Several options await the Justice Department inquiry that Attorney General Eric Holder will see firsthand Wednesday in embattled Ferguson, Mo., where he will meet with law enforcement authorities investigating the police shooting of 18-year-old Michael Brown.
The most emphatic outcome, a potential federal civil rights prosecution of the police officer who shot the unarmed teenager, may also be the least probable, because of the standards of proof required.
“Even if you have very motivated FBI agents and prosecutors, they are very tough cases to bring,” Robert N. Driscoll, a former deputy assistant attorney general in the Justice Department’s Civil Rights Division, said in an interview Tuesday. “I think that’s unlikely, in the end.”
But with an estimated 40 FBI special agents and other Justice Department officials now fanning out across Ferguson, another, broader kind of federal case could result from Brown’s death and the revelations that have followed. Through a special unit, the department could launch a wide-ranging investigation into a “pattern or practice” of behavior by local law enforcement agencies.
“I think that’s an entirely possible scenario,” Driscoll said.
Led by the Special Litigation Section, part of the department’s Civil Rights Division, previous pattern-or-practice investigations have targeted alleged problems at the Family Court of St. Louis County, the Albuquerque Police Department in New Mexico and the Miami Police Department, among others.
The investigations take time, and they go deep.
In November 2012, for instance, Justice Department officials initiated the probe into allegations that Albuquerque police routinely used excessive force. The 46-page report released in April 2014 concluded that Albuquerque police, who killed 20 people between 2009 and 2012, “often use deadly force” even without an imminent threat of death or serious harm to officers or others.
The Family Court of St. Louis investigation was opened in November 2013, following allegations that the due process rights of juveniles were being violated. It has not yet resulted in public findings.
When completed, these broader investigations can incite systemic reforms. The Pennsylvania Department of Corrections, for instance, instituted improvements following a Justice Department inquiry into the dangers facing gay and transgender inmates.
One of the Special Litigation Section’s stated priorities is protecting the rights “of people who interact with state or local police or sheriff’s departments.” Since Brown’s shooting, a sometimes harsh light has been cast on the relations between the Ferguson Police Department, three of whose 53 commissioned officers are African-American, and the residents of Ferguson, 67 percent of whom are African-American.
Last year, 86 percent of the cars stopped by Ferguson police officers were being driven by African-Americans, according to the state’s annual racial profiling report. Once pulled over in Ferguson, African-American drivers were twice as likely to be searched, according to the report.
Different, and potentially higher, hurdles face the federal prosecutors who may be contemplating potential criminal charges against Darren Wilson, the Ferguson Police Department officer who shot the unarmed Brown. Criminal prosecution is precisely what some activists and family members are demanding.
“Justice will bring peace,” Brown’s mother, Lesley McSpadden, said on NBC’s “Today” show Tuesday.
To secure a conviction on civil rights charges, though, federal prosecutors would have to prove, beyond a reasonable doubt, that Wilson acted willfully, with an ill-intentioned purpose. Negligence would not be enough in federal court.
“It’s not going to be easy,” Driscoll said. “You really have to prove intent, to prove there was an intent to violate the victim’s civil rights.”
Past investigations into high-profile shootings underscore the difficulties of translating public outrage into winning prosecutions.
In 2012, the Justice Department announced it was an opening an investigation into the shooting death in Florida of Trayvon Martin. Following the state trial acquittal in 2013 of his killer, George Zimmerman, federal officials reiterated their interest in the case.
“Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation,” the Justice Department declared in a July 15, 2013, statement, the last to be issued on the topic.
The Justice Department does not systematically report on its prosecutions of police officers, nor are timely records readily available on the frequency of complaints about police brutality, despite a 1994 law that directed the department to “acquire data” and report annually on “the use of excessive force by law enforcement officers.”
Instead, the Justice Department has largely relied on periodic surveys that concentrate on departments that employ 100 or more sworn officers. The Ferguson department is too small to have been included in the last survey.