In the last two days, two Black men have been gunned down by police in what appears, at first blush, to be clear cases of police misconduct. Alton Sterling was killed by police in Baton Rouge, Louisiana. Philando Castile was killed by police in Falcon Heights, Minnesota.
The Department of Justice (DOJ) has already announced it will be investigating the death of Sterling. No word yet on whether or not a similar investigation will be forthcoming in Castile’s case.
The facts surrounding the death of Sterling are still unclear, but initial reporting—as well as video of the encounter itself—provide cause for alarm. The situation certainly seems egregious: the reports that the cops yelled that he had a gun, but then pulled the gun out of his pocket after they shot him; the mysteriously malfunctioning body cameras, both of which magically “came loose” during the scuffle; and the cops grabbing all of the security equipment from the convenience store where the shooting occurred and not releasing footage from it.
And Castile reportedly was stopped for a broken tail light, informed the officer that he had a concealed carry license, and was fatally shot four or five times anyway.
Both shootings certainly seem unjustified. Extrajudicial. Unlawful.
But as bad as they may sound, they are unlikely to be enough to trigger a federal grand jury indictment.
Because the truth of the matter is—as my colleague Jessica Mason Pieklo pointed out in the wake of the Mike Brown and Eric Garner killings—the grand jury system, which was originally designed to protect British colonists who had emigrated to the United States from abuses by the Crown, has become a tool that protects officers from accountability rather than protecting citizens from police brutality.
And federal law, due to the way the statutes and system operate, doesn’t provide a lot of help when it comes to individual police brutality cases, although it has proven to be quite useful in reforming entire police departments and forcing municipalities to take measures to stop over-policing of communities of color.
So what can the DOJ do in Louisiana, or, potentially, in Minnesota?
It could bring a lawsuit against the officers involved under 18 U.S. Code section 242, which is a federal statute authorizing the government to prosecute police officers for violations of citizens’ constitutional rights. But I wouldn’t bank on success here: The prosecutor has to prove that the police officer willfully subjected a person to the deprivation of his or her constitutional rights.
In other words, in Louisiana, a federal prosecutor would have to prove that not only did the two officers—whose names have not yet been released—use excessive force against Sterling, but also that they intended to use excessive force against him.
And as you might imagine, it’s very difficult to prove intent at trial unless there is evidence of an egregious violation of Sterling’s constitutional rights, as there was with the eventual successful federal prosecution of two of the four police officers who assaulted Rodney King.
The video evidence of the two officers pinning Sterling to the ground and shooting him multiple times in the chest and back may help. If it turns out that the officers purposefully sabotaged their body cameras, or had no reason to shoot him, then maybe a federal prosecution will be successful. But as we have seen with past police killings, cops usually tell the same story—about how the shooting victim had a gun and that the cop was in fear for his life—in order to escape liability, whether that is true or not. The question becomes whether the federal prosecutor would be able to prove that the officers intended to kill Sterling. Until further facts come to light, it’s hard to make any predictions as to what a federal grand jury would decide, but the police will have to have acted in a severely egregious manner for the DOJ to conclude that criminal charges should be brought against them.
Correcting individual police misconduct is not really the point of DOJ investigations, which are better suited for dealing with structural problems in police departments through “pattern or practice” cases.
Pattern or practice cases are brought by the DOJ under the Violent Crime Control and Law Enforcement Act, which Congress passed in the wake of the King beating and the subsequent riots. The law authorizes the U.S. Attorney General to file lawsuits against entire police departments that have engaged in a “pattern or practice” of violating citizens’ civil rights in order to force them to reform.
Ferguson, Missouri, is an excellent example: Although the DOJ declined to bring criminal charges against police officer Darren Wilson in relation to the killing of Mike Brown, it did investigate policing and court practices in Ferguson and eventually issued a scathing report. That report led to an agreement—also known as a consent decree—between the Ferguson Police Department and Municipal Court on one hand, and the DOJ on the other, to remedy the unconstitutional law enforcement conduct that the DOJ found during its civil investigation.
Currently, a consent decree is also operational in Cleveland, Ohio, where the DOJ found that the Cleveland Police Department engaged in a pattern or practice of using unreasonable force. The Cleveland consent decree was negotiated as the city was rocked by the Tamir Rice scandal.
A few months ago, I wrote an explainer on consent decrees which you can (and should) read here. Long story short, consent decrees are important tools that compel police officers to examine the way they have been operating and to reform their practices in order to better serve the communities they police. While we cry out for justice for individual victims, that justice, due to systemic racism, is elusive. So oftentimes, the best we can hope for is that the DOJ forces meaningful and structural change in the ways that police departments operate. These sorts of reforms can reduce incidents of police brutality. While prosecutions of individual police officers may be satisfying, they can lead to complacency in police departments, which may be quick to dismiss an individual case as the rogue actions of one bad apple.
What will happen in Sterling’s case is anyone’s guess, but we need to be realistic about the sort of justice we can expect from federal prosecutors. It’s a good sign that the DOJ announced its investigation so quickly. But without a clear-cut case of intentional deprivation of rights, the cops will probably get off scot-free. Even so, we should manage our expectations and continue to focus on structural reform as a way to decrease the tension between the police and communities of color.
As for Castile’s case, it’s unlikely that, should the DOJ investigate the matter, the police officer will even be charged. It sounds like another case of a trigger-happy cop, but not a case of someone who intentionally intended to deprive Castile of his rights.
This is, of course, cold comfort to the families of the victims, and to the rest of us who simply want to be able to move about this world without being in a constant state of fear that whatever we do will be viewed as cause to gun us down. The only bright side, and it’s still a pretty dim one, is the hope that the DOJ will force the departments at issue—and any police departments where these kinds of killings have become de rigueur—to reform their policies and practices in order to decrease tension between police and communities of color.