Mimesis Law
25 May 2020

DA Bob McCulloch Knows Who’s Bad in Ferguson

Aug. 14, 2015 (Mimesis Law) — With a few changes in detail, it could easily have gone the other way, but St. Louis County District Attorney Bob McCulloch, fresh off his failed grand jury presentation against Darren Wilson for the killing of Michael Brown, knew who the bad guys were:

“The charges stem from the efforts of the defendants to block traffic on Interstate 70. Templeton is accused of punching the victim as our victim attempted to drive past the defendant. The victim suffered an eye injury as a result.” McCulloch also said “Ferrell kicked the victim’s car as she passed causing nearly $5000 in damage.”

It was “Moral Monday,” and there was a protest. They were trying to close down I-70, and the good people who had someplace to go needed to use I-70.  The protesters blocked them.

Protests aren’t a favored means of constitutional expression around Ferguson these days.  It’s not that McCulloch would ever take issue with people exercising their constitutional rights, whether to speech, redress, association, life.  It’s that they won’t do so in a sufficiently orderly manner so as not to interfere with the happy travel of others.

And then there’s looting, but there’s nothing to loot on I-70.  But as McCulloch figured out, that doesn’t mean that property damage can’t happen.  And it’s his job as prosecutor to make sure that anyone who damages property pays.

Brittany Ferrell, 26, and Alexis Templeton, 21, have both been charged with trespassing and disturbing the peace. Ferrell is also facing property damage charges. Templeton also faces assault charges.

There’s no walking on I-70.  Ferrell and Templeton knew that, or at least they should have when they decided to participate in the protest.

A few dozen protesters blocked I-70 in both directions near the Blanchette Bridge during Monday afternoon’s rush hour. Traffic was brought to a standstill between Highway 141 and the bridge for about 20 minutes as demonstrators formed a line and locked arms across the lanes. The protesters also placed yellow boxes on the ground, with “Ferguson is everywhere” written on them.

Have you ever been stopped dead on a highway at rush hour? It’s terribly frustrating. Tempers flare. People who don’t feel as if they’ve done anything to deserve this inconvenience find something boiling besides their radiator fluid. They’ve got things to do. There’s the dry cleaning that needs to be picked up. And the kids have little league and ballet. And dinner needs to be made.  Hubby will be very upset if dinner isn’t made, and you really don’t want to see him pissed. He’s not very nice when he’s angry.

Video . . . showed a grey SUV push its way through the line of protesters.  This is the only vehicle that broke the demonstrator’s blockade.  It is also the vehicle that Ferrell and Templeton are accused of attacking.

So what if there were human beings, flesh and blood, standing in the roadway.  So what if the grey SUV weighed a few thousand pounds and could easily surmount a few body-sized bumps in the road if it came to that.  They had no right to block that highway. They had no right to bring cars to a standstill.

They had no right to inconvenience someone who had nothing to do with whatever it was they were griping about now.  And there were things to do that weren’t going to wait for the protesters to go away.  And she waited long enough.

There is a basic rule that the pedestrian has the right of way.  It’s not a rule born of right, but of necessity.  You see, when a vehicle strikes a pedestrian, the pedestrian rarely wins the battle.  Whether the pedestrian was right to get in the vehicle’s way or not, a decision has been made that it’s better for the car to wait than to mow down a pedestrian, even a stupid or wrongful pedestrian.  It has a lot to do with killing people being a bad thing. It’s one of the reasons why we don’t execute people for jaywalking, no matter how annoying it may be.

People’s lives trump cars.  Except in Ferguson.

Brittany Ferrell was arrested for “allegedly kicking a vehicle as it ploughed through a line of peaceful demonstrators.”  According to McCulloch, her kick caused $5000 in damages, which oddly enough is the threshold for First Degree Property Damage, a Class D Felony.  He must have some really strong pull with a local body repair shop to get the damage assessed that quickly.  And it must be one really swell shop, if it charges $5000 for a kick.

Ferrell’s wife, Alexis Templeton, was charged with misdemeanor assault for allegedly punching the driver through her vehicle’s window.

Word is that it had something to do with getting the driver to stop plowing through the line of peaceful demonstrators, largely because once she kills them, they can’t be unkilled merely because she did a naughty thing.

But then, the driver of the SUV knew something that neither Ferrell nor Templeton knew. She knew that Bob McCulloch was the sort of county prosecutor who could quickly figure out who the bad guys were, who deserved to be arrested and prosecuted, and who deserved to go home to put dinner on the stove.

Was the “bad guy” a women in an SUV just doing her best to get her car into the garage before junior was done with his baseball game and senior rambled through the door from a hard day’s work?  Or were the “bad guys” the people she was forced to plow through, and in response kicked her SUV and then punched her?

McCulloch knew who were the protesters, and who wasn’t.

19 Comments on this post.

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  • Why the Ferguson DA decided a protestor who kicked a car about to hit her caused $5,000 in damage – Quartz
    14 August 2015 at 5:37 pm - Reply

    […] post originally appeared at Mimesis Law. We welcome your comments at […]

  • Bias
    14 August 2015 at 6:44 pm - Reply

    Wow, what a one-sided, condescending and sarcastic article. It’s not hard to guess where the author stands on this subject.

    I’m surprised this drivel even made it to Quartz.com

    • shg
      14 August 2015 at 6:51 pm - Reply

      You shouldn’t have to guess where the author stands on this subject. That’s what words are for. When you have a different view, you call it bias. When you share the same view, it’s brilliant. Funny how that happens.

      • HM
        15 August 2015 at 7:48 am - Reply

        The problem is not that the author sided with the pedestrian, we can respect that, the problem is that by the way he’s written this opinions he is putting the qz.com reader in a category of people they don’t want to be associated with: tabloid readers that don’t care about the issue, they are just happy someone is laughed at… 🙁 🙂

        • shg
          15 August 2015 at 10:05 am - Reply

          What distinguishes commentary from reporting is that the former expresses an opinion based on known facts, while the latter is, if done properly, the unbiased reporting of facts. This is commentary based on the actual reporting. Other commenters can manufacture details, present them as if they were either reported facts or “secret” facts that they, despite their pseudonymity, magically know. Legitimate commentary must be based on known facts, not on secret facts. Commenters are under no such constraint and can make stuff up at will.

          One might hope that Quartz readers are smart enough to grasp this, but it’s a big internet and there is no intelligence test required to buy a keyboard. It’s impossible to accommodate the intelligence level of all potential readers. Some just won’t grasp this distinction, and some won’t grasp that facts are what has been reported, not what they want the story to be.

          Quartz apparently believes its readers belong in the category of people who are smart enough to understand the difference between facts and fantasy, commentary and reporting. That doesn’t mean you have to agree. Sometimes, the proper outcome is someone gets laughed at. Sometimes, that’s exactly what someone deserves.

  • rixse
    14 August 2015 at 7:41 pm - Reply

    The DA of St.Louis is not a prosecutor. Never has been. He is pro-defendant.

  • Ronce
    14 August 2015 at 8:41 pm - Reply

    Eh, pedestrians have no business on the interstate, and they don’t have the right of way on the interstate either. If there’s an accident between a car and a pedestrian on an interstate the presumption is going to be the pedestrian was doing something they shouldn’t and created the accident–typically because interstate speeds don’t allow for reasonable stopping before hitting a pedestrian on the road (also why deer and cars don’t make good friends on interstates.) Obviously speed didn’t apply in this scenario so it’s more nuanced.

    I’ve never seen outright assholery masquerading as protest do any good for any cause in history, and I also don’t think the author knows how prosecutors typically charge cases. The charges will be plead to something much less serious.

    Should the SUV have pushed through people? No. But the people shouldn’t have been there, and to be honest it was a slow motion affair–they could’ve fucking moved. I don’t feel sorry for any of them.

    • Ronce
      14 August 2015 at 8:46 pm - Reply

      Also–the car was moving slowly and kicked repeatedly. Author of the article probably doesn’t own or know anything about cars, probably lives in a city where no one does and people chortle about “fly over country.” But all it takes is dents in multiple panels and you’re looking at $5,000. Body work isn’t cheap.

      • David
        15 August 2015 at 10:47 am - Reply

        Whoa. Just because the SUV was being driven slowly and protesters had the opportunity to get out of its way has absolutely nothing to do with this. Even if the pedestrians are 100% wrong, the driver still doesn’t get to kill them. What sort of sick idea are you promoting that if the protesters have a chance to get out of the way, the driver is free to kill if she feels like it. That’s insane.

        As for its being “kicked repeatedly,” if we all get to make up our own facts, then I say nobody kicked it and she was scamming to try to get some dents fixed that happened when she was drunk and hit a cow. See how much fun it is to just make stuff up?

  • Ray Lee
    15 August 2015 at 5:32 pm - Reply

    In this particular instance, DA Bob McCulloch did in fact know who was potentially “bad” (at least as much as is normally known at the “charging” stage of the process) and by charging the suspected offenders, he did the the legally and practically correct thing.

    The people charged are suspected of tresspass (both) and assault (one) and unlawfully damaging the property of another (one). The post admits those charged were pedestrians on I-70 and the post admits that pedestrians are not allowed on I-70. The linked article states that Ferrell is charged with kicking someone else’s car and causing damage and Templeton is charged with punching someone in the face, both of which are unlawful in Missouri and every other state (subject of course to potential legal justifications which don’t appear to be undisputed and therefore, even if present and asserted by those charged, those issued get resolved after the charging process). That makes bringing the charges the legally correct thing.

    On the practical side, I would submit that McCulloch’s charging decision is necessary to prevent this type of situation from continuing and escalating to the point where lives are actually lost. The post makes the (somewhat snarky) assertion that pedestrians generally have the right of way. “It has a lot to do with killing people being a bad thing. It’s one of the reasons why we don’t execute people for jaywalking, no matter how annoying it may be.” Except that in this circumstance, the pedestians did not have the right of way and no one was killed in the confrontation. While I don’t know Missouri law very well, I’m going to go out on a limb and guess that trespass, assault, and causing property damage, alone or together, do not constitute capital crimes in Missouri. But if these types of protests continue and escalate, it won’t be too awful long before more and more drivers actually do plow through a line of protesters and someone does get killed or seriously injured.

    Also, following up on Mr. Greenfield’s comment to the post from last night, he is most often brilliant but this post shows distinct bias. And not just the kind of bias that comes from mere disagreement with me (although that should, of course, end the discussion right there). I’m talking about the more traditional form of bias. He writes that “[p]rotests aren’t a favored means of constitutional expression around Ferguson these days.” But he well knows that this isn’t a issue of “constitutional expression.” Virtually all constitutionally protected expression is subject to time, place and manner restrictions and the manner and place restrictions of no pedestrians on an interstate is going to be upheld 10 times out of 10, even if they are seeking to exercise their right to speak and protest. Mr. Greenfield writes: “It’s not that McCulloch would ever take issue with people exercising their constitutional rights, whether to speech, redress, association, life.” While I agree with many of Mr. Greenfield’s criticisms of McCulloch in so many other Ferguson related matters, non of that is related to whether McCulloch did the right thing in this instance. Absent Mr. Greenfield connecting the dots between McCulloch’s other decisions which might be erroneous and this decision which is, I submit, entirely correct, then it seems to me that Mr. Greenfield’s mentioning the other issues in this manner shows traditional bias.

    A more egregious showing of bias is his dismissal of legitimate interests of the motorists on I-70 to lawfully use the public highway for the purpose for which it is intended. In a second comment, Mr. Greenfield legitimately criticizes the far too common practice of commentators manufacturing details and then presenting them as reported facts or secret facts or magically known facts. Notwithstanding this valid criticism, the main post speculates on potential causes of a driver deciding that they are legally entitled to use I-70 for motor traffic notwithstanding the protesters desire to restrict the driver’s freedom of movement to further the protester’s goals. The drivers, Mr. Greenfield allows, might have been fed up: “They’ve got things to do. There’s the dry cleaning that needs to be picked up. And the kids have little league and ballet. And dinner needs to be made. Hubby will be very upset if dinner isn’t made, and you really don’t want to see him pissed. He’s not very nice when hes angry.” I suppose that may have been the case or it may have been that the driver’s child was critically injured in a car accident (even if it was on the way to or from little league or ballet) in St. Charles and she was in a hurry to get to the hospital. I don’t know. I don’t know if Mr. Greenfield knows. The driver’s motive wasn’t a fact that reported in the cited article. But most importantly, the protesters blocking her path on I-70 didn’t know either and I submit that the drivers don’t have to stop and engage in a potentially lengthy discussion of why their motives to proceed are or are not outweighed by the motives of the protesters in blocking access.

    So, while Mr. Greenfield seems to be sarcastic when he states that “it’s his [McCulloch’s] job as prosecutor to make sure that anyone who damages property [or assault a stranger] pays[,]” I would respond that Mr. Greenfield is actually correct – that is exactly what McCulloch’s job is.

    • shg
      15 August 2015 at 8:14 pm - Reply

      You’ve raised some interesting points that merit a response.

      1. The reason for the mention of the botched Darren Wilson in the first paragraph was to foreshadow my view of McCulloch. In other words, I specifically broadcast my bias against him up front. There is no question but that he sabotaged his presentment, regardless of whether Wilson was guilty or not. Having done so, he tainted himself with regard to everything that followed. He did it. He lives with it. I acknowledge that I hold it against him, and did so as clearly and early in the post as possible.

      2. Note that I called it a “general rule” that pedestrians have the right of way, and that is indeed the general rule. Much like explaining the theory behind why it’s not acceptable to kill in defense of property, this was used to explain the theory behind why it’s not acceptable to drive a car into people, no matter what the excuse.

      I did not say it was the law in this instance. I researched Missouri law before writing, and it expressly provides that pedestrians have the right of way in a crosswalk. It also prohibits them from walking on a public highway. That said, Missouri law (304.012) also expressly prohibits a driver of a motor vehicle on a public highway from driving in such a manner as “to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.”

      So even though they were on a public highway, the driver of the SUV violated the law by trying to drive through them. In other words, the fact that the protesters were violating the law by what they were doing, the driver was violating the law as well. That’s the point here, that the protesters were arrested and the driver was not. If violating the law is wrong, it’s wrong for both, not just the protesters.

      As for my bias against the “legitimate interests” of the driver, I call bullshit. There are no legitimate interests that suffice to kill. None. Ever. It’s clear that I am not representing the drivers purpose, but speculating as to reasons people hate being stuck in traffic. Nonetheless, it serves to illustrate the point clearly, which is why it’s used.

      3. While you are correct that caselaw allows for time, place and manner restrictions in the exercise of constitutional rights, that presumes it’s applied neutrally. It hasn’t been. Moreover, when there is a protest against the abusive use of power by government, there’s a certain absurdity in expecting the protest to be orderly and compliant with government requirements. Given the nature of the purpose of these protests in Ferguson, judging them by how well-ordered they are to please the very people they are protesting against is quite a bizarre expectation.

      That said, the overarching concern, which this post sought to convey, is that it is unacceptable for someone to put other people’s lives at risk, even if they are trespassing on a highway. We don’t kill people for that, no matter what. That no one was killed is irrelevant. The SUV broke the law, could have killed, and the driver was not arrested.

      Hope that clarifies why McCulloch was wrong, as are you in saying he did his job. He did not. Not even close.

      Edit: Perhaps I should have included the MO statute the driver violated so that it was clear that a driver isn’t entitled to endanger the lives of people even if they’re trespassing on a highway, but I gave readers sufficient credit to realize that trespassing on a highway or protesting without government approval isn’t a capital crime.

      • Ray Lee
        17 August 2015 at 5:56 am - Reply

        You also raise points that merit a response.

        You state that “its not acceptable to drive a car into people, no matter what the excuse.” I disagree. An example would be Alexian Lien, who was not charged for driving into the motorcyle gang in NYC in 2013, literally running over someone. He was not charged while those among the group he drove into were charged. (http://www.nytimes.com/2015/01/29/nyregion/motorcyclist-pleads-guilty-to-assault-in-2013-attack-on-suv-driver-in-manhattan.html?_r=0)

        Likewise, your citation to Missouri law has facial appeal but, for the same basic reasons that Mr. Lien was not charged, I don’t believe the driver on I-70 should have been charged and I don’t necessarily agree that the driver violated the statute. While you are most certainly correct that “Missouri law (304.012) also expressly prohibits a driver of a motor vehicle on a public highway from driving in such a manner as ‘to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care[,]’” it is at least arguable that she did not violate that statute – that she drove safely and the only risk to safety was created by protestors. The driver proceeded slowly and on a public highway; the protestors could and did move out of the way and there were no injured protestors reported in the cited article. As before, I fully agree with your earlier comment that we should deal with the reported facts (as you wrote above: “Other commenters can manufacture details, present them as if they were either reported facts or “secret” facts that they, despite their pseudonymity, magically know.”) and on those facts and after viewing the video, the decision to not charge the driver is at least defensible even if there is room to disagree. That, however, in my opinion, is well within the normal range of prosecutorial discretion.

        Finally, what prompted me to comment in the first instance and what prompts this response is the issue of what I perceive as your bias against the legitimate interests of the drivers on I-70. You made clear in the post how you perceived their interests and I commented that you may have it wrong and that, in any event, the drivers on I-70 had a legitimate interest in using the highway for motor traffic and the protestors did not have a legitimate interest in using I-70 for protest. You respond with: “As for my bias against the ‘legitimate interests’ of the driver, I call bullshit. There are no legitimate interests that suffice to kill. None. Ever.” Again, I must disagree. In the first instance, there are plenty of legitimate interests that suffice to kill – self defense, defense of others, etc. In the second instance, the driver in this situation did not kill anyone.

        In my view, the fundamental issue presented by this situation is the clash of interests between those wishing to protest and those wishing to use the public highway for its intended purpose. Those wishing to protest have every right to protest and those wishing to use I-70 for getting from point A to point B have every right to that use. I am asserting that, in the context of the clash in this instance, the right of the protestors to protest did not include a right to hold third parties hostage at a particular place and time and that those third parties had every right to proceed on their way. This driver did and I think she was entitled to.

        People have a right to protest but they do not have a right to make others listen, pay attention or stop and admire the majesty of the self indulgent.

        • shg
          17 August 2015 at 8:23 am - Reply

          Ah, you’re quite right that I was hyperbolic in using “ever,” though in my defense, I thought it obvious that we were talking about the normal driving of a car and didn’t apply the use of deadly force rules that are ordinarily applied to the use of weapons to kill. Yes, if we look at a car as a weapon for the purpose of protecting a life, different rules apply.

          But I don’t argue that there is no legitimate interest in being able to drive down an interstate. I argue that the interest isn’t worth another person’s.

          People have a right to protest but they do not have a right to make others listen, pay attention or stop and admire the majesty of the self indulgent.

          But you still ignore the consequence: is this sufficient reason to kill? You note, again, that no one died:

          The driver proceeded slowly and on a public highway; the protestors could and did move out of the way and there were no injured protestors reported in the cited article.

          Aside from including a fact not in evidence (we have no idea how fast or slow she was going), it doesn’t change the fast that driving a car into pedestrians is inherently dangerous. That they moved doesn’t make the act any less dangerous. That no one was injured doesn’t have the act less dangerous. Shooting a gun into a crowd isn’t acceptable if you warn the crowd that you’re about to do it and the bullet happens not to strike anyone.

          Your argument as to why the protesters should be arrested for trespass is perfectly sound, as they violated the law by mounting their protest on the interstate where they had no right to be. But that’s not the issue here. The issue is that a person who had a perfectly legitimate interest in getting wherever she was going drove her SUV into pedestrians to get there. Your argument is that as long as nobody was injured or killed, that’s acceptable conduct.

          Give it a try under circumstances not involving a protest in Ferguson and see how prosecutorial discretion works for you. Next time you see a jaywalker (that’s wrong too), drive into them and hope they get out of the way in time. No doubt the police will understand your legitimate interest in getting wherever you’re going, combined with the jaywalker’s criminality, will compel them to give you a pass on engaging in such reckless conduct.

          • Ray Lee
            17 August 2015 at 9:56 am -

            Respectfully, my assertion that the driver proceeded slowly, allowing the protesters to get out of the way, which they did, and that no injured protesters were reported in the cited article is not arguing facts not in evidence. It is drawn directly from the video that shows at the cited link and the accompanying article.

            I am not arguing that so long as no one was injured or killed, what the driver did was acceptable. I’m saying that what the driver did was (at least arguably) acceptable (in my opinion) under the circumstances. My references to no one being killed was exclusively a response to the frequent assertions that protesting is not a capital crime and that the driver did not have justification to kill.

          • shg
            17 August 2015 at 10:25 am -

            Then let’s get a little deeper in the weeds. At first, she inched the SUV forward, but then she accelerated with numerous people standing directly in front of her. How fast is your “slowly,” a relative word? Is 10-12 mph driving slowly? It’s like standing still in car, but can you run 10=12 mph? It may be slow compared to highway speed, but to dismiss it as “slowly” in terms of its endangering the lives of those standing in front of the SUV is false.

            And had someone not jumped out of the way, or had someone tripped or been pushed backward so they fell down under the car, they would have been dead. That didn’t happen, but it changes nothing about the dangerousness of what she did. If, in your opinion as you say, it’s acceptable under the circumstances to recklessly disregard a serious risk of death to others, than it’s a reflection of your value of life. My opinion, obviously, differs.

            But more to the point, if anyone did this to anyone other than the Ferguson protesters, they would be charged with attempted murder and no one, probably including you, would question the propriety of the charge. She wasn’t.

          • Ray Lee
            17 August 2015 at 12:27 pm -

            “How fast is your ‘slowly,’ a relative word?”

            My “slowly” is “slow enough to allow the protesters to safely get out of the way.”

            “[T]o dismiss it as ‘slowly’ in terms of its endangering the lives of those standing in front of the SUV is false.”

            Apparently not as it was, in fact, slow enough for all of the protesters to get out of the way.

            “If, in your opinion as you say, it’s acceptable under the circumstances to recklessly disregard a serious risk of death to others, than it’s a reflection of your value of life. My opinion, obviously, differs.”

            As you well know, I did not say that it was acceptable to recklessly disregard a serious risk of death to others. I said that, in my opinion, her conduct arguably did not present a serious risk of death to others. That was, however, one of your better straw men.

            “But more to the point, if anyone did this to anyone other than the Ferguson protesters, they would be charged with attempted murder[.]”

            As I mentioned above, Alexian Lien intentionally ran over someone who was not remotely a Ferguson protester and was not charged. Admittedly different facts but likely not so different a concept animating the decision not to charge. I’m speculating here of course, but no more so than your speculation as to whether other people in different circumstances would or would not be charged.

          • shg
            17 August 2015 at 12:39 pm -

            So the fact that no one died proves she was moving slowly and safely? You’ve now come full circle. My work here is done. And by the way, I treated you nicely and addressed your arguments substantively. But this:

            As you well know, I did not say that it was acceptable to recklessly disregard a serious risk of death to others. I said that, in my opinion, her conduct arguably did not present a serious risk of death to others. That was, however, one of your better straw men.

            Up to now, we’ve had an interesting debate, even though it had become repetitious. Now you’re an asshole, and will be treated as such.

          • Ray Lee
            17 August 2015 at 12:56 pm -

            Well, I’m sorry you feel that way. I thought it was an interesting debate throughout.

    • David
      16 August 2015 at 3:17 pm - Reply

      So it’s fine to exercise one’s constitutional right to protest against the police and local government for abuse and misconduct, or more specifically, killing unarmed black men and using the local court system to fine blacks into jail, so long as they conduct the protest in a peaceful, orderly, law-abiding manner that suits the convenience and desires of the very people they’re protesting for killing them.

      Seems legit.