Obama Has Limited Legal Options as Holder Dispatched to Ferguson

Tuesday, 19 Aug 2014 06:08 AM

 

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President Barack Obama has few options to directly address the grievances at the heart of the unrest in Ferguson, Missouri.

The main avenue available to the administration is a federal civil-rights investigation, and Obama is dispatching Attorney General Eric Holder to the St. Louis suburb in a show of commitment to an aggressive inquiry into the shooting of an unarmed black teenager by a local police officer.

In announcing that Holder would meet with federal and local authorities on the case tomorrow, Obama is showing the federal government’s interest without reaching conclusions or promising results.

“I have to be very careful about not prejudging these events before investigations are completed,” Obama said at the White House yesterday. “I’ve got to make sure that I don’t look like I’m putting my thumb on the scales one way or the other.”

Obama met with Holder and other advisers on the situation in the St. Louis suburb after Missouri Governor Jay Nixon ordered National Guard troops to restore order. Obama said he also spoke with Nixon yesterday by telephone.

The unrest in Ferguson stems from suspicions in a predominantly African-American community that an overwhelmingly white local police force will not hold its officer accountable in the shooting of 18-year-old Michael Brown. Holder’s visit to Ferguson will provide images of a black attorney general dispatched by a black president.

Calming Waters

“The Justice Department’s main role in a situation like this is to calm the waters by assuring the community that there will be a full, independent, credible investigation,” said Matt Miller, Holder’s former top spokesman who is now a crisis communications consultant.

Holder indirectly criticized how local authorities have handled evidence and said the federal inquiry would be thorough.

“The selective release of sensitive information that we have seen in this case so far is troubling to me,” Holder said in a statement. “No matter how others pursue their own separate inquiries, the Justice Department is resolved to preserve the integrity of its investigation.”

Limited Tools

While the Justice Department has opened a civil-rights investigation into the Aug. 9 shooting death of Brown, any resolution is likely a long way off.

Prosecutors must meet a difficult standard to prevail if they charge the police officer involved with a federal civil- rights violation, said William Yeomans, a former Justice Department civil-rights lawyer.

“Those are tough cases, though not impossible,” said Yeomans, now a law professor at American University in Washington. “The federal government has to show the officer acted with specific intent to use more force than was reasonably necessary under the circumstances, and that’s difficult.”

In one of the most high-profile cases of recent times, federal prosecutors brought civil-rights charges against four officers involved in the 1991 beating of Rodney King after they were acquitted in a state court, a verdict that sparked riots in Los Angeles. Two of the officers were convicted on the federal counts, and the other two were acquitted.

No Intervention

The Justice Department didn’t intervene in the 1999 case of Amadou Diallo, who was shot 19 times by New York City police officers in the doorway of his apartment building. The officers, who were acquitted by a state court jury, said that they mistakenly thought he was reaching for a handgun when he was pulling out his wallet.

In dealing with civil unrest, federal authorities are usually wary of direct involvement and typically defer to state and local authorities on whether to send in federal agents or troops, said George Terwilliger III, who was involved in the response to the 1992 Los Angeles riots that followed the state verdict in the King case. That’s partly because the Constitution grants police powers for public safety to state governments.

During the Los Angeles riots, in which more than 50 people died and property damage reached hundreds of millions of dollars, California officials originally told the Bush administration they didn’t need federal help and then reversed themselves, said Terwilliger, who was the No. 2 Justice Department official under President George H.W. Bush.

The Bush administration first sent federal law enforcement agents trained and equipped for riot control and later dispatched federal troops, he said.

Removing Politics

The situation in Ferguson “doesn’t look like it’s escalated to the point that’s needed to break the cycle of violence,” said Terwilliger, now a partner in the Washington office of the law firm Morgan Lewis.

The federal investigation is running in parallel with the local inquiry into the shooting and the Justice Department has let Missouri authorities take the lead.

Roscoe Howard, a former U.S. attorney for the District of Columbia, said he could see Nixon appointing a special prosecutor in the case. “That would remove some of the politics from it,” Howard said.

The Justice Department could also initiate a separate criminal investigation of local law enforcement’s handling of the protests following the shooting, examining whether police used excessive force on demonstrators, Yeomans said.

“Any time there is an incident of this magnitude and this visibility, it is likely that there will be some kind of review of excessive force,” Yeomans said.

Holder also could begin civil investigations of local police, examining whether officers engaged in a pattern of excessive force or inadequate investigation of complaints, Yeomans said.

Additionally, the department could investigate police department hiring practices that “resulted in a nearly all white police force in a predominantly African American jurisdiction and that raises obvious questions,” Yeomans said.


 

 

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