Outside the Beltway

Report: Federal Civil Rights Charges Unlikely In Michael Brown Shooting Case

Reports from the Justice Department seem to be laying the groundwork for more disappointment for those hoping for charges against Officer Darren Wilson.

Doug Mataconis · Tuesday, November 4, 2014 · 11 comments

In yet another in what has been a continuing series of leaks to the press associated with the state and Federal investigations of the August 8th shooting of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson, The Washington Post is reporting that Justice Department authorities are reaching the conclusion that there is no evidence to support Federal charges against the officer:

Justice Department investigators have all but concluded they do not have a strong enough case to bring civil rights charges against Darren Wilson, the white police officer who shot and killed an unarmed black teenager in Ferguson, Mo., law enforcement officials said.

When racial tension boiled over in Ferguson after the Aug. 9 shooting, Attorney General Eric H. Holder Jr. traveled to the St. Louis suburb to meet with city leaders and protest organizers in an effort to bring calm. He assured them that the federal government would open a civil rights investigation into the fatal shooting of Michael Brown. But that investigation now seems unlikely to result in any charges.

“The evidence at this point does not support civil rights charges against Officer Wilson,” said one person briefed on the investigation, who spoke on the condition of anonymity because of the sensitivity of the case.

Justice Department officials are loath to acknowledge publicly that their case cannot now meet the high legal threshold for a successful civil rights prosecution. The timing is sensitive: Tensions are high in greater St. Louis as people await the results of a grand jury’s review of the case.

Many supporters of Brown say they are already convinced there will be no state-level indictment of the officer. Federal officials have wanted to show that they are conducting a full and fair review of the case.

Justice spokesman Brian Fallon said the case remains open and any discussion of its results is premature. “This is an irresponsible report by The Washington Post that is based on idle speculation,” Fallon said in a statement.

Other law enforcement officials interviewed by The Post said it was not too soon to say how the investigation would end. “The evidence we have makes federal civil rights charges unlikely,” one said.

As I previously noted just a couple weeks ago, leaks that apparently came from Federal and state level sources are saying that the evidence that has been uncovered to date and presented to the St. Louis County Grand Jury seem to support the version of events that have been related by Officer Wilson. This includes forensic evidence that seems to support the assertion that there was a struggle for Officer Wilson’s gun, and that the gun went off during that struggle, which accounts from at least some of the injuries that Brown suffered even if they aren’t the fatal wounds. That evidence also seems to discount the idea that Brown had his hands up in the air at the end of the confrontation, or that he was shot while running away with his back turned. All of that physical evidence, along with what is allegedly the testimony of multiple eyewitnesses who didn’t come to the press in the days after the shooting, many of whom are African-American, has led to speculation that the Grand Jury might not indict Wilson at all or that, if it did, it would be for some lesser charge such as involuntary manslaughter or even criminally negligent homicide. In either case, in order to indict the Grand Jury must find that there is probable cause that the shooting was unjustified in some sense. In the case of Federal charges, that’s only the beginning of the inquiry:

Federal law sets a high bar in bringing civil rights charges against a police officer because prosecutors must prove beyond a reasonable doubt that the officer intended to violate someone’s constitutional rights.

Authorities faced a similar challenge in the investigation of George Zimmerman in the 2012 shooting death of unarmed black teenager Trayvon Martin in Sanford, Fla. Under federal law for hate crimes, prosecutors have to show that someone has been victimized intentionally because of a racial or other bias.

Law enforcement officials have said privately that there is insufficient evidence to bring federal charges in that case, although the two-year probe technically remains open.

The investigation of the Brown shooting is being conducted by the Justice Department’s Civil Rights Division under a federal statute that makes it a crime for a person with government authority — the legal term is “acting under color of any law” — to “willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.”

(…)

Rachel A. Harmon, a law professor at the University of Virginia and a former prosecutor in the Justice Department’s Civil Rights Division, said it is especially challenging to prove a civil rights case beyond a reasonable doubt.

“There is an extra burden in federal civil rights cases because the statute requires that the defendant acted ‘willfully,’ ” Harmon said. “It is not enough to prove that he used too much force. You have to prove beyond a reasonable doubt that he did so willfully.”

Harmon also said that if Wilson “genuinely believed he was acting in self-defense,” then his actions are not considered “willful,” meaning he did not intend to deprive Brown of his constitutional rights.

This isn’t entirely surprising, of course. Even assuming that there is more to the evidence in this case than has been leaked to the press so far, proving the kind of additional intent that Federal Civil Rights charges would require is no small task and, while the Justice Department isn’t required to meet a “beyond a reasonable doubt” standard before bringing charges, it is a relevant consideration that prosecutors at all levels must take into account before proceeding forward. In addition to the ethical duties that all attorneys must follow, prosecutors are generally covered by an ethical duty not to bring charges if they do not believe that, all things considered, they don’t believe that they could ultimately prove those charges beyond a reasonable doubt. This doesn’t mean that they must know for certain that every charge will result in a conviction, because that is a standard quite simply can’t be achieved given the nature of the jury system. However, is a prosecutor lacks a reasonable belief that they could prove their case to the appropriate standard, then they are under an obligation to either not bring those charges, or to dismiss them. This is what happened several years ago in the case of former International Monetary Fund head Dominque Strauss Kahn. Kahn, you will recall, was charged with the rape of a hotel maid in New York City but, ultimately the charges were dropped when evidence surfaced of the inconsistencies and misrepresentations of the complaining witness that made it clear that defense attorneys would be able to so thoroughly discredit the maid’ account of what happened that even if the jury came back with a guilty verdict, it would likely be reversed sua sponte by the presiding Judge as inconsistent with the evidence. In this case, if the evidence tends to support the idea that Wilson shooting Brown was in self-defense, that Wilson believed he was in danger, or that Wilson did not intend to unjustifiably deprive Brown of his life, then it would be hard for the Justice Department to maintain charges. Of special relevance in this regard is Missouri law on the subject of when police can exercise deadline force, which gives significant authority to officers when they have a reasonable belief that the person in question presents a threat to the public at large. That is a tough standard to overcome on state charges, and one that seems to make it next to impossible to prove a Federal Civil Rights case beyond a reasonable doubt, especially when the physical and eyewitness testimony tends to support the officers version of events.

Instead of pursuing Officer Wilson, then, it seems likely that what the Justice Department will do here is undertake a comprehensive investigation of Ferguson and, possibly, St. Louis County law enforcement for a history of civil rights violations. That case is generally considered a civil rather than a criminal case, and a lower standard of proof would apply. More importantly, these types of cases seem to rarely actually go to trial and instead result in the entry of a Consent Decree that places the department under the supervision of a Federal official who essential works side by side with the department to eliminate the issues that were causing the problems. If anything, doing that and finding a way to reestablish the trust that needs to exist between the police in that community and the community itself is just as important as what happened to Michael Brown, if not more so. That may not be entirely enough for the people who are already screaming for Officer Wilson to be punished before charges have even been brought, but it’s worth remembering that, just as Michael Brown had rights that deserved protection, so does Officer Wilson. Those rights shouldn’t be sacrificed to appease a mob.