The DOJ should be investigating, but it’s exceedingly unlikely they can prosecute a civil-rights violation.
On August 9, Michael Brown, an unarmed black teenager, was shot and killed by a Ferguson, Mo., police officer. While multiple investigations are underway, it is clear that there are competing, if not totally contradictory, versions of the events leading up to the shooting. The reaction to the shooting has been both emotional and predictable. The community in Ferguson, where police–community relations were apparently strained even before the incident, sees another case of an unarmed black youth gunned down by the police, and demand “justice,” including prosecution of the officer for murder, or in the alternative, prosecution by the United States Department of Justice Civil Rights Division for violation of Brown’s civil rights.
Such a prosecution is possible, but for a couple of reasons, at this point, seems exceedingly unlikely.
Attorney General Holder has already jumped into the fray, making a statement noting that the FBI, coordinating with the Department of Justice’s Civil Rights Division, is “supplementing, not supplanting” local investigations, and is evaluating the Brown case for possible prosecution. Many in the civil-rights community look to the DOJ to step in because they distrust local officials and will not trust a local investigation that clears, or even declines to prosecute, the Ferguson police officer who shot Michael Brown.
This call for a federal role is consistent with the history of the civil-rights movement, when federal authorities often clashed with recalcitrant local officials who refused to enforce civil-rights laws or even, as was the case in the murder of civil-rights activists Chaney, Goodman, and Schwerner depicted in the movie Mississippi Burning, were active conspirators and participants in heinous crimes undertaken to deny African Americans their civil rights.
In the short term, the pressure to be seen as “doing something” — with the laudable goal of calming a community such as Ferguson — makes statements such the one made by Holder all but inevitable.
But the actions taken thus far have been routine rather than unusual: The FBI and the criminal section of the Civil Rights Division undertake a review of virtually every police-involved shooting anywhere in the country (although rarely issuing press releases about it and even more rarely bringing a case). Moreover, such statements also serve to raise false hope that federal prosecution is more likely than it is — which could lead to more anger and disappointment if it is formally announced that a federal prosecution will not occur.
The Trayvon Martin case is the probably the most recent example of this: Anyone experienced in federal civil-rights law knew that the chance of a federal prosecution was vanishingly small, yet Attorney General Holder held out a federal “review” in the wake of George Zimmerman’s acquittal in response to calls to “do something.” Have you noticed any federal action in the past year?
Contrary to public perception, the Civil Rights Division, in particular its criminal section, is not some kind of roving police-misconduct review board. In circumstances such as the Brown case, they will likely look for violations of only two, relatively narrow statutes — 18 USC Sections 241 and 242, which bar intentional acts by public officials to deny persons their civil rights, such as the right to be free from unwarranted assault, theft of property, or unlawful arrest. The requirement that the public official act intentionally to deny civil rights severely limits the ability of the DOJ to prosecute local law-enforcement officers for police-involved shootings. Deviations from best practices, violations of local-law-enforcement standard operating procedures, and even negligent or reckless conduct may well be insufficient to support a prosecution absent the requisite intent by the officer. Thus, viewed on a spectrum of misconduct, there are a whole host of events that do not constitute a “clean” shooting by a police officer but are not criminal civil-rights violations that can be prosecuted by the DOJ.
This is not to say that, if the officer acted improperly, he could not be disciplined or even fired. Indeed it is the responsibility of local law enforcement to make such determinations. In addition, Michael Brown’s family can still sue the Ferguson police department and the officer civilly and recover damages. But the federal role is limited to those circumstances, which are fortunately rare, where an officer acts intentionally in violating a person’s civil rights. Split-second decisions, even bad decisions, made by officers in the heat of a confrontation where they reasonably (even if mistakenly) fear for their safety will not lead to a federal prosecution.
Given this legal landscape, while it is appropriate and routine for the DOJ and FBI to review the facts in Ferguson, and while the possibility exists that facts will come to light that support a federal prosecution, that possibility is remote. Local civil-rights leaders and the citizens of Ferguson should not bank on the DOJ “coming to the rescue” and prosecuting this case, and the DOJ and the Obama administration shouldn’t overpromise regarding the possible federal role. While being seen as “doing something” may have some short-term political benefit, eventually the law and the facts will dictate what action (or most likely inaction) is appropriate for the Civil Rights Division.
Preparing the public and the civil-rights community for the likelihood of this eventual result may not pay short term political benefits, but may eventually enhance trust and promote understanding of the DOJ’s limited role with respect to police shootings.
— Robert N. Driscoll is a partner at Friedlander Misler PLLC in Washington, D.C., and a former deputy assistant attorney general in the Civil Rights Division of the United States Department of Justice.