Analysis and Commentary

By Jay B Gaskill, Attorney at Law



If I were to credit the earliest accounts that precipitated violent protests in this small Missouri town,  ON THE EVENING OF AUGUST 9, 2014, A BRUTAL WHITE RACIST COP GUNNED DOWN A HARMLESS AFRICAN AMERICAN LAD NAMED MICHAEL BROWN FOR THE CRIME OF WALKING IN THE MIDDLE OF THE STREET.


Mr. Brown (age 18), a towering, formidable character, weighing in at almost 300 pounds, was first seen walking in the middle of the street with a cohort, the two having just committed a robbery/theft at a nearby store[1]. A confrontation occurred when the officer, Darren Wilson, who was a fraction of Mr. Brown’s size, reportedly first spoke to the two men through the patrol car window.  Some sort of struggle ensued during which the officer was struck in the face, reportedly fracturing the bone socket of one eye. If the latest report is to be credited, his gun was fired once at that point.

Following that confrontation, the picture is murky, but something then happened that put the three men on the street.






I was not there.  No one in the unruly protest mobs was there.  But, clearly, if Officer Wilson had been present during the demonstration, he would have at risk of being beaten to a pulp by an angry mob.

…And the media would have been complicit.

The hair trigger reflex in my title does not refer to the police officer’s pistol trigger finger.  Officer Wilson may or may not have been in legitimate danger of severe bodily injury; and he may or may not have sincerely and reasonably believed that he was in danger of suffering serious bodily harm. That’s what he American system of justice was designed to resolve. And that’s why we hope and expect that politics and impartial justice are kept at a safe distance from each other.

No: the hair trigger response was among the local, mostly African American community.  These included people carrying a burden of real and perceived grievances that primed them to uncritically accept that the killing of Michael Brown was a race-motivated murder by a member of a racist police establishment.  For them, only a huge protest would ensure that the miscreant was punished.

This is the tragic picture of the breakdown of social trust, and its exploitation by professional activists who should know better.

There is more to be said about this tragedy, but first let’s note similar incidents.

[+] Los Angeles (1992 – Rodney King) A large African American man who resisted arrest was surrounded and subdued by officers who were using what appeared to be greatly excessive force.

[+] Cincinnati Ohio (2001-Timothy Thomas) See the details below.

[+] Oakland, Berkeley (2009/10- Oscar Grant) See the sketch below.

[+] Ferguson, Missouri (2014 – Michael Brown – pending)

[+] Oakland, Berkeley (2014 – Michael Brown – pending)


The precipitating facts underlying these uprisings (except the unfolding Ferguson case) are now well established.  Full details are available on the web.

Look at the less well known of the precipitating incidents, the 2001 Timothy Thomas shooting.  Here is a quick overview, gleaned from WIKI:

In the early morning hours of April 7, 2001, Cincinnati police in Over-the-Rhine attempted to execute an arrest warrant against 19-year-old Timothy Thomas, an African American male. Thomas was wanted on 14 nonviolent misdemeanor counts, including 12 traffic citations Thomas was pursued for 10 minutes by nine officers, who were later joined by Patrolman Stephen Roach. The pursuit culminated at 2:20 a.m. when Thomas rounded a corner in a dark alley and surprised Roach, who shot him in the chest at close range. Roach stated he believed Thomas was reaching for a gun in his waistband, but investigation later determined Thomas was trying to pull up his ‘baggy pants.’ Roach also stated he was not aware of the nonviolent nature of Thomas’ charges and that Thomas ignored an order to stop. Thomas was rushed to a hospital, but died of his injuries.”

Now consider these additional observations from Cincinnati journalist, Heather MacDonald:

City Journal 2001

What Really Happened in Cincinnati
Heather Mac Donald

Advocates of the city’s status quo, whether opposing competitive bidding for city services or blocking the investigation of low-income housing fraud, can bring the City Council to its knees by playing the race card. For the last two years, black nationalists calling themselves the Special Forces have turned up regularly in the delicately carved council chambers of Cincinnati’s Romanesque City Hall to spew anti-white and anti-Semitic diatribes. Two days after the Thomas shooting, on Monday, April 9, they were back, accompanied by hundreds of angry black residents, by Timothy Thomas’s mother, and by her attorney Kenneth Lawson—Cincinnati’s answer to Johnnie Cochran.

The Council meeting instantly spun out of control. Backed by constant screaming from the crowd, lawyer Lawson and another racial activist, the Reverend Damon Lynch III, masterfully inflamed the crowd’s anger by suggesting that city officials were willfully withholding information about the Thomas shooting. Lawson, and doubtless Lynch, too, knew full well that disclosing Officer Roach’s testimony after the shooting would jeopardize the investigation and possible prosecution of the case, yet both threatened to hold every chamber occupant hostage until Roach’s testimony was released.”


When the smoke cleared in these tragic police shootings, no credible evidence had surfaced of any actual racist motivation for the civilian shootings in the line-of-duty (or of the excessive force in the King case), except that an unarmed black male was shot and killed by a white police officer (or in the Rodney King case set upon and subdued by several police officers).

Police shootings of this type tend to take place a general atmosphere of police-vs-community racial tensions. One common denominator links all such cases:

These and the other similar cases took place in the context of inadequately staffed, mostly white police forces, stressed by aggressive criminal elements in mostly black neighborhoods.  In the Oscar Grant case, that describes the context outside the well -protected commuter train station in the city of Oakland. Inside, a nervous Bay Area Rapid Transit police officer trying to subdue a struggling arrestee used catastrophically excessive force by reaching for his service pistol instead of his Taser.

A confused and poorly trained officer dealing with forcible resistance is not the same as a brutal racist committing murder.  Nor is the impulsive action of a frightened police officer who thinks he’s about to be severely beaten. Nor is the use of force by any officer who is trained to act quickly when a suspect seems to be drawing a gun.

The Hollywood and television images aside, most American police officers never fire their weapons outside of the practice range during their entire police careers.  All of them hope to return from the patrol of sometimes dangerous streets safe and sound to their loved ones. 

Police training stresses that officer safety comes first.  The law does likewise – giving latitude to police and ordinary citizens those who are placed in apparent danger.  The police have special legal protections because of the nature of their duties. A fleeing felon can be legitimately shot by a police officer in the line of duty.  A police officer is not expected to turn and flee when attacked, but is entitled – and expected – to use all necessary force to avoid being disabled or killed.  An officer is not to be second guessed in those tragic instances where the threat was only apparent and there was no time to verify it without risking being shot him or herself.  Think of the realistic toy gun cases. Assume that a confronted officer is a loved one of yours: Would you really expect him or her to wait until the trigger figure of a suspect resolves the “simulated versus deadly firearm” question?

Even civilians are entitled to use deadly force to repel an unprovoked, apparently immanent threat of death or serious bodily harm.  For civilians, a sincere fear of such impending harm is a partial defense to criminal assault or murder charges, and a sincere and reasonable fear can be a total defense.

Without the protection of the laws of self-defense we would be required to sacrifice our lives to thugs and other assailants while hoping for a miraculous response to a 911 call.  If police officers were denied the same legal protection, society would be at grave risk.





The real tragedy of the Ferguson incident and of the other communities that suffer from inadequate police protection is that the common people, especially the minority populations, are all too often denied that most fundamental of all entitlements: to be secure from criminal predation, free from fear of the thugs who inhabit every corner of every city, whatever its ethnic makeup. The wealthy and privileged can live in gated communities, employ private security and enjoy lives essentially secure from street crime.



It is no accident that in LA, Oakland and other similar high-crime areas, that the vast majority of crime victims are the so called minorities who are the first to rise up in a hair trigger response to a putative racist police contact.

No American community should ever have to suffer from inadequate law enforcement at the basic street -crime level. In my moral universe, there is one entitlement that trumps all the rest: 

It is the right of all Americans, regardless of wealth, status or social standing, to be secure from the thugs and other predators that blight neighborhoods, cause peaceful citizens to live like prisoners with bars on their own windows, and to be forced to live in fear of thugs and crooks, and to endure broken car windows and other acts of vandalism because the police are too busy, too overburdened to attend to the investigation.

A visible, active neighborhood police presence deters criminals.  My Jewish friends repeat the aphorism – “There’s always money for the doctor.” I would add another one for my African American friends to consider: There must always be enough money for public protection, especially for the poor who cannot afford to provide it for themselves.

I’ve seen the same pattern appearing over and over in my long “criminal” career.  It starts when resources are a bit tight.  Then when the good neighborhoods are relatively safe, the elites become casual about underfunding police services for the “bad” neighborhoods that they never frequent.

But an underfunded police department will cut corners and all too often make up for lack of street -enforcement power by ramping up aggressiveness. This can ignite a vicious circle leading to a general breakdown in trust and cooperation.  An anti-police attitude begins to take hold with many malign consequences.  There were several years during the 1970’s in Oakland, California when crime victims simply failed to appear causing the cases to be dismissed.

The deterioration of criminal law enforcement is always dangerous.  There are too many places in our country that hold significant populations of under-supervised young males. Law enforcement gaps in these areas will start a slippery slope to chaos. Soon, entire neighborhoods are written off. Then, as the police began to lose the struggle against the thugs, the police mindset can shift from law enforcement to a virtual wartime setting. This can easily deteriorate into an “us versus them” or “tribe versus tribe” street contest for dominance. It is a natural but tragic next step for a particular minority population, especially African Americans, to think of themselves as a target of the police; and for the beleaguered police forces to think of those unrealistic judges as obstacles to winning the war.

When New York Mayor elect Giuliani confronted a similar slippery slope in the huge venue of New York City, he and an astute police commissioner attacked the crime problem on several levels simultaneously, elevating the police presence and professionalism, and dramatically ramping up the overall police staffing levels.  In a few short years, New York became almost boringly safe.

Little towns, like Ferguson, may lack New York’s resources, but they should not, cannot be shortchanged on public protection resources, whether in officer staffing, support, technology or training. …Becauswe public safety is not just a basic right; it is the basic right.



The solutions are not rocket science.  The effective solutions  include more officers; greater community police presence and interaction; better officer training; cameras on all patrol vehicles and patrol officers; a policy of no crime too small and no crime victim to unimportant for careful attention.   We know these measures work because they have worked.

But there is a wrong approach: The feds charge in with a racist witch hunt; court officers place the police department on probation, imposing demands that require more resources be diverted from public protection and direct policing.  This was tried in Oakland and helped cripple that cash-starved police department for years.

Will there be more Fergusons? Of course there will.  Will communities make progress in reducing tensions over the police presence in their lives? Yes they will… provided that they can summon the will, and muster the necessary resources to provide public safety services equally across all class, status and wealth divisions. The immediate practical lessons of Ferguson are straightforward: (1) avoid jumping to conclusions in a police shooting; (2) get more cameras in play to eliminate doubts and promote transparency.

But the critical lesson of the Ferguson incident is that we are all accountable from the state level down to the smallest enclave of threatened citizens to step up and take the realistic steps needed to make all communities safe for cops and the rest of us, turning them into unwelcome environments for thugs and predators. 


Copyright © 2014 by Jay B Gaskill, Attorney at Law

First published on The Policy Think Site and the Out*lawyer’s Blog. Forwards and attributed pull quotes are hereby authorized. For other permissions and all your comments, please contact Jay Gaskill via email at

Before the author left his “life of crime” for public policy consulting and his long deferred creative projects, he was a career public defender, spending his last ten years of government service as the chief Alameda County California Public Defender.  Mr. Gaskill’s latest novel, the political thriller, Gabriel’s Stand, (Central Avenue Publishing –  2014 – ISBN-978-1-771698-009-7), is a page turner. It is available from major book vendors. For more, go to this link:

[1] A robbery is a theft accomplished by force or fear.  Robbery is a felony.  Simple theft is a misdemeanor when the value of the goods stolen is below a threshold and there are no other aggravating circumstances. Security cameras reportedly show a theft took place, but the media has not gotten or released enough additional details to determine whether the clerk was threatened of intimidated.

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