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