Why People Are Protesting in Ferguson


Photo: REUTERS/Lucy Nicholson

In the early years I spent observing the criminal justice system—first, as someone who investigated police misconduct, and later as a crime and courts reporter for a small newspaper in Connecticut—I discovered how easy it was to meet the “probable cause” standard. Probable cause means that an agent of the law has a reasonable suspicion that a crime is being committed, and allows him or her to search someone or make an arrest. It is all that’s required to launch the innocent and guilty alike into the tortuous (and torturous) criminal justice system. If an officer signs an arrest report saying that someone possessed a baggie of marijuana and submits the report to a judge, that’s probable cause for the defendant to be arraigned and charged. If a description of a criminal is dispatched to patrol, officers have probable cause to stop people matching that description. A victim’s statement is sometimes enough for probable cause, and is all the evidence that will be submitted at trial. There are no consequences for individual officers if the person later turns out to have been innocent—and it can take two to three years for that innocent person to even see a jury trial.

Probable cause is not the stage at which we determine the ultimate truth of a case. It is only the point at which we decide, “Hey, maybe the courts should look into what happened here.” Yesterday, despite conflicting testimony from eye-witnesses and an extremely sloppy handling by the police department in Ferguson, Missouri, a grand jury decided that the case against Officer Darren Wilson, the officer who shot the unarmed eighteen-year-old Michael Brown in August, did not warrant a trial. Much of the testimony, which has been made public, inspires more questions than it answers. There are many conflicting accounts, and almost none of them match purely with one side or the other. Of course, Brown wasn’t around to tell his side. But we generally give officers enormous benefit of the doubt. When the individual people who make up juries weigh evidence, part of what they’re doing is deciding whom they believe more. The determinations that officers, prosecutors, juries, and judges make are more subjective than we would like them to be. Reasonable fear and suspicion are in the eyes of the beholder.

When the prosecutor, Robert P. McCulloch, announced the news around 8:15 p.m. central time, he did not sound like a man who wanted to prosecute Wilson; he sounded more like a man who wanted to defend him. Legal experts differ on what grand juries are supposed to do, but one thing is for sure: They are not the same thing as jury trials, in which a panel of Wilson’s peers would have had to weigh two sides of the case, presented by attorneys invested in doing their jobs right and presided over by a judge who would have ruled on what evidence to present and provided the jurors instructions on how to apply the law. Officers are rarely, if ever, questioned about their actions at any point in the legal process—and now, someone who shot and killed an unarmed teenager won’t be tried by a prosecutor invested in the case and in full view of the public.

That’s the bigger story with Ferguson, no matter what the grand jury decided. Then there is Ferguson’s other legacy, not the stories concerning Michael Brown’s killing but those of the aftermath—the images of cops in tanks pointing semi-automatic rifles at unarmed protestors, using tear gas to clear the streets in anticipation of violence, and clearing a local McDonald’s of the pesky reporters working there. What these pictures and videos showed was that town and county officials in the suburbs of St. Louis felt accountable to absolutely no one, and had a cavalier disregard for the First Amendment rights of anyone there.

The protestors were people who are likely to have watched their friends and neighbors locked away on the slightest whisper of probable cause—sent to prison with much less evidence and for much less egregious crimes—and that’s why they are demonstrating again. What are laws if they’re not applied to everyone? Last night, President Barack Obama said, in the understatement of the year, “But what is also true is that there are still problems and communities of color aren’t just making these problems up . . . issues in which the law too often feels as if it is being applied in discriminatory fashion.”


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