What would federal prosecutors have to prove in the Michael Brown shooting?

August 19

On Wednesday, Attorney General Eric Holder will go to Ferguson, Mo. to assess the progress being made in the FBI’s investigation into the shooting death of Michael Brown.  With that visit in mind, it may be useful to consider what federal prosecutors would have to prove to obtain a federal civil rights conviction. It wouldn’t be easy.

The elements required to prove a federal criminal civil rights violation are quite demanding.  Here are jury instructions describing the elements of a federal civil right offense, taken from the leading federal jury instruction form book:

First: That the defendant deprived the victim of a right secured by the Constitution or laws of the United States by committing one or more of the acts charged in the indictment;
Second: That the defendant acted willfully, that is, that the defendant committed such act or acts with a bad purpose or evil motive, intending to deprive the victim of that right; and
Third: That the defendant acted under color of law.
Fourth: That died as a result of defendant’s conduct.

The indictment charges that the defendant deprived the victim of the right to be free from unlawful deadly force by law enforcement officers when lawfully being seized [arrested], in violation of the Fourth and Fourteenth Amendments. You are instructed that this right is one secured by the Constitution of the United States. A defendant’s use of deadly force against a fleeing felony suspect is constitutional only if the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or others.

2 Fed. Jury Prac. & Instr. § 29:03 (6th ed.).

The tricky thing in a federal civil rights prosecution is proving mens rea — that is, the defendant’s state of mind.  As the jury instructions above make clear, federal prosecutors would have to establish that the police officer acted “willfully” — i.e., with a “bad purpose or evil motive.”  And because mens rea is an element of the offense, prosecutors would have to prove that state of mind beyond a reasonable doubt.

In some of the discussions of the case that I have seen, this critical point has been overlooked.  Some commentators have assumed that the officer could be charged federally if he was negligent or reckless in assessing the need to use deadly force.  For a federal civil rights prosecution, that is untrue.  A federal civil rights prosecution in the Brown shooting will only be successful if the defendant acted with specific intent to deprive Brown of his rights.

Of course, we do not yet know all the facts surrounding the shooting.  According to some media reports, there is evidence (including a recent pathology report) that suggested Brown had his hands up at the time of the shooting.   If he was clearly in the act of surrendering, deadly force would be improper and, indeed, so improper that a federal civil rights prosecution would be possible.  But according to other reports, Brown doubled back towards the officer, apparently charging him at the time of the shooting.  If this is what really happened (or if there is a reasonable doubt about whether this is what happened), the case is not really appropriate for a federal civil rights prosecution.  Instead, the issue would be one to handled under state law, which allows a more fine-grained assessment of whether the officer’s assessment of the need to use deadly force was reckless, negligent, a reasonable mistake, or entirely correct.

Put another way, a federal civil rights prosecution would be a high stakes, all-or-nothing affair.  If prosecutors could show (beyond a reasonable doubt) a deliberate violation of Brown’s rights, then they could secure a conviction. But if the prosecutors only persuaded the jury that the officer was criminally reckless or negligent, the case would end in an acquittal — a result that might well seem unfair to Ferguson residents who would wonder, quite plausibly, why an officer who had been proven to act improperly was allowed to walk.

In light of all this, if the evidence suggests a crime (a big “if” yet to be determined), then the prosecution may well be one better handled under the state criminal justice system, where the appropriate finder of fact will have the full range of possible findings to make: murder, manslaughter, negligent homicide, or no crime at all.

Update: Robert Driscoll at National Review Online has a thoughtful post making points similar to mine about the unlikelihood of a federal civil rights prosecution in the Brown shooting.

Paul G. Cassell teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah. He also served as a U.S. District Court Judge for the District of Utah from 2002 to 2007.
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