In the wake of Monday's grand jury decision not to indict a white police officer in the fatal shooting of an unarmed black teenager in Ferguson, Mo., the investigation of the volatile case is far from over.
Under the lead of Attorney General Eric Holder, the Justice Department is still pursuing two investigations related to the Aug. 9 shooting of 18-year-old Michael Brown.
"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 in a statement.
Federal prosecutors are still looking into whether the officer, Darren Wilson, should face civil rights charges in the controversial case. At the same time, the Justice Department is continuing a broader inquiry into the widely criticized policing practices of the police department in Ferguson, a mostly black suburb of St. Louis that has had tensions for years with police and community officials who are mostly white.
According to Holder, the Justice Department "continues to investigate allegations of unconstitutional policing patterns or practices by the Ferguson Police Department."
Justice officials have declined to comment on the status of their investigations, but the Washington Post, citing unnamed law enforcement sources, reported last month that investigators “have all but concluded” they don’t have a strong enough case to bring against Wilson. A DOJ spokesman called the story an “irresponsible report” based on “idle speculation.”
But many observers have agreed for months that bringing a case against Wilson would be tricky. Federal law sets a higher-than-usual threshold in bringing civil rights charges against police officers. Prosecutors must prove that an officer knowingly used more force than was necessary to handle a situation, and that he or she specifically set out to violate someone’s constitutional rights.
“It’s very hard to prove,” said William Yeomans, a veteran prosecutor who spent more than 24 years in the Justice Department’s Civil Rights Division, which is handling the Ferguson probe. “It’s difficult to prove exactly what was in his mind at the time, that he wasn’t acting out of a reasonable sense of fear,” Yeomans said. “It’s a very hard standard to meet — not impossible, but very, very tough.”
The Justice Department has had rare success in pressing the statute. In 1993, prosecutors won civil rights convictions against two of the four Los Angeles police officers accused of beating Rodney King — though they had videotape evidence in that case. And in 2010, two New Orleans police officers were convicted on civil rights violations for killing a man and burning his body in the aftermath of Hurricane Katrina. (Their cases are on appeal.)
In contrast, federal prosecutors did not pursue civil rights charges against New York City police officers charged in the 1999 shooting death of Amadou Diallo. Officers shot him 41 times as he reached for what they believed was a weapon, though it later turned out to be his wallet. Justice officials felt they could not prove the officers didn’t act out of reasonable fear.
That same hesitation could come into play in Ferguson. Wilson has claimed he acted in self-defense when he shot Brown six times. At least one of the shots was fired inside or near Wilson’s patrol car — which some have interpreted as evidence of an initial struggle. The rest were fired on the street, as Wilson got out of his car and Brown tried to flee. Witnesses have said Brown had his hands above his head in surrender as Wilson fired the last shots — but even those accounts might not be enough to overcome the high bar of “reasonable doubt” about whether Wilson was acting in fear or malice.
Federal officials face a lower threshold in their investigation of the operation of the Ferguson Police Department, which has been criticized for its heavy-handed tactics in the community both before and after the Brown shooting.
Last month, the Justice Department reached an agreement with the city of Albuquerque, N.M., after an investigation by the Civil Rights Division found the Police Department had used excessive force against passive civilians, including many who were mentally ill. Under the agreement, the city accepted an independent monitor to oversee reforms for the next two years and agreed to adopt new policies aimed at easing conflict with the community.
In St. Louis, many agree the Ferguson Police Department is likely to reach a similar deal with the Justice Department. “I think everybody sees that as a foregone conclusion,” said a former St. Louis prosecutor close to Ferguson officials who declined to be named. “People know something has to change.”