When You’re Facing Tough Times…
Real Help That Makes A Difference

Fergusson, MO and Me

Mimi always says I manage to turn everything into stories about me, but this is hard not to. This is where I grew up. Well, not exactly. But my parents and older sisters lived in Fergusson right before I was born. I grew up hearing this sort of idealized fairy tale about the land where houses were cheap and the St Louis Cardinals were playing a short drive away. WWII G.I. Nirvana. Wife, two kids, house for $10K, the All American Dream.

Now? Not so much. It is disconcerting to see this. For many reasons. As a lawyer, one of the most disconcerting things is the way that completely incorrect legal analysis seems to rule the airwaves.

There are three primary legal issues involved in the situation unfolding in Fergusson. First is the standard dictating when police can and cannot stop someone to see what they are up to. The second is what sort of force is appropriate during such an investigatory stop, according to the circumstances as they occur. The third is the response of law enforcement to the demonstrations and the civil unrest that has followed.

Let’s take the easy one first. Americans have a First Amendment Right to Assemble and Speak Freely. That is so fundamental. It is what the Founders did to create our government. They almost immediately made it the First Amendment to the Constitution once they figured out that they had given all the power to the Government without really thinking that through. They fixed their mistake by making sure that everyone in this country had a right to criticize the Government. Period. What a beautiful concept. I get paid every day to challenge the Government, and even that fundamental right is not found until several amendments after the First.

So, we have Free Speech and that shall not be infringed. There are exceptions, and that is where the Riot Police come in. I have no doubt that as the situation escalated the police were required to intervene with escalating force. That is not the issue. The issue is how did that happen?

Simple. Motivational speakers, or lawyers like me (who teach trial tactics to young lawyers) love the old trick where you pick someone out of the audience and push the palm of their hand as they stand across from you on the stage. Without exception that person will push back. Then you make the point that in every negotiation or act of persuasion if you push, the other person will just push back.

This is what happens when a bunch of cops show up in the type of body armor and heavy artillery that would have been the envy of many impoverished service members in Iraq. It pushes people. They push back. It escalates.


The second question is the issue of the initial stop, something about which I have yet to hear one single intelligent observation expressed on popular media. It boggles my mind that the pundits actually get paid.

The standard is simple. Reasonable articulable suspicion; i.e. can you say why it is that you want to stop this person and ask them questions and is what you say reasonable? Would it make a reasonable person want to ask those same questions in order to find out what is going on? If you can say why you are suspicious and that is reasonable then you can, and normally should, ask away.

The answer can never be, simply, “because he was black”. That is not reasonable.

There is no requirement that the information is coming directly from the victim. A witness will do. After all, in some cases, the victim is dead or their phone line is cut. I know I sound like a prosecutor, but not to anyone who actually knows the law. That is what it is. You get what appears to be legit intell on a robbery of some sort and you see someone matching the description and you can stop them and ask questions.

The fact that race is involved is irrelevant, except that it helps identify the suspect. If a fat, bald, formerly red headed white guy robs a bank they better be stopping me if I am speeding away in a stolen car as the bank’s alarm blares behind me. The more problematic scene is where the suspect is described as African American and the cops cast their net too broadly.

However, that is really a societal problem. Because legally it’s okay. I do NOT like that it is okay. Every day I fight that. But the law is what it is. The fact that the officer stopped X to ask him questions happens every day and if that is wrong we need to look very closely at what should be OK for cops to rely upon and what should not be OK. As it stands right now (sorry pundits) it was legal. Period.

Which brings us to what happened next in Fergusson. That is the easiest of all. Because I have no idea. I was not there. I have not seen all of the discovery. I have not interviewed a single witness, have never talked to the cop who shot him. Just like all the know-it-all pundits.

And that is my point. The stop was valid. What happened next needs to be determined in a court of law. What happened after that is obviously a problem from which we need to learn. We need to remember that the right to protest is FUNDAMENTAL and the way we handle volatile situations can shape how they turn out.

I just hope that everyone at least tries.