But investigations are complicated by the fact that police officers are given latitude in their use of force, including in circumstances where an officer reasonably believed the force was necessary to capture a dangerous fleeing felon or had a good basis to fear his life was in imminent danger, said Rachel Harmon, a University of Virginia law professor and former Justice Department civil rights prosecutor.
“In order to prove that there was a constitutional violation, the government would have to prove that from a reasonable officer’s perspective, those circumstances didn’t exist and that a reasonable officer wouldn’t believe that they existed,” Harmon said, noting that the Supreme Court has said courts should not apply a “20/20 vision of hindsight” in evaluating whether an officer used excessive force.
The civil rights statute in recent years has been used to prosecute law enforcement officers for a wide range of conduct, including sexual assault, robbery and shootings of unarmed civilians in New Orleans in the chaotic aftermath of Hurricane Katrina.
But because it can be difficult to prove that an officer didn’t feel threatened during a confrontation, a more common prosecution involves victims who were assaulted while already in custody, such as Abner Louima, the Haitian immigrant who in 1997 was beaten by officers and sodomized with a broomstick inside a New York police precinct.
Dynamic confrontations, like the one police say preceded the Ferguson shooting, are more difficult for prosecutors than cases involving an “inmate who is handcuffed, or in a cell who gets beaten by a corrections officer,” said David Weinstein, a defense lawyer and former federal prosecutor in Miami.
In addition to the federal civil rights probe, a St. Louis County grand jury is hearing evidence about the death in its own investigation.
There is precedent for the Justice Department to become involved at the conclusion of a state case if federal officials feel justice hasn’t been done. After four police officers were acquitted in a California state trial in the beating of motorist Rodney King, the Justice Department filed federal civil rights charges and won convictions against two of them.
In the Ferguson case, dozens of FBI agents have canvassed the area to interview witnesses. Attorney General Eric Holder last week traveled there to help ease tensions and the department has obtained an additional federal autopsy to augment those carried out by local authorities and at the request of Brown’s family.
“I don’t know that it’s an indication of there being something there (that points to guilt) any more than it is a response from Washington to show, ‘We’ll look at this. We’ll find it out. Everyone please calm down,'” Weinstein said.