The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the wake of the tragic execution-style murders of two NYPD police officers—by a gunman retaliating against "pigs" for the deaths of Mike Brown and Eric Garner—the question of blame has arisen. Of course, the full legal responsibility is the shooter's. He was reportedly mentally disturbed and is now dead by suicide.
Patrolmen's Benevolent Association President Patrick Lynch has tried to cast blame more broadly, charging "there is blood on many hands, from those that incited violence under the guise of protest to try to tear down what police officers do every day. That blood on the hands starts at the steps of City Hall, in the office of the mayor." Former New York governor George Pataki went even further, tweeting: "Sickened by these barbaric acts, which sadly are a predictable outcome of divisive anti-cop rhetoric of #ericholder & #mayordeblasio. #NYPD."
Others can debate whether Mayor Bill de Blasio bears any moral responsibility. In this post, I want to focus on Attorney General Eric Holder—asking not the abstract philosophical question of what responsibility he might theoretically share, but rather the concrete practical question of what he can do to help prevent such tragedies in the future.
It seems fair to say that a poisonous environment about police officers appears to have contributed, at least in some measure, to Saturday's shooter believing that the deaths of Brown and Garner had to be avenged. At the very least, the attorney general can help address that environment.
The attorney general is, of course, our nation's top law enforcement official. In the wake of the deaths, he released this statement that "our nation must always honor the valor—and the sacrifices—of all law enforcement officers with a steadfast commitment to keeping them safe." Hindsight is always 20/20, so I want to look prospectively at seven specific steps the attorney general can—and should—take now to help restore confidence in law enforcement and thus honor that "steadfast commitment" to making officers as safe as possible.
1. Send 30 representatives from the administration to the officers' funerals.
Holder should send 30 representatives to the slain officers' funerals. Why 30? Symbols matter here. The administration sent three representatives to Brown's funeral. That choice was (to put it mildly) a curious one. To give Holder and the administration the benefit of the doubt, the circumstances back in August were not entirely clear. But now the facts are in— including reliable physical evidence and credible eyewitness testimony—demonstrating that Brown assaulted a police officer and likely tried to kill him … twice. I hope the administration regrets sending official representatives to the funeral of young man who may well have attempted to murder a police officer. While all deaths are tragic, a vast difference exists between the death of a robber charging a law enforcement officer and the deaths of two police officers gunned down in the line of duty while monitoring a dangerous neighborhood. The attorney general should make that difference clear by sending ten-fold the number of representatives to Officers Wenjian Liu and Rafael Ramos's funerals.
2. Meet with the slain officers' families.
Holder should travel to New York and meet with the slain officers' families. Here again, this step could help undo fallout from another curious choice Holder made in the wake of Brown's shooting. Shortly after that event, Holder met with Brown's parents. No one doubts the pain and loss these parents suffered over the loss of their son. But the attorney general was at the time (and since) overseeing an investigation into the circumstances of Brown's death—including the central issue of whether Brown had tried to murder a police officer. Justice Department prosecutors should have provided Brown's parents with notifications and other rights that potential victims of federal crimes receive. To avoid a perception of bias, however, the attorney general should not have met personally with two people so closely linked to one side of the case.
More important now, given that Holder met with the parents of a young man who assaulted a police officer and, quite possibly, tried to kill him, he should meet with the parents of the slain officers. Holder needs to make clear that his personal support for the families of the innocent officers at least matches that he provided to Brown's family.
3. Clear Officer Darren Wilson in a public report.
Holder has it in his power to dissipate at least some significant part of the public outcry about Brown's shooting. Like many protesters around the country, the shooter of the two NYPD officers appears to have operated under the spell of the "Hands Up, Don't Shoot" myth. The St. Louis County grand jury rejected that narrative in declining to authorize charges against Officer Darren Wilson. But in the wake of the grand jury's decision, the attorney general missed an opportunity to support the grand jury and instead released a statement saying that "the Justice Department's investigation into the shooting of Michael Brown remains ongoing. Even at this mature stage of the investigation, we have avoided prejudging any of the evidence. And although federal civil rights law imposes a high legal bar in these types of cases, we have resisted forming premature conclusions."
As I discussed in an earlier post, at some point it no longer is "premature" for the Justice Department to announce its conclusion. We have reached the point that police officers are apparently being murdered, in part, because of a common—and unfounded—perception that Wilson committed a civil rights violation in shooting Brown. The Justice Department needs to act to help dispel that illusion.
Holder's Justice Department could act quickly to help to clear up the circumstances surrounding the shooting. On Aug. 15, just a few days after Brown's death, the Justice Department's Civil Rights division announced that the investigation was an extremely high priority. The Department explained that "[o]ver the next several days, teams of FBI agents will be canvassing the neighborhood where the shooting took place to identify any individuals who may have information related to the shooting and have not yet come forward." According to media reports, 40 FBI agents descended on Ferguson to canvass the area and collect whatever evidence they could find. Within 10 days of the shooting, Holder said he had assigned the most experienced agents and prosecutors to the investigation. He reported that federal and state agents had together interviewed hundreds of people and that federal medical examiners performed an independent autopsy, the third conducted in the killing.
Since then, … nothing.
Having long ago collected the facts, now is the time the Justice Department should announce that it is closing the civil rights investigation into Wilson's action. In defending himself, Wilson committed no offense, much less a federal civil rights crime. Holder should prominently and publicly announce that conclusion. But he should go further, releasing a report describing the reasons supporting that decision. Holder has already made clear that the Department has power not simply to announce prosecution/non-prosecution decisions, but also to publicly explain the basis for such decisions. Holder should meticulously deconstruct the false claim that Brown was gunned down for no good reason. Wilson acted in legitimate self-defense, and Holder should speak clearly on that subject.
4. Meet with Wilson.
After the attorney general has cleared Wilson, he should meet with Wilson. On Saturday night, the attorney general praised law enforcement officers, saying "[t]hese courageous men and women routinely incur tremendous personal risks, and place their lives on the line each and every day, in order to preserve public safety. We are forever in their debt."
One of the officers to whom we owe that debt is Wilson. He was patrolling the streets of Ferguson when he encountered Brown, who had just committed a strong-arm robbery. Brown assaulted Wilson in his police car, tried to gain hold of Wilson's gun, and then fled. At that point, as the Marine Corps's advertisement has it, Wilson ran toward the sounds of chaos—pursuing Brown (and his associate, Dorian Johnson) alone and on foot. In doing so, Wilson accepted (as the attorney general phrased it) "tremendous personal risk" and placed his life "on the line."
The attorney general found time in his busy schedule to meet with the parents of the young man who attacked Wilson. (To their great credit, Brown's and Garner's families have both released statements rejecting violence directed toward law enforcement.) The attorney general needs to likewise find time to meet with Wilson.
5. Expedite a conclusion to the Garner investigation.
The shooter of the two NYPD officers reportedly tweeted anti-police sentiments, using not only hashtags "Shootthepolice" and "RIPMikeBrown," but also "RIPErivGardner" [sic]. The Garner case has, of course, attracted widespread protests in New York. Eight days ago at one of those protests, protesters chanted "What do we want? Dead cops. When do we want them? Now." Some commentators have argued that de Blasio failed to condemn these remarks strongly enough. What I want to focus on is Holder's responsibility to sort out the Garner situation rapidly.
Part of the reason that the protesters have been in the streets is that they lack confidence in the conclusion of the Staten Island grand jury clearing the officer involved. I have blogged previously about ways to improve public confidence in investigations of officer-caused deaths and have wondered about the process. But Holder has questioned not simply the process, but seemingly the outcome. Holder has said, "We have all seen the video of Mr. Garner's arrest. His death, of course, was a tragedy. All lives must be valued. All lives," appearing to reference the popular protest phrase "black lives matter" that has been seen on protest signs in Ferguson and across social media.
In addition, almost immediately after the grand jury's decision in the Garner death was announced, Holder made it a point to hold a news conference during which he said "Mr. Garner's death was one of several recent incidents across our great country that tested our sense of trust." Holder announced that the Justice Department would conduct an "independent, thorough, fair, and expeditious" federal civil rights investigation into Garner's death.
It is no exaggeration to say that wrapping up that investigation may now be a life-or-death matter to law enforcement officers in New York (and elsewhere). Holder should be true to his word and rapidly announce a result The crucial events were all captured on videotape. The critical witnesses have all reportedly testified before a state grand jury. If he wanted to, the attorney general could certainly conclude that investigation almost immediately. If (as seems quite possible) the tragic events that followed Garner's decision to resist arrest do not rise to the level of a federal civil rights violation, Holder should announce that fact quickly. If a civil rights charge is appropriate, Holder should file one quickly—making clear that officers will be held accountable if they commit serious wrongdoing. Either way, there is no good reason for delay. And either way, grounds for protesting the Eric Garner case will be diminished.
Unfortunately, Holder's record on expediting investigations does not inspire confidence. For example, the Justice Department's investigation into another high profile (although non-law enforcement) shooting—George Zimmerman's shooting of Trayvon Martin—putters along more than two and half years later. Remarkably, Holder more than a year ago promised to conclude the Zimmerman investigation "relatively soon."
It's one thing to be thorough in these investigations. But there are clear tradeoffs to delay. The Justice Department has vast resources, both in terms of FBI agents to investigate and federal prosecutors to prosecute. The Department should use those resources to finish one of its most important investigations—the Garner investigation—immediately.
6. Stop tolerating lawbreaking by protesters.
The attorney general has gone out of his way to remind authorities that protesters have First Amendment rights. And, of course, they do. But at times, the attorney general's remarks appear to have gone beyond mere reminders to actually expressing agreement with the protestors. For example, shortly before the Brown verdict was released, Holder said in a video address he released that "the Justice Department encourages law enforcement officials, in every jurisdiction, to work with the communities they serve to minimize needless confrontation." Riots later followed in Ferguson, and controversy continues to swirls around questions of whether looting could have been prevented by more timely intervention of the National Guard.
The Garner protests, too, have been accompanied by clear lawlessness, such as closing of major streets in New York City. (They also lead to chants for the death of cops, as discussed above.) To my knowledge, the attorney general has not condemned this behavior. The attorney general needs to speak more loudly and clearly against such infractions. Anything short of that conveys an implicit message that the attorney general has concluded that the grand juries in Ferguson and Staten Island were not only wrong but, indeed, so wrong that breaking the law is appropriate.
7. Recognize a national day for support of police.
One final step that the attorney general should take is asking the president to declare a national day of support for law enforcement officers. This idea was raised by Howard Safir, former commissioner of the NYPD in an op-ed on Sunday. Safir wrote:
When Ismaaiyl Abdulah Brinsley brutally executed Officers Ramos and Liu he did so in an atmosphere of permissiveness and anti-police rhetoric unlike any that I have seen in 45 years in law enforcement. The rhetoric this time is not from the usual suspects, but from the Mayor of New York City, the Attorney General of the United States, and even the President. It emboldens criminals and sends a message that every encounter a black person has with a police officer is one to be feared. Nothing could be further from the truth. We will never know what was in the mind of Brinsley when he shot officers Ramos and Liu. However we do know that he has seen nothing but police bashing from some of the highest officials in the land.
Safir goes on to suggest that the president declare a National Day of Support for Police. This seems like a great idea. The last few months have seen many protests about alleged police mistakes. It is time to remember how much law enforcement does everyday to protect our safety. Holder should lead the charge for such a day.
* * *
On Saturday the attorney general condemned the shootings with strong words, calling it "an unspeakable act of barbarism" and saying he "was deeply saddened to hear of the loss of these two brave officers in the line of duty." The attorney general also expressed his "heartfelt condolences to the officers' loved ones and colleagues."
The attorney general's remarks are commendable. But the attorney general can - and should - do more than offer condolences. I've listed here seven specific things that the attorney general could do to try and prevent further senseless murders of America's law enforcement officers. No doubt others can think of more.
No one believes that the attorney general can completely prevent violence against America's law enforcement officers. But he is not impotent either. At the very least, the attorney general should take steps within his power to restore trust in the police. Anything less creates an entirely unnecessary risk to this country's thin blue line - a line that until Saturday included Officers Liu and Ramos.