Monday night, St. Louis County Prosecutor Robert McCulloch announced that a grand jury decided not to indict Officer Darren Wilson, the cop who shot and killed 18 year-old Michael Brown in Ferguson, Missouri. McCulloch, whose involvement in this case was opposed by civil rights groups including the NAACP, is the son of a police officer who was killed in the line of duty. Moreover, as Nicole Flatow explained for ThinkProgress, as an elected prosecutor he faced powerful institutional pressure encouraging him not to aggressively pursue charges against Officer Wilson.
Fears that McCulloch would be a less-than-zealous advocate for an indictment of Wilson appear to be vindicated by the analysis of two legal experts — a criminal law professor and a former prosecutor, who argue that McCulloch followed highly unusual practices in presenting the Wilson case to the grand jury. Among other things, according to attorney Jerryl T. Christmas, prosecutors do not typically present “all the evidence” to a grand jury. Rather, they present enough evidence to clear the low bar of demonstrating “probable cause” to believe that the suspect committed a crime. Indeed, according to St. Louis University law professor Susan McGraugh, the process McCulloch used in this case is a “process he’s never used before.” The vehicle for presenting the full case both for and against a suspect is typically their criminal trial, where they will be represented by defense counsel.
It is impossible to know with certainty whether the grand jury would have indicted Wilson if McCulloch had behaved differently — although a common joke among lawyers is that a prosecutor could convince a grand jury to “indict a ham sandwich” if they wanted to. Now that this grand jury has decided not to indict Officer Wilson, however, there are still legal avenues available that could lead to Wilson — and the rest of the police department in Ferguson — having to justify their actions in court:
1) Another Grand Jury
Though the Constitution provides that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb,” the Supreme Court has held that this right typically does not apply until “a jury is empaneled and sworn” at a criminal trial. Because Wilson was not indicted, a criminal trial against him never began in the first place, and thus there is nothing preventing another prosecutor — or, for that matter, McCulloch himself — from seeking another indictment against Wilson.
As a practical matter, however, this outcome is unlikely. McCulloch does not appear eager, to say the least, to convene another grand jury targeting Wilson. Moreover, the St. Louis prosecutor ran unopposed for reelection in the cycle that just concluded earlier this month, earning him another four year term in office. The St. Louis County Charter does permit elected officials to be recalled, but this is a difficult process that is rarely invoked and even more rarely invoked successfully.
Thus, if Wilson is to be indicted, the charges will probably need to come from another jurisdiction entirely.
2) Federal Charges
Last August, Attorney General Eric Holder announced that the Justice Department would look into potential “violations of federal, criminal civil rights statutes” in Ferguson. One statute federal prosecutors could invoke to bring charges against Wilson targets individuals who “under color of any law . . . subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” Though a death sentence is exceedingly unlikely, even if Wilson is charged and convicted, the maximum penalty for violators of this statute whose actions result in a loss of life is the death penalty.
Obtaining a conviction under this federal law, however, will not be easy. To prove a violation of this law, federal prosecutors must show that Wilson acted “in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.” In extreme cases, the justices have held that this statute can be used to convict cops, and people who engage in criminal conspiracies with cops, who commit homicide, although these precedents involve facts that are truly grotesque. In one case, a Georgia sheriff and two law enforcement officers fatally beat an African American man for as much as thirty minutes after he tried to flee their custody. The man was charged with the theft of a single tire. In another case, the Court held that this civil rights law can target a group of individuals accused of killing the civil rights workers Michael Henry Schwerner, James Earl Chaney and Andrew Goodman. The criminal investigation into these murders later formed the basis of the film Mississippi Burning.
Outside of these egregious cases, some courts of appeals have held that this federal law can be applied to less extreme cases involving police shootings. The United States Court of Appeals for the Seventh Circuit, for example, upheld the conviction of a police officer who fired upon a station wagon after the driver failed to pull over because the officer caught him rolling through a stop sign. As Judge William Joseph Bauer wrote in that case, “[t]he facts of this case read like something out of a ‘Dirty Harry’ movie.”
The question of whether Wilson could be convicted under this law hinge upon the uncertain facts of his encounter with Michael Brown. Moreover, as the cases discussed above suggest, federal prosecutors will need to do more than simply prove that Wilson acted wrongly when he fired upon Brown. They will need to prove, at the very least, that Wilson showed “reckless disregard” for Wilson’s rights. This is a difficult legal burden to overcome, and, indeed, the Justice Department appears to be downplaying the likelihood that they will seek charges in this case. In a discussion with Ferguson residents last September, a Justice Department attorney cautioned them that “[w]e cannot promise a federal indictment, but we can promise a federal investigation.”
3) A Civil Suit
Even if there are no criminal charges against Wilson, the Brown family could still bring a civil suit against the officer who shot their son. Recall, for example, that O.J. Simpson was held liable for the wrongful death of two people he was accused of murdering, even though his murder trial ended in an acquittal.
To win a wrongful death suit in the state of Missouri, the Brown family would carry a much lighter legal burden than federal prosecutors would face if they charge Wilson. Missouri law permits wrongful death plaintiffs to prevail if they can prove that “a defendant’s negligence was a direct cause of the victim’s death.” This is a much lower bar to clear than the “reckless disregard” standard that is likely to apply in a federal prosecution. Additionally, while criminal prosecutors must prove their case beyond a reasonable doubt, civil plaintiffs generally must only show that a “preponderance of evidence” supports their claim. Perhaps most importantly, the Brown family can bring a suit on their own — or, most likely, with the help of an attorney — without having to go through an official gatekeeper such as a state or federal prosecutor.
4) Targeting The Police Department
Finally, it is possible that the Justice Department could bring a suit against the Ferguson Police Department itself. Another federal civil rights law prohibits law enforcement from engaging “in a pattern or practice of conduct . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” To the extent that Wilson’s actions — or the subsequent actions of police armed with riot gear, tear gas and “non-lethal” ammunition — constitute such a “pattern or practice,” police in Ferguson could find themselves on the losing end of a federal lawsuit.