Any casual viewer of cable network news would conclude that many Americans are of the opinion that the filing of charges by the Department of Justice against certain individuals, notably local police officers, for federal civil rights violations is an alternative for supposedly failed local criminal prosecution. This seems to occur especially when a vocal segment of the nation disagrees with the results of a local criminal investigation or the actions (or inactions) of certain district attorneys. Recent cases that are prime examples of the prevailing thought pattern include the Darren Wilson shooting of Michael Brown in Ferguson and the Trayvon Martin case involving George Zimmerman.

The often heard refrain heard is, “The local detectives and district attorney can’t be trusted. Bring the feds in!”

It appears to be the case that those calling for federal prosecution have a lack of understanding of just what situations the federal laws can be applied to.

In the public’s view, The Justice Department’s efforts seldom show results. It is not because the feds lack expertise, it is because of the narrow scope of situations that the federal laws are intended to remedy.

When the Justice Department formally closed its investigation of Ferguson Police officer Darren Wilson, it declined to bring criminal charges for the killing of Michael Brown. In a report released, prosecutors said that “Wilson’s actions do not constitute prosecutable violations” of federal civil rights law.

The Justice Department investigation had found that Brown reached into Wilson’s squad car and that a struggle ensued. Prosecutors couldn’t corroborate Wilson’s claim that Brown reached for his gun, but couldn’t find any evidence to disprove Wilson’s account. Brown moved at least 180 feet away from Wilson, but then turned and moved toward the officer, prosecutors said. Several witnesses claimed that Brown had his hands up, signaling surrender, when Wilson shot him. Some gave varying accounts, and some later recanted those claims made in media interviews.

“Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson. As detailed throughout this report, some of those accounts is inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness’s own prior statements with no explanation, credible or otherwise, as to why those accounts changed over time.”

Federal investigators also found witness testimony to be conflicted and unreliable…

It is interesting to note that federal investigators also found witness testimony to be conflicted and unreliable, as did Missouri state prosecutors who discovered the same thing and were attacked for it.

It would seem that some of these witnesses were not merely “inconsistent” but lying. However, the end result is the same. There was no basis for prosecution in the case, either at the state or federal level. To obtain a conviction, federal prosecutors would have to prove Brown was deprived of his constitutional rights — the right to life — because of his race. Wilson’s explanation was apparently effective in convincing investigators that race played any role in his decision to shoot. “There is no evidence upon which prosecutors can rely to disprove Wilson’s stated subjective belief that he feared for his safety,” the Justice Department report said.

Federal civil rights laws don’t allow for the kind of criminal charges that people usually think of, like murder and manslaughter. Under federal civil rights law, Wilson’s charge would have to be “deprivation of rights under color of law.” Such a process would require current Attorney General Eric Holder and his DOJ to seek an indictment under civil rights laws that were originally drafted to address what was occurring in the country just after the Civil War.

These laws concern civil rights violations, which are difficult to prove. With the federal standard for intent so high, said Duke Law Professor Darrell Miller, a civil rights expert, the likelihood of a prosecution is low.

This is because the standard proof is high. It requires prosecutors to prove that a person used excessive force, willfully with the knowledge that it was wrong. It is important to remember however that this is the standard for a civil rights prosecution, not the lower standards of state and local prosecutions.

The problem here is ‘willful’ doesn’t mean accidental or reasonable mistake,” Miller said. “It actually means in some cases the person actually deliberately wants to deprive the person of their constitutional rights. In this case it would be really, really tough to prove that the officer is willfully depriving Brown of his constitutional right to life.”

Our zealous demonstrators and protestors need to recognize this point. It means, in a practical sense, that it is easier to get files charged at the state and local levels, rather than under the higher federal standards.

Eric Holder, the current Attorney General, has tried using the law before.

Eric Holder, the current Attorney General, has tried using the law before. It came as the result of the Florida state acquittal of George Zimmerman for the shooting of Trayvon Martin. After a two-year investigation, however, Justice decided against pursuing a case. Presumably, Mr. Holder’s department found that the case didn’t meet the criteria for successful prosecution.

Holder has chosen to move forward in the Ferguson case, but centered on racist actions of the Ferguson Police Department, not on the shooting of Michael Brown. Holder will presumably work in conjunction with St. Louis U.S. Attorney Richard G. Callahan. “If the federal government was concerned that there was a pattern of racial oppression by the police in this area, maybe this is the kind of case that they will be more interested in because they can’t trust the local authorities to take proper action,” said Jack Beerman, a professor at Boston University who specializes in civil rights law. “And when you have lives being lost, maybe that’s an area where the federal government actually might get involved.”

The defendants were members of the Ku Klux Klan

There have been cases when federal civil rights laws have been used successfully for prosecutions but they are quite unusual, though, as we shall see. There is the remarkable case of Edgar Ray Killen in which the feds obtained convictions for civil rights violations forty years after the fact. This case is remarkable because it is a relic of the civil rights era, and not so surprising because the defendants were members of the Ku Klux Klan, who are recognized as notorious violators of civil rights.

On June 21, 1964, three young civil rights workers–a 21-year-old black Mississippian, James Chaney, and two white New Yorkers, Andrew Goodman, 20, and Michael Schwerner, 24–were murdered near Philadelphia, in Nashoba County, Mississippi. The three young civil rights workers were working to register black voters in Mississippi, thus inspiring the ire of the local Klan. The deaths of Schwerner and Goodman, other white Northerners and members of the Congress of Racial Equality (CORE), caused a national outrage.

When the desegregation movement encountered resistance in the early 1960s, CORE set up an interracial team to ride buses into the Deep South to help protest. These so-called Freedom Riders were viciously attacked in May 1961 when the first two buses arrived in Alabama. One bus was firebombed; the other boarded by KKK members who beat the activists inside. The Alabama police provided no protection.

Still, the Freedom Riders were not dissuaded and they continued to come into Alabama and Mississippi. Michael Schwerner was a particularly dedicated activist who lived in Mississippi while he assisted blacks to vote. Sam Bowers, the local Klan’s Imperial Wizard, decided that Schwerner was a bad influence, and had to be killed.

When Schwerner, Goodman, and Chaney, a young black man, were coming back from a trip to Philadelphia, Mississippi, deputy sheriff Cecil Price, who was also a Klan member, pulled them over for speeding. He then held them in custody while other KKK members prepared for their murder. Eventually released, the three activists were later chased down in their car and cornered in a secluded spot in the woods where they were shot and then buried in graves that had been prepared in advance.

When news of their disappearance got out, the FBI converged on Mississippi to investigate. With the help of an informant, agents learned about the Klan’s involvement and found the bodies. Since Mississippi refused to prosecute the assailants in state court, the federal government charged 18 men with conspiracy to violate the civil rights of Schwerner, Goodman, and Chaney. Bowers, Price, and five other men were convicted; eight were acquitted; and the all-white jury deadlocked on the other three defendants.

On the forty-first anniversary of the three murders, June 21, 2005, Edgar Ray Killen was found guilty of three counts of manslaughter. The 80-year-old Killen, known as an outspoken white supremacist and part-time Baptist minister, was sentenced to 60 years in prison.

The most notable aspect of this crime is that local law enforcement officials participated in an active conspiracy to kill the young civil rights workers. In other words, these KKK members and Sheriff Price sought to deprive Schwerner, Goodman, and Chaney of their civil rights by killing them. This is the crucial point which makes the case prosecutable under federal civil rights laws. Compare this with the Ferguson case.

As witnessed by the Trayvon Martin and Michael Brown cases, indictments under federal civil rights laws often do not present a ready alternative for prosecution when the public or the federal government disagrees with the results of state criminal cases or investigations. We all need to step back, take a deep breath, and look closely and carefully consider the hard facts of any specific case before we call for federal actions. Heated rhetoric is seldom the basis for real justice.

Daniel R. Perlman, Esq.

Law Offices of Daniel R. Perlman