The federal government is sharply limited in what it can do to address a police killing such as the shooting death of Michael Brown in Ferguson.
A tiny handful of allegations of police brutality are prosecuted and the burden of proof is extremely high. Courts give police the benefit of the doubt, not wanting to second-guess decisions made in the “heat of battle.”
The Justice Department also can bring a civil “pattern and practice” suit against a police department aimed at changing policies and procedures that may have contributed to a shooting.
Attorney General Eric Holder’s Justice Department has brought more of both kinds of cases – criminal prosecutions and pattern and practice suits – than previous administrations. But the numbers are dwarfed by the allegations.
Every year, the criminal section of the Civil Rights Division receives about 10,000 complaints alleging violations of civil rights, most involving law enforcement officials. But fewer than 100 officers are prosecuted each year; in 2013, the last year for which figures are available, 45 officers were prosecuted.
The department boasted in its 2013 annual report of the conviction of New Orleans officers who fired on unarmed civilians on the Danziger Bridge during Katrina in 2005. But those convictions have since been thrown out for prosecutorial misconduct.
The civil pattern-and-practice suits designed to reform police department policies and procedures are expensive and time-consuming. As a result, there have been only been a few dozen of those cases in the two decades since Congress passed the law authorizing them in the wake of the Rodney King case.
A high profile example, the challenge to Maricopa County Sheriff Joseph Arpaio, took more than four years to reach a federal court decision against Arpaio.
Surveying the tools available to the federal government to stimulate police reform, Rachel Harmon, a University of Virginia law professor wrote gloomily in the Saint Louis University Public Law Review: “Federal remedies for misconduct will never prevent bad policing much more than they do now.”
Beyond direct federal action, those who want the shooter, Officer Darren Wilson, or the Ferguson police department to pay for Brown’s death Aug. 9 have two options.
Brown’s family can file a civil suit for money damages against Wilson claiming he violated Brown’s civil rights. And the family can sue the department for policies or procedures that contributed to Brown’s death. In addition, the Ferguson police could either discipline or fire Wilson if the department concluded he had used unreasonable force.
Both the family’s civil suit and the internal disciplinary process could go ahead while the criminal investigations are playing out, legal experts say.
So what happens if Wilson is not indicted or convicted in Brown’s death?
Q: Is it likely that the federal government would prosecute Wilson if he is not convicted in state court?
It’s too early to say. There are too many uncertainties about what happened between Wilson and Brown to make a prediction, legal experts agree.
“The fact is, we don’t know what happened,” said Peter Joy, a professor at Washington University Law School. “There are different accounts out there, and we, the general public, most likely know only a fraction of what the grand jury is considering. It all depends on the evidence, some of which, like the possible recording of the gunshots that just surfaced, may still not be in the hands of the police and the FBI.”
Q: Is it enough that Wilson fired repeatedly on unarmed teen?
No. The federal government has decided in a number of cases not to prosecute in cases where unarmed civilians were shot 40 or 50 times.
Federal prosecutors, for instance, declined to charge New York police officers who killed unarmed Sean Bell in a 50-shot barrage after his bachelor party in Queens in 2006. Nor did the feds prosecute the New York officers who fired 41 shots at Amadou Diallo in 1999; the officers said they mistook a wallet for a gun.
It’s not enough to prove that the officer acted negligently or displayed bad judgment, lawyers point out. What matters is whether the officer had an ‘objectively reasonable’ belief that there is a threat.
Q: Does the law favor the police or the citizen?
The police. Erwin Chemerinsky, the dean of the School of Law at the University of California, Irvine, wrote in The New York Times that Supreme Court decisions make it hard for citizens to hold police accountable for unreasonable use force.
“In recent years,” he wrote, “the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.”
Police in West Memphis, Ark., pulled over car with only one operating headlight. The driver sped away with the police chasing it at speeds over 100 miles an hour. The officers fired 15 shots into the car killing the driver and a passenger. Justice Samuel Alito Jr. wrote, it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
Q: What does the federal government have to prove to win a prosecution against a police officer?
It has to prove that the officer, acting under color of law, specifically intended to deprive a person of a civil right clearly guaranteed by the Constitution or federal law. The officer must act “willfully,” which means with the “purpose to deprive a person of a specific constitutional right,” the Supreme Court has said.
Q – What does willful mean?
That’s the tricky question and it is bound up with an ugly episode in American history. The court interpreted willful in the 1945 case of Screws v. United States where Sheriff Claude Screws and other officers in Georgia beat a handcuffed black suspect to death with a two-pound iron blackjack. Justice William O. Douglas called the beating “shocking and revolting,” but said Screws could only be prosecuted under federal civil rights law if he knew he was violating a specific right.
For example, Douglas wrote, if an officer knew he was acting repeatedly to keep people from speaking or worshipping, he couldn’t claim not to know about these well-established rights. But the contours of due process rights are not as clear-cut, he said.
Marcia McCormick, a professor at Saint Louis University Law School put it this way in an email: “The officer doesn't have to think ‘I am shooting this person because I want to deprive him of life without due process of law.’ It is enough if the officer shows ‘deliberate indifference’ for a known civil right.”
The government’s proposed jury instruction in the New Orleans Katrina prosecution stated: “You may also find that a defendant acted willfully if you find that he recklessly disregarded a person's right to be free from the use of unreasonable force by a law enforcement officer.”
Q: What right of Brown’s would Wilson be accused of willfully violating?
The Fourth Amendment right against unreasonable searches. In the 1985 Tennessee v. Garner decision, the Supreme Court ruled that a police officer who shoots a fleeing, nonviolent felon violates the suspect’s Fourth Amendment right against an unreasonable seizure.
“If Wilson shot Brown because he had committed a felony,” wrote McCormick, “it would seem that he would satisfy the (criminal civil rights) statute because he'd be charged with the knowledge that this was excessive force.” Wilson should have known that the Constitution does not permit the use of deadly force on a non-dangerous fleeing felon. It is a clearly established constitutional right.
Q: If Wilson is not convicted for violating state law, will the federal government definitely prosecute?
No. There is a Justice Department policy that restricts the cases in which the federal government files charges. The policy is called the Petite policy, after the name of a Supreme Court decision.
Joy described it this way: “The Petite policy provides guidance on how the discretion to prosecute should take into consideration a prior state prosecution for the same acts. Three conditions should be met to pursue a federal prosecution.
“First, the matter must involve a substantial federal interest. If the investigation brings out facts that there was a civil rights violation, that would meet the first condition.
“Second, there has to be a determination that the prior state prosecution left the federal interest unvindicated.
“… Finally, there has to be a determination that there has been a federal offense and that there is sufficient admissible evidence so that a conviction is probable.”
Such a prosecution is not double jeopardy because there are two different sovereigns – state and federal.
Q: How would a federal grand jury differ from a state one?
A federal grand jury, like a state grand jury, would determine if there is probable cause to believe a crime was committed.
But Joy points out differences: “First, a federal grand jury consists of at least 16 and not more than 23 individuals, and the state grand jury consists of 12 persons. Next, the length of service differs. A regular federal grand jury meets for a basic term of 18 months, and it can be extended for six months. A regular state grand jury in St. Louis County meets for four months.”
Plus, Richard Kuhns, a professor at Washington University Law School, points out, “In the federal system, felony defendants have the right to a grand jury indictment. So federal prosecutor couldn't go forward if grand jury didn't indict.”
Q: Is it likely that the Brown family will file a civil suit?
“Unless there is evidence that clearly demonstrates that Officer Wilson was justified in killing Mr. Brown, a civil suit is likely given what is currently known about the incident,” wrote Joy. “That said, a civil suit may be very difficult to prove if no state or federal criminal charges are filed against Officer Wilson. Again, everything depends on the evidence.”
Q: Is it easier for the Brown family to win a civil suit than for prosecutors to win a criminal conviction?
A: Yes, but….
Proof in a civil case is by a preponderance of the evidence, meaning 51 percent of it. Proof in a criminal case is beyond a reasonable doubt. And that reasonable doubt applies to difficult elements of the crime, such as whether the officer acted “willfully.”
Still, to win money damages, the Brown family would have to get over a hurdle that the Supreme Court erected – qualified immunity for the officer. As Chemerinsky explained, “a government officer can be held liable only if ‘every reasonable official’ would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.”
One problem for the Brown family is that Missouri has never changed its law authorizing police to shoot a fleeing felon to stop his escape.
Q: What would the Brown family claim?
A: The most likely claim would be violation of the Fourth Amendment freedom from unreasonable seizures. McCormick said the family might also claim that the officer violated the 14th Amendment’s protection of equal protection and due process.
Even in the context of a civil case, the courts “tend to protect officials who must make split-second judgments,” wrote McCormick. “In fact, courts often give ‘heat of battle’ instructions in these cases to emphasize that factor.”
It’s hard to prove that the officer denied Brown his due process right to life, which has “a very demanding standard,” McCormick said. “The officer's actions must shock the conscience, which happens when the officer uses force with the intent to harm. This malice standard is a high one.
“Finally, a suit could allege that the officer used the force he did because of Brown's race. In order to demonstrate that, the plaintiffs would have to demonstrate that Wilson's motive was Brown's race.”
Q: Would the claim against Ferguson be different from one against the officer.
The department “is not automatically liable for Wilson's actions,” wrote McCormick. “The department could be liable for any policies it might have had that encouraged the use of excessive force or racially motivated conduct. Written policies or a pattern of conduct within the department could be used to show that these kinds of policies existed. The department could also be liable for failing to train officers on the proper use of force.
“The plaintiffs would have to essentially show that the leadership of the department knew there was a risk that officers would use excessive force or racially motivated force, and deliberately kept the policies they had or failed to train the officers to avoid those uses.”
Q: Does the internal, disciplinary investigation have to await completion of the criminal investigations?
A: No. Ferguson might want to start soon, McCormick said, because Ferguson’s “finding that officer Wilson acted outside of the bounds of what the department trained him to do would actually be a defense to the department in the civil suit.”
Wilson could not assert a Fifth Amendment right to remain silent in the internal disciplinary process, as he could in the criminal cases. He could be fired for refusing to answer questions in the disciplinary process.
Q: Are there other reforms that could improve police practices?
A: Yes. Some experts on police reform suggest limitations on the use of military equipment by police and also expansion of programs to decertify weak police departments.
Roger Goldman, an emeritus professor at Saint Louis University Law School, has spent a career working on police reform. His hope is “just as the Rodney King incident led to Congress' enacting the pattern and practice civil remedy, the Ferguson experience will hopefully result in congressional limits on the use of military hardware and state oversight of municipal police departments, including decertification of failing departments."