The constitutional crisis that has developed in Ferguson, Missouri, begins as is so often the case with a human tragedy. Michael Brown, an unarmed African-American teenager has lost his life, following an incident—now under investigation not just by local authorities but by the US Department of Justice—in which a witness tells CNN, “I saw the police chase him…down the street and shoot him down.”
When circumstances spin out of control, as they clearly have in Ferguson, it is essential always to remember the human element at the heart of the matter. In another time and another place, the singer Peter Gabriel nailed this with the gripping refrain of “Biko,” his anti-apartheid anthem that steadily reminded the world, “A man is dead, a man is dead.”
What has evolved since the death of Michael Brown, however, illustrates the challenges that arise when law-enforcement officials fail to fully recognize and embrace their dual responsibility: to maintain public safety while at the same time guaranteeing the rights of Americans to speak, to practice journalism, to assemble for the purpose of making demands on those in power.
Missouri Governor Jay Nixon, a former state attorney general, seems to recognize that something had gone badly awry. After another turbulent night in Ferguson, the governor finally canceled appearances in other parts of the state on Thursday and announced he was going to the community where heavily armed police have confronted, arrested and detained protesters and journalists.
“The worsening situation in Ferguson is deeply troubling, and does not represent who we are as Missourians or as Americans,” declared Nixon, a Democrat who on Thursday afternoon announced plans for an “operational shift” and a “different tone” in the policing of Ferguson. “While we all respect the solemn responsibility of our law enforcement officers to protect the public, we must also safeguard the rights of Missourians to peaceably assemble and the rights of the press to report on matters of public concern.”
Missouri’s Senator Claire McCaskill was blunt : “We need to demilitarize this situation—this kind of response by the police has become the problem instead of the solution. I obviously respect law enforcement’s work to provide public safety, but my constituents are allowed to have peaceful protests, and the police need to respect that right and protect that right.”
When President Obama spoke about Ferguson on Thursday, he too highlighted constitutional concerns. While the president said there was “never an excuse for violence against police or for those who would use this tragedy as a cover for vandalism and looting,” he emphasized that there is “no excuse for police to use excessive force against peaceful protests or to throw protesters in jail for lawfully exercising their First Amendment rights. And here in the United States of America, police should not be arresting or bullying journalists who are just trying to do their jobs.”
It is getting difficult to keep count of the number of constitutionally defined protections that have been undermined and neglected in Ferguson. Surely, most lists begin with evidence of a disregard for the promise of equal protection under the law. But they do not end there. The reports from each new day, and especially from each new night, point to a disregard for the First Amendment that tells us no law shall be made “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Law enforcement agencies have a duty to maintain public safety, to arrest and prosecute those who commit crimes, and to take reasonable steps to prevent violence, looting or riots that might threaten communities. But there is a parallel duty to protect against abridgments of First Amendment rights. The balance can be difficult to strike, but it is when the difficulty arises that the striking of the balance is most important.
When the balance is not kept, there is, as Demos president Heather McGhee says, “an affront to democracy” that must be addressed by local, state and federal officials.
“There is nothing more American than a community uniting in the face of tragedy, than ordinary people organizing to peacefully protest injustice,” says McGhee. “The police reaction—to protests of their own violence—has been more violence, less transparency, and an active suppression of first amendment freedoms.”
In Ferguson, there have been chaotic moments. But there have also been sincere efforts by religious and community leaders to peacefully protest police actions. What is unsettling is the extent to which these protests have been met with overwhelming force and responses that appear to rescind basic rights during much of the day. For instance, citizens were told by the police that they should assemble only during daylight hours and protest only in a “respectful manner.”
The American Civil Liberties Union of Missouri correctly labeled that police statement as “a direct attack on protected expressive liberty.”
“The protests in Ferguson are at the core of the First Amendment’s protection because they deal with matters of public concern,” wrote Jeffrey Mittman, the executive director of the Missouri ACLU, in a letter to the Ferguson police chief. The letter notes that “the protests in Ferguson are subject to a heightened protection for the additional reason that they are peaceful and conducted on public streets and sidewalks.”
Mittman’s letter pays particular attention to the police demand that protests proceed in a “respectful manner.” That, he explains, “is far beyond the bounds of permissible government activity. Government agencies do not get to demand respect from protesters. Respect is something that government officials earn from citizens, and citizens are entitled to express their lack of respect by protest on public streets and sidewalks. Actions to suppress peaceful expressive activity dilute that respect and, thus, are contrary to your request.”
Evidence of the constitutional crisis is also found in reports that journalists who are attempting to cover the story are being harassed, arrested and told to exit the scene. On Wednesday night, reporters for The Washington Post and the Huffington Post were detained by police in Ferguson, in what Washington Post executive editor Marty Baron described as a “wholly unwarranted…assault on the freedom of the press to cover the news.” Later, St. Louis Alderman Antonio French, who has used his Twitter account and interviews to report on developments in the St. Louis suburb, was jailed for most of the night.
“In an American city, people are being tear-gassed and snipers are pointing rifles at them,” French told the St. Louis Post Dispatch after his release Thursday morning. “Everybody should be upset.… [the] heavy-handed police approach is actually making the situation worse.
In particular, French objected in media interviews to police crackdowns on peaceful protests during the evening.
“We have a right to protest 24 hours a day,” the alderman said. “Our constitutional rights don’t expire at 9 p.m.”
Antonio French is right.
That is a basic premise of the American experiment.
It is, as well, a basic premise of effective policing.
During the mass protests at the Wisconsin Capitol in 2011, the top local law enforcement officer on the scene was Dane County Sheriff Dave Mahoney. Protests went on around the clock for weeks with no serious violence or arrests. The situation was tense at times. But police officers and protesters generally got along. As Mahoney explained, “Law enforcement agencies have responsibilities: They have to keep the peace. And they have to assure that citizens are able to exercise their First Amendment rights. There’s something very troubling about the notion that law enforcement agencies should play a role in preventing people from exercising their constitutional rights. That’s not how it is supposed to work.”
The police can strike the proper balance. And the people will respect them when they do so. This week, Mahoney was up for re-election. The sheriff beat his challenger, winning 89 percent of the vote.