Justice for Eric Garner? From the Justice Department? Don’t Hold Your Breath

by Mark P. Fancher

“The bar is so high that there is no case that is likely to qualify for prosecution – including Eric Garner’s killing.”

When news broke of the grand jury’s refusal to indict Eric Garner’s killer, Spike Lee told CNN interviewers that because the death was video recorded he remains hopeful that the U.S. Department of Justice investigation will produce the results thousands of protesters crave. Based on the Justice Department’s record, it is probably a vain hope.

The Garner killing is not the first one to be captured by cameras. The Justice Department had access to a video record of the police firing squad execution of Milton Hall in Saginaw, Michigan, but no charges were brought against the cops who shot 46 bullets at the 49-year-old homeless black man. The reason? In a statement, the Justice Department’s Civil Rights Division said: “…this tragic event does not present sufficient evidence of willful misconduct to give rise to a federal criminal prosecution of the police officers involved.”

Few who watch the police cruiser dashboard camera footage of the killing reach the same conclusion. That video is probably the best indication that if the Justice Department believes the evidence against Milton Hall’s killers is insufficient, then the bar is so high that there is no case that is likely to qualify for prosecution – including Eric Garner’s killing. While it is possible that public pressure might force Eric Holder to handle the Garner case differently, some legal analysts discount that possibility because they have bought into the Justice Department’s inaccurate and incomplete interpretation of the applicable federal law.

The law that authorizes federal criminal civil rights charges against police officers says that in a homicide case like Eric Garner’s or Milton Hall’s, a police officer can be guilty only if he not only violated the victim’s Fourth Amendment right to be free from excessive force, but the officer also “willfully” violated that right. In its explanation of why Milton Hall’s killers were not prosecuted, the Justice Department said: “Law enforcement actions based on fear, panic, misperception or even poor judgment do not constitute willful conduct prosecutable under the statute.” Implied in that statement is the belief that it would not be possible to get into the heads of the officers and extract private thoughts that might betray their intent to “willfully” violate a constitutional right.

“They have bought into the Justice Department’s inaccurate and incomplete interpretation of the applicable federal law.”

To the great disappointment of those outraged by Milton Hall’s death, the Justice Department conveniently ignored what the courts have had to say about the “willfulness” requirement. Starting with the U.S. Supreme Court and ending with the Sixth Circuit Court of Appeals (which has jurisdiction over Milton Hall’s hometown) the courts have made it clear that the Justice Department is not required to engage in mind reading in order to hold the police accountable.

The Supreme Court said: “[t]he fact that the defendants may not have been thinking in constitutional terms is not material” to whether they satisfy the willfulness requirement. The Sixth Circuit explained that a jury: “need not, in order to convict, determine that [the accused] actually knew that it was a Constitutional right that they were violating…”

Not only is it unnecessary to prove that an officer was thinking specifically of trying to violate a victim’s Fourth Amendment rights, but the Supreme Court took the additional step of providing a much easier way to charge and convict police who kill. The court said: “[to] act willfully in the sense in which we use the word [is to] act in open defiance or reckless disregard of a constitutional requirement…”

It is therefore hard to imagine why charges cannot be brought when police officers fire dozens of bullets at a homeless man armed only with a pen knife; or when police use a choke hold to put a submissive man on the ground because he was alleged to be engaged in unauthorized cigarette sales. By almost anyone’s reckoning, such conduct should be regarded as “open defiance” or “reckless disregard” for the constitutional rights of the victims.

Will the Justice Department’s investigation result in the criminal prosecution of Eric Garner’s killers? It’s possible, but don’t hold your breath. With each new incident of unpunished police violence, it becomes more likely that concerned observers will conclude that African people born or living in America have no rights that the Justice Department is bound to respect.

Mark P. Fancher is the staff attorney for the ACLU of Michigan Racial Justice Project, which pursues justice for Milton Hall. He is also a member of the National Conference of Black Lawyers. He can be contacted at mfancher@comcast.net.

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