What the Feds Can and Cannot Do in the Brown and Garner Cases


Many people troubled by the decisions not to indict the police officers who killed Michael Brown and Eric Garner have taken solace in the ongoing federal investigations of their deaths. It is important to understand, though, what the U.S. Department of Justice can and cannot do.

The grand jury decisions in these cases do not foreclose federal prosecution. (Calling them “grand jury” decisions is a little misleading. Grand juries almost never decline to return indictments that prosecutors want, and there is little indication that what happened in Ferguson or on Staten Island is one of those rare cases. But set that to one side.) Actually, state prosecutions are not foreclosed, either, because the Double Jeopardy Clause is not triggered by a refusal to return an indictment. But the prosecutors in Missouri and New York have made it clear they will not pursue these cases further, which leaves the ball in the court of the Department of Justice. Attorney General Holder has said that federal prosecutors and investigators are proceeding with their own, independent probes.

Federal criminal law, though, sweeps much more narrowly than state criminal law. Homicide is a federal offense only under special circumstances. One of those circumstances is when the killing infringes on constitutional rights. Ever since the Reconstruction Era, it has been a federal crime for a police officer (or anyone else acting under color of state law) to “willfully” violate constitutional rights, including rights against racial discrimination and against unreasonable uses of force. This offense, now codified in 18 U.S.C. § 242, was the basis for the successful federal prosecution of the Los Angeles police officers who beat Rodney King in 1991. It would likely be the basis for any federal indictment of Darren Wilson, the officer who shot Michael Brown, or Daniel Pantaleo, the officer who triggered the asphyxiation of Eric Garner.

The difficulty is that federal courts require a prosecution under 18 U.S.C. § 242 to include proof of “specific intent” to violate constitutional rights. Exactly what that means has never been clear. It doesn’t mean that the officer had to be thinking about the Constitution, but it is not enough that the officer intentionally did something that a judge or jury later decides was unconstitutional. At a minimum, federal case law suggests that the officer must have acted in “open defiance or reckless disregard” of a clearly articulated constitutional prohibition. And even that may not be enough. Most federal courts require proof that the officer acted with a “bad purpose or evil motive,” by which they mean some kind of an intention to deprive the victim of a constitutional right.

The upshot is that the federal criminal investigation in these cases will in fact be a second look, but a narrow second look. It’s a second look designed to allow the prosecution of “willful” violations of constitutional rights when local prosecutors balk or local courts prove inhospitable.

That isn’t quite the concern, though, that has been raised about the decisions in Ferguson and in Staten Island. The concern isn’t that civil rights don’t seem to have mattered; the concern is that Black lives don’t seem to have mattered. No one has been marching out of outrage for the disregard of Fourth Amendment restrictions on the use of force. There is suspicion in many quarters that Michael Brown and Eric Garner were targeted because of their race, but that’s really not the main point, either. The main concern is that when a white police officer kills an African American, even an unarmed teenager, the system leans too far over backwards to see things from the officer’s perspective. It’s a concern about selective sympathy.

The federal criminal investigations into the deaths of Michael Brown and Eric Garner are not well tailored to address that concern. Federal prosecution is authorized for a “willful” violation of constitutional rights, which can be difficult to demonstrate even in cases of clear police misconduct. Section 242 doesn’t authorize prosecution based on a state prosecutor’s insufficient zeal, even if it reflects racially selective sympathy, and even if the cumulative effect of many similar decisions is to deny African Americans the equal protection of the laws.

A twenty-year-old statute, 42 U.S.C. § 14141, lets the Department of Justice seek injunctions against systemic violations of constitutional rights by a local police department, and the Department is considering whether to pursue a remedy of that kind against the Ferguson Police Department. Acting under section 14141 would allow federal authorities to take a broader perspective, but only in a particular jurisdiction. And it would not be designed to seek justice for particular victims.

So it is good that federal authorities are reexamining the deaths of Michael Brown and Eric Garner. But it is also important to recognize that constraints on their role may prevent them from providing much assurance that justice has been done in these cases.

Professor Sklansky is a former federal prosecutor who teaches and writes about criminal procedure and policing. He served as special counsel to the independent review panel appointed to investigate the Los Angeles Police Department’s Rampart Division scandal.

1 Response to What the Feds Can and Cannot Do in the Brown and Garner Cases
  1. Often, like with the Rosa Parks case in civil rights or certain death row candidates that were freed based on later DNA evidence not available at their original trial, such cases that leave an uneasy feeling about injustice and the lack of appropriate remedies may at least lead to such remedies being worked in the law for all that come after. Maybe this leads to more racially balanced police forces and more body cameras. And maybe one gives some thought that if a prosecutor and a policeman both see themselves as “law enforcement officers” they are less likely to “rap” on each other and that this may call for some independent inquiry at least in alleged homicide cases that involve officers or other state officials as potential culprits.

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