The failure by a St. Louis grand jury to indict officer Darren Wilson for the death of 18-year-old Michael Brown in Ferguson, Mo., means the quest for justice in state court is likely over.
Now the attention turns to the federal system, where Brown’s family—and Ferguson as a whole—still has a chance to achieve some measure of justice. But the odds are still long.
First is the possibility of a federal indictment against Wilson. Unlike the state case, a federal case won’t center on homicide charges, but on whether Wilson violated Brown’s civil rights. But the criminal civil rights statute isn’t just an average criminal law.
Conceived during the Reconstruction Era alongside other antidiscrimination laws, the statute was passed to protect the rights of blacks enshrined in the Fourteenth Amendment, which promised equality regardless of race. When enacted in the mid-1800s, the intent of Congress was to punish egregious, state-sponsored abuses of power against blacks—lynchings, mob killings, sham trials, unlawful arrests. It’s the same law under which the police officers involved in the Rodney King case were federally indicted.
In determining whether Wilson’s conduct rises to this level of abuse, a key inquiry for the Department of Justice will be whether the officer willfully deprived Brown of his civil rights. That in itself is a really hard case to make because proving “willfulness” requires federal authorities to essentially get inside Wilson’s mind. Did he shoot Brown and thus deprived him of his constitutional rights because he was black?
That’s a huge piece of evidence, and one that—short of a full confession—is extremely difficult to uncover. This explains why FBI has reportedly interviewed hundreds of witnesses, and Attorney General Eric Holder’s statement that “federal civil rights law imposes a high legal bar.” This investigation will remain ongoing for some time.
A second possibility is a private civil rights suit by Brown’s family against the City of Ferguson and Wilson. This kind of litigation—brought under Section 1983 of Title 42 of the United States Code—is very common in federal courts when police brutality or use of force are involved. Landmark civil-rights lawsuits against New York City—including stop-and-frisk, the Central Park Five case, and the wave of arrests following the 2004 Republican National Convention—were brought under Section 1983.
But these cases, too, are rife with complications. Not only is litigation long and protracted, but case law and courts have erected legal barriers—such as qualified immunity and other judge-made justifications—making it really hard for plaintiffs to hold municipalities and officers accountable. Just this year, the Supreme Court handed down two rulings on the same day shielding government officials from liability in the face of seemingly unconstitutional conduct against citizens.
Those potential setbacks aside, the biggest benefit of a civil lawsuit is allowing the Brown family to shape and present its case to a judge and a jury—in a public forum and in whatever manner they please. None of this was available in the criminal case handled by St. Louis authorities. At the very least, the likelihood of unfavorable press for Ferguson for a case that’s already attracted enough media scrutiny might be an incentive for the city to settle with the Brown family. Money will not atone for the death of Michael Brown, but it could signify a loss for a city that is yet to be held accountable.
Lastly, DOJ’s Civil Rights Division is still conducting a “pattern or practice” investigation into the Ferguson Police Department. This process, which could last more than two years, does not look at the Brown case in isolation, but examines in depth Ferguson’s policing practices—including standards for stops, searches, and arrests, racial profiling, handling of citizen complaints, and issues of diversity within the force. Broadly speaking, the inquiry is concerned with the city’s compliance with the Constitution and federal law.
More than prior administrations, Holder’s DOJ has been extremely active and successful in obtaining important consent decrees from law-breaking municipalities. These decrees are legally binding agreements where cities and localities agree to reduce dramatically incidents involving force, conduct further training, and improve community relations. DOJ closely monitors the progress of the offending police departments, and can sue in federal court in the event of noncompliance.
The above legal scenarios within the federal system will take time to yield results, but they offer a glimmer of justice in the wake of a grand-jury outcome that left many with a sense that justice was not served.