Nearly four years later, no decision has been made on whether to file charges. “It’s a horror show,” said Jonathan C. Moore, the Garner family’s lawyer. “The family’s very frustrated.”
In November 2017, Bijan Ghaisar died after being shot by two U.S. Park Police officers in Fairfax County, Va., an episode also captured on video. The FBI and the Civil Rights Division of the Justice Department took over the case within three days. As the first anniversary of that killing approaches, the names of the officers and an explanation of their actions have been withheld by federal authorities. The Ghaisar family has not been told where the investigation stands.
“To wait like this is like being underwater and not being able to breathe,” said Kelly Ghaisar, Bijan Ghaisar’s mother. The family has pleaded with the Park Police and the Justice Department, held public demonstrations, and finally filed a lawsuit in search of answers to why Ghaisar, 25, was shot repeatedly in the head as he slowly steered his Jeep Grand Cherokee away from two officers. His family said he was not armed, and Fairfax County Police Chief Edwin C. Roessler Jr. confirmed this at a recent police chiefs' conference in Orlando.
The anguish of the Garner and Ghaisar families over what they see as needlessly drawn-out investigations is common for those who think they or their families have been the victim of police brutality or other misconduct.
Justice Department investigations into sworn law enforcement officers — police, jail guards and sheriff’s deputies — often take years. An examination by The Washington Post of more than 50 recent civil rights cases filed by federal prosecutors against such officers found an average of slightly more than three years elapsed from the day of the event to the day that charges were filed. The cases were all the subject of Justice Department news releases in the past year announcing either charges or a conviction in a federal prosecution of civil rights violations “under color of law.”
Those are only the cases with charges filed. A study of more than 13,000 misconduct cases submitted to the Justice Department over 20 years, conducted by the Pittsburgh Tribune-Review in 2016, found that no charges were filed in 96 percent of them.
A cumbersome process within the Justice Department for seeking charges and the high legal standard for prosecuting law enforcement officers contribute to the slow pace. In addition, law enforcement officers are sometimes reluctant to testify against colleagues, and jurors can be reluctant to convict them.
But many experts said another key factor is that no one is demanding the Justice Department move more quickly in civil rights cases to resolve the tensions of a community and the miseries of a family.
“The bottom line is there’s no pressure,” said Roy L. Austin Jr., an attorney for the Ghaisar family who was formerly a top official in the Civil Rights Division at the Justice Department. “They don’t care how long it takes because there is no one telling them they need to get it done sooner. So they aren’t concerned about the impact it may have on the community or the impact it may have on the family. That’s just their way, because they are answerable to no one except their immediate bosses.”
A number of police chiefs at the Orlando conference made a similar point, noting that leaders of federal agencies don’t have constituents who confront them at community meetings or barrage them with angry emails. Local political leaders can hold police chiefs accountable, but federal investigators do not face that pressure.
In the Garner case, The Post reported in April that prosecutors in the Civil Rights Division have recommended charges against the officers involved, but they haven’t been able to get approval from the top levels of the Justice Department, including Deputy Attorney General Rod J. Rosenstein and Attorney General Jeff Sessions. So the case languishes.
Garner’s case is not an exception. In Louisiana, a group of sheriff’s deputies who brutally beat an inmate weren’t charged for nearly five years. In Florida, a police chief who allegedly ordered people to be falsely arrested wasn’t charged for more than four years, by which time one of the suspects had been wrongfully imprisoned and deported. In Kansas, a highway patrol trooper who beat an arrestee was only charged after four years.
This keeps officers and their families in a nerve-racking limbo as well. “There’s a pace that seems like it’s forever,” said Ronald T. Hosko, a former FBI agent and president of the Law Enforcement Legal Defense Fund, which helps officers who need financial or legal assistance in such cases. “They take their time,” he said of the Justice Department. “There’s no rush, and I think some of that is tactical. They’re trying to be thorough. But as time goes by, some of the heat is taken out of the community and then they give you the result nine months later.”
The Justice Department declined to make anyone available for an interview on the subject. But the agency released a statement that said: “It is important to understand that ‘color of law’ cases in particular have an extremely high burden of proof and it takes time to put together an airtight prosecution. Every single color of law case is unique and length depends on a plethora of factors, including: available evidence, the number of witnesses and subjects, local procedures, and grand jury availability.”
There haven’t been any definitive studies done on the delays in federal civil rights cases, according to Craig Futterman, a University of Chicago law professor and director of the Civil Rights and Police Accountability Project. But he and other experts said the federal statute — which requires prosecutors to show that a law enforcement officer intentionally deprived someone of their rights — creates a high bar for charging.
“Federal law makes it harder to charge a police officer with violating someone’s rights than often what it would take to charge a civilian,” Futterman said. “The prosecutors face a high burden. That’s a good thing.”
As a result, the FBI or other federal investigators have to dig deeper to prove intent, Hosko said. “I think you end up with a much longer investigation,” Hosko said, “that delves into a specific intent to violate the Constitution. Not just any intent to hurt you or stop you. The officer had to know what they were doing was wrong and they’re going to violate your rights. … Where you see these cases start to drag is when the FBI is looking for that added malicious intent.”
Those investigations involve layers of bureaucracy. When the Civil Rights Division in Washington steps into a case, the line prosecutor must write a detailed memo seeking authorization to call witnesses before a grand jury, Austin said. That memo must be approved by the prosecutor’s supervisor, and then by the chief of the section, and then by a deputy assistant attorney general and finally an assistant attorney general, approvals which can take time, Austin said.
The Civil Rights Division insists on bringing all witnesses before a grand jury to lock in their sworn testimony, Austin said. But the scheduling of those grand jury hearings depends on when the civil rights prosecutor from Washington can travel to the jurisdiction, and fitting those witnesses in among other cases being pursued by local prosecutors. The local jurisdiction is not always particularly friendly to the out-of-town prosecutor seeking to indict a local cop, Austin noted, which can cause scheduling delays.
If, after presenting the witnesses to a grand jury, a prosecutor wants to seek an indictment, another series of memos and approvals is required, Austin said. Sometimes the Justice Department also creates an “indictment review committee” of seasoned prosecutors to take an additional look, he said.
After all that, there can still be disagreement within the Justice Department. “There can be a fight between the local U.S. attorney and the civil rights division,” Austin said, with one side advocating charges and one opposing charges. “It totally depends on who wins that argument.”
Though The Post’s examination of recent civil rights cases found a three-year lapse between the event and federal charges, the Justice Department’s statement said that “it would actually be more accurate to measure from the time that Civil Rights Division finds out about the case, to its indictment. In many cases there are local investigations that take place well before the Division gets involved.”
That’s sometimes true. In Hickory, N.C., Sgt. Robert George allegedly pulled a female motorist out of her car in November 2013 and slammed her face first to the ground; she suffered injuries, which required oral surgery. Local prosecutors charged George in March 2014 but never took the case to trial. In April of 2018, the federal civil rights division obtained an indictment against George for violating the woman’s civil rights by excessive force. The case is pending.
A. Bradley Smith, the woman’s attorney, said he wasn’t sure why or when federal prosecutors decided to pick up the case as it lay dormant in state court. “Her hope,” Smith said of the woman, “continues to be at some point she will have her day in court, and bring a conclusion to all this.”
Another hurdle to prosecution is what Futterman called “the blue wall of silence, you’re loyal to your fellow officer.” Former FBI special agent Billivan Johnson said, “Most of these investigations that involve police officers, sometimes it’s difficult to get cooperation.”
In March, state prosecutors in Minneapolis filed a murder charge against the officer who shot and killed Justine Ruszczyk Damond eight months earlier. But the city’s top prosecutor said uncooperative officers had slowed down the investigation.
Many of the hurdles in other federal cases aren’t present in the Ghaisar case, which began when he drove away from a minor fender bender in which he had been struck from behind by another car. The two Park Police officers soon located him and pulled him over, but Ghaisar drove off when officers approached him with guns drawn. Shortly after, Ghaisar stopped and then drove off again. When he stopped for a third time, and then tried to maneuver around the Park Police cruiser, both officers opened fire.
The entire incident was captured by a Fairfax County officer’s in-car camera as he followed the pursuit. Rather than wait for local prosecutors to rule, the Justice Department took over the case almost immediately because federal officers were involved, unlike most cases. Over the Justice Department’s objections, Roessler released the video of the shooting in January. There appear to be no other witnesses to the shooting, on a dark residential street, besides the Fairfax officer and his video camera. The case is being handled by the U.S. attorney in Washington, for undisclosed reasons.
“There is a complete lack of pressure to move things any faster,” Austin said. “The DOJ is in no rush to indict civil rights cases generally.”