US history suggests Justice Department prosecution won't be easy in Ferguson police shooting

Eric Tucker / The Associated Press
August 26, 2014 01:36 PM

FILE - This Aug. 20, 2014 file-pool photo shows Attorney General Eric Holder talking with Capt. Ron Johnson of the Missouri State Highway Patrol at Drake's Place Restaurant in Florrissant, Mo. As the Justice Department probes the police shooting of an unarmed 18-year-old in Ferguson, Missouri, history suggests there’s no guarantee of a criminal prosecution, let alone a conviction. Federal authorities investigating possible civil rights violations in the Aug. 9 death of Michael Brown must meet a difficult standard of proof, a challenge that has complicated the path to prosecution in past police shootings. (AP Photo/Pablo Martinez Monsivais, File-Pool)

WASHINGTON - As the U.S. Justice Department probes the police shooting of an unarmed 18-year-old African-American in Missouri, history suggests there's no guarantee of a criminal prosecution, let alone a conviction.

Federal authorities investigating possible civil rights violations in the Aug. 9 death of Michael Brown in the St. Louis suburb of Ferguson must meet a difficult standard of proof, a challenge that has complicated the path to prosecution in past police shootings.

Ferguson has been canvassed by dozens of FBI agents who are interviewing witnesses. U.S. Attorney General Eric Holder last week travelled there to help ease tensions after weeks of protests and the Justice Department has obtained an additional federal autopsy to augment those carried out by local authorities and at the request of Brown's family.

To build a case, the Justice Department would need to establish that the white police officer, Darren Wilson, not only acted with excessive force but also wilfully violated Brown's constitutional rights. Though the department has a long history of targeting police misconduct, including after the 1991 beating of Rodney King, the high bar means that many high-profile police shootings that have raised public alarm never wound up in federal court.

"It's a very difficult standard to meet, and it really is satisfied only in the most egregious cases," said University of Michigan law professor Samuel Bagenstos, the former No. 2 official in the department's civil rights division. "Criminal enforcement of constitutional rights is not something that is easily pursued. It really requires building a case very carefully, very painstakingly."

Federal prosecutors, for instance, declined to charge New York City police officers who killed the unarmed Sean Bell in 2006 in a 50-shot barrage following his bachelor party. The four New York officers who in 1999 fired 41 shots at Amadou Diallo, an unarmed immigrant from Guinea, after they said they mistook his wallet for a gun were acquitted during a state trial and never faced federal prosecution for his killing.

In the Brown case, much will depend on the specific facts of the confrontation, which remain unclear. Police have said a scuffle broke out after Wilson told Brown and a friend to move out of the street and onto a sidewalk. Police say Wilson was pushed into his squad car and physically assaulted. Some witnesses have reported seeing Brown's arms up in the air before the shooting, an apparent sign of surrender. An autopsy paid for by Brown's family concluded that he was shot six times, twice in the head.

Investigators are working with a federal law that makes it illegal for officers to abuse their power by wilfully depriving a person of his civil rights, such as the right to be free from an unlawful police seizure. The statute does not require an officer to have been motivated by racial bias, but it does mean that the officer cannot intentionally do something that the law prohibits.

But investigations are complicated by the fact that police officers are given latitude in their use of force, including in circumstances where an officer reasonably believed the force was necessary to capture a dangerous fleeing felon or had a good basis to fear his life was in imminent danger, said Rachel Harmon, a University of Virginia law professor and former Justice Department civil rights prosecutor.

"In order to prove that there was a constitutional violation, the government would have to prove that from a reasonable officer's perspective, those circumstances didn't exist and that a reasonable officer wouldn't believe that they existed," Harmon said, noting that the Supreme Court has said courts should not apply the "20/20 vision of hindsight" in evaluating whether an officer used excessive force.

The civil rights statute in recent years has been used to prosecute law enforcement officers for a wide range of conduct, including sexual assault, robbery and shootings of unarmed civilians in New Orleans in the chaotic aftermath of Hurricane Katrina. But because it can be difficult to prove that an officer didn't feel threatened during a confrontation, far more successful prosecutions involve victims who were assaulted while already in custody, such as Abner Louima, the Haitian immigrant who in 1997 was beaten by officers and sodomized with a broomstick inside a New York police precinct.

In addition to the federal civil rights probe into the death in Ferguson, a St. Louis County grand jury is hearing evidence in its own investigation.

There is precedent for the Justice Department to become involved at the conclusion of a state case if federal officials feel justice hasn't been done. After four police officers were acquitted in a California state trial in the beating of Rodney King, the Justice Department filed federal civil rights charges and won convictions against two of them.

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Follow Eric Tucker on Twitter at http://www.twitter.com/etuckerAP


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