Why the Brown family will win the lawsuit against Ferguson - Baltimore Post-ExaminerBaltimore Post-Examiner

Why the Brown family will win the lawsuit against Ferguson

On April 23 of this year Michael Brown’s family filed a lawsuit against the City of Ferguson for the wrongful death of their son, Michael Brown Jr. This civil case may not be just another frivolous attempt to gain media attention as is the case with many civil actions these days. I believe this case has a solid foundation and may bring to light some very serious questions concerning the death of Michael Brown at the hands of Ferguson police officer, Darren Wilson.

Was implicit bias a factor in Brown’s death? Implicit bias can affect people’s decisions and their behavior toward people of other races. Implicitly biased white people are more apt to view black people as angry and threatening.

Is it possible that a white police officer could have implicit bias toward black citizens based on the fact that he worked in a police department with other officers who harbored explicit bias against black citizens? What if after graduating from the police academy his first exposure to the real world of policing, was on another police department whose experienced officers had racial bias towards black citizens. What if this implicit bias slips into his mind; and he believes that a young unarmed black man is a threat? Will he resort to deadly force, when maybe other options were available?

In 2009 after graduating from the police academy, Darren Wilson was hired by the Jennings, Missouri Police Department. The Jennings Police Department was fraught with allegations of excessive force against its black citizens, and misconduct and corruption by its mainly white police department. Eighty-nine percent of Jennings residents were black with a high poverty rate.

Jennings police faced lawsuits for the unnecessary use of force. One suit which they settled out of court involved a black resident who claimed a white Jennings police officer beat her in June of 2009 on her own porch after she made a joke. She said that the officer became enraged, threw her off the porch, kicked her to the ground and kicked her in the stomach.

Another Jennings police officer had shot at a female as he chased her down for a traffic violation. She had a child in the back of the car.

Michael Brown (Facebook)

Michael Brown (Facebook)

A lieutenant became the target of a local and federal corruption probe after it was discovered he was accepting federal funds for drunken-driving checks that never happened.

Rodney Epps, a black Jennings city council member stated, “You’re dealing with white cops, and they don’t know how to address black people.”

In March of 2011 the Jennings city council voted to shut down the police department and hire St. Louis County to run its police services. Everyone in the police department was out of a job.

St. Louis County Police Lt. Jeff Fuesting, who was put in charge as commander stated, “There was a disconnect between the community and the police department. There were just too many instances of police tactics which put the credibility of the police department in jeopardy. Complaints against officers. There was a communication breakdown between the police and the community. There were allegations involving use of force that raised questions.”

One could make a strong argument that the Jennings Police Department was no place for an inexperienced police officer, just out of the academy to learn proper police conduct and procedure. What was Wilson’s probationary period like? Maybe a better question would be who was his field training officer? Did the FTO have any complaints against him? Did the FTO harbor implicit and or explicit racial bias that rubbed off on Darren Wilson?

Darren Wilson

Darren Wilson

Darren Wilson was then hired by the Ferguson Police Department. The FPD should have been on notice that Wilson had just come from a department that was shut down for improper police conduct, but apparently that was of no concern to the FPD. Ferguson is a city where two-thirds of its residents are black, with a predominately white police force. A department that I say was far worse in terms of racism against its black citizens than the Jennings Police Department ever was. A department whose officers had no regard for the civil rights of its black residents, and were free to exhibit unlawful and unprofessional conduct and practices against those they were paid to protect and serve. After working in Jennings, this was the perfect police department for Darren Wilson; he would fit right in with this department.

On March 4 of this year the U.S. Department of Justice Civil Rights Division released its report on its investigation of the Ferguson Police Department. This report and the investigation it was based on was independent of the investigation and report in the death of Michael Brown at the hands of Darren Wilson, which was also conducted by the DOJ.

I contend they both go hand in hand. I do not know how a police officer could work for an inherently racist police department and could not have been influenced either implicitly or explicitly by what he sees and hears. How could one not be influenced by such deplorable conduct? I will leave that question to the experts, as I am sure we will hear from in the civil case.

The DOJ report paints a very sad picture of racism at its worse, in a city and its police department in America in the 21st century. As I read the report I thought that the incidents they were referring to were from 1960’s America.

Memorial to Michael Brown. (Jamelle Bouie)

Memorial to Michael Brown. (Jamelle Bouie)

Not to make light of what is contained in the DOJ report, but someone could have produced a video titled, “Ferguson Cops Gone Wild,” just based on what is in the report.

When I read this report, just three days ago, I wondered how the conduct of Ferguson police officers as stated in the DOJ report could have affected Darren Wilson’s actions from the moment he encountered Michael Brown jaywalking in the street.

According to the DOJ report:

Ferguson police officers approach to enforcement results in violations of individual’s First Amendment rights. FPD arrests people for a variety of protected conduct: people are punished for talking back to officers, recording public police activities, and lawfully protesting perceived injustices. Officers frequently make enforcement decisions based on what subjects say, or how they say it. Just as officers reflexively resort to arrest immediately upon noncompliance with their orders, whether lawful or not, they are quick to overreact to challenges and verbal slights. These incidents, sometimes called “contempt of cop” cases are propelled by officers’ belief that an arrest is an appropriate response to disrespect. These arrests are typically charged as a Failure to Comply, Disorderly Conduct, Interference with Officer or Resisting Arrest. Officers in Ferguson also use their arrest power to retaliate against individuals for using language that, while disrespectful, is protected by the Constitution.

FPD officers routinely infringe on the public’s First Amendment rights by preventing people from recording their activities. The federal courts of appeal have held that the First Amendment “unambiguously” establishes a constitutional right to videotape police practices. In Ferguson, however, officers claim without factual support, that the use of camera phones endangers officer safety. Sometimes, officers have no rationale at all.

Day Six of protests in Ferguson. (Wikipedia)

Day Six of protests in Ferguson. (Wikipedia)

FPD’s suppression of speech reflects a police culture that relies on the exercise of police power, however unlawful, to stifle unwelcome criticism. Recording police activity and engaging in public protest are fundamentally democratic enterprises because they provide a check on those “who are granted substantial discretion that may be misused to deprive individuals of their liberties.” Even profane backtalk can be a form of dissent against perceived misconduct. In the words of the Supreme Court, “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Where officers engage in unconstitutional policing, they only exacerbate community opposition by quelling speech.

FPD’s pattern of excessive force includes using ECW’s, electronic control weapons, (Tasers) that is unconstitutional, abusive, and unsafe. Officers’ swift, at times automatic, resort to using ECW’s against individuals who typically have committed low-level crimes and who pose no immediate threat violates the Constitution.

In many incidents in which officers used significant levels of force, the facts as described by the officers themselves did not appear to support the force used, especially in light of the fact that less severe tactics likely would have been equally effective. Law enforcement experts with whom we consulted could find no explanation other than race to explain the severe tactics used.

Ferguson Police Department officials told us that their police tactics are responsive to the scenario at hand. But records suggest that, where a white suspect or group of suspects is white, the Ferguson Police Department applies a different calculus, typically resulting in a more measured law enforcement response.

Canine officers have exclusively set their dogs against black individuals, often in cases where doing so was not justified by the danger presented. FPD’s use of canines is part of its pattern of excessive force in violation of the Fourth Amendment. In addition, FPD’s use of dog bites only against African-American subjects is evidence of discriminatory policing in violation of the Fourteenth Amendment and other federal laws.

Ferguson on Day 6. (Wikipedia)

Ferguson on Day 6. (Wikipedia)

Many FPD officers’ uses of force appear entirely punitive. We reviewed many incidents in which it appeared that FPD officers used force not to counter a physical threat but to inflict punishment. Officers use force in response to behavior that may be annoying or distasteful but does not pose a threat. The punitive use of force by officers is unconstitutional and, in many cases, criminal.

The Ferguson Police Department has not significantly altered its use-of-force tactics, even though FPD records make clear that current force decisions disparately impact black suspects, and that officers appear to assess threat differently depending upon the race of the suspect.

Ferguson’s internal affairs system fails to respond meaningfully to complaints of officer misconduct. FPD has done little to investigate external allegations that officers have not followed FPD policy or the law. We saw many instances in which people complained of being prevented from making a complaint, with no indication that FPD investigated those allegations. Some individuals also fear that they will suffer retaliation from officers if they report misconduct or even speak out as a witness when approached by someone from FPD investigating a misconduct complaint.

The FPD appears to intentionally not treat allegations of misconduct as complaints even where it believes that the officer in fact committed the misconduct. FPD officers and commanders also often seek to frame complaints as to be entirely related to complainants’ guilt or innocence, and therefore not subject to a misconduct investigation, even though the complaint clearly alleges officer misconduct. Even when individuals do report misconduct, there is a significant likelihood it will not be treated as a complaint and investigated.

In one case, the FPD failed to open an investigation of an allegation made by a caller who said an officer had kicked him in the side of the head and stepped on his head and back while he was faced down with his hands behind his back.

Even where a complaint is actually investigated, unless the complaint is made by an FPD commander, and sometimes not even then, FPD consistently takes the word of the officer over the word of the complainant, frequently even where the officer’s version of events is clearly at odds with the objective evidence. On the rare occasion that FPD does sustain an external complaint of officer misconduct, the discipline it imposes is generally too low to be an effective deterrent.

Our investigation showed that the disconnect and distrust between much of Ferguson’s African-American community and FPD is caused largely by years of the unlawful and unfair law enforcement practices by Ferguson’s police department and municipal court. African-American residents described being belittled, disbelieved and treated with little regard for their rights by the Ferguson Police Department. One white individual who has lived in Ferguson for 48 years told us that it feels like Ferguson’s police and court system is “designed to bring a black man down … there are no second chances.” We heard from African-American residents who told us of Ferguson’s “long history of targeting blacks for harassment and degrading treatment.”

Michael Brown was shot six times by a Ferguson police officer. (Wikipedia)

Michael Brown was shot six times by a Ferguson police officer. (Wikipedia)

Dozens of African-Americans in Ferguson told us of verbal abuse by FPD officers during routine interactions, and these accounts are consistent with complaints people have made about FPD for years. Another concern we heard from many residents, and saw in the files we reviewed, was of casual intimidation by FPD officers, including threats to draw or fire their weapons, often for seemingly little or no cause. Many residents revealed instances in which they are reluctant to report being victims of crime or to cooperate with police, and many instances in which FPD imposed unnecessary negative consequences for doing so.

City officials have continued to encourage FPD to stop and cite aggressively as part of its revenue generation efforts, even though that encouragement and increased officer discretion has yielded disproportionate African-American representation in FPD stops and citations, which has led officers to issue far more citations to African-Americans at once than others. City officials have not taken any meaningful steps to contain the discretion of court clerks to grant continuances, clear warrants, or enable driver’s license suspensions to be lifted, even though those practices have resulted in warrants being issued and executed at highly disproportionate rates against African-Americans.

City officials’ application of the stereotype that African Americans lack “personal responsibility” to explain why Ferguson’s practices harm African Americans, even as these same City officials exhibit a lack of personal—and professional responsibility in handling their own friend’s code violations, is further evidence of discriminatory bias on the part of decision makers central to the direction of law enforcement in Ferguson.

Our investigation raised concerns in particular about how FPD responds to untruthfulness by officers. In many departments, a finding of untruthfulness pursuant to internal investigation results in an officer’s termination because the officer’s credibility on police reports and in providing testimony is subsequently subject to challenge. In FPD, untruthfulness appears not even to always result in a formal investigation, and even where sustained, has little effect. In one case a supervisor was sustained for false testimony during an internal affairs investigation and was given a written reprimand. In another case in which the officer was clearly untruthful, FPD did not sustain the charge. This officer continues to write reports regarding significant uses of force, several of which our investigation found questionable.

We found examples of FPD officers behaving in public in a manner that reflects poorly on FPD and law enforcement more generally.

YouTube

YouTube

We found that a majority of complaints are never investigated as IA cases, or even logged as complaints. The Chief’s log, which he told us included all complaint investigations, includes 56 investigations from January 2010 through July 2014. Our review indicates that there were significantly more complaints of misconduct during this time period. Despite repeated requests, FPD provided us no other record of complaints received or investigated.

FPD officers’ approach to policing leads them to violate the Constitution and FPD’s own policies. Officers have not been trained or incentivized to use de-escalation techniques to avoid or minimize force. Instead they respond with impatience, frustration and disproportionate force. FPD’s weak oversight of officer use of force, facilitates the abuse.

Effective policing requires that officers not depend on the use of force, “at the expense of diminishing the fundamental skills of communicating with subjects and de-escalating tense encounters.”

I would suggest that anyone who has problems believing what the Ferguson Police Department was truly like, read the entire 100 page DOJ report. And then after you read it, go into the bathroom and vomit.

The Department of Justice concluded that their investigation revealed a pattern or practice of unlawful conduct within the Ferguson Police Department that violates the First, Fourth and Fourteenth Amendments to the United States Constitution, and federal statutory law.

So what do we have here? A department that lacked leadership and failed to hold its officers accountable for misconduct. A continual pattern of misconduct that was condoned that allowed officers to act as they please with little fear of being disciplined. Lying, unnecessary use of force, excessive use of force, intimidating, threatening and harassing black residents, verbally abusive comments to black residents, targeting black residents for citations and arrests, etc, etc.

And we are to believe that Ferguson police officers harbored no preconceived notions about black people and those officers were not racists either in their thinking or their actions. It is no wonder why a black unarmed 18-year-old was shot six to eight times!

Michael Brown's family at a press conference when charges were not filed against Wilson. (Screenshot)

Michael Brown’s family at a press conference when charges were not filed against Wilson. (Screenshot)

After a St. Louis County grand jury refused to indict Darren Wilson many said that the tactics the prosecutor used made a charge less likely. The transcripts of the grand jury that were released to the public also painted a picture of Wilson’s gentle questioning at the jury when juxtaposed with other witnesses whose accounts seemed to contradict Wilson’s narrative, were scrutinized. Also there were contradictions in both Wilson’s testimony and other law enforcement officers that went unchallenged. Was the grand jury process objective?

Michael Brown’s family never got the opportunity to see Darren Wilson and other witnesses being cross-examined in a court of law. Although Wilson evaded criminal charges his problems are far from over. Many want to hear Wilson and other witnesses on the stand in a civil hearing as well as seeing the evidence, which that also will come under scrutiny by the attorneys for the Brown family.

I read the testimony that was given to the St. Louis County grand jury by Wilson and others. I read the 86-page report that the Department of Justice released after conducting their investigation of Michael Brown’s death at the hands of Darren Wilson.

More questions were raised than I could answer. Red flags kept going up as I read those documents. I saw too many conflicting statements and improper police tactics and procedure.

As I stated in my last article, “Michael Brown: Why Darren Wilson was not criminally charged,” Wilson’s initial approach to Brown and Johnson placed him in a tactical disadvantage. Whether this was done from lack of training or was sparked by anger because Brown had cursed at him remains to be seen.

Wilson was allowed to leave the crime scene by his supervisor. He drove himself back to the FPD, washed evidence off his hands, cleared his weapon of the last round, packaged his own weapon in an evidence envelope, removed his uniform shirt and placed it over a chair and put his duty belt on the floor. All these were vital pieces of evidence.

Wilson’s sergeant who was the first to speak with Wilson after the shooting told the grand jury he did not record, take notes or complete a statement on what Wilson told him. A police officer had just killed an unarmed citizen, and the supervisor did not write a statement as to what his officer told him. This is not any police procedure I ever heard of.

Protest at Ferguson, Missouri Police Department. (Jamelle Bouie)

Protest at Ferguson, Missouri Police Department. (Jamelle Bouie)

The sergeant testified that Wilson did not know anything about the stealing call at the Ferguson Market. A comment that was echoed by the police chief to the news media. However Wilson’s account would contradict his supervisor’s account. The sergeant stated that Wilson told him that his weapon “came out of the holster” while he was struggling with Brown from inside the SUV. Wilson would testify that he pulled his weapon out.

Wilson wanted to first use his pepper spray but didn’t want to get spray back in his eyes. Why would a police officer want to use a non-lethal device if he felt he was facing death or serious bodily injury?

I believe that Darren Wilson pulled his weapon out on Brown the second he got punched. When does getting punched escalate to a deadly force situation? Maybe if you are being beaten to death, but there was no evidence that Wilson sustained any serious injury. He had no broken bones, no fractured jaw, no broken nose, and no black eyes. He described Brown as Hulk Hogan. Brown was 6’5” and 285 pounds. Wilson was 6’4” and 210 pounds. Wilson was never knocked out. He was in perfect shape to chase after Brown and pump him with multiple shots and kill him.

Wilson said he couldn’t use his pepper spray or the asp inside the vehicle. But once outside he had mobility and could of used those non-lethal weapons when Brown was coming after him. Brown’s right hand was bleeding and incapacitated from the bullet wound and his left hand was balled up into a fist.

I was always taught that just because deadly force was authorized seconds ago does not mean that it could be used again if the circumstances change.

I don’t buy Wilson’s account of what happened. I think he overreacted either out of fear or anger, escalated the situation by drawing his weapon and the result was tragedy.

Michael Brown’s fingerprints were not found on Wilson’s weapon, his duty belt or inside the SUV.

There were no witnesses who can corroborate Wilson’s account that Brown grabbed his weapon. The forensic evidence only establishes that Brown’s hand was within inches of the weapon when it was fired.

Brown was not armed before or any time after the initial struggle with Wilson.

Prior to the DOJ investigation, the Ferguson Police Department had their share of federal lawsuits and other investigations into police misconduct. Ferguson police officers have been accused of a variety of allegations, including killing a mentally-ill man with a Taser, pistol whipping a child, choking and hog-tying a child and beating a man who was later charged with destroying city property because his blood spilled on officers’ clothes.

One officer faced three internal affairs probes and two lawsuits over claims he violated civil rights and used excessive force while working at a previous police department in the mid-2000s. That department demoted him after finding credible evidence to support one of the complaints, and he was subsequently hired by the Ferguson Police Department. I guess the FPD didn’t know the meaning of “negligent hiring.” I wonder if that officer had come from the Jennings Police Department.

The bigger question might be why a police department would even hire such a person. Maybe because they needed another cop with his way of thinking. One who would be unafraid to use excessive force to keep the black folks in line?

Ten months before Darren Wilson killed Michael Brown, Wilson threatened to arrest a man for filming him. According to the police report, Wilson responded to the home of Mike Arman on October 28, 2013, for complaints of “derelict vehicles being on the property.” Arman recorded the incident and later posted it on YouTube. The 15-second video shows Arman asking Wilson for his name. Wilson responds: “If you wanna to take a picture of me one more time, I’m gonna lock your ass up.” “Do I have the right to record?” Arman says as Wilson approaches him. “No you don’t,” Wilson responds. Arman again asked Wilson for his name; Wilson said Arman was “capable of reading my department issued name plate attached to my uniform.” Wilson placed Arman under arrest for Failure To Comply because he refused to stop recording him. The charge was later dropped.

I brought this incident up because it proves what the DOJ uncovered during their investigation. Wilson either was ignorant of the law or he didn’t care about the law. He was unprofessional, and overreacted to the situation. He escalated the incident and then falsely arrested the man. His conduct sounds similar to what happened when he first approached Michael Brown ten months later.

Ferguson police officers were getting away with breaking the law and violating the civil rights of black residents for years. They engaged in unprofessional and illegal conduct with relative impunity. When Darren Wilson shot and killed Michael Brown, the Ferguson Police Department finally got called out on years of police brutality and criminality. Unfortunately an 18-year-old unarmed black resident paid for it with his life.

The civil trial should prove very interesting!


About the author

Doug Poppa

Doug Poppa is a US Army Military Police Veteran, former law enforcement officer, criminal investigator and private sector security and investigations management professional with 40 years of experience. In 1986 Mr. Poppa was awarded “Criminal Investigator of the Year” by the Loudoun County Sheriff’s Office in Virginia for his undercover work in narcotics enforcement. He was also re-assigned to the Northern Virginia Regional Narcotics Enforcement Task Force for 18 months. In 1991 and again in 1992 Mr. Poppa’s testimony under oath in court led to the discovery that exculpatory evidence was withheld from the defense by the prosecutor and sheriff’s office officials during the 1988 trial of a man accused of attempted murder of his wife that led to his conviction. As a result of his testimony the man was ordered released from prison, given a new trial in 1992 and found not guilty. Mr. Poppa became the subject of local and national news media attention as a result of his testimony which led to the demise of his 12-year police career. After losing his job, at the request of the FBI, Mr. Poppa infiltrated in an undercover capacity a group of men who were plotting the kidnapping of a Dupont Chemical fortune heir and his wife in 1992. His stories have been featured on Inside Edition, A Current Affair, and CBS News’ Street Stories with Ed Bradley. Contact the author.
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