Ferguson shooting: why federal charges are unlikely, despite more scrutiny

The decision by the Department of Justice to, in essence, clear Ferguson, Mo., police officer Darren Wilson after an investigation into whether he violated Michael Brown’s civil rights when he fatally shot him comes as no surprise.

To be sure, the decision, as reported through anonymous sources by The New York Times, is a blow to the black teen’s family and others who wanted to see Mr. Wilson tried in criminal court.

Police officers tend to have wide leeway because of the dangerous nature of their jobs. In addition, few observers believed there was enough evidence to prove that Wilson, who is white, willfully intended to violate Mr. Brown’s civil rights, a bar set by the US Supreme Court.

Some eyewitnesses said Brown held his hands up in surrender before being shot, but other witnesses corroborated Wilson’s version of events – that he was legally protecting himself from an attack by a large man who had already punched him and tried to grab his service weapon.

The decision to not indict Wilson highlights just how difficult it can be to prove after the fact that police violated an American’s civil rights.

“Federal law surrounding racially motivated police shootings is unaccountably convoluted and hopelessly muddled,” Slate’s Mark Joseph Stern wrote last month. “But one thing is clear: In their current form, our federal civil rights laws let cops pull the trigger with near-total impunity.”

Nevertheless, a review of Justice Department actions, especially some that were taken in the past year, indicate that police, in fact, don't have carte blanche in their interactions with Americans.

At the local level, citizen grand juries over time have been hesitant to blame individual cops for tragic incidents, in large part because the law gives officers wide latitude to make mistakes in the kind of split-second decisions they often have to make.

Missouri law, for example, requires only that officers behave in a way that’s “objectively reasonable,” and it allows use of deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary.

The Department of Justice, however, has a slightly different set of standards to consider when deciding whether to press federal charges against an allegedly rogue officer.

The US Constitution says no one may be “deprived of life, liberty, or property, without due process of law” – which until 1945 meant a police officer was guilty if he or she unjustifiably beat or killed someone. But the Supreme Court fine-tuned the definition in 1945, adding the idea that an officer had to have willfully intended to violate someone’s constitutional rights to be found guilty.

As a result, federal charges can be relatively rare. In the New York City district, which includes Staten Island, where Eric Garner died this summer after a police chokehold, the Justice Department has indicted two officers out of a total of 16 civil rights investigations since 2009.

Yet at the same time, the Department of Justice appears to have stepped up actions against various police officers in just the past year.

The department opened 52 new prosecutions into alleged civil rights violations by law enforcement in 2014, a 100 percent increase from the previous year, according to the Transactional Records Access Clearinghouse, which compiles federal statistics. It also reported 42 convictions involving civil rights violations by police, a 61 percent increase over 2013.

The Department of Justice, especially under Eric Holder, the nation’s first black top cop, has also opened up record numbers of broader investigations into police practices. Last year, the department mandated deep reforms in the Albuquerque, N.M., and Cleveland police departments, both of which had a long history of officers using excessive force against citizens.

Moreover, the police department in Ferguson, where Brown was killed, is still under investigation into allegations of discriminatory traffic stops and use of excessive force.

While a grand jury in Staten Island declined to indict Officer Daniel Pantaleo in the death of Mr. Garner, the Department of Justice continues its investigation of that incident, which was filmed. Before he died, Garner could be heard telling Mr. Pantaleo, “I can’t breathe.”

Some action has also been taken below the federal level. Last year, an officer in South Carolina was punished after shooting a man in the hip during a traffic stop, and another, in North Carolina, was charged with murder for killing a black man who was running up to the officer to ask for help after a car accident.

Although a grand jury in Ohio decided not to indict officers after a black man holding a toy rifle at Wal-Mart was shot to death, another grand jury in the state is considering charges in the case of a 12-year-old boy who was holding a toy rifle and was shot and killed within seconds of police arriving on the scene.