Two Justice Department investigations remain open related to the fatal shooting in Ferguson, Mo., of teenager Michael Brown, independent of the state's grand jury announcement Monday that it would not indict Police Officer Darren Wilson in the death.
One still-open investigation could yet lead to federal charges against Wilson, although the odds appear to be against this.
The other ongoing investigation is much broader, as a federal team probes whether there has been a pattern and practice of discriminatory behavior by the Ferguson Police Department. This investigation likely will take many more months but ultimately could lead to systemic reforms.
“There, I think the federal government is going to act,” Peter A. Joy, a professor at Washington University School of Law, predicted several weeks ago at a school panel discussion.
Attorney General Eric Holder initiated the broader Ferguson investigation in early September. Undertaken by the Civil Rights Division’s Special Litigation Section, the investigation is focusing on the Ferguson Police Department’s use of force; stops, searches and arrests; discriminatory policing; and treatment of detainees inside the Ferguson city jail.
The federal investigators, for instance, are digging into data concerning Ferguson traffic stops.
Last year, African-Americans drove 86 percent of the 5,384 cars stopped by Ferguson police officers, according to the state’s annual racial profiling report. African-American drivers were twice as likely to be searched and twice as likely to be arrested as white drivers, according to the report.
Similar investigations have targeted the Albuquerque Police Department in New Mexico, the Miami Police Department in Florida and the Newark Police Department in New Jersey, among others.
The investigations can take a long time.
In May 2011, for instance, federal officials opened the Newark investigation. The final report was issued in July 2014. The Albuquerque investigation that opened in November 2012 also lasted until this year.
The Ferguson inquiry is one of about 20 similar investigations begun during Holder’s tenure. The Justice Department is already enforcing 14 agreements to reform law enforcement practices at agencies both large and small.
Separately, the Justice Department’s Community Oriented Policing Services office has joined in a collaborative reform effort with the St. Louis County Police Department. The assessment includes a look at the agency’s Municipal Police Academy, which trains officers for many police departments in the region.
Similar assessments have led, for instance, in Las Vegas to a set of 75 findings and concrete recommendations regarding officer-involved shootings and other use-of-force issues.
The most sensitive of the federal investigations is the one targeting Wilson himself, and it may face the longest odds.
To successfully bring a separate federal charge against Wilson, Justice Department prosecutors would have to prove beyond a reasonable doubt that he intended to violate Brown’s civil rights. Federal law makes it a crime for anyone acting with governmental authority to “willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.”
The FBI opened 380 such “color of law” cases in 2012, involving allegations ranging from false arrest to sexual assault and excessive force. Prosecutions, though, don’t necessarily follow investigations.
An extensive 2004 analysis by the Transactional Records Access Clearinghouse, a nonpartisan data-gathering organization, found that only about 2 percent of “color of law” civil rights investigations resulted in charges being brought.
A Justice Department civil rights investigation into George Zimmerman’s 2012 shooting of Florida resident Trayvon Martin technically remains open, but media reports have indicated no charges will be brought.
“This investigation will take time,” Holder said of the Darren Wilson investigation in early September, “but the American people can have confidence that it will be fair, it will be thorough, and it will be independent.”
On another track, Brown’s family can file a federal wrongful death civil suit against Wilson, the police department or both. The standard of proof to win such a suit is preponderance of the evidence, lower than the beyond a reasonable doubt threshold for a criminal conviction.
One civil suit, seeking $40 million, already has been filed by other Missouri residents claiming Ferguson police used excessive force in controlling demonstrators.