Federal investigations of the Garner and Brown cases are just a pretext.
By Andrew C. McCarthy
Civil-rights investigations in Ferguson and Staten Island? No, what denizens of St. Louis and New York City ought to be worried about right now is . . . the crime wave overtaking Seattle.
If you don’t understand why, then you probably thought Obamacare was about covering the uninsured. Like its health-care “reform” campaign, the Obama Left’s civil-rights crusade is about control — central control of state law enforcement by Washington.
The deaths of Michael Brown in Missouri and Eric Garner in New York are each tragic in their own way. But in neither is there a federal civil-rights case to be had. To think otherwise, you have to be getting your advice from Al Sharpton — the huckster confidant of President Obama and Attorney General Holder.
The law of civil rights requires the government to prove beyond a reasonable doubt that the defendant, usually driven by racial prejudice, willfully acted — violently in these cases — with the evil purpose to deprive a person of specific federal rights. Let’s put aside the utter absence of proof that race had any bearing on what happened in Staten Island, for example, where police supervised by an African-American officer came to the scene because of complaints about Garner by local business owners. It is virtually impossible to prove a civil-rights violation when there is no denying that police were engaged in a good-faith arrest and were put in the position of using force because a suspect resisted.
In Ferguson, Michael Brown did not merely resist arrest. Having just robbed a store, he was the aggressor in a confrontation with a police officer, who was made to fear for his life. And in Staten Island, there may be a real question about whether one police officer used excessive force under the circumstances; but there is no question that some quantum of force was appropriate in arresting a physically imposing suspect who insisted he would not be taken into custody and waved his arms to prevent the cops from cuffing him.
Federal civil-rights cases are much harder to make than state homicide cases. They are supposed to be. They were conceived as a rare federal intrusion on the sovereign police power a state exercises within its territory. When police are engaged in an arrest because a crime really has been committed, and they use force because the suspect really does resist, the claim that they were actually scheming to deprive the suspect of his civil rights is asinine. The time to worry about the deprivation of civil rights, as Messrs. Williamson, Cooke, and Goldberg point out, is when progressives enact overbearing laws that criminalize things like untaxed cigarette sales, not when police dutifully carry them out.
Eric Holder knows this as well as anyone. The bloviating he is doing today about Ferguson and Staten Island is of a piece with the bloviating he was doing two years ago about Sanford, Fla. As I observed of the Trayvon Martin killing at the time, the attorney general huffed and puffed about bringing a civil-rights case against “white Hispanic” George Zimmerman, but he was never actually going to file one. It would have been even more embarrassing than the trumped-up murder case he and Sharpton browbeat Florida into charging — the one the jury threw out in nothing flat.
Holder and his constitutional-scholar boss are not banging the civil-rights drum because they believe these are prosecutable cases. It is just a pretext for unleashing Justice Department community organizers on state and municipal police departments.
The government cannot win a standalone loser of a civil-rights prosecution by crying, “Disparate impact!” Individual cases that have been demagogued by the racial-grievance industry become high profile. Once public attention is riveted, the legal and logical flaws become obvious. When people start looking long and hard, the “institutionalized racism” canard is exposed. For guys like Sharpton, that’s bad for business.
But the Justice Department civil-rights investigations Holder is fond of announcing are not like public trials. They occur out of the public eye, where feverish Justice Department claims are not aired and scrutinized. More significant, they happen with the air of extortion created by the nearly $28 billion in funding Congress keeps giving Justice every year, no matter how many congressional investigations it obstructs, how many false statements its officials make, and how much it politicizes law enforcement. The investigations are taxpayer-funded jihads that states, cities, and towns know they lack the resources to fight off.
Here is how the game works. Holder streams in behind a tragedy that Sharpton and Obama have demagogued. He announces a civil-rights investigation. Eventually, he backs down from the threat of an indictment in the individual case, never conceding that the supporting evidence was not there, usually citing some strawman injustice that has nothing to do with the matter at hand — in Florida, for example, it was “stand your ground” gun laws that purportedly needed reforming. But, the attorney general is pleased to add, the original civil-rights probe of the non-crime has metastasized into a thoroughgoing civil-rights probe of the state or local police department’s training, practices, and . . . drumroll . . . institutional racism.
You never get to see what that investigation turns up. States and their subdivisions know they cannot afford to go toe-to-toe with the Beltway behemoth. Big cities, moreover, are governed by Democrats sympathetic to the Obama/Holder race obsessions — they’re happy to have the feds come in and hamstring police with “social justice” guidelines that would be a hard sell politically. So the Justice Department makes the locals an offer they can’t refuse: A consent decree that makes the Treaty of Versailles look like a slap on the wrist. This device is the license by which the Obama administration is remaking state law enforcement in its own image.
How do they get away with this? Well, Obamacare may be the most notorious “reform” progressives have foisted on an unsuspecting nation in modern times, but it’s not the only one. In 1994 — the last time before 2009 that Democrats controlled the White House and both congressional chambers — they rammed through a monstrosity known as the “Violent Crime Control and Law Enforcement Act.” A Clinton deputy attorney general named Eric Holder was among the first to exploit it.
Consistent with the Left’s view of the states as cauldrons of racism, the statute criminalizes “any government authority” that “engage[s] in a pattern or practice of conduct by law enforcement officers . . . that deprives persons of [federal] rights, privileges, or immunities.” It is the civil-rights laws writ large — imposed on whole cities rather than threatened against individual police officers and citizens. And for good measure, the act encourages the attorney general to file civil lawsuits in federal court to “obtain appropriate equitable and declaratory relief to eliminate the [offensive] pattern or practice.”
Under this scheme, there are now more than 20 major American cities and their police departments beholden to the Obama Justice Department. On Thursday, in fact, Holder took time out from stirring the Staten Island pot to pounce on Cleveland, which is still reeling from last month’s racially charged case involving the death of twelve-year-old Tamir Rice.
The boy was reportedly pointing a gun at people in a park, prompting an emergency call to police, one of whom tragically shot him to death only to find that the gun was a BB gun. Again, other than the happenstance that the boy was black and the officer was white, race had no bearing on the case. But that didn’t stop Holder from invoking the boy, along with Garner’s death in Staten Island, in announcing that Justice’s investigation had found a “pattern or practice” of excessive force used by Cleveland police. As he spoke, he was flanked by Mayor Frank Jackson, the Democrat who presided over this allegedly rogue police regime for the last decade — upon inheriting it from Jane Campbell, the last mayor . . . a Democrat who, you’ll be shocked to learn, moved on to Harvard’s Kennedy School to teach how cities should be run. Mayor Jackson has, of course, agreed to the installation of a “monitor,” who will see to it that Cleveland police conduct themselves in an Obama-compliant manner.
Seattle is another of the big cities that has been snagged by the DOJ. It has been under a consent decree since the Justice Department targeted it in 2012 for a “pattern or practice” of violations, allegedly including “subjecting individuals to excessive force” — in particular, “using excessive force against persons of color,” and “escalating situations and using excessive force when arresting individuals for minor offenses.”
You may recall that the tide of rampant crime in New York City was turned when, under Mayor Rudy Giuliani, the police began cracking down on minor offenses — not untaxed cigarette sales but real violations that had nearly destroyed the city’s quality of life. What ensued was a miraculous transformation, with the Big Apple becoming the safest big city in America.
That policing model is under attack now — just as the NYPD’s extraordinarily successful counterterrorism model has been undermined by Obama’s Homeland Security Advisory Council. As Holder was making his Cleveland splash, Bill de Blasio, New York City’s hard-left mayor, opportunistically — and in the absence of any evidence — pointed to Garner’s death as proof that “the way we go about policing has to change. . . . People need to know that black lives and brown lives matter as much as white lives.”
Holder announced that the Justice Department, which is already monitoring the NYPD, will conduct a civil-rights investigation into Garner’s death. Yes, that’s how it always starts.
Meanwhile, Seattle has been making announcements, too. It seems crime in the Emerald City has been skyrocketing since the Justice Department came in to, er, help. Homicides up 21 percent, car theft up 44 percent, aggravated assaults up 14 percent, and so on.
Welcome to Change: produced and directed by the Obama Justice Department and coming soon to a town near you.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.