[dropcap]O[/dropcap]ver the last 17 years I have represented dozens and dozens of clients who were subpoenaed to testify as witnesses at State and Federal Grand Juries regarding government investigations. A grand jury is a secret tribunal where a citizen is forced to answer questions by a prosecutor, often against their will. They are not allowed to have an attorney in the grand jury room to advise them while the questioning takes place. There is no Judge in the grand jury room to oversee the fairness or legitimacy of the proceedings. The prosecutor alone determines what evidence will be provided to the grand jurors, and that alone forms the basis of their deliberations and their determination regarding whether a felony indictment will issue. The prosecutor becomes the grand jurors’ friend: he controls their bathroom breaks, meals, and whether they can return to their work, families, and lives. The prosecutor, a politically elected position, works very closely with police every day and generally exhibits bias toward police as a result of this familiar relationship. The prosecutor holds enormous power over the outcome of a grand jury proceeding.

As a lawyer for a subpoenaed witness, the primary concern is whether our client may incriminate itself by providing testimony to the grand jury. Because the grand jury is this secret process, the answer to this question is almost always yes, there is a possibility that this person could be compelled to testify and give information that might lead to criminal charges against that person. In these cases, the witness is advised that they must assert their Fifth Amendment right to remain silent so there is no chance they will incriminate themselves of a crime. The only way that the prosecutor can overcome the Fifth Amendment right of a person is to impose immunity from any potential prosecution upon the subpoenaed person. If immunity is thrust upon the witness, their Fifth Amendment right is taken away from them and they are forced to testify. But, by providing immunity, the State acknowledges that they are no longer allowed to prosecute the witness for any crime related to the testimony sought.

St. Louis County Prosecuting Attorney Robert McCulloch: a bizarre explanation

It is with this background and understanding that I have been very suspicious about the recent grand jury proceedings regarding Darren Wilson, the police officer who murdered 18-year-old Michael Brown in Ferguson, Missouri. If a person was being investigated for murder, would they (in their right mind) voluntarily waive their Fifth Amendment rights and testify to a grand jury without immunity or some other type of agreement with the State that would assure the suspect officer that their testimony would not be used to prosecute them for one of the most serious felony crimes that exists in this country? If such a deal was not struck in the secrecy of the grand jury process, one would expect that the powerful police union or Wilson’s own lawyers would have asserted his Fifth Amendment right. Because the prosecutor totally controls the questions asked and evidence provided to the grand jury, it was not surprising that as always, the State guaranteed the result they wanted—the police officer would get away with murder again.

Sure, the State felt compelled to hold a grand jury investigation given the public outrage and attention this police murder garnered around the world. And sure, inviting Darren Wilson to give a speech to the grand jury proclaiming his innocence and victimization gave some semblance that the State was undertaking a “real” investigation into the murder. Lauding the service of the grand jurors is a nice distraction as well, but of course it is not the jurors’ fault that the grand jury system is broken. If the jurors are only allowed to touch the trunk and tail in total darkness, it might be hard to see the elephant in the room

And so, another cop killing never even sees the light of a court room, but instead lurks in the secret darkness of the biased grand jury room.

This scenario has played out too many times in the United States. Marginalized human (whether black, mentally ill, poor, etc.) is shot and killed by a law enforcement officer sworn to uphold the law and protect community safety. The Community reacts with horror, fear and anger at the murder of a victim they know or can relate to. The State provides some window dressing as if they were truly interested in whether this person—one of the few that has the lawful power to kill people under extreme circumstances—acted in conformance with the law. Despite the growing number of cop killings that occur in this country, it is suspect that the State’s conclusion is overwhelming in favor of exonerating the actions of the police officer and affirming the right of the officer to punish a person with death. The community responds in outrage. Protests and direct action have become the only way people can vent the rage and resentment against a broken system of justice. This public outrage then becomes further justification for increased State repression upon these communities—militarized police, National Guard troops, and the jailing of community leaders. The community often becomes torn and divided between those who cannot remain contrite in the face of such injustice, those who remain obedient to the tenants of Ghandian civil disobedience, and those whose privilege allows them to simply bury their heads in the sand.

Another young black man is dead. Another cop killer remains employed to protect and serve (sic) the community he has destroyed. A broken system is perpetuated without discussion about what might replace it. Instead of just replaying this same devastating tragedy, perhaps ‘we the people’ should be coming up with a societal solution that could earn the respect of the people.

Lauren Regan is the founder and executive director of the Civil Liberties Defense Center (CLDC). Ms. Regan operates a public interest law firm, The Justice Law Group, specializing in constitutional law, civil rights, and criminal defense. She is a founding board member and past president of the Cascadia Wildlands. She also serves as a Lane County Teen Court judge, Oregon State Bar Leadership Fellow, National Lawyers Guild, Eugene co-chair, and volunteers hundreds of hours a year to various progressive causes.

[dropcap]W[/dropcap]ait. Patience. Stay Calm. “This is a country that allows everybody to express their views,” said the first Black president, “allows them to peacefully assemble, to protest actions that they think are unjust.” Don’t disrupt, express. Justice will be served. We respect the rule of law. This is America.

We’ve all been waiting for the grand jury’s decision, not because most of us expected an indictment. District Attorney Robert P. McCulloch’s convoluted statement explaining—or rather, defending—how the grand jury came to its decision resembled a victory speech. For a grand jury to find no probable cause even on the lesser charge of involuntary manslaughter is a stunning achievement in a police shooting of an unarmed teenager with his hands raised, several yards away. Distilling 4,799 pages of grand jury proceedings to less than twenty minutes, he managed to question the integrity of eyewitnesses, accuse the 24-hour news cycle and social media for disrupting the investigation, and blame alleged neighborhood violence for the Mike Brown’s body from the pavement had to wait until morning. McCulloch never indicted a cop in his life, so why expect anything different now?

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St. Louis County Prosecuting Attorney Robert McCulloch: a bizarre explanation

face down on the ground with his knee pressed down heavily into the back for 6 to 7 minutes, until her body went completely limp.” She stopped breathing. They made no effort to administer CPR, telling the family and witnesses that she was sleeping. When the ambulance finally arrived twenty minutes later, she was dead.

As we waited, police in Ann Arbor, Michigan, killed a forty-year-old Black woman named Aura Rain Rosser. She was reportedly brandishing a kitchen knife when the cops showed up on a domestic violence call, although her boyfriend who made the initial report insisted that she was no threat to the officers. No matter; they opened fire anyway.

As we waited, a Chicago police officer fatally shot 19-year-old Roshad McIntosh. Despite the officer’s claims, several eyewitnesses reported that McIntosh was unarmed, on his knees with his hands up, begging the officer to hold his fire.

As we waited, police in Saratoga Springs, Utah, pumped six bullets into Darrien Hunt, a 22-year-old Black man dressed kind of like a ninja and carrying a replica Samurai sword. And police in Victorville, California, killed Dante Parker, a 36-year-old Black man and father of five. He had been stopped while riding his bike on suspicion of burglary. When he became “uncooperative,” the officers repeatedly used Tasers to try to subdue him. He died from his injuries.

As we waited, a twenty-eight-year-old Black man named Akai Gurley met a similar fate as he descended a stairwell in the Louis H. Pink Houses in East New York, Brooklyn. The police were on a typical reconnaissance mission through the housing project. Officer Peter Liang negotiated the darkened stairwell, gun drawn in one hand, flashlight in the other, prepared to take down any threat he encountered. According to liberal mayor Bill DeBlasio and police chief Bill Bratton, Mr. Gurley was collateral damage. Apologies abound. He left a two-year-old daughter.

As we waited, LAPD officers stopped 25-year-old Ezell Ford, a mentally challenged Black man, in his own South Los Angeles neighborhood and shot him to death.  Meanwhile, the LAPD stopped Omar Abrego, a 37-year-old father from Los Angeles, and beat him to death. (See video below)

And as we waited and waited and waited, Darren Wilson got married, continued to earn a paycheck while on leave, and received over $400,000 worth of donations for his “defense.”

SEE MORE CASES HERE

You see, we’ve been waiting for dozens, hundreds, thousands of indictments and convictions. Every death hurts. Every exonerated cop, security guard, or vigilante enrages. The grand jury’s decision doesn’t surprise most Black people because we are not waiting for an indictment. We are waiting for justice—or more precisely, struggling for justice.  We all know the names and how they died. Eric Garner, Kajieme Powell, Vonderitt D. Meyers, Jr., John Crawford III, Cary Ball Jr., Mike Brown, ad infinitum. They were unarmed and shot down by police under circumstances for which lethal force was unnecessary. We hold their names like recurring nightmares, accumulating the dead like ghoulish baseball cards. Except that there is no trading. No forgetting. Just a stack of dead bodies that rises every time we blink. For the last three generations, Eleanor Bumpurs, Michael Stewart, Eula Love, Amadu Diallo, Oscar Grant, Patrick Dorismond, Malice Green, Tyisha Miller, Sean Bell, Aiyana Stanley-Jones, Margaret LaVerne Mitchell, to name a few, have become symbols of racist police violence.   And I’m only speaking of the dead—not the harassed, the beaten, the humiliated, the stopped-and-frisked, the raped.

Meanwhile, Governor Jay Nixon, President Obama, Attorney General Eric Holder, the mainstream press and every state-anointed Negro leader lecture Black people to stay calm and remain non-violent, when the main source of violence has been the police. Mike Brown’s murder brought people out to the streets, where they were met with tear gas and rubber bullets. State violence is always rendered invisible in a world where cops and soldiers are heroes, and what they do is always framed as “security,” protection, and self-defense. Police occupy the streets to protect and serve the citizenry from (Black) criminals out of control. This is why, in every instance, there is an effort to depict the victim as assailant – Trayvon Martin used the sidewalk as a weapon, Mike Brown used his big body.   A lunge or a glare from a Black person can constitute an imminent threat. When the suburb of Ferguson blew up following Mike Brown’s killing on August 9, the media and mainstream leadership were more concerned with looting and keeping the “peace” than the fact that Darren Wilson was free on paid leave. Or that leaving Brown’s bullet-riddled, lifeless body, on the street for four and a half hours, bleeding, cold, stiff from rigor mortis, constituted a war crime in violation of the Fourth Geneva Convention. It was, after all, an act of collective punishment – the public display of the tortured corpse was intended to terrorize the entire community, to punish everyone into submission, to remind others of their fate if they step out of line. We used to call this “lynching.”

War? Yes, war. The immediate and sustained resistance to the police following Mike Brown’s murder revealed the low intensity war between the state and Black people, and the disproportionate use of force against protesters following the grand jury’s decision escalated the conflict. To the world at large, Ferguson looked like a war zone because the police resembled the military with their helmets, flak jackets, armed personnel carriers, and M-16 rifles. But African-American residents of Ferguson and St Louis proper, and in impoverished communities across the country, did not have to endure tear gas or face down riot cops to know that they were already living in a war zone—hence Mike Brown’s and Dorian Johnson’s initial trepidation toward the police.

Past and present police violence in the area gave Brown and Johnson good reason to fear Wilson. The prosecution turned what may have seemed like a reasonable act of self-defense on the part of a startled and angry eighteen-year-old kid into an “assault of a law officer in the first degree.” That Wilson feared for his life was all he needed to justify lethal force. But it is the instructions to the grand jury toward the end of the three-month-long deliberations that deserve our attention. After asking jurors to judge Wilson’s actions against Missouri statute on police use of deadly force, the assistant county prosecutors, Sheila Whirley and Kathi Alizadeh, suddenly announced that after “doing our research” they learned that the statute had been superseded by a U.S. Supreme Court decision. In lieu of the decision and the old statute, Whirley wrote up a description of how the law applies when an officer can use force when making an arrest. When a grand juror began asking questions for clarification, Whirley explains that the old law “is not entirely incorrect or inaccurate, but there is something that is not correct, ignore it totally.” She then indicates that they will rely on the U. S. Supreme Court decision in Tennessee v. Garner (1985), “not that that matters much to you. . . .   We don’t want to get into a law class.”   She went on to focus on the self-defense instruction.

But just a quick glance at the decision reveals that the ruling was intended to limit the use of deadly force, arguing that killing a fleeing suspect constitutes an intrusive “seizure” potentially violating 4^thAmendment protections against being deprived of life. If a suspect is not armed and dangerous, the use of deadly force is not warranted and thus the seizure of life is not reasonable.

Whether we call it a war on drugs, or “Operation Ghetto Storm” as the Malcolm X Grassroots Movement dubs it, what we are dealing with is nothing less than permanent war waged by the state and its privatized allies on a mostly poor and marginalized Black and Brown working-class. Five centuries in the making, it stretches from slavery and imperialism to massive systematic criminalization. We see the effects on our children, in the laws that make it easier to prosecute juveniles as adults; in the deluge of zero tolerance policies (again a by-product of the war on drugs); in the startling fact that expulsions and suspensions have risen exponentially despite a significant decline in violent crime. Crisis, moral panics, neoliberal policies, racism fuel an expansive system of human management based on incarceration, surveillance, containment, pacification, lethal occupation, and gross misrepresentation.

The Black community of Ferguson and adjacent communities experience war every single day, in routine police stops, fines for noise ordinance violations (e.g., playing loud music), for fare-hopping on St. Louis’s light rail system, for uncut grass or unkempt property, trespassing, wearing “saggy pants,” expired driver’s license or registration, “disturbing the peace,” among other things. If these fines or tickets are not paid, they may lead to jail time, the loss of one’s car or other property, or the loss of one’s children to social services. The criminal justice system is used to exact punishment and tribute, a kind of racial tax, on poor/working class Black people. In 2013, Ferguson’s municipal court issued nearly 33,000 arrest warrants to a population of just over 21,000, generating about $2.6 million dollars in income for the municipality. That same year, 92 percent of searches and 86 percent of traffic stops in Ferguson involved black people, this despite the fact that one in three whites was found carrying illegal weapons or drugs, while only one in five blacks had contraband.

And yet, defenders of the status quo always deflect critiques of state violence by citing the number of intra-racial homicides in low-income Black communities. Who can forget former New York Mayor Rudy Giuliani’s recent quip to Michael Eric Dyson on “Meet the Press”?: “White police officers wouldn’t be there [in black neighborhoods] “if you weren’t killing each other.” Racist bluster, to be sure, but such assertions have succeeded in foreclosing a deeper interrogation of how neoliberal policies (i.e., dismantling the welfare state; promoting capital flight; privatizing public schools, hospitals, housing, transit, and other public resources; investing in police and prisons,) are a form of state violence that produces scarcity, environmental and health hazards, poverty, and alternative (illegal) economies rooted in violence and subjugation.

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Rudy Giuliani with war criminal Donald Rumsfeld, while posturing for the cameras on the ruins of the World Trade Center. 911 was exploited to the bone by Giuliani, who thereafter was known as “America’s Mayor.”

In light of Missouri’s failure to indict Darren Wilson for the murder of Mike Brown, calling for the withdrawal of the police—even temporarily—is a reasonable demand for people terrorized by state violence and feeling particularly vulnerable over their safety. They want law and order, but the police have shown a consistent disrespect for the law, flagrantly violated the Constitution, and operated with little to no accountability. Instead, the police operate as a rogue outfit, their actions create disorder and fear. Furthermore, failure to indict effectively exonerates the police force, providing a pretext for the police to ramp up violence and repression in response to the legitimate expression of anger and frustration over the government’s failure to protect Black lives and ensure justice. It is already happening in the aftermath of the grand jury’s decision, as riot police invade the headquarters of Hands Up United as well as designated safe spaces.

The young organizers in Ferguson from Hands Up United, Lost Voices, Organization for Black Struggle, Don’t Shoot Coalition, Millennial Activists United, and the like, understand they are at war. Tef Poe, Tory Russell, Montague Simmons, Cheyenne Green, Ashley Yates, and many other young Black activists in the St. Louis area have not been waiting around for an indictment. Nor are they waiting for the much vaunted Federal probe, for they have no illusions about a federal government that provides military hardware to local police, builds prisons, kills tens of thousands by manned and unmanned planes without due process, and arms Israel in its illegal wars and occupation. They have been organizing. So have the young Chicago activists who founded We Charge Genocide and the Black Youth Project, and the Los Angeles-based youth who make up the Community Rights Campaign, and the hundreds of organizations across the country challenging everyday state violence and occupation. They remind us, not only that Black lives matter—that should be self-evident—but that resistance matters. It matters because we are still grappling with the consequences of settler colonialism, racial capitalism and patriarchy. It mattered in post-Katrina New Orleans, a key battleground in neoliberalism’s unrelenting war on working people, where Black organizers lead multiracial coalitions to resist the privatization of schools, hospitals, public transit, public housing, and dismantling public sector unions.   The young people of Ferguson continue to struggle with ferocity, not just to get justice to Mike Brown or to end police misconduct but to dismantle racism once and for all, to bring down the Empire, to ultimately end war.

Robin D. G. Kelley, who teaches at UCLA, is the author of the remarkable biography Thelonious Monk: The Life and Times of an American Original (2009) and most recently Africa Speaks, America Answers: Modern Jazz in Revolutionary Times (2012). He is a contributor to Killing Trayvons: an Anthology of American Violence.