Obama's Muddled Thinking About Ferguson

Obama's Muddled Thinking About Ferguson

By Robert Robb - December 4, 2014

The decision by the Ferguson grand jury not to charge Darren Wilson with a crime occasioned more than the usual quotient of muddled thinking.

Let's begin at the top, with President Barack Obama.

Obama made essentially three points. First, respect for the rule of law requires accepting that this was a decision for the grand jury to make. Second, riots and looting weren't an appropriate reaction to the decision. However, third, peaceful protests were.

And why were peaceful protests appropriate? Because, independent of Ferguson, there is a legitimate general issue of discriminatory policing in minority neighborhoods.

However, a protest regarding the general issue triggered by a specific incident is not just a protest of the general. It is also a protest of the specific, the decision by the grand jury not to charge Wilson with a crime. And that violates Obama's first point, respecting the rule of law by accepting the decision.

Obama wanted to put a foot in both camps – accept the decision, protest the decision – but logic does not permit that. Either the grand jurors followed the rule of law and faithfully executed their duties thereunder, or they didn't. If they did, protests triggered by their decision are unwarranted.

Then there is the spectacle of liberal activists and commentators suddenly being in favor of prosecutors indicting ham sandwiches.

Prosecuting Attorney Robert McCulloch has been roundly criticized in liberal circles for not either charging Wilson directly or being an advocate for an indictment before the grand jury, cheery-picking the evidence and making a persuasive case. McCulloch, according to the critique, should have done everything in his power to get the case before a trial jury and let that jury determine guilt or innocence.

Instead, McCulloch decided to provide a dispassionate presentation of all the evidence to the grand jury and let the grand jury, weighing everything, decide whether probable cause existed to charge Wilson with a crime.

The indifference on the left to charging someone with a crime is shocking. Charging someone with a crime shouldn't be done lightly. And in fact, prosecutors aren't supposed to maximize the indictments they achieve. Bar ethics specifically enjoin prosecutors to be "ministers of justice," not merely advocates. And being a minister of justice means taking the requirement that probable cause be established before someone is charged with a crime very seriously.

Presenting all the evidence dispassionately to a grand jury is unusual. But this was an unusual case. Not many cases have the potential to trigger nationwide riots and mass protests.

Given the circumstances, giving the grand jurors all the evidence, allowing them to make the probable cause determination without prosecutorial advocacy, and then releasing the transcripts of their deliberations, certainly seems the best way to achieve justice in a way that maximizes the chances of a closely-watched decision being accepted. Hard to argue that the unusual process resulted in an inferior consideration of whether probable cause existed.

Then there is the desultory discussion about militarizing the police. That supposedly contributed to the mass violence in Ferguson.

The notion that seeing police outfitted in riot gear prompts those not already disposed to start looting and burning buildings seems farfetched.

But the muddled thinking goes further. The goal in these kind of circumstances should be to prevent mass violence and quell it as quickly as possible if it breaks out.

Regular policing is not up to that task. Mass violence exceeds the capacity of the ordinary deployment of police ordinarily equipped to deter or contain. Only some degree of militarization can do that.

The mob violence in Ferguson did not abate until the National Guard was massively deployed. Yet if Missouri Gov. Jay Nixon had predeployed them as massively, he would have been roundly criticized, particularly if it had successfully deterred the rioting and looting that broke out in its absence.

This is not to suggest that nothing disturbing happened in Ferguson. Michael Brown is dead. A police officer should be able to handle a confrontation with an unarmed man, even a big one, without killing him. This was a police failure. And the general issue of discriminatory policing in minority neighborhoods is real.

But America promises individual, not group or mob, justice through due process. A grand jury, acting in good faith, found that Wilson's failure as a police officer didn't constitute probable cause that he committed a crime.

Obama should have stuck with his first point. 

Robert Robb is a columnist for the Arizona Republic and a RealClearPolitics contributor. Reach him at

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