Blind justice? An exchange on Ferguson: part 1

This Fall, in the midst of a sharp and often acrimonious public debate on the events that occurred in Ferguson, MO, the authors who contribute to Covenant found themselves engaging in a similar, private discussion. And, despite some convergences, we did not reach a common mind or understanding. For some, it might seem premature to broadcast our disagreements in public. But, as Bishop Sutton recently said: “If the Church can’t have this conversation, who can and where can it happen?” 

As an online community of evangelical and catholic Christians, we recognize a common vocation to “humility and penitence in the teeth of painful division and to reconciliation in love,” as well as to the furthering of understanding through dialogue and debate. We offer the following exchange as an initial gathering of the fruit of our common discussion, knowing that not everyone will agree with the individual contributions of the exchange. The exchange is much longer than the average Covenant post, in order to deal with the complexities of the topic. Dale Rye offers the first piece here, highlighting some legal and theological deficiencies of the debate, especially in the Episcopal Church. Caleb Congrove’s response, to be posted on January 2, attempts to bring things back to the presenting issue: ongoing racial tension and inequality. 

 Zachary Guiliano and Christopher Wells

Some legal and theological thoughts on Ferguson

Dale Rye

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The Episcopal Church has issued a set of study materials that simply assume that both the shooting of Michael Brown in Ferguson, MO and the grand jury action concerning Darren Wilson were racially motivated. Thus, protesting those specific actions is commended as a Christian imperative. I do not think the situation is that simple, looking on from my very different perspective. I was licensed as an attorney forty years ago, and I spent thirty of those years as a prosecutor. After I retired, I served on a grand jury that (among other things) reviewed police-involved shootings. In the first section of the following, I will discuss some of the legal and factual issues as I see them. In the second, and to me far more important, section, I will share some Christian concerns that I think the reactions to Ferguson raise.

One note in advance: The twin curses of racism and classism in America should rightfully inspire our rage. The events in Ferguson have particularly inspired strong feelings. One man’s life has been lost, and others have been devastated. For these reasons, looking at the legal and moral issues dispassionately can seem insensitive. Some people would prefer a passionate legal system that renders social and political justice whatever the cost to normal procedures, but that isn’t the way the American system works. Legal procedures implement constitutional notions, like making sure that we only punish people for doing something that is illegal and not just unpopular. The system deeply cares about justice, as do I, no matter how dispassionate we may appear.

I.

The Episcopal Church study guide contains some good materials. For instance, it rightly names the demon of racism in American society and calls on Christians to exorcise it with all their strength. However, it does not just talk about racism in general terms. It quite specifically commends the protests that are focused directly on the Ferguson events. When people shouting, “Hands up, Don’t shoot,” block an intersection, they are not complaining about racism in general terms. Not too far in the background of most of the Episcopal materials is the assumption that when Darren Wilson shot Michael Brown he was committing a racially-motivated murder and when the grand jury cleared him it was complicit in his crime. I think those assumptions are grounded in some fairly common misunderstandings of how peace officers and the criminal justice system operate.

The justice system is not set up to punish bad people or even to punish every act that is morally reprehensible and socially unacceptable. It is set up to deal with crimes, acts that have been defined in advance by Congress or the state legislature with elements specific enough to give fair notice. Because legislators are elected, they generally pass criminal laws because the public demands them. The citizenry is directly responsible for the obvious facts that too many things in America are defined as crimes, that too many people are being arrested and convicted, and that too many people are serving unreasonably long sentences. The buck stops here, with us.

The first job of the police is not to promote virtue in general terms, but specifically to prevent crimes. Failing that, it is their job to investigate crimes, identify suspects, and bring them before the courts. The job of the courts (including prosecutors, defense lawyers, judges, and jurors) is to determine whether there is enough legally admissible evidence to convict a specific person of a specific crime. In their official capacity, the police and courts do not deal with issues of public policy or abstract justice apart from individual cases. None of these people make the laws they are literally sworn to uphold. If they disagree with a law to the extent that they cannot conscientiously follow their oath, their only alternative is to resign.

Prosecutors sit in the middle of the system with a rather peculiar job description. Most lawyers, including all defense attorneys, must follow the rule that “a lawyer zealously asserts the client’s position under the rules of the adversary system” (American Bar Association Model Rules of Professional Conduct, Preamble). A defense lawyer’s primary job is therefore to seek acquittals legally (ABA Model Rule 3.1). A prosecutor does not have an individual client, but represents the public interest, so “The duty of the prosecutor is to seek justice, not merely to convict” (ABA Criminal Justice Standard 3—1.2(c)).

Victims and their supporters often get offended when a prosecutor does not zealously advocate on their behalf without balancing other interests, but balancing interests in the pursuit of justice is exactly what prosecutors are sworn to do. Prosecutors need the freedom to dismiss a case if the human cost of pursuing it grossly outweighs the chance of a beneficial conclusion for the victim or anyone else. That is why prosecutors enjoy absolute legal immunity for the exercise of their discretion. A DA may be run out of office for an unpopular decision, but at least she cannot be sued. The police have much less discretion and can be sued if their actions fail to meet reasonable standards of legality.

Let me deal in passing with the common argument that prosecutors work so closely with cops that they cannot be objective. The opposite is true. Because they work so closely with police, they are less likely to surround them with a middle-class “the policeman is my friend” aura. They very quickly figure out who is trustworthy and who isn’t. Bad cops are bad for the public, but they are even worse for prosecutors because they make them and the system they serve look bad. That makes their jobs a lot harder (indeed, I can’t imagine being a St. Louis County prosecutor having to pick a jury from a pool full of people who were hassled by wannabe Rambos in armored cars). When an officer screws up, a prosecutor is the first one on the phone to the sergeant and, if that doesn’t work, up the chain of command all the way to the police chief or sheriff. Most prosecutors I know would love to drag any cop who does something questionable in front of a grand jury. No matter what the law says, we would all expect him to justify what he did.

The grand jury is another rather misunderstood part of the American justice system. It has a number of important secondary functions in conducting investigations and collecting evidence, but its primary purpose is very different. The federal courts are bound by the Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The primary function of the grand jury is to screen out frivolous or malicious prosecutions. The institution exists, and the constitutional mandate exists, for the protection of the accused, not for the convenience of the prosecutor or as a rubber stamp for an accuser. That protective function is why they are written into the Bill of Rights.

While that clause of the Fifth Amendment does not directly apply to the states, they are required to have some equivalent mechanism for screening cases. Most states allow examining trials or preliminary hearings before a judge, but twenty-two of them require (to varying extents) a grand jury indictment. I can’t speak to Missouri law, and I no longer practice in Texas, but I understand that a grand jury in both states has twelve members. It takes a supermajority of nine votes to issue an indictment. The federal courts use a bare majority — twelve votes out of twenty-three members — so one assumes that Missouri takes the protective function at least as seriously as the federal system.

Since the Ferguson decision, I have heard a lot of claims that it is improper for a grand jury to hear evidence about defensive matters or to let the suspect testify. The burden at that level is just “probable cause,” showing that there is some credible evidence that indicates that the defendant is guilty of the crime charged. It is for the trial court to determine guilt beyond a reasonable doubt in a setting where the defense can cross examine witnesses and put on their own evidence. Since the grand jury is not required to consider defense issues in determining probable cause, it is not required to hear any evidence beyond the minimum to establish probable cause.

Most of the time, the police and other prosecution investigators have put together all the evidence needed for an indictment before the grand jury meets. A sworn summary of that evidence is presented to a magistrate, who likely issues an arrest warrant. After the defendant has been arrested (and is either in jail or out on bond), one of the investigators presents the same evidence to the grand jury, which likely issues an indictment.

Because prosecutors hate to dismiss cases and loathe losing them at trial, they try not to start that whole process rolling unless there is enough evidence for both an indictment and a likely conviction. Even if probable cause plainly exists, they will hold off until they have enough to prove guilt beyond a reasonable doubt. If they try the case and lose it, double jeopardy attaches. If they wait, they have the entire limitations period to gather more evidence. When they have it in hand, it goes to the magistrate for a warrant and the grand jury for an indictment, and a trial can quickly follow.

“Most of the time” isn’t “all of the time.” In a high-profile case, the public is demanding quick action, so the prosecutor may well go to the grand jury as an investigative body. Witnesses in such cases may fear ostracism or retaliation if they voluntarily cooperate with the authorities. The police cannot compel unwilling witnesses to give their statements or provide other evidence, but the grand jury can. This may be the only chance the prosecutor has to hear what hostile defense witnesses are likely to say at trial and to pin down the details of their story so they cannot change it later. The prosecution has a duty to share every bit of arguably exculpatory evidence with the defense, but the defense has no reciprocal duty to share incriminating evidence. Even if the grand jury does not legally need to hear about defensive issues or from the defendant, the prosecutor wants to hear all he can.

Even when the grand jury is just exercising its protective function, there is one situation where it almost always considers exculpatory evidence. Self-defense in Texas, Missouri, and most other states is a defensive matter, but if there is any evidence to raise it, the burden is on the government to disprove the defense beyond a reasonable doubt. It is not an affirmative defense like insanity, which the defendant usually has to prove. Someone alleging self-defense does not have to prove anything, not even by a preponderance standard (“more likely than not”). All he has to do is rely on reasonable doubt.

Asking a grand jury to hear a self-defense case at all would be a waste of time if they were restricted to determining whether the suspect “intentionally used a deadly weapon to cause the death of a human being.” That issue is never remotely in doubt. The only contested issue for the prosecutor, the grand jury, and ultimately the trial and appeals courts is the question of justification.

If the grand jury could not consider that, the defendant’s right to have the charges against him reviewed by a grand jury would be completely meaningless. That is equally true of non-police cases involving self-defense, e.g., an African-American shopkeeper who shoots an armed Klansman trying to rob his store or a single mother who responds to a home invasion with deadly force. If the case against self-defense does not even rise to the level of probable cause, the defendant cannot possibly be convicted at trial.

It would be an abuse of the judicial process — and a waste of taxpayer resources — to drag the defendant through an inquisition that will so clearly result in a not guilty verdict. Our courts are already overworked with cases where the outcome really is in question. The right to a trial is personal to the defendant, not the public and not even the victim. We don’t hold show trials in America.

So, the procedure in Ferguson was not out of the ordinary. Every DA I know of in Texas (or any other grand jury state) takes all the self-defense cases, including every police-related shooting, to a grand jury, which is going to want to determine if there is probable cause sufficient to justify bringing charges. They would not be serving their protective function if they indicted every person who pulls a trigger when somebody else dies. That requires an examination of all the circumstances surrounding the shooting.

The important point is that there are reasons other than institutional racism for why these cases so rarely lead to an indictment. Proving that something did not happen is always much harder than proving that something did happen. That is particularly true of self-defense because, legally speaking, the situation has to be evaluated from the viewpoint of the defendant. If the defendant reasonably believed he was in danger, he was authorized in using the force necessary to counter the perceived threat even if he was wrong about the actual existence of the threat. It is tragic, for instance, when someone discovers after the fact that the victim’s gun wasn’t loaded, but that has no impact on the self-defense claim. The fact that the person killed was actually unarmed is not conclusive; the shooter does not have to wait until the attacker takes his gun away or strangles him before he can fire. If someone credibly (but falsely) reports to the police that someone has been shooting passersby, the grand jury has to take that fact into account in assessing how reasonable the police response was. Those aren’t special rules made up to protect the police; they apply in every self-defense case.

One special rule that does apply only to the police allows them to use reasonable force to the degree that it is necessary to make an arrest or serve a judicial writ. If that were not the law, there would be no way to arrest or evict a reluctant person. Making someone do something or go someplace when he does not want to is the use of force, even if it causes no physical injuries. Sadly, whether a particular use of force was reasonable or excessive is sometimes a debatable issue, and the conviction burden of “beyond a reasonable doubt” means that the prosecution will eventually lose any serious debate.

Another rule that applies only to the police is that they are allowed (indeed, virtually required) to respond to force with force while making an arrest. Every time the arrestee escalates, the officer is expected to respond. The officer is expected to use force to stop an escaping felon and even deadly force if the escapee poses a deadly threat to the public. Again, the alternative would be to let people avoid arrest by simply raising the force level, knowing that the officer could not respond. A partner to that rule is that civilians can never lawfully use force to resist an arrest, even one that they honestly believe is wrongful. It must be that way, or every defendant who believes himself innocent would have the right to use an escalating level of force against the officer, who would also have the right to respond until the situation ended in someone’s death.

Why do so many of these cases involve a white officer and a civilian who is a person of color? There are explanations that do not require the hypothesis that every police shooting is racially motivated. First, the historic hostility between the police and minority communities means that not many African-Americans grow up wanting to become a peace officer, particularly given the risks and working conditions. Even with affirmative action, there aren’t enough minority applicants to fill a fair share of the available places. When a confrontation occurs, the chances are that the officer will be white.

Second, there is a very high correlation between neighborhood poverty and crime rates. Some of that is because America has chosen to deal with some social issues commonly associated with poverty — like homelessness, mental illness, chemical dependency, and post-traumatic stress disorder — largely through the criminal justice process. Some of it is because legislatures have placed a priority on crimes that are associated with poverty, like crack possession, rather than crimes like prescription drug abuse. Most of it is because poor people are actually victimized by crime much more often than the middle class. As we know, a disproportionate share of those in poor neighborhoods are persons of color. All of that is a national shame, but none of it is the fault of the police department or anybody in the criminal justice system, certainly not any individual officer.

The public demands that law enforcement agencies send their patrols where most of the crime is, which happens to be poor neighborhoods where there are a lot of unemployed men out on the streets. There are far more opportunities for interactions between the police and citizens that can escalate into a violent encounter. When a confrontation occurs, the chances are that the civilian will be a nonwhite poor person. The heavy patrols in minority neighborhoods and other policies outside police control contribute to the fact that an absurd percentage of African-American males have criminal records (which also affects their credibility with the grand jury).

Self-defense cases are probably the most detailed presentations any grand jury will hear during its term. If there is any evidence that the shooter was partly motivated by racial bias, rather than by genuine fear for his safety, that would certainly be admissible before the grand jury. The several African-American members of the Ferguson grand jury surely asked that question. There would have to be evidence specific to the individual officer; the fact that other cops in St. Louis County or in other places are racists could not be considered. In shooting cases, the suspects are often called to testify so that the grand jurors can observe their demeanor face to face and figure out if they are lying. Again, these hearings are not looking for proof beyond reasonable doubt, but only probable cause that this was not a legitimate case of self-defense.

Taking these cases to the grand jury admittedly has a political dimension. No elected prosecutor is going to cheerfully take it upon himself to personally dismiss a high-profile losing case. The public would certainly question how he used his discretion. I would bet that the St. Louis County DA, like my local DA and probably every other DA in a grand jury state, takes all of his self-defense cases to a grand jury so it can look at the facts and see if there is enough probable cause to get past the frivolous prosecution threshold. If there isn’t, the case will go away — as it should — with a No Bill by grand jurors who will remain anonymous (in Missouri, not Texas). Eliminating pointless prosecutions is precisely what grand juries are required to do. That’s why the Bill of Rights puts them in the federal courts.

The only politically-viable (if unethical) alternative would be to abandon prosecutorial discretion. DAs could obtain rubber-stamp indictments in every self-defense case (by not revealing the defense to the grand jurors) and then take every single one of those cases to trial, no matter how persuasive the self-defense claims were. That would not be fair to the defendants, the public, or any abstract notion of justice. Nevertheless, that seems to be what the Ferguson protesters would prefer, since we can’t have special policies and procedures that only apply when the shooter is white and the shootee is black. That would violate the Fourteenth Amendment guarantees of due process and equal protection of the laws. There is no room in America for punishing individuals without adequate proof just because they belong to a suspect class.

This is the bottom line: a grand jury following normal procedures found no compelling evidence that Darren Wilson acted illegally, and there is no evidence at all of a racial motivation. The officer’s superiors badly failed him by letting others create the narrative that has (possibly unjustly) destroyed his career and damaged his life. That does not excuse the public — and the authorities of the Episcopal Church — for buying into that version of the story as if it had been proven beyond a reasonable doubt or even had probable cause to support it.

II.

Now let’s get theological about the reactions to Ferguson. One of my favorite theologians is the American genius William Porcher DuBose (1836–1918), who independently developed many of the ideas later associated with Karl Barth and the Neo-orthodox movement. The fundamental dichotomy for DuBose is between holiness and sin. Unrighteousness — conduct that violates the will of God — is a secondary issue. It is merely a consequence. Sin is its cause. Fundamentally, sin is not wrongful acts, but the wrong relationship that gives rise to such acts. The opposite of sin is not mere righteousness — good behavior — but holiness. We cannot be holy unless we partake in the divine nature, which is holiness itself. We can only be holy through a personal relationship with God. Communities can only be holy through a corporate relationship with God. When that relationship breaks down, we can only partake in the condition of nature without God, which is sin leading to disobedience and death. Jesus Christ is our reconciliation because he abolishes sin in us and restores us to holiness.

The difference between sin and unrighteousness seems fairly basic, but many of our contemporaries clearly have trouble with this distinction. I cannot count how many times I have heard a backwards exegesis of Romans 1:18–32, that because certain people engage in disordered behavior (either sexual, vv. 24–27, or not, vv. 29–21), we should condemn them as sinners. Paul’s argument actually runs in exactly the opposite direction, that because certain people are sinners, God “gave them up” to such behavior. Sin is the cause, unrighteousness merely the consequence. Fire causes burns, not the other way around. Trying to abolish the consequences without curing the cause will be fruitless. Indeed, Paul goes on Romans 2 to condemn even more harshly those who consider themselves holy because they do not engage in such obvious forms of unrighteousness. They are sinners, too, and their sin may be all the more deep-rooted because it is better hidden. Both groups stand equally in need of reconciliation with God, and that can come only through the saving work of Jesus Christ.

However, the New Testament clearly teaches still more than this. Jesus is not just the cause of salvation, but is salvation itself. We are not saved by an example or influence from afar, DuBose points out, but by “the personal Christ personally present in” us (The Soteriology of the New Testament, 37). “We are so personally related to Him and He to us, that in an effectual and real sense His death becomes our death and His resurrection our resurrection, and He Himself in us all that constitutes our Salvation” (38). The Church as a community is the Body of Christ in reality rather than metaphorically. Jesus is not active in us as a memory or influence, but as a living person who calls us to a relationship that is life.

The police are sinners. Criminals are sinners. We are sinners. That is a given. What is not given is our response to it. We can, and should, fight unrighteousness wherever we find it. As the Ferguson protesters say, “There can be no peace without justice.” What they don’t say is equally true, “There can be no justice without peace.” The signs on the side of American police cars rarely say “Law and Order,” but often say “To protect and to serve.” The police exist to serve their community by protecting it from unrighteous acts. As bad as police misconduct may be, does anyone really think that our communities would be safer if the police withdrew entirely?

My guess is that discomfort with any form of state coercion is driving some of the protests; they are another reflection of the public hostility to government that also fuels the Tea Party Movement. Beyond that, the very existence of a police force will be offensive to those who hold a theological conviction that the use of force is always unrighteous. One thread of the New Testament (Matt. 5:39 and Luke 6:29: “Turn the other cheek.”) seems to require absolute nonresistance, not just nonviolence. A variant is that the use of deadly force against anyone who is not armed can never be justified. If everyone should turn the other cheek and tolerate any level of injustice without ever responding with violence, it is wrong to spend public funds on an agency that relies on the implicit threat of coercive force to accomplish its mission. Depriving unwilling people of their freedom of movement by handcuffing them and putting them in jail is a form of violence. It is coercion. That is true even if the unwilling people are charged with murder or child abuse.

Like the army and navy, the police force is an inherent insult to pacifism. Every time a peace officer stops someone for arrest or investigation, the potential is there for an escalation of violence that will lead to the use of deadly force. Again, the police didn’t write the various laws that make it illegal to disregard a police order, mandatory to arrest for an offence committed in an officer’s presence, legal to use force to make an arrest, illegal to resist arrest, and legal for the police to shoot someone who poses an imminent threat of killing others. Legislators wrote those laws because the citizenry demanded them, but the public often holds the police solely responsible when they lead to a tragic outcome.

Pacifists may find those laws intolerable, but a police officer sworn to uphold the laws cannot ignore them. A pacifist policeman would allow himself and innocent bystanders to be killed because it is wrong for him to use deadly force, and he would not try to arrest anyone when it might lead to a violent confrontation. However, most people — including most Christians and most Americans — feel that it is even worse to tolerate violence and abuse against crime victims who cannot protect themselves when we have it in our power to help them.

The New Testament acknowledges this very role for government. The Episcopal Church’s Ferguson materials do not include references to passages like “Render unto Caesar what belongs to Caesar” (Matt. 22:15-22 and parallels). Or “Honor everyone. Love the brotherhood. Fear God. Honor the emperor” (1 Pet. 2:17). Or, particularly:

Let every person be subject to the governing authorities, for there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment (Rom. 13:1-2).

Those passages need to be balanced against all the ones commending private direct action (such as civil disobedience) to obtain justice for the powerless.

The Episcopal Church materials compare the status of minority communities in America to Judea under Roman occupation, but Paul specifically approves the use of force in the pursuit of justice even by the imperial government’s magistrates: “[I]f you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer” (Rom. 13:4). One might argue that the state can rightfully use only nonviolent forms of coercion, but that again comes back to whether we think that having a police force is an appropriate response to sin and unrighteousness or a manifestation of the same tendencies. It may be both.

Even if we have a police force, we cannot expect it to completely overcome unrighteousness. That takes holiness, and holiness comes only from the Holy One. The police did not create sin, and they specifically did not create the sins of racism and classism that pervade the communities they patrol. To that extent, the protests are misplaced. The police cannot address those larger issues, and we should not expect them to. It is simply unreasonable to suppose that law enforcement could ever extirpate sin. Holiness addresses sin; law does not. It is fundamentally unjust to blame the police for not doing what they could never do.

It is meet, right, and our bounden duty to protest the systemic wrongs in society that make it a sinful and unrighteous environment in which to raise our children. Forms of direct action may certainly be appropriate to those protests. In doing so, though, we should focus on the forces and people who create and sustain that unjust environment. The recent protests have not been broadly targeted at racism or police misconduct generally. They have focused on an individual policeman who, according to a grand jury, was legally justified in doing what he did. Even if we assume that Darren Wilson was part of a flawed justice system, there is only disputed evidence that he acted criminally or did anything that American society did not expect of him. He is a sinner, as we all are, but it is more comfortable to point our fingers at him rather than ourselves.

The public reaction has destroyed the officer’s career and profoundly damaged his life. The man who died after assaulting him and a store clerk has been lauded by the Presiding Bishop as a sort of Christian martyr: “May the life and death of Michael Brown drive us toward reconciliation that will shake the foundations of this nation toward the justice for which we were all created.” Meanwhile, Bishop Stacy Sauls has dismissed Darren Wilson with a single sentence: “He can and should be forgotten.” The protesters cannot obtain justice in society by doing an injustice to any individual. It was not one of the Good Guys who said, “It is expedient that one man die for the people” (John 11:50).

The police cannot make public policy or heal sin, but we can expect peace officers to promote righteousness by combatting unrighteous acts, one at a time, as well as they can. With some notable exceptions, that is what they do, day in and day out. They aren’t paid well for doing it, and they face personal danger every moment. Beyond that, they face constant misunderstanding and hostility from much of the community they serve. At times it seems as if everyone in the Episcopal Church has undertaken a covenant to “respect the dignity of every human being … except the police.” Even though we are sinners, Christians can and should do better.

I don’t know any peace officer who puts up with all that grief for the money. There are a few bad apples who like to swagger around with a badge and gun, but the profession usually weeds those out. The rest do it because they see it as their vocation, a call like that to the religious life. They don’t take on police work as a job that they can walk away from at the end of the shift; it is part of who and what they are. Because of that, the rates of divorce and stress-related illness among police are far higher than in the general population.

Racism is a horrible scar on the American soul, and we need to fight it, but we need to fight it appropriately. We must seek the right relationship with God and our neighbor that is holiness. If the Christian message is about love and acceptance for everyone, I am not sure why the members of the law enforcement community are so rarely included. The police are our neighbors no less (though certainly no more) than persons of another race. The “personal Christ is personally present” in them, too.

The featured image is a photo of graffiti in Cape Town. It was taken by Ben Sutherland in 2013 and is licensed under Creative Commons.