Obama has asked DOJ to investigate Michael Brown's death, but federal charges aren't a sure thing

Witness statements are a key to the outcome

WASHINGTON, D.C. - Following days of sustained violence between Missouri police and protestors, President Barack Obama announced Thursday he has asked the Justice Department and FBI to investigate the shooting of 18-year-old Michael Brown in Ferguson, Mo.

Civil rights advocates might welcome this as good news but the president’s announcement doesn’t mean federal charges will necessarily be brought in the case.

There’s a long history of the federal government claiming power to protect our civil rights from being violated, one that stretches as far as the Reconstruction era. But it wasn’t until the 1960s civil rights movement that new laws began strengthening the federal government’s role.

Federal prosecutors will often bring civil rights charges in cases of hate crimes where local prosecutors lack the political will to do so. But there have also been a number of instances where federal charges are considered but not brought.

Samuel Bagenstos, a law professor at the University of Michigan, says it’s understandable why people look to the federal government to protect fundamental constitutional rights. “Federal prosecutions have a better track record of success than state prosecutions in challenging unconstitutional and excessive uses of force by law enforcement,” says Bagenstos, a former number two official in the Justice Department’s civil rights division in the Obama administration.

The first question in deciding whether to file federal charges is whether the Justice Department thinks it can prove a federal crime beyond a reasonable doubt, Bagenstos says. There are conflicting reports of what exactly happened that led to a police officer shooting Michael Brown.

“In the Michael Brown case, the Department would have to show willful violation of Brown's constitutional rights. That will really depend on the various witnesses' statements regarding the incident and whether a reasonable officer could have found the use of deadly force justified,” Bagenstos says.

The next question, Bagenstos says, is whether any state-court prosecution will sufficiently vindicate federal interests. “That will depend on whether the state and local authorities decide to proceed with their own prosecution and how they go about it. Obviously, it's very early to tell what will happen.”

Whether the feds file charges in the Missouri case, Bagenstos says, also will depend on the witness statements and other forensic evidence.

“If it's just a matter of conflicting testimony about what happened, this might be a hard case to prove beyond a reasonable doubt,” he says. “But the witness statements may make it clear that at least some of the shots were obviously excessive, and there may be physical evidence that tips the scales as well. Also, the Department of Justice will be attentive to whether witnesses, including police officers, lie, hide evidence, or obstruct the investigation.”

Beyond the circumstances of a particular case, the Civil Rights division of the Justice Department sometimes begins its own investigation into police departments that show a pattern of using excessive force. That may have become a stronger possibility in Ferguson after reporters for The Washington Post and The Huffington Post were detained by police Wednesday night after they were alleged to have not dispersed from the area quickly enough. The reporters were trying to record the scene through photography and video.

Bagenstos says federal officials “can look to a violation of any constitutional rights -- including not just the Fourth Amendment right against excessive force, but also the First Amendment right to record the police. The Department of Justice, in this administration, has affirmed that members of the public have a constitutional right to record the police.”

What happened in Ferguson was a tragedy. But proving that it was a crime in federal court isn’t necessarily a sure thing.

Jeffrey L. Katz is a 36-year veteran of print, broadcast and digital news, most recently with NPR in Washington. He’s covered politics, public policy and social policy. You can follow him on Twitter @JeffreyLKatz.

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