmless. Militias were replaced by a standing army. Representation was provided by a Congress elected every two years. The federal government has never reorganized a state government, except after a civil war. The standing army was never quartered on the populace. The amendments that refer to those ills are no longer relevant.

New ills have taken their place. First among these new ills is inequality between the wealthy and the poor, an inequality of opportunity and an inequality of power. The ills associated with industrialization are rampant: unemployment, dislocation, exploitation of labor, hunger. Corporations, monopolies, and cartels prey upon the people and control the government, the press, and the courts. New rights need to be guaranteed to counter these modern ills.

The starting point for the People's Bill of Rights is the Virginia Declaration of Rights, adopted by the Fifth Virginia Convention in June, 1776. This declaration of rights was echoed in the Declaration of Independence adopted at Philadelphia in the following month. The Virginia Declaration also influenced James Madison when he drew up the first 10 amendments to the U.S. Constitution.

People's Bill of Rights

I. All people are by nature equally free and independent, and have certain inherent rights, of which, when they enter into society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

This is the first article of the Virginia Declaration of Rights, here referred to as Mason's Declaration, except that the word “people” has been substituted for the word “men” in the first line. It was appropriated into the Declaration of Independence by Thomas Jefferson, with some important changes. Jefferson's Declaration states that man is endowed by his creator. Mason's Declaration requires no such divine entity. Jefferson's rights are inalienable; Mason's are inherent, and he describes precisely what Jefferson refers to as inalienable, that is, that the people cannot deprive their posterity of these rights by any compact. Jefferson mentions three inalienable rights, namely life, liberty and the pursuit of happiness. Mason defines these rights more succinctly as the enjoyment of life and liberty, and pusuing and obtaining happiness. Mason also adds to these the means of acquiring and possessing property, and the ability to pursue safety.

Dropping this article from the U.S. Bill of Rights has the effect of removing the guarantee of equality. Mason also makes clear that the government is us, not an entity that was created by us and then took on a life of its own. Mason makes the people themselves those who cannot deprive their posterity of these inherent rights. This distinction erases the artificial opposition of the government to the people.

This article also answers the question whether corporations are people: No, they are not. A corporation is an artificial association of people that does not exist in nature and therefore has no inherent natural rights. Corporations, like governments, are creations of the people and responsible to them.

II. All power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

This article describes the kind of government this is, namely a democracy, since all power is vested in and derived from the people. It also describes the relationship of the government to the people, namely that the government is their creation and its functionaries are servants of the people. In a monarchy, such as Great Britain at that time, all power arises from the monarch, who is responsible only to himself. The people in a monarchy become the servants of the monarch, who can make laws and raise taxes as he sees fit, without their consent. The people have the right to petition the monarch, but cannot force him to alter his course. Any attempt to argue with the monarch is considered treason and can be severely punished. This is why there is no freedom of speech or of the press in a monarchy.

The framers of the Constitution were republicans, that is, they designed a republican form of government. In this sort of government, the people elect representatives who make all their decisions for them. The people become the servants of their representatives, who have all the power. The people hold elections, but the same people tend to return to power again and again, becoming a de facto ruling class, who are out of touch with the people they are supposed to represent.

III. Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.

This article reinforces the supremacy of the people over their government while it describes the attributes of a true democracy. Mason makes clear he does not necessarily favor a republican form of government unless a republic is capable of producing the greatest degree of happiness and safety and is most effectually secured against maladministration. The framers designed a republic that was inflexible and incapable of providing for the happiness of the people. Instead, the current Constitution guarantees the happiness of it rulers and gives them the power to threaten the safety of all. The waging of endless war, as some of our representatives favor, does not lead to the safety of the people; rather, it leads to an erosion of the civil liberties inadequately guaranteed under it. Civil liberties are seriously violated when the government can throw people in prison and hold them indefinitely without a trial, as is currently the case under our Constitution.

Our Decrepit Constitution: Slavery by Another Name

During the last days of the Civil War, Congress passed the Thirteenth Amendment. This amendment freed all the slaves in perpetuity, including those not yet freed by the Emancipation Proclamation. The Fourteenth (1868) and Fifteenth (1870) Amendments followed within a short while.

The Constitution was not strong enough by itself to protect the newly minted rights of freedmen. The government posted federal troops in the states of the former Confederacy to enforce the law. Freedmen--former slaves--voted in elections for the first time. African-Americans were elected to state offices, helped by laws that made former Confederate office holders ineligible to run.

The freedom and justice promised by the Fourteenth Amendment was short-lived. The Ku Klux Klan began intimidating and murdering Republicans and African-Americans in 1868. The Klan murdered Republican organizer George Ashburn in Columbus, Georgia, on March 28, 1868. The Klan published a pamphlet intended to slander Ashburn and intimidate anyone who might try to take his place as an organizer. The pamphlet charged that Ashburn was living with an African-American woman and described the place of assassination as a brothel.¹

Nine men, described as prominent citizens, were arrested and brought to trial before a military tribunal. Before they could be tried, the Georgia legislature accepted the Fourteenth Amendment, which was the condition set for reentering the union. The military government was dissolved and the prisoners released. No one was ever tried for Ashburn's murder.

A group of African-American Republicans marched from Albany to Camilla to attend a political rally in September, 1868. White southerners ambushed them in Camilla's Courthouse Square, killing 12 and wounding many others. The white men kept on attacking the group as they retreated along the road back to Albany. Other similar massacres occurred in South Carolina and Alabama.

Some political leaders were intimidated or imprisoned. T. G. Campbell described how he argued before the Georgia Legislature that he and other freedmen should be allowed to speak. While he was speaking, the white legislators put their hands on the butts of their pistols and made threatening gestures at him. Campbell gave up after eight days of argument. Later he took office as justice of the peace and organized a group of 300 African-American horsemen to protect himself from the Klan.

Campbell could perhaps protect himself from violence within the enclave of freedmen he organized along the Georgia coast, but he could not protect himself from miscarriage of justice perpetrated by his white enemies. Campbell was charged with malfeasance in office and brought before a local judge. He was convicted and immediately jailed. Campbell spent the next year and a half being shuffled from jail to jail. His wife tirelessly worked to free him, but nothing she did was of any use. Judges avoided him. New trials were arranged, but with each new trial came demands for new documentation that had to be found and delivered to the court.

Finally, Campbell's wife secured an order from the U.S. Attorney General that the case be moved to a federal court. Campbell believed that he was about to be cleared, but his lawyer failed to file the proper papers and his case was dismissed. After the dismissal in federal court, Campbell was sent to a prison camp where the prisoners were worked from dawn to dusk and beaten if they fell behind the other workers. This system of forced convict labor replaced slavery to a certain degree. Campbell's wife interceded for him with the camp overseer and succeeded in getting him a job more suited to his age. He was sixty-three when he entered the camp in 1876.²

Following the passage of the Fourteenth and Fifteenth Amendments, Congress passed several Civil Rights Bills to protect the civil rights created in the amendments. The Supreme Court set about methodically destroying these rights in a series of decisions that ran counter to the spirit and the letter of the amendments.

In Blyew v. United States (1871), the Court ruled that the Civil Rights Act (1866) did not affect the witnesses in a case. The Bill specifically states that all persons born in the United States are citizens and that citizens have a right to give evidence in court cases. In Blyew, two African-Americans were denied the right to testify by Kentucky state law. The Court construed the Civil Rights Act to apply only to principals in court cases, not witnesses, despite the clear intent of the law, and affirmed the ruling of the Appellate Court. In this case, the principal, a blind, 75-year-old African-American woman, was the murder victim. Since she was dead, the Court ruled, the federal court had no jurisdiction in the case.

In United States v. Cruikshank (1876), the Supreme Court ruled that the Enforcement Act of 1870 was only binding on state actions, not individuals. Using this logic, the Court overturned the convictions of two white men who had joined the Colfax Massacre in Louisiana, when over 100 blacks were murdered by a white militia. The Congress had intended this Act specifically to address the actions of the Ku Klux Klan, so the Court ruled exactly counter to the purpose of the Act. The Court's action left the freedmen in the south at the mercy of the Klan and numerous other private militias. Their action returned African-Americans to their pre-War status, when an African-American could be raped, murdered, or tortured by a white with impunity.

In the Civil Rights Cases (1880), the Supreme Court ruled likewise that the Fourteenth Amendment did not apply to private citizens, like railroads, hotels, and the operators of public amusements. These individuals, said the Court, had the right to choose the people they wanted to associate with, regardless of what the Fourteenth Amendment said. Justice Harlan, the sole dissenting voice in these five decisions, reminded the Court that private railroads were by law public highways, that innkeepers had long been held to be public servants of a sort, and that public amusements are maintained under a license coming from the public. No state, said Harlan, nor any corporation or individual acting under state authority for the public good, can discriminate against freemen or citizens. These rulings put an end to efforts by Congress to ensure civil rights for African-Americans and ushered in an era of segregation and second-class citizenships.

In U.S. v. Harris (1883), the Supreme Court once again ruled that federal courts had no jurisdiction in cases of murder or assault. These cases were matters for the states. It did not matter that the persons assaulted were African-Americans and the assailants were a group of Ku Klux Klansmen. In Harris, the Klansmen dragged four African-Americans from their jail cells and beat them, one of them to death. Although Federal Law intended to stop such violations of African-American civil rights, as authorized under the Fourteenth Amendment, the law was unconstitutional because it usurped the rights of the states. Harris also ruled that the sheriff who had custody of the African-Americans who were beaten could not be held liable under federal law because he was liable only for his actions, not his inactions. Under this ruling, depriving a person of his life is not the same thing as depriving him of his Constitutional rights, and inaction is not a form of action.

Not until the 1960s did the Supreme Court repudiate the extreme racism inherent in all these rulings (and others besides). The Constitution failed to protect individuals from crimes committed against them, even when Congress explicitly created laws saying that it should.

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1 Radical rule : military outrage in Georgia: Arrest of Columbus prisoners (Louisville, Ky., 1868), http://books.google.com/books?id=QEwTAAAAYAAJ&pg=PA16&lpg=PA16&dq=george+ashburn+murder&source=bl&ots=u4jYy1SKzI&sig=csGygOILiQ6j5e-RfFFGKQ-9Ha0&hl=en&sa=X&ei=_Hh9UcibCpTG4APiooDgCg&ved=0CHoQ6AEwCQ#v=onepage&q=george%20ashburn%20murder&f=false. Since this pamphlet declares in its preface that its intent is to convey the proper impression of military despotism to the northern mind, its content must be treated as completely unreliable.

2Campbell, T.G., Sufferings of the Rev. T. G. Campbell and his family, in Georgia (Washington, 1877), http://openlibrary.org/books/OL22894692M.