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Eric Holder, Racial Profiler
The investigation of Darren Wilson is solely based on his race.

U.S. Attorney General Eric Holder arrives in Missouri, August 20, 2014. (Getty)

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1475
Andrew C. McCarthy

Why has a federal civil-rights murder investigation arisen out of the tumult in a St. Louis exurb? There is only one plausible reason: Eric Holder is guilty of racial profiling.

To be clear, we are not talking here about whether there was justification for the shooting of a young black man, 18-year-old Michael Brown, by a young white police officer, 28-year-old Darren Wilson. Was the shooting a legitimate exercise in self-defense by an officer under attack? Was it an overreaction for which Officer Wilson should suffer serious civil and criminal consequences? Such questions can only be answered by a thorough and fair investigation, the kind of due process owed to both the victim and the subject of the investigation — the kind that, as National Review’s editors point out, will be tough to mete out with political thumbs pressing on the scales.

Whatever the outcome, though, murder — including homicide caused by a policeman’s application of excessive force — is generally not a federal crime. It is a concern of state law. Only a few categories of murder are within the jurisdiction of federal investigators. In the main, they are far afield from Ferguson: the assassination of a U.S. government official, for instance, or a killing incidental to offenses that have interstate or international repercussions — racketeering, drug-trafficking, and terrorism.

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Federal civil-rights laws may be invoked, but only in exceedingly rare circumstances: murders carried out because of the victim’s race, ethnicity or religion (see Section 249 of the federal penal code); or murders carried out by police (or other persons acting “under color of law”) with the specific intent to deprive a person of some federal right or privilege — usually, but not necessarily, motivated by some animus toward race or analogous personal characteristics (see Section 242).

To constitute a civil-rights crime, it is not nearly enough for a violent act to have the “racial overtones” assorted agitators and commentators choosing to frame the case in racial terms contend it does. To justify a federal investigation, the Justice Department must have a rational basis to believe it could prove these invidious and evil purposes beyond a reasonable doubt. That requires compelling evidence, not a farfetched social-justice narrative.

Remember the similarly tragic Trayvon Martin shooting, when Mr. Holder colluded with the notorious Al Sharpton in raising the specter of a federal civil-rights prosecution, pressuring state officials in Florida to file a specious murder indictment. After a jury swiftly acquitted George Zimmerman, Holder was forced to retreat. As he had to have known all along, the evidence of intent to deprive Mr. Martin of his civil rights was non-existent — even weaker than the state’s flimsy murder case.

Well, here he goes again.

Based on what is known about the unblemished six-year record of Officer Darren Wilson and the facts surrounding his shooting of 18-year-old Michael Brown, there is no reason to suspect racism, much less that any thought was given to Mr. Brown’s federal rights during the sudden, violent exchange. There is no way this is a civil-rights case . . . unless you are a backward-thinking dolt who spots racism based on nothing more than the fact that the police officer is white and the victim is black.

It is a violation of federal law to subject a person to criminal investigation solely on the basis of his race. To prevent such government abuse, to root out institutional racism, is the objective of the civil-rights laws, which hold that a person may not be deprived of his rights and privileges — including due process and equal protection under the law — based on his race.

If the Justice Department would not open a civil-rights investigation based on a black police officer’s shooting of a civilian, whatever the victim’s race, then a white officer is just as entitled to that presumption of innocence. It is no more legitimate for the Justice Department to target a white cop for being white than for a white cop to target a black man for being black. Both would be examples of what the civil-rights laws call “deprivation of rights under color of law.”

The U.S. Attorney’s Manual, which guides Justice Department prosecutors, is clear on this point (USAM, Sec. 9-27.260):

In determining whether to commence or recommend prosecution or take other action against a person, the attorney for the government should not be influenced by. . . . the person’s race, religion, sex, national origin, or political association, activities or beliefs.

The manual elaborates that prosecutors must, of course, take note of personal characteristics when they are pertinent to the offense. Investigations of immigration violations, for example, necessarily involve a person’s national origin. And the fact that a victim and offender are of different races can be considered in building the case for a civil-rights investigation. But this simply means the government need not drop a case that is based on solid evidence of racial animus just because racial difference is part of its proof. It does not mean the mere racial difference can ever substitute for solid evidence of racial animus.



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