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Where's the Conservative Outcry on Ferguson Police Abuses?

The ideological movement needs a better response to governments that violate the Constitutional rights of U.S. citizens.

James Lawler Duggan/Reuters/The Atlantic

Conservatives are typically eager to disparage politicians and bureaucrats who conspire to seize wealth. So you'd think that they'd be outraged to learn that officials in one municipality treat residents as revenue sources rather than citizens. In this city, policymakers have made maximizing the intake of money their number one priority. They urge police to cite residents as aggressively as possible and evaluate their municipal court judge based on the fines that he levies. Challenges to the city's system are thwarted by a deliberately complicated thicket of rules and red tape. And violations of the Constitution are frequent and unpunished.

This city's government does not solve problems. Its government is the problem. One illustration of many concerns a poor woman who got a single parking ticket there. "From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking," federal investigators report. "Court records show that she twice attempted to make partial payments of $25 and $50, but the court returned those payments, refusing to accept anything less than payment in full. One of those payments was later accepted, but only after the court’s letter rejecting payment by money order was returned as undeliverable. This woman is now making regular payments on the fine. As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541."

What a burden the public sector has imposed on her life.

No city in America better illustrates government run amok than Ferguson, Missouri. Libertarians have long excoriated the city. Less so, movement conservatives. Most are ambivalent about the abuses. Some have even defended Ferguson officials. Why haven't conservatives seized this opportunity to highlight government-caused damage and to show blacks, Ferguson's most frequently abused demographic, that the right is intent on protecting everyone's civil rights?

Some critics of movement conservatism believe that the answer is simply racism, but that label obscures more than it reveals. Many conservative institutions and commentators reject the principles of white supremacy, favor equal rights, and bear no personal animosity toward black people. Yet many of these same people and institutions tend to ignore, downplay, and de-prioritize fixing government abuses when the victims are black, a tendency underscored by the reaction to the Ferguson report.

Ideology is a significant factor. Conservatives are fond of recalling the socialists who let their dislike of capitalism and their commitment to equality blind them to the horrors of Communism. In overlapping decades, conservative movement icons were just as myopic. During the Civil Rights-era, when outright bigotry toward blacks was far more potent, figures like William F. Buckley and Barry Goldwater took racist positions that they would later regret in part because their ideology made them averse to seeing Jim Crow for what it was: an evil that justified a muscular federal usurpation of state prerogatives to protect the basic liberties of American citizens.

(Charlie Riedel/AP)

The conservative movement has made tremendous progress on race. Today, the vast majority of self-identified conservatives would unwaveringly favor federal intervention if any state tried to segregate its lunch counters or water fountains (and no state legislature would even consider that agenda). But the conservative reaction to the Ferguson report nevertheless suggests that, for ideological and political reasons, the movement remains unable to recognize instances in which local tyranny and frequent violations of Constitutional rights justify outside intervention.

Instead, they're hyper-focused on contesting the progressive movement's narrative of race in America, as if operating in reaction is the best use of their energy. On a given day, if there's a documented instance of police brutality, a black man revealed to be wrongly imprisoned by a DNA test, and an inane remark made by Al Sharpton, the last is most likely to be mentioned on Fox News or talk radio.

Even the more intellectually elevated parts of the movement fall into this trap. Consider how National Review has covered the simultaneous release of Justice Department reports that cleared Ferguson policeman Darren Wilson in the shooting of Michael Brown and indicted law enforcement in that city for myriad abuses. I single out the publication not because its coverage on this subject is the worst I encountered—far from it—but due to its singular place in movement conservatism and its efforts to publish different kinds of thoughtful conservatives, including some who eloquently challenge its core audience on the subject of race.

This is as good as it gets within movement conservatism. With that in mind, here are the posts and articles National Review Online pegged to the release of the Ferguson report:

  • Before the report's release, Heather Mac Donald, a frequent, informed defender of U.S. police agencies, published a preemptive critique. She argued that before DOJ investigators charge Ferguson officials with racism for stopping or arresting a disproportionate number of blacks, they should recognize that blacks there commit more crimes than whites, and that banning police activity that has a disproportionate impact on blacks will make Ferguson less safe for innocents, especially blacks at risk of violent crime.
  • After the report's release, Brendan Bordelon published a post summarizing the reaction of Milwaukee County Sheriff David Clarke during a Fox News appearance. The lawman characterizes the Justice Department's work as a "witch hunt," says he is "not buying one word of it," and declares that Attorney General Eric Holder has "a genuine hostility ... specifically toward white police officers."
  • Andrew Johnson focused on how the DOJ dispelled various inaccuracies in the activist narrative of Michael Brown's shooting. At the end, though, he added: "The report does find that the Ferguson Police Department exhibited a systemic racial bias in its policing efforts, with its officers singling out and targeting black residents for various violations, and exchanging multiple racist jokes in emails."
  • Roger Clegg declared that the DOJ report vindicated Heather Mac Donald's critique.
  • Andrew McCarthy, relying on intuition and citing no particular evidence, declared the DOJ investigation into Michael Brown's shooting "a pretext" to subject Ferguson's police to a full-scale investigation, all so that DOJ could drum up violations and usurp local control.
  • Peter Kirsanow declared the DOJ report "a farce, wrapped in a fraud, inside a sham." He focuses on its assertion of racial discrimination. "The report has accomplished its objective," he concluded. "It’s smeared police officers across the country, thereby giving the administration an excuse to exert greater control over local police departments. And it gives credence to the toxic storyline that the country as a whole remains nearly indistinguishable from 1960s Selma."
  • Ryan Lovelace posted to highlight remarks by Attorney General Holder, who pledged to do "everything he can" to change Ferguson's culture of law enforcement, adding that his agency is "prepared to use all the powers that we have, all the power that we have, to ensure that the situation changes there.”
  • Thomas Sowell wrote a column disparaging the Ferguson report for relying on disparate impact, writing as if the DOJ documented nothing other than a disproportionate percentage of black people being stopped or arrested. In fact, one could ignore every part of the DOJ report that alleged disparate impact or even racism and still have a long list of alarming abuses to reflect upon.
Only one National Review writer, Ian Tuttle, grapples with some of Ferguson's many abuses and gives the publication's readers a peek at what all the outrage is about. "In the interest of expanding its treasury, Ferguson has employed its police department ... as an enforcer of the myriad municipal regulations that, rigorously enforced, nickel-and-dime the citizenry to the local government’s benefit," he writes. "This is the injustice on which the Justice Department has stumbled, which helps to explain the city’s racial tensions—and which merits urgent correction."

That position is sufficient for pursuing reform. The left should recognize that it can work with conservatives like Tuttle to improve the lot of poor black people. Progressives need not reach agreement with conservatives on an ur-narrative of race in America to collaborate—not if their partner really favors "urgent correction" to specific ills. But for our purposes, it is noteworthy that even Tuttle, who sees injustice that merits urgent correction, doesn't focus his piece on it. His title is, "The Injustice the DOJ Uncovered in Ferguson Wasn’t Racism." His article is more aimed at proving that the left's narrative of race in America is wrong than grappling with the rampant violation of civil rights, documented instances of excessive force, and other misconduct. The old joke is that if a meteor were headed toward earth, The New York Times would headline its article, "World to End, Women and Minorities Hardest Hit." And National Review would doubtless be there missing the point as much with their retort: "The Impending End of Human Life Isn't Due to Racism."

Conservatives ought to regard the abuses in Ferguson as worthy of attention in their own right, not just insofar as the left's analysis of them is (ostensibly) wrongheaded.

If one accepts every premise advanced by the authors of National Review's coverage, including the most dubious—if we treat the Michael Brown investigation as a cynical pretext; presume Eric Holder hates every white cop in America; ignore statistics about racially disproportionate stops as inconclusive; and presume that people are being mistreated wholly due to their poverty rather than their race; even then, it remains the case that hundreds of Americans have had their Constitutional rights or basic liberties violated by governing elites with perverse incentives to cite, fine, and jail them as often and as expensively as possible.

That is an outrage. And what amounts to the exoneration of Officer Darren Wilson—itself a legitimate news story, from the subset of self-described witnesses who lied about what happened in the altercation with Michael Brown to the media treatment Wilson received—should not be treated as more important than all injustices that hundreds of poor, disproportionately black Ferguson residents experienced. Having criticized the protestors who brought the nation's attention to Ferguson and the DOJ investigators who've done more than anyone to document serious abuses there, how would conservatives suggest uncovering and remedying egregious Constitutional violations in municipalities like it?

I've never seen the question answered well. And I can't help but wonder if the American Fergusons would be ignored entirely if conservatives were running the country, just as present-day injustices tend to be downplayed or left out of conservative media when they cut against the conservative counter-narrative on race.

In Ferguson, I'm open to solutions that would be more effective than the DOJ coercing law enforcement into a series of hit-and-miss reforms. But are there superior alternatives? As best as I can tell, there are not competing liberal and conservative plans for protecting the Constitutional rights of blacks from small-town elites. There is just the center-left approach and conservative complaints about it.

Over at Reason, Scott Shackford, a regular critic of Eric Holder's Justice Department, wrote an article that treated civil-rights violations as more important than attacking the Democratic Party or fighting over racism narratives. He also points out that Ferguson isn't the only jurisdiction that piles criminal charges on top of one another in an opaque system that steamrolls Americans:

The Department of Justice threatens defendants with dozens of federal charges that could put them behind bars for decades unless they accept plea deals and avoid a trial, a punishment for trying to defend themselves. Department of Justice prosecutors, working with other agencies like the IRS, seize assets from Americans and resist giving it back even when there's little evidence such Americans have done anything wrong. The DOJ engages in a lot of the same misbehavior found in the Ferguson system of justice—it's just not motivated by race.

Even though the Department of Justice may attack Ferguson's revenue-generating, they are quick to defend the role of their own "Equitable Sharing Program," which encourages law enforcement agencies to seize property and assets by allowing the agencies to keep 80 percent of what they take in the program.

A White House report crafted in the wake of the shooting of Michael Brown and the police's militarized response to protests defended the program, along with others, as "valuable and have provided state and local law enforcement with needed assistance as they carry out their critical missions in helping to keep the American people safe." Attorney General nominee Loretta Lynch defended asset forfeiture as a useful tool for law enforcement at a Senate hearing.

Ferguson's police department participates in this federal program. According to research by The Washington Post, the city has spent more than $100,000 on equipment and weapons paid for with assets seized by police in Ferguson (this also means the federal government has also received money from law enforcement activities in the community as well). The DOJ's press office has not returned calls to find out whether Ferguson would be booted from the program due to its behavior. Ferguson officials have said they will attempt to settle with the Department of Justice, not fight, so probably not. The DOJ has only cut off access to the Equitable Sharing Program to a handful of law enforcement agencies. One of them, Maricopa County in Arizona, is infamous for resistance to attempts by the DOJ to reform the way it deals with immigrants and Latino citizens. It's easy to look at the program and see the DOJ using access to its funds as a carrot/stick to influence the behavior of local law enforcement agencies. This is not inherently a bad thing, but all of this knowledge about how the DOJ operates should cause anybody to look askance at the agency's credibility when it comes to evaluating the accessibility of fiscal propriety of any justice system in the country.

For that matter, the DOJ, just like Ferguson, brags about the millions—billions—of dollars it brings in from settlements and enforcement activities in its annual reports. They put out press releases and hold press conferences. The difference may be that its targets are often rich corporations (but not always, as their actions against a small Long Island vending business shows). The DOJ and state-level prosecutors are looking for big paydays, too, to help bolster the budgets of the governments they serve. My story in Reason's April issue, titled "The Settlement Shakedown," helps explain how this all works out (It's available online now to digital subscribers).

None of this is to dismiss what is clearly racist animus by the people in power in Ferguson. But if every victim described in the DOJ report on Ferguson had been white and the racist comments and e-mails hadn't happened, these incidents would still have been huge violations of the rights of the citizens. Many would argue that these incidents wouldn't have happened at all absent the racial component. I cannot possibly say they're wrong. Every single government in the country is driven to bring in revenue to perpetuate itself, and their targets will most likely be those who will have the hardest times protecting or defending themselves. This often means poor minorities and immigrants, but don't confuse the symptoms with the cause. Racism just one sorting tool for governments to decide who they're going to plunder.

Agree or disagree with the particulars of that article, it illustrates that one can critique the Obama Administration, implicitly criticize Democrats for failing to end federal law-enforcement abuses while running the federal bureaucracy, and complicate the left's racial narrative without treating the abuse of blacks in places like Ferguson as fabrications or afterthoughts. The Democratic Party's failure on these issues could be a vulnerability if the Republican Party didn't have so little to offer. Ferguson is a missed opportunity for the GOP in a long line of them.

There are some conservatives who took the abuses documented in the Ferguson report more seriously. Consider evangelical blogger John Mark Reynolds, who is also provost of Houston Baptist University. After reading the DOJ findings, he wrote:

I believe in order, not riots. I support police as much as possible: they have horrifically difficult jobs. The evils of departments like Ferguson, departments that exist over this entire nation, undermine the support of good people for the police and threaten to precipitate the very revolutionary disorder they “attempt” to halt. As a conservative, I repudiate strong-armed policing that piles up fines and is out of touch with the locality it polices. I repudiate the militarization of the police and the use of unnecessary force. I repudiate using the police to collect revenue. That is disgusting in a republic.

As a Christian, I abhor the abuse of the elderly and the weak that has happened in Ferguson beyond doubt. It is the job of the Christian to stand in solidarity with the poor against the powers of the age. A Christian must cry out against the racist “humor” of the (now fired) police officers who felt safe to “joke” in ways offensive to the people they (allegedly) served. Selma happened in my lifetime but I was just baby. I am man and police forces like Ferguson exist: there is a duty to speak up and demand justice. The devils will come in the details about what to do, but angels know something must be done.

I would not agree with my “left-of-center” friends on all their proposed solutions to Ferguson, but surely all Christians can agree that the police culture of Ferguson was and is sick and must change. The elite of Ferguson have not fixed the problem and the state of Missouri has ignored it. It is time for the Department of Justice to act.

That strikes me as the appropriate level of alarm, and "it's time for the Department of Justice to act," seems like a reasonable conclusion. If you disagree and oppose DOJ remedies, I'd only ask this: What exactly is your alternative?
Update: Some days after this article was published a number of conservatives started to take the Ferguson DOJ report seriously, including two National Review writers.