Thursday, November 27, 2014

As a federal prosecutor, I know how hard it is to charge officers like Darren Wilson

Officer Darren Wilson will not face criminal charges for shooting and killing Michael Brown, according to a just-released decision by a grand jury. It’s a controversial ruling, one that seems almost certain to fracture that community and the country.
I know firsthand how difficult it is to prosecute police officers.
In 2010, I was the chief federal prosecutor in Seattle. That year, there were a number of high profile incidents involving use of force by Seattle Police officers. Many were caught on video (including one that showed a gang unit cop yelling he was going to “kick the f ***ing Mexican piss” out of a prone and unarmed suspect), and the images weren’t pretty.
Things reached fever pitch when Seattle police officer Ian Birk shot and killed John T. Williams, an unarmed Native American woodcarver. Williams was walking on a downtown Seattle street, tool in hand. As he crossed the street in front of a police car, the officer got out, followed Williams and ordered him to drop his knife.
Just seven seconds later, when Williams failed to comply, the officer shot him multiple times. Later, that officer testified he felt threatened.
Like the shooting of Michael Brown, this case went to local and state authorities for review of possible criminal charges. In January 2011, a local inquest jury found that the officer was not in danger, and that Williams (who had hearing impairments) did not have adequate time to drop his knife.
But a majority of jurors also found that the officer did believe Williams was a threat. They made this seemingly contradictory ruling because the state sets a very high legal burden for prosecuting police. Under state law, the prosecutor must prove an officer acted with malice and without a good faith belief the shooting was justified. There was insufficient evidence to meet that standard, so the local state prosecutor determined state charges could not be brought.
Many in the community protested the decision and called on federal authorities to act.
My office joined the DOJ Civil Rights Division to conduct two investigations: a criminal civil rights probe, and a separate broader look at whether the police were systematically using force in an unconstitutional way. (This is happening right now in Ferguson too.)
After looking at the facts, we concluded that we couldn’t bring criminal civil rights charges. Federal law sets a very high bar, and essentially requires proof beyond a reasonable doubt that an officer intended to deprive a person of his civil rights.
Evidence that an officer feared for his life or acted according to training could defeat such a case. It is exceedingly difficult to prove such specific motivation. On the one hand, this is okay — we want police to be able to make split second decisions necessary to protect us.  But we also want to ensure that deadly force is used only where necessary.
We spent a difficult day meeting with the victim’s family, law enforcement and community groups to explain the decision.
But broad and enduring change was still possible. Even where individual criminal cases cannot be brought against an officer,  a system that fosters unconstitutional policing can be corrected.
We reviewed voluminous documents and data, conducted dozens of interviews and meetings with both community members and law enforcement. Eventually, our other investigation concluded the Seattle Police Department had a pattern of using unconstitutional force and found troubling evidence that it acted with racial bias.

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