By TIMOTHY M. PHELPS
NationCrimeLaw
EnforcementHomicideShootingsMichael BrownRodney King
Those hoping the federal
government will criminally prosecute Darren Wilson are likely to be
disappointed
'It's a very tough thing under
federal law to indict a police officer in a shooting'
Those hoping the federal
government will criminally prosecute Ferguson, Mo., police Officer Darren
Wilson in the killing of an unarmed black man are likely to be disappointed,
but chances are strong that the Justice Department will impose significant
reforms on the city's police department through its ongoing civil
investigation.
St. Louis County officials
announced Monday that a local grand jury had found insufficient evidence to
charge Wilson in the Aug. 9 shooting of Michael Brown, 18.
Some Ferguson activists hope
that the Justice Department, which is conducting its own inquiry into the
shooting, will file a federal criminal case against Wilson. But former civil
rights prosecutors say the threshold for charging him with a federal crime is
even higher than for local prosecutors because it requires proof that the
officer intentionally used more force than reasonably necessary to deprive
someone of his civil rights.
"It's a very tough thing
under federal law to indict a police officer in a shooting," said William
Yeomans, who supervised police investigations while serving as a top Justice
Department official and currently teaches law at American University. "It
doesn't happen very often."
Yeomans advised that Brown
supporters not "put all their eggs in the criminal basket" by
focusing too heavily on the outcome of the federal criminal investigation into
Wilson. "The federal civil investigation into the Ferguson Police
Department will continue and has the potential to result in some very significant
reforms," Yeomans said.
Brown's shooting set off weeks
of racially charged clashes between protesters and police. The Justice
Department's civil rights division initiated two investigations, in what was
seen partly as an attempt to ease tensions.
Both investigations are
continuing. Justice Department officials declined to comment on the status of
either.
The criminal investigation was
running parallel to the St. Louis County prosecuting attorney's, with dozens of
FBI agents interviewing the same witnesses who appeared before the grand jury.
Although a federal grand jury is likely to be impaneled to hear evidence, few
expect the criminal investigation to lead to an indictment.
"It's a very complicated
case because you don't have a clear sense of what happened," said Alex
Busansky, a former criminal trial attorney in the civil rights division.
"There is no videotape."
Because of the high standard
needed to prove police misconduct, a video can be crucial to a successful
prosecution. Relying on video of the 1991 beating of Rodney King in Los
Angeles, federal prosecutors convicted two of four officers charged with
violating his civil rights. The federal case was filed after a Simi Valley jury
acquitted the officers.
Without video, cases are
usually harder to prove. A jury found four New York City police officers not
guilty of second-degree murder in 2000 after they shot Amadou Diallo, an
unarmed immigrant from Guinea, 19 times. A federal investigation found there
was not enough evidence to charge them with civil rights violations.
The Justice Department criminal
civil rights investigation into the shooting of 17-year-old Trayvon Martin in
Florida in 2012 continues more than 2 1/2 years after he was killed by
neighborhood watch volunteer George Zimmerman, who was acquitted in state
court.
Atty. Gen. Eric H. Holder Jr.,
who traveled to Ferguson to listen to complaints from citizens, has said he
hopes to wrap up the criminal investigation before he leaves office, possibly
in February.
The broader civil investigation
into the Ferguson Police Department could take longer, examining whether there
is a pattern of violations of citizens' rights. These investigations can take
considerable time but are more likely to yield results than federal criminal
investigations, experts say.
Justice Department officials
say investigators are looking into whether Ferguson police have a history of
using excessive force against suspects and are examining past lawsuits against
five of the city's police officers, including one in which a man with mental
health problems was killed with a Taser.
They are also reviewing
allegations that traffic stops occur disproportionally in black neighborhoods
and that unwarranted traffic citations are fueled by the municipality's thirst
for money. Traffic tickets provide a quarter of Ferguson's revenue, according
to one study.
The Justice Department also is
looking at the treatment of detainees in the Ferguson city jail.
St. Louis County, which
includes Ferguson, voluntarily agreed to work with the Justice Department on a
review of its own policing practices.
Under Holder, the Justice
Department has been particularly aggressive in such investigations, opening 20
of them in the last five budget years, twice as many as under his Republican
predecessors during a comparable period, according to Justice Department
statistics. During the same period, it prosecuted more than 300 officers for
misconduct. It has entered into formal agreements, called consent decrees, with
nine departments, including New Orleans and Albuquerque.
In Ferguson and surrounding St.
Louis County, they will probably be looking for evidence of excessive use of
force, unreasonable searches, racial profiling in arrests or traffic stops, and
other problems. The department's training and use of discipline also may be
examined.
"It can go to every corner
of the police department's operation," Yeomans said. Bringing a case
against Ferguson should not be difficult, he added.
"We've seen there are
problems and the police department's response to the protesters demonstrated
some serious problems about what the police department thinks is appropriate
use of force," he said. "There is a strong basis for believing that
there will be systemic changes to the Ferguson Police Department."
