Mike Brown shooting: Ferguson police being prudent or circling the wagons?

Two recent decisions by police in Ferguson, Mo., are leading to criticism that the department is more concerned with protecting its own than with transparency in the police shooting on Saturday of Mike Brown, an unarmed, black teenager.

Those decisions, experts say, risk stoking tensions that are already running high in a community that has seen clashes between residents and police three straight nights.

On Tuesday, the police department went back on a previous promise and refused to name the officer who shot Mr. Brown. Law enforcement officials also decided not to release Mr. Brown’s autopsy, which would indicate how many bullets the 18-year-old took.

Public anger and police silence in such a case are both understandable, policing experts say: Police are concerned about making a fellow officer and his family vulnerable to death threats made on social media and may be concerned that details of the autopsy could spark more civil unrest. But residents have credible claims in demanding to know information that would be available if the shooter weren’t a lawman.

The looting and mayhem in Ferguson, where a nearly all-white police force patrols the largely black St. Louis suburb, suggests deep frustration. Eyewitnesses have said that the officer pursued an injured Brown and shot him after he put his hands up in surrender. Police have done little to counter that narrative except to suggest there was a struggle for the officer's gun and a shot fired inside the cruiser. Amid that vacuum, questions about police transparency have only intensified.

Ferguson police are “are walking a tightrope of how much they should be releasing versus how much information they are releasing,” says Rob Kane, a policing expert at Drexel University in Philadelphia and coauthor of “Jammed Up: Bad Cops, Police Misconduct, and the New York City Police Department.”

“Police departments operate in an environment where they are often tried in the media, and where they have a very real concern about civil litigation, so that’s where it gets tricky,” Professor Kane adds. At the same time, “the police are teetering on the total loss of legitimacy, and it has to do with not releasing information that the public wants.”

As a result, he says, Ferguson is seeing “nothing short of an urban rebellion against the justice system.”

In a statement Tuesday, United States Attorney General Eric Holder warned Ferguson police that the department “should be prepared to complete a thorough and fair investigation in their own right…. Aggressively pursuing investigations such as this is critical for preserving trust between law enforcement and the communities they serve.”

The standoff over information about the shooting is in part social-media driven. The hacker collective Anonymous has threatened to publicize names and addresses of those involved. The result has been department demands for greater secrecy in the name of safety.

“If we come out and say, 'It was this officer,' then he immediately becomes a target," Ferguson Police Chief Tom Jackson said. "We're taking the threats seriously."

Police in St. Louis County, who are conducting the investigation of the shooting along with the Justice Department, declined to release Brown’s autopsy until toxicology results are back – a fairly standard protocol. That means the police and prosecutors now know how many bullets Brown took, and from what direction, though the public does not.

In this case, what residents really want to know is how a jaywalking incident turned into a police killing, given that eyewitnesses describe the officer firing at a submissive Brown. The defensive posture of the police department, says Kane, is a big part of the catalyst for the rioting.

The public senses that “the goal of these institutions is to prevent accountability for police, because that’s in the interest of the officers themselves,” adds George Ciccariello-Maher, a political science professor also at Drexel.

Union-friendly Democrats and law-and-order Republicans have largely declined to restrict police immunity or enforce police transparency, especially since public support has been high for police officers since 9/11. Meanwhile, since the 1970s, the Supreme Court has carved out broad immunity for police officers in self-defense and use-of-force cases. Now, however, there are signs that scrutiny is growing of police immunity and situations where police are seen as escalating mild confrontations into deadly ones.

Brown's friend, Dorion Johnson, alleges that the shooting was precipitated by the officer telling Brown and himself to get out of the street and onto the sidewalk. When they didn’t comply, saying they were almost at their friend’s house, the officer put his car in reverse and confronted the two, Mr. Johnson has said. Another eyewitness who says he was watching nearby, Philip Walker, has said the officer killed Brown while Brown was "giving up" by "raising his arms."

Such encounters, some civil libertarians say, are commensurate with a focus in some precincts, including Ferguson, on maintaining authority while targeting black people disproportionately for searches and traffic stops. While such policing has been credited with reducing crimes in some locales, Kane says his research shows that “overpolicing” may in the long term fuel violent crimes because residents stop cooperating with police.

Missouri civil rights attorney Stephen Ryals said he’s not surprised at the delay in the autopsy nor the secrecy around the officer’s name. He calls Missouri’s sunshine law, which is supposed to ensure government transparency, the “black veil of secrecy law.” He says it sometimes requires court intervention to get such details ahead of a lawsuit.

At the same time, he is not dismissive of the Ferguson police department's concerns. “I’m certainly no defender of police, but I think they have a very real and legitimate concern about the safety of the officer.” He adds, however, that “it’s a legitimate point that if he is the subject of a criminal investigation, which he should be, ordinarily you would expect to the see his name and mugshot printed." 

The Ferguson police chief, he notes, misstated in a press conference the law concerning use of deadly force. In the chief’s words, an officer can use deadly force when there’s a threat to him or someone else, while the actual standard is that an officer can only use deadly force “when there’s a substantial risk of death or serious bodily injury to officer or somebody else – and a kid running away without a weapon does not present that threat.” 

Ultimately, the question is what the police are compelled by the law to do and why, says Glenn Reynolds, a constitutional law professor at the University of Tennessee in Knoxville. “A better way of framing [the question of whether police need to release more information] is to ask what requires them to disclose it?” he says in an e-mail. 

“A lawsuit or an open-records request would be a cause, but general public interest creates no legal obligation,” he adds. “If I were [the police department’s] lawyer, I'd argue that given the tensions and public threats, releasing it now would be tantamount to an incitement to riot.”