With grand jury decision in, legal focus turns to Department of Justice

By Chuck Raasch craasch@post-dispatch.com 202-298-6880

With the Ferguson grand jury's decision now in the court of public opinion, the legal focus turns to the U.S. Department of Justice, whose civil rights investigation of Ferguson Police Officer Darren Wilson faces a "high legal bar" to prosecute, according to Attorney General Eric Holder.

That bar may be higher than that facing the grand jury, which decided to not indict Wilson in the Aug. 9 shooting death of Michael Brown, 18. In a federal civil rights case, prosecutors would have to prove that Wilson intentionally violated Brown's constitutional rights. In the wake of the Monday night decision, Holder hinted that an answer on the civil rights probe — one of a two-pronged federal investigation of the Ferguson shooting — could come relatively soon.

Holder said the Ferguson investigation was in a "mature stage." Spokesmen for his department did not immediately respond today to a question of what Holder meant by that.

But given that Holder has already announced he will step down pending Senate confirmation of a possible successor, Loretta Lynch, the impetus to conclude the civil rights investigation could be high. A separate investigation of the patterns and practices of the Ferguson Police Department also remains, and that is an area where the Justice Department has had some success in forging agreements with local police departments instituting changes in the way police deal with minority communities. Holder's department has launched more than 20 such investigations, including the one in Ferguson.

With Ferguson dominating national headlines as a proxy on race relations in the United States, any unresolved, high-profile federal investigations launched by Holder, including the Department Justice's ongoing civil rights probe of the Florida shooting death of another black teenager, Trayvon Martin, would be logical topics in as yet-unscheduled Senate confirmation hearings of Holder's possible successor.

Unlike the grand jury, which could have indicted Wilson under several possible state violations, the Department of Justice is focused on one federal statute.

That is covered under Section 242 of Title 18 of the federal code, commonly called "deprivation of rights under color of law." The Justice Department's Web site says this statute "makes it a crime for a person 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." Potential penalties could reach life in prison and, in some cases, the death penalty.

Randolph M. McLaughlin, a professor of law at Pace University and co-chair of the civil rights practice group at the New York law firm Newman Ferrara, said the law has roots in Reconstruction after the Civil War. It was passed in response to the Ku Klux Klan and others who were killing or terrorizing blacks and whites, many of whom had come from the north to help in the war's aftermath.

Where Wilson could have been indicted for one of several state charges if the grand jury believed he had acted "recklessly," McLaughlin said, conviction under the federal statute requires proof that Wilson "willfully" deprived Brown of his rights.

"The federal criminal case is difficult because the prosecutor has to prove that the officer intended to deprive the victim of his constitutional rights," McLaughlin said.

"It is a very narrow window that they have," McLaughlin added.

Holder hinted at that difficulty in his statement Monday night after St. Louis County Prosecutor Bob McCulloch announced the grand jury would not issue an indictment.

"While the grand jury proceeding in St. Louis County has concluded, the Justice Department's investigation into the shooting of Michael Brown remains ongoing," Holder said. "Though we have shared information with local prosecutors during the course of our investigation, the federal inquiry has been independent of the local one from the start, and remains so now. Even at this mature stage of the investigation, we have avoided prejudging any of the evidence. And although federal civil rights law imposes a high legal bar in these types of cases, we have resisted forming premature conclusions."

Civil claims by the Brown family against Wilson or the Ferguson Police Department may not be as hard to make, said the civil rights lawyer McLaughlin.

McLaughlin is a veteran of civil rights cases, and two years ago he helped file a $21 million civil rights lawsuit against the city of White Plains, N.Y., in the police shooting death of Kenneth Chamberlain, Sr., who had accidentally set off his medical alert pendant. That case is now in evidence discovery.

DOJ's separate "patterns and practices" probe of the Ferguson Police Department has successful precedents for the federal department. Similar actions have resulted in dozens of agreements between DOJ and police forces around the country, some achieved cooperatively, some after a more adversarial process. Often these agreements require training and independent oversight.

The most recent agreement was announced Oct. 31 between DOJ and the city of Albuquerque in which New Mexico's largest city agreed to reform training and the way that the city investigated officer shootings. The city has had 41 officer shootings since 2010, 27 of them fatal, and the impetus for the agreement was touched off after a homeless man was shot to death in March, sparking protests.

Holder called Brown's death a "tragedy" that "sparked a national conversation about the need to ensure confidence between law enforcement and the communities they protect and serve."

He added that DOJ "continues to investigate allegations of unconstitutional policing patterns or practices by the Ferguson Police Department."

The Rev. Al Sharpton, who appeared with the Brown family's attorneys at a press conference Tuesday, invoked the example of Rodney King, whose beating led to the trial and acquittal of four Los Angeles police officers in a Simi Valley, Calif., in 1992, and subsequent, deadly riots. The Department of Justice later successfully prosecuted two of the officers, leading to 30-month prison sentences.

"Before you think this is over, remember what happened in Rodney King," Sharpton said. "We went from Simi Valley to the federal government."