Missouri governor’s pre-emptive state of emergency is an alarming mistake

November 24, 2014

Missouri state troopers stand guard outside the Ferguson Police Station in Missouri

As America awaits a St. Louis grand jury’s decision on whether to indict a Ferguson police officer in the fatal shooting of unarmed black teenager Michael Brown, Governor Jay Nixon’s decision to declare a preemptive state of emergency in anticipation of the announcement has heightened the anxiety.

Under Missouri law, the governor can lawfully invoke a “state of emergency” on the “actual occurrence of a natural or man-made disaster of major proportions in the state, when the safety and welfare of inhabitants are jeopardized.”

There is no actual disaster in Missouri. Just the governor’s unfortunate presumption about what could unfold over the next week. In fact, Nixon’s emergency order rests on two presumptions: first, that the grand jury will not indict officer Darren Wilson, who is white; second, that the majority black Ferguson community, which has largely been engaged in lawful, constitutional protests since the shooting in August, will react violently and illegally.

Missouri Governor Jay Nixon listens to a reporter's question during a news conference at University of Missouri-St. Louis in St. Louis

Governors, of course, have used their emergency power preemptively in the past– usually ahead of a hurricane or other severe weather condition. In 2014, for example, the governors of New Jersey, Virginia and Alabama each issued a state of emergency in preparation for severe hurricanes. But a scientifically based, meteorologically predicted storm is far different from Nixon’s assumption that African-American protesters will react violently to a grand jury’s decision that is yet unknown.

Even when national attention focused on Florida leading up to the verdict in the trial of George Zimmerman’s killing of unarmed teenager Trayvon Martin, Governor Rick Scott did not issue a state of emergency. It turned out he had no need to. The not-guilty verdict sparked only peaceful protests.

Nixon’s order is also alarming in its breadth. Missourians from Joplin to Kansas City may not realize that the governor’s declaration grants him unbridled authority across the state that could compromise constitutional freedoms. The emergency order empowers the governor “to . . . assume direct operational control of all emergency forces and volunteers in the state,” and to control state and local law enforcement officers and agencies. He has carte blanche to determine what actions are required throughout the state in the name of public safety — despite the lack of any imminent threat.

Nixon has already miscalculated in similar situations. He declared a state of emergency in August, after the public’s response to Brown’s killing, imposing a curfew from midnight to 5 a.m. in Ferguson and surrounding areas. Then he rescinded it — after civil rights groups issued a joint statement challenging its constitutionality.

Some may believe there is no harm in issuing an emergency order under the current conditions. However, as one U.S. Supreme Court justice warned in his dissent from a notorious government overreach decision, this precedent “lays about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” That case was the landmark 1944 Koremastu v. United States decision, which allowed President Franklin D. Roosevelt to place Japanese-American U.S. citizens in internment camps during World War Two.

Justice Robert Jackson also warned that government decisions based on misguided fear and mistrust may become “imbed[ed] . . . more deeply in our law and thinking and expand[ed] . . . to new purposes.”

Nixon’s order, of course, is not comparable to the odious racial exclusion and internment orders in Korematsu. But Jackson’s caution about the dangers of government overreach in the name of public safety is a powerful reminder of why we cannot ignore Nixon’s action.

National Guard troops walk through a staging area located at a shopping center parking lot in Ferguson, Missouri

His preemptive order now stands as a dangerous example for governors nationwide. It seems premised on the fearful notion that black people gathering in Ferguson to protest perceived injustice is a state of emergency. But the expectation of Americans coming together to express outrage does not justify intervention by the militia.

Without question, Nixon, like every governor, has the power to declare an emergency and activate the National Guard should protests become violent beyond the capacity of the local agencies to manage them. But it is not clear why he should exercise this extraordinary power roughly a week  before any decision of the grand jury.

I have stood side by side with Ferguson protesters. Like many others, I expect that they will react responsibly — and within their constitutional rights — to whatever decision the grand jury issues.

This is not just wishful thinking. Rather, it is a reasoned expectation based on more than three months of steady, and largely peaceful, protests following Brown’s killing. These demonstrations have now inspired a nation and international justice movements.

Nixon’s actions send an unfortunate message to the citizens he represents in Ferguson. And Missouri has now set a dangerous precedent that all Americans will likely regret long after this grand jury’s decision.

 

PHOTO (TOP): Missouri state troopers stand guard outside the Ferguson Police Station in Missouri early November 23, 2014. REUTERS/Adrees Latif

PHOTO (INSERT 1): Missouri Governor Jay Nixon listens to a reporter’s question during a news conference at University of Missouri-St. Louis in St. Louis, Missouri August 14, 2014. REUTERS/Mario Anzuoni

PHOTO (INSERT 2): National Guard troops walk through a staging area located at a shopping center parking lot in Ferguson, Missouri August 21, 2014. REUTERS/Adrees Latif

35 comments

We welcome comments that advance the story through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can flag it to our editors by using the report abuse links. Views expressed in the comments do not represent those of Reuters. For more information on our comment policy, see http://blogs.reuters.com/fulldisclosure/2010/09/27/toward-a-more-thoughtful-conversation-on-stories/

The irony here Janai is that you have found the officer guilty by protesting (surely you are not protesting because you think he is innocent) without a trial or even having all of the facts.

Posted by Subwavelength | Report as abusive

If Janai was half as interested in peaceful resolution as she is in lambasting the Governor, perhaps she would make an equally strongly worded statement against protest leaders calling for Wilson’s head without having all of the facts. The irony of having a reuters piece saying “don’t jump to conclusions,” while protesting over a “perceived” racial injustice without proof can’t possibly be lost on her.

Posted by wmtribe | Report as abusive

thanks for the article. Now, let’s all watch the jury not indict the officer, and a substantial and formidable number of protesters break into violence… the end

Posted by Hover7507 | Report as abusive

“But a scientifically based, meteorologically predicted storm is far different than Nixon’s assumption that African-American protesters will react violently to a grand jury’s decision that is yet unknown.” – from the article.

People have already been arrested, just in the last couple days alone, before the decision was even made. Gun charges. Blocking traffic. Threatening bi-racial couples. Have you seen any of the twitter comments about what will happen if no indictment comes down?

In a couple hours we get to see if this article is the great waste of time and space most of us believe it to be. The author of this piece is going to look pretty bloody sad if all bell breaks lose tonight.

Posted by stambo2001 | Report as abusive

With the stage being set for continued vigilante behavior, the Governor of Missouri was lawfully withing his power to do so. No one need to bow to lawless acts regardless of the cause, passion, disagreement, or whatever.

Posted by Art16 | Report as abusive

Or in fact we will see the Governor effectively use violence on people who wish to use their Constitutional right to free speech! Using the National Guard pre-emptively will mean that they the National Guard and the Po9lice will use and abuse their power, probably Unconstitutionally to stifle proper Constitutional free speech about a decision of Government! I am seeing the distinct possibility of both Constitutional rights abuse and inherent law suits against the State, not unlike happened in NYC during the in infamous Republican Convention!

Posted by thelion | Report as abusive

What is the point of this article? — That the leader should call the state of emergency AFTER things fall apart? That would be negligent, if it could be reasonably foreseen that there is danger of riots or other problems.

Posted by WestFlorida | Report as abusive

All the governor has to go on is experience. So far, all the experience surrounding this issue points to the likelihood of violence if the people of Ferguson do not receive “justice”, which based on your writing and others, apparently means an indictment. It doesn’t help when the likes of leaders (I use the term loosely) like Sharpton and Jackson fan such flames. Rick Scott’s experience was different. You said it yourself: there were peaceful protests after the Trayvon incident and after the verdict. Have you forgotten the looting and the burning that occurred in Ferguson after the shooting? Yes, there have been peaceful protests since, but I doubt one can view this like a mathematical problem thinking that because more of the actions have been peaceful than violent, that the average will hold true. We are dealing with human behavior, and again, to paraphrase your own words, anything but an indictment will be a perceived injustice. How can the governor assume that there won’t be a violent reaction once again?

Posted by beofaction | Report as abusive

“Like many others, I expect that they will react responsibly — and within their constitutional rights — to whatever decision the grand jury issues.”

Yes, those must have been supporters of the officer that looted and burned. There is certainly no historical precedent that would make the Governor think that anyone else might riot.

If he hadn’t prepared for possible rioting and looting, he would be accused of being criminally negligent when the city comes apart at the seams. Damned if he does, damned if he doesn’t.

From Chicago to LA to Furguson, it’s the same – don’t like something, steal and burn things.

Posted by urnotserious | Report as abusive

I suppose the Governor should wait until the black community starts fires, breaks huge store windows, and steals everything in sight before acting. Violence and looting are not expressions of free speech.

Posted by p19 | Report as abusive

Janai Nelson, in the article, refers to herself as one of the protestors. For weeks the protestors have been insisting that no one protect themselves from a protestors violent actions. It doesn’t matter if the protestor’s actions are justified: they insisted that NO ONE protect themselves from mob violence. Time and time again that has been the brunt of the news coming from individuals who have been hired from across the country to act as mercenaries in Ferguson. No one cares what any of the evidence is, they insist, without evidence that no white person may act against a black person. Brown has been described as an 18 year old teenager. Elsewhere an 18 year old male is an adult, not a teenager. They also describe the 18 year old as a child while he is as large as cattle. None of this matters because the evidence is irrelevant. Even the Episcopal church has been paying for protestor lodging, food and drink in Ferguson; they declared the police to be guilty and punishable weeks ago. Does evidence mean nothing?

Posted by SixthRomeo | Report as abusive

The author’s “presumption” in the 3rd paragraph is flawed. It’s more likely the Governor was concerned less with the “majority black Ferguson community” reacting violently and illegally and more with protecting that very community from a smaller number of individuals who would capitalize on the opportunity to promote injustice and chaos. Consider who the victims were during the riots that followed the Rodney King verdict in LA.

Let’s hope peace prevails, no matter what decision is rendered.

Posted by Snib | Report as abusive

The author of this piece uses the aftermath of the Zimmerman verdict (where the protest was peaceful) to support her argument that the governor’s emergency declaration is not warranted. However, I’d wager that the governor is not thinking of the Zimmerman verdict here — he is (correctly) thinking of the violence, arson and looting that already took place in Ferguson. Using the Zimmerman verdict as her argument while ignoring the previous Ferguson violence says a lot about the author’s frame of mind.

Posted by Randy549 | Report as abusive

Um, if you are a responsible governor one of the primary responsibilities is to protect your citizens. And you do that by planning for the worst, you don’t assume everybody acts responsibly. Obviously, you are just trying to play the race card.

Posted by Mike10001000 | Report as abusive

So you’re actually telling me that law enforcement has no right to prepare for violence if they have preliminary information of various groups organising wide spread riots? I hope for our sake that you are never in charge of law enforcement in any capacity especially in the arena of combatting terrorism

Posted by B38 | Report as abusive

Janai S. Nelson did you
A. Have your car shaken by rioters?
B. Have by your boss say “stay home looters destroyed the store” with unpaid time off?
C. Have to stay in home for 48 hours because there were more rioters and looters,than peaceful protesters?
D. Have to stay home with your child because the schools closed due to violent protesters?
E. None of thee above, but those things are not that important to you and the people that endured it BLACK & WHITE are not your responsibility.

Answer hint- its a backwards three just like your thinking.
Love for All those in danger transcends color & political posturing….

Posted by whompthereitis | Report as abusive

I understand her legal argument of the danger in giving the governor unrestricted power over the state when only a small area is affected. There is the potential for abuse and the trampling of our civil liberties.

That argument on its own is solid. However when you bring in emotion and stretch this to fit the Furgeson narrative you lose. Governor Nixon made the call to be prepared for the worst along with business owners, schools, hospitals and the very residents that live there. This makes complete sense based on prior behavior of the protestors despite many of them being peaceful.

Your wording was also immflamatory to include a comparison to the intern of american citizens during WW II. I also believe the article was edited to remove a comment about a white dominated police force. If you have proof of discrimination against black applicants we have a story. Otherwise, it was unnecessary.

Posted by DJKC | Report as abusive

The national guard did not cause the rioting. The rioters caused the rioting. Putting the national guard in place ahead of time possibly prevented even greater chaos. The fact that riots took place shows that putting the national guard in place was a reasonable policy. This is a sad day for America.

Posted by WestFlorida | Report as abusive

It looks like the Governor made the right call. The vigilantes and thugs and criminals are at it once again, burning and looting, in the face of the lawful deliberations and finding of the Grand Jury. This has nothing to do with race relations at all, but is an excuse for people who have no regard for the law, are complete “gimme” narcissists, and place the safety and lives of others at risk without a care. We need to invest time and money in proper child rearing and teach respect for the law rather than sustain a manufactured environment of hate created by our government political actors and others too numerous to mention.

Posted by Art16 | Report as abusive

Looks like this author was wrong by a mile and the Governor’s only fauly is possibly being under-prepared. The assumptions of a no-indictment and riots/destruction of property was indeed correct.

Whoops….

Posted by ddd54 | Report as abusive

The Governor knew what the outcome of the Grand Jury would be, so he prepared for damage control. If you think otherwise, let a verdict involving police abuse go the victims’ way one time.

Posted by uc8tcme | Report as abusive

Hmmm, seems like the Governer’s “offensive” prediction came true. How could you think it wouldn’t?

Posted by JoeB23 | Report as abusive

Looks like the governor had a pretty good read on the Ferguson reaction. I wonder how many more buildings would have burned if the Guard and police had not been mobilized?

Posted by arbitus | Report as abusive

This blogger should be fired. Looks like his/her read of the protestors he/she was standing next to was as wrong as the pre-emptive condemnation of the governor’s move.

Better luck next time. Hopefully this cat never moves into weather forecasting, otherwise we’d be told there’ll be snow in July (in the US).

Posted by navyseal3341 | Report as abusive

The original protests in Ferguson were not “peaceful”, so why would any thinking person believe that the protests after a Grand Jury finding would be peaceful? Especially with Sharpton, Jackson and others fanning the flames of racial unrest?

If the law enforcement agencies and National Guard were not there after the findings were made public, would the protestors have been “peaceful”? Not a chance. TWELVE businesses burned and destroyed – and if not for the police and guard the entire business community would be gone. Vehicles up in flames – more would have been destroyed. Looting – nothing would have been left to steal before the buildings were torched.

Sure – let the idiots run wild and destroy their own town. Some may have worked at the stores that are gone and more shopped there. How stupid can they be?

Posted by AZreb | Report as abusive

“Like many others, I expect that they will react responsibly — and within their constitutional rights — to whatever decision the grand jury issues.” Analysis FAIL.

Posted by ScreenName1978 | Report as abusive

This is what happens in a Police State. We have become a Police State, but most Americans do not know it or admit it. This is not the same country we grew up in fifty years ago.

Posted by PeterBarlow | Report as abusive

“you have found the officer guilty by protesting … without a trial…”
“…protest leaders calling for Wilson’s head without having all of the facts.”
” …declared the police to be guilty and punishable weeks ago. Does evidence mean nothing?”

This author is an activist trying to get a TRIAL in the JUSTICE SYSTEM, not a witch hunt. These commenters jumping to conclusions reveals much about their own racist attitudes. You all want to pre-judge the cop as innocent, when the protesters are demanding a trial, without which the facts cannot ever be known for sure, and the people have a right to be upset about the lack of closure in this case.

You would presumably prefer collective punishment; since there are some looters and vandals, the whole lot do not deserve justice to be served one way or the other, in your biased opinions. This non-reasoning says everything we need to know about you all.

Posted by Benny27 | Report as abusive

Uh, where has the author been the last few months? There has been violence and looting off and on for over 3 months. I would think that not only was the Governor correct in declaring an emergency, but that any realistic person would have done the same.

There was no doubt that there would have been rioting no matter what the verdict would have been. And with all the people looking for 15 mins of fame getting on TV and declaring that Justice was not being done even before the Grand Jury made their ruling simply fanned the flames of the Mob Mentality that destroyed so much of the Ferguson area.

Posted by Robert76 | Report as abusive

^ really, there would have been looting if the cop had been indicted?

You are a silly person

Posted by Benny27 | Report as abusive

Mugabe’s Africans in Zim are better behave than Obama’s sons in America

Impeach Obama/Holder – now

Posted by jackdanielsesq | Report as abusive

Now they are crying that he didn’t have the national guard out soon enough. You sure missed the mark on this one.

Posted by DonWgg | Report as abusive

The only mistake he made is not ordering enough guard. really, the media can stick its liberal head in the sand all it wants, the facts speak for them selves. History shows that these poor areas in America have looted and robbed, their communities during protests. Where was the great “Al” to calm the riots? Until, the cycle of poverty in these type of communities is broken and the children are taught to respect authority and have a meaningful future in from of them, these type of events will continue well into the future. The kids need to be removed from the homes, like was did in Newark, N.J. And schooled properly so as to break the cycle of crime. They need to be loved and cared for and shown the way to success, not in mostly in broken homes with no father. Theses types of programs, if expanded my someday, stop this behavior, not trying to discredit law enforcement. In most all of the news, the shot victims, we’re not simply walking down the road, they confronted police, and we’re shot. Police work is tough, and I would like to see the liberal naysayers walk the beat with an officer in any of these high crime areas in America for just one summer night. Ism sure they would change their tune real fast.

Posted by cheeze | Report as abusive

If there had been no National Guard or police presence in Ferguson, what would the tally of burned out businesses have been? 50%, 75%, 95%? The destruction was worse than stupid – it was IGNORANT! Do these mobs have any plan for rebuilding – making things better? NO. It was looting, rioting, burning just for the heck of it and no plans for any betterment of what used to be their community.

Posted by AZreb | Report as abusive

The governor is blamed for not having the National Guard the first night when huge swaths of the area were burned. The sad part this buildings are locally owned business owners .Now the deed has been done insurance will go up, lots of folks will not be able to rebuild because of language in insurance will not cover war ,riots etc…I notice what international community views as facts and USA citizens view are different to say the least. Of course the issue locally is divided on racial lines.

Posted by donavan | Report as abusive