Matthew T. Mangino The Crime Report
September 11, 2014
Ferguson, Mo. has stumbled into the national spotlight for all the wrong reasons. After Michael Brown, an unarmed black teenager, was shot and killed last month by Darren Wilson, a white police officer, multilayered investigations are underway.
The day after the killing, the St. Louis County Police Department announced in a statement, that "[W]e are investigating the incident like any other criminal investigation …The results of our investigation will be forwarded to the St. Louis County Prosecuting Attorney's Office who will decide on criminal charges.”
Within days of the shooting, large-scale protests erupted on the streets of Ferguson. Police responded with a paramilitary presence, and ultimately the governor called in the National Guard.
The ensuing controversy brought in the Department of Justice (DOJ). As the protests became more intense Attorney General Eric Holder announced the opening of a “concurrent federal inquiry” by the FBI, the DOJ and the U.S. Attorney.
Shortly afterwards, three members of Congress—Reps. John Conyers, Jr. (D-Mich.), Marcia L. Fudge (D-Ohio), and William Lacy Clay (D-Mo.)—asked the DOJ to consider expanding the scope of its investigation to include "the potential for any pattern or practice of police misconduct by the Ferguson Police Department."
The Ferguson investigation continued to expand. At a press conference, Holder said, “people consistently expressed concerns stemming from specific alleged incidents, from general policing practices, and from the lack of diversity on Ferguson’s police force.”
According to the Washington Post, Holder said the investigation will examine the department’s record of traffic stops, searches and arrests, and its treatment of people detained in the city jail.
Interestingly, the probes will include the Civil Rights Division, which has the authority to file suit and seek judicial remedies to force law enforcement agencies into reform; and the Department of Justice’s Office of Community Oriented Policing Services (COPS), which seeks to work collaboratively with police departments to pursue reform.
The Civil Rights Division will investigate the death of Brown as well as the Ferguson Police Department. The COPS office will investigate the St. Louis County Police. The 1994 Violent Crime Control and Law Enforcement Act gave the Civil Rights Division of the Department of Justice the authority to conduct investigations into a “pattern or practice” of abuse by police including violations of individual civil rights. The law was passed in response to the 1991 beating of Rodney King by Los Angeles police officers and the riots that followed the police officers’ trial.
The first suit filed pursuant to the new act was against the Pittsburgh Police Department. In 1997, the DOJ alleged that Pittsburgh used excessive force, false arrests, improper searches and seizures, and a failure to supervise officers—including inadequate discipline.
The Las Vegas Police Department was the first agency in the country to participate in the COPS collaborative reform process. COPS—unlike the Civil Rights Division—has no authority to file civil lawsuits if the proposed recommendations are not implemented. The COPS role depends on a collaborative relationship between the Department of Justice and local police departments.
The Ferguson police appear to be interested in collaborative, not coercive, reform.
"Over the past few weeks we have hosted and participated in several meetings with the DOJ and feel our collaborative efforts are another step forward in showing our willingness to be transparent and forthright as we continue the process of earning back the trust of our residents and our neighbors in the St. Louis region," Ferguson Police Chief Tom Jackson wrote in a recent statement.
However, it does not appear that collaborative reform is available to the Ferguson Police Department. If the DOJ finds constitutional violations in Ferguson, a negotiation would begin to discuss strategies for achieving reform. The city could choose to challenge the proposed reforms or embrace them. According to the Police Executive Research Forum, the latter approach can speed up the process.
In Las Vegas, the police eventually adopted more than 75 recommendations made by COPS regarding the use of force. The COPS office is also pursuing collaborative reform in Philadelphia and Spokane, WA.
Even with the Collaborative Reform Model available, the DOJ has not been reluctant to use its authority. Since 2009, it has brought 33 legal actions against law enforcement agencies for their policies or alleged abuse. According to the Los Angeles Times, 16 cases have produced rulings or settlements resulting in reforms.
As a result of the DOJ’s first ever police reform suit, the Pittsburgh Police signed a federal Consent Decree. The Federal District Court appointed a monitor. The city remained under a monitor for five years. According to the Vera Institute, the Pittsburgh Consent Decree is recognized as having brought about significant reforms through a cooperative relationship between the monitor and law enforcement administrators.
Other jurisdictions have not fared as well. Los Angeles, Oakland and Detroit spent—or continue to spend—more than a decade under court-ordered monitoring.
Some police chiefs have welcomed or even requested Justice Department investigations. A federal investigation can force otherwise reluctant local elected officials to provide the money for needed reforms and overrule labor concerns with regard to changes in policies and practices.
The findings of the investigations could also lead to a federal or state prosecution against Officer Wilson. To file criminal charges against the officer, Darren Wilson, the DOJ would have to show a racial motive or that Wilson used excessive force in killing Brown.
Along with the St. Louis County Police investigation of Wilson, a St. Louis County grand jury is hearing evidence on the shooting. A state prosecution would have to find that Wilson used excessive force and was not justified in shooting Brown.
With the ongoing investigation of the Ferguson and St. Louis County Police it is unlikely that Wilson, if prosecuted, will be prosecuted by state authorities.
Regardless of whether charges are filed against Wilson, his conduct will have a long term impact on policing—not only in Ferguson and St. Louis, but on police departments across the country. Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)
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The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.