[T]he federal civil rights investigation into the shooting incident itself continues, in parallel with the local investigation into state law violations. Our investigators from the Civil Rights Division and U.S. attorney’s office in Missouri have already conducted interviews with eyewitnesses on the scene at the time of the shooting incident on Saturday. Our review will take time to conduct, but it will be thorough and fair.”—Attorney General Eric Holder
What can the Department of Justice do about the issues in Ferguson? Not just the killing of Michael Brown but the conduct of Ferguson, St. Louis County and Missouri law enforcement as well? A Reuters piece considers the options:
After Attorney General Eric Holder traveled to the St. Louis suburb on Wednesday, he vowed that the Justice Department would stay involved to help heal the relationship between the police department and the public. [...] So what more can Holder and the Justice Department do? Fortunately, whatever the outcome of the criminal process, they still have important tools at their disposal.I'll discuss Justice's mandate and procedure on these issues on the other side.
One crucial order of business will be to identify any credible allegations that the Ferguson Police Department used excessive force or other unconstitutional practices in responding to the demonstrations. [...] The attorney general has authority to investigate and file suit against a police department that has engaged in a pattern of conduct that violates the Constitution or federal laws. The investigation leading to such a suit can include an in-depth examination of the Ferguson Police Department’s use of force, its conduct in searches, surveillance and making arrests (including allegations of racial profiling and other bias) and its procedures for training, supervising and disciplining officers. In Ferguson, the investigation will have to include the police department’s interference with the First Amendment rights of the press.
Justice's mandate regarding law enforcement misconduct is discussed in this Civil Rights Division statement:
The various offices within DOJ that are responsible for enforcing the laws discussed in this document coordinate their investigation and enforcement efforts where appropriate. For example, a complaint received by one office may be referred to another if necessary to address the allegations. In addition, more than one office may investigate the same complaint if the allegations raise issues covered by more than one statute. What is the difference between criminal and civil cases? Criminal and civil laws are different. Criminal cases usually are investigated and handled separately from civil cases, even if they concern the same incident. In a criminal case, DOJ brings a case against the accused person; in a civil case, DOJ brings the case (either through litigation or an administrative investigation) against a governmental authority or law enforcement agency. [... I]n criminal cases, DOJ seeks to punish a wrongdoer for past misconduct through imprisonment or other sanction. In civil cases, DOJ seeks to correct a law enforcement agency's policies and practices that fostered the misconduct and, where appropriate, may require individual relief for the victim(s).It is certainly clear that Justice has a broad mandate to investigate and seek remedies, both civil and criminal, and monetary and injunctive. Based on Holder's statements quoted at the top of this piece, it appears that Justice is taking a broad view of the Ferguson issue.
Federal Criminal Enforcement
It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States. (18 U.S.C. §§ 241, 242). "Color of law" simply means that the person doing the act is using power given to him or her by a governmental agency (local, State, or Federal). A law enforcement officer acts "under color of law" even if he or she is exceeding his or her rightful power. The types of law enforcement misconduct covered by these laws include excessive force, sexual assault, intentional false arrests, or the intentional fabrication of evidence resulting in a loss of liberty to another. Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed. What remedies are available under these laws? Violations of these laws are punishable by fine and/or imprisonment. [...]
Federal Civil Enforcement
"Police Misconduct Provision"
This law makes it unlawful for State or local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States. (42 U.S.C. § 14141). The types of conduct covered by this law can include, among other things, excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches or arrests. In order to be covered by this law, the misconduct must constitute a "pattern or practice"—it may not simply be an isolated incident. The DOJ must be able to show in court that the agency has an unlawful policy or that the incidents constituted a pattern of unlawful conduct. [...] DOJ does not have to show that discrimination has occurred in order to prove a pattern or practice of misconduct. What remedies are available under this law? [... the laws] provide for injunctive relief, such as orders to end the misconduct and changes in the agency's policies and procedures that resulted in or allowed the misconduct. There is no private right of action under this law; only DOJ may file suit for violations of the Police Misconduct Provision.
Title VI of the Civil Rights Act of 1964 and the "OJP Program Statute"
Together, these laws prohibit discrimination on the basis of race, color, national origin, sex, and religion by State and local law enforcement agencies that receive financial assistance from the Department of Justice. (42 U.S.C. § 2000d, et seq. and 42 U.S.C. § 3789d(c)). Currently, most persons are served by a law enforcement agency that receives DOJ funds. These laws prohibit both individual instances and patterns or practices of discriminatory misconduct, i.e., treating a person differently because of race, color, national origin, sex, or religion. The misconduct covered by Title VI and the OJP (Office of Justice Programs) Program Statute includes, for example, harassment or use of racial slurs, unjustified arrests, discriminatory traffic stops, coercive sexual conduct, retaliation for filing a complaint with DOJ or participating in the investigation, use of excessive force, or refusal by the agency to respond to complaints alleging discriminatory treatment by its officers. What remedies are available under these laws? DOJ may seek changes in the policies and procedures of the agency to remedy violations of these laws and, if appropriate, also seek individual remedial relief for the victim(s). [...]
However, there is also the issue of federal intervention in the Michael Brown case itself. And here Justice has been more aggressive and early in its involvement than its existing policy provides for. Specifically it has moved faster than what Petite Policy calls for:
This policy establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding. See Rinaldi v. United States, 434 U.S. 22, 27, (1977); Petite v. United States, 361 U.S. 529 (1960). Although there is no general statutory bar to a federal prosecution where the defendant's conduct already has formed the basis for a state prosecution, Congress expressly has provided that, as to certain offenses, a state judgment of conviction or acquittal on the merits shall be a bar to any subsequent federal prosecution for the same act or acts. See 18 U.S.C. §§ 659, 660, 1992, 2101, 2117; see also 15 U.S.C. §§ 80a-36, 1282.In theory then, Justice should, in the first instance, wait for the relevant state law enforcement process to be completed before making charging decisions and even then, it should respect the result of the state process unless the state process leaves a substantial federal interest unvindicated. Many of us, and I imagine the Attorney General himself, believe this seems a likely result of the process being overseen by St. Louis County prosecutor Robert P. McCulloch. Indeed with regard to law enforcement behavior in response to the Ferguson protests, McCulloch has already disqualified himself.
[...] This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.
In order to insure the most efficient use of law enforcement resources, whenever a matter involves overlapping federal and state jurisdiction, federal prosecutors should, as soon as possible, consult with their state counterparts to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved, and, if possible, to resolve all criminal liability for the acts in question.
But with regard to the Michael Brown killing, the Petite Policy very much directs Justice to await the results of the state proceeding (though the Petite Policy "applies only to charging decisions; it does not apply to pre-charge investigation." Thus, as we have seen, Attorney General Holder has gone forward with the federal investigation on the Michael Brown killing. However, charging decisions are not likely to occur until the Missouri state process is complete. In terms of the investigation, AP reported it has hit the ground running:
The U.S. Department of Justice has mounted an unusually swift and aggressive response to the death of Michael Brown, from an independent autopsy to dozens of FBI agents combing Ferguson, Missouri, for witnesses to the shooting of the unarmed black 18-year-old by a white police officer.However, in my view, Justice has been much too slow and timid in investigating the practices of local law enforcement regarding the Ferguson demonstrations. There has been an obvious and continuing practice of constitutional violations by local law enforcement and Justice should be moving NOW on these points. The investigation only requires watching video in this case.
[...] 40 FBI agents started going door-to-door in the neighborhood where the shooting took place, interviewing witnesses and gathering information. An independent federal autopsy was announced Sunday, and Attorney General Eric Holder said it was performed Monday. President Barack Obama also announced Monday that Holder would travel to Ferguson to meet with investigators and community leaders.
So, kudos to Justice for its early intervention in the Michael Brown killing investigation, but a negative review on its timidity to act against local law enforcement's blatantly unconstitutional practices regarding the Ferguson demonstrations.