President Barack Obama speaks with Attorney General Eric Holder as news photographers photograph their meeting regarding the fatal police shooting of a black teenager in Ferguson, Missouri, Monday, Aug. 18, 2014, in the Oval Office of the White House in Washington. (Photo: Charles Dharapak/AP)
Updated 5:41 p.m.
The U.S. Department of Justice under Attorney General Eric Holder Jr. has filed a record number of criminal police-misconduct cases and aggressively used civil laws to force reform at police departments across the country.
The federal investigation into the shooting death of Michael Brown in Ferguson, Mo., marks one of the most visible cases to date for Holder and DOJ’s Civil Rights Division. Holder on Monday briefed President Barack Obama about the investigation as the shooting victim’s family demanded accountability and the National Guard mobilized to set up in the St. Louis suburb.
Obama announced Monday afternoon that Holder will personally go to Ferguson on Wednesday to meet with the community and assess the Justice Department’s civil rights investigation.
“Right now, what we have to do is to make sure the cause of justice and fair administration of the law is being brought to bear in Ferguson,” Obama said. “In order to do that, we’ve got to make sure we are able to distinguish between peaceful protestors—who may have some legitimate grievances, and maybe long standing grievances—and those who are using this tragic death as an excuse to engage in criminal behavior.”
Holder said Monday that “the the full resources of the Department of Justice are being committed to our federal civil rights investigation into the death of Michael Brown.” More than 40 FBI agents have canvassed the area of the shooting, Holder said in a statement.
Holder, early in his tenure at the Justice Department, said he would make the fight against police misconduct a priority. Testifying in April, he told lawmakers the Civil Rights Division has filed more criminal civil rights cases since 2009 than at any other time.
The Justice Department has requested for fiscal year 2015 an additional $1.9 million for nine attorneys and 11 other positions to expand efforts in combating police misconduct. “Criminal prosecutions will focus on the conduct of individuals and they address the most egregious incidents of police misconduct,” the budget request states.
The Justice Department’s early, publicly visible investigation of the fatal shooting of Brown marks a departure from how federal agents have conducted inquiries of local and state police actions, said William Yeomans, a former acting assistant attorney general for the Civil Rights Division who now teaches at American University Washington College of Law. Typically, Yeomans said, the Justice Department defers to state investigators.
Federal agents over the weekend deepened their role in the Brown investigation, which so far has not led to any state or federal charges. The department announced it will oversee its own autopsy of Brown, who was unarmed when he was shot the afternoon of Aug. 9.
“Due to the extraordinary circumstances involved in this case and at the request of the Brown family, Attorney General Holder has instructed Justice Department officials to arrange for an additional autopsy to be performed by a federal medical examiner,” DOJ spokesman Brian Fallon said on Sunday. “Even after it is complete, Justice Department officials still plan to take the state-performed autopsy into account in the course of their investigation.”
Holder said on Monday that the autopsy “will be thorough and aid in our investigation.”
Stephen Rushin, a visiting assistant professor at the University of Illinois College of Law, said the events in Ferguson are “clearly enough” for the Justice Department to start a preliminary inquiry of the Ferguson police department under the Violent Crime Control and Law Enforcement Act.
Such an investigation would be an informal look at, among other things, how Ferguson police responded to community tension and the media since the shooting, said Rushin, who has studied and written about the Justice Department’s use of the law. The Justice Department then decides whether to force changes through litigation or settle outside of court.
Rushin’s study, published in March, found the Obama administration has been more aggressive than the end of the George W. Bush administration, which tried a cooperative approach with police departments.
“The perspective has been more forceful—either you accept this package of reforms or we’re going to initiate litigation and the court will force these on you,” Rushin said.
In 2010, Tom Perez, then the assistant attorney general for the Civil Rights Division, told a civilian law enforcement oversight group that the division “received one of the largest infusions of resources in its history.” That money would go in part to hire more lawyers to expand its capacity on the criminal and civil front and provide more technical assistance to local police.
“In case you haven’t heard, the Civil Rights Division is once again open for business,” Perez said at the time. “Make no mistake about it: We will aggressively prosecute officers who abuse their authority and commit criminal offenses.”
Molly Moran is the acting assistant attorney general for the DOJ’s Civil Rights Division. Senate Republicans thwarted Obama’s pick to lead the division, Debo Adegbile, amid opposition from police unions. Moran, a former Jenner & Block partner, has worked various positions at the Department of Justice since 2009 and was named as acting head of the division in July.
Federal criminal cases against police officers for alleged civil rights violations include claims of lethal and nonlethal force. The Justice Department under Holder prosecuted New Orleans police officers for their roles in fatal shootings in the days after Hurricane Katrina. A Missouri police officer who sexually assaulted and robbed women was sentenced in 2011 to 25 years in prison.
Criminal cases against officers are difficult to prove, and there will be challenges to any case against the Ferguson officer identified as the shooter, Darren Wilson, lawyers said. The government has to show the officer acted with the specific intent to use more force than was reasonably necessary in the circumstances, a high standard, Yeomans said.
“He had to consciously go beyond what the situation requires,” Yeomans said, and it’s difficult to get a criminal conviction in cases where an officer thought he was in danger.
Robin Schulberg, a solo practitioner and former assistant federal public defender in the greater New Orleans area, said prosecutors often argue for watered-down jury instructions in police misconduct cases. Prosecutors focus on “recklessness” and whether the officer’s actions were “reasonable” when questioning witnesses.
Schulberg represents a former New Orleans Police Department sergeant, Kenneth Bowen, sentenced in 2012 for charges that he shot an assault rifle at a concrete barrier where civilians were hiding in the aftermath of Hurricane Katrina. (Bowen has been granted a new trial for prosecutorial misconduct, and the Justice Department is appealing that ruling.)
“What they ignore is that gangs in certain urban areas are heavily armed, often with semi-automatic weapons, and officers are afraid when they go into a situation that might require them to confront such individuals,” Schulberg said.
When a rapidly developing situation requires a split-second decision, the officer may make what later turns out to be a bad judgment call, she said. “A bad judgment call, however, is very different from a bad purpose or evil motive,” Schulberg said. “Bad judgment calls should be civil suits, not criminal prosecutions.”