When the Justice Department announced this week that it would not charge the officers involved in the death of Alton Sterling, officials used a familiar script.
The acting U.S. attorney in Baton Rouge called a news conference and outlined a vivid description of the encounter, caught on video, that ended when an officer fired three bullets into Sterling’s back. He pointed to federal civil rights law as making it impossible to substantiate a case.
“There are no winners here, and there are no victories for anybody,” acting U.S. attorney Corey Amundson said.
It was a scene that played out a number of times under the Obama administration: The Justice Department declines to press charges in a high-profile police shooting.
Federal law makes charging police officers with civil rights violations extremely difficult. And because Attorney General Jeff Sessions is critical of broader reforms targeting entire departments, “that suggests that very little work on police accountability is going to get done, at all,” said Chiraag Bains, a former federal prosecutor and senior official in the Justice Department’s Civil Rights Division.
“We have an attorney general that doesn’t believe in that work,” Bains said. “I think that’s a recipe for more shootings and more avoidable deaths.”
Where the Obama administration felt that police shootings pointed to deeper cultural problems in law enforcement, Sessions is more inclined to see them as the result of a few bad officers.
So far in 2017, nearly 340 people have been shot and killed by police, according to a Washington Post count. The Balch Springs, Tex., police department recently fired an officer who shot into a moving vehicle, killing a 15-year-old passenger. Local authorities later charged him with murder.
It is still early in Sessions’s tenure, and analysts cautioned against reading too much into the department’s handling of one case. His views are also well received in law enforcement circles.
James Pasco, a senior official in the Fraternal Order of Police, said while there was an “awful lot of conjecture” about what Sessions might do on policing issues, the union was “encouraged by the direction that he’s inclined, it looks like, to take.” He said that he believed even the Obama administration would not have prosecuted the officers involved in Sterling’s shooting.
“This is not some bolt out of the blue caused by the election of Trump,” Pasco said. “This is the Justice Department doing what it does.”
Even in the Obama administration, prosecutors turned down far more civil rights cases than they prosecuted.
According to the Transactional Records Access Clearinghouse at Syracuse University, prosecutors brought 222 cases from fiscal year 2012 to 2016 involving deprivation of rights under color of law — the civil rights charge which is normally contemplated in police use-of-force cases. But in each of those years, they never prosecuted more than 10 percent of the referrals they received.
In the case of Darren Wilson, the white police officer who shot and killed 18-year-old Michael Brown in Ferguson, Mo., in 2014, the Justice Department found “no evidence upon which prosecutors can rely to disprove Wilson’s stated subjective belief that he feared for his safety.” Investigators reached a similar conclusion in deciding not to prosecute anyone in the fatal 2015 shooting of Jamar Clark in Minneapolis.
Amundson said prosecutors in Sterling’s case would have had to prove that officers knew what they were doing was unreasonable as they scuffled with and then shot the 37-year-old. Investigators were stymied in particular, he said, because they did not have a video that showed whether Sterling was reaching for a gun, as officers claimed he had just before the shooting.
Video of the encounter shows one of the officers yelling “He’s got a gun!” before shots ring out, but the Justice Department said that Sterling’s hand was obscured in all the footage investigators had reviewed. Police did recover a loaded, .38-caliber revolver from his pocket.
Bains said he thought the Sterling case “would have come out the same way under the Obama administration.”
“Essentially, you have to disprove the officer’s stated belief that he thought he was in danger,” Bains said. “It’s not even enough to show that the officer’s belief was unreasonable.”
Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said she believed the standard in the civil rights law was “very flawed,” but it was not “outside the realm of rationality to think that it was possible for federal charges to go forward in this case.”
On May 2, Officer Michael Slager pleaded guilty in federal court in South Carolina to a federal civil rights charge. He had been caught on video shooting Walter Scott, an unarmed black motorist, in the back as Scott ran from a traffic stop.
“I can say independently that the statute is deeply problematic, and the standard in the statute is deeply problematic, but I can also say there is a videotape that shows what it shows, and certainly, for me, raises deeply troubling questions,” Ifill said. She said civil rights leaders in the past had mulled pushing to change the law, though with a Republican-controlled Congress, the likelihood of that now was slim.
It is still possible that the officers involved in Sterling’s death could be charged with state crimes, which do not require proof of willfulness. Louisiana’s attorney general has said that state police will now conduct their own investigation.
Sessions has said that the Justice Department is willing to prosecute police officers when they do wrong — and he has distinguished such cases from consent decrees that impose reforms on entire departments. Earlier this year, he ordered Justice Department officials to review all such decrees, which “discourage the proactive policing that keeps our cities safe,” he wrote in USA Today.
“The Department of Justice agrees with the need to rebuild public confidence in law enforcement through common-sense reforms, such as de-escalation training, and we will punish any police conduct that violates civil rights,” he wrote. “But such reforms must promote public safety and avoid harmful federal intrusion in the daily work of local police.”
That is a marked difference from the Obama administration, which had launched large-scale “pattern or practice” investigations in places such as Chicago, Cleveland and Baltimore. In Ferguson, Mo., where prosecutors could not make a case against the officer involved in shooting Brown, the department still issued a scathing report about the city and eventually won a legal agreement to prompt sweeping changes.
“The criminal prosecution tool is a very limited one; it’s important, but it’s much more limited and carries such a high bar,” said Vanita Gupta, who headed the Civil Rights Division in the previous Justice Department. “The place where the Justice Department has much greater impact at affecting police culture and changing policing norms and ensuring constitutional policing is in the systemic civil work, the pattern and practice work, that the department does.”
Ron Davis, who ran the Justice Department’s Office of Community Oriented Policing Services during the Obama administration and spent eight years as chief of the East Palo Alto Police Department in California, said that he does not think Sessions recognizes or understands the systemic problems within policing.
“He’s taking a position that the problems we’re having are based on individual rogue officers, which I think is insulting as a former officer,” Davis said. “The real challenge is not individual officers, but the systems we’re operating in, and the policies we provide them, and the training we do and don’t give them. Even good officers can have bad outcomes. It’s all about the systems we give them to work in.”
The Justice Department declined to make current officials available for comment for this report.
Sessions still has one key decision looming over his head: whether to prosecute the officers involved in the videotaped takedown of Eric Garner, the 43-year-old whose 2014 death at the hands of New York City police officers sparked the iconic police abuse protest phrase “I can’t breathe.”
Attorney General Loretta E. Lynch had decided to let investigators again present evidence to a grand jury — after a heated dispute between prosecutors in the Justice Department’s Civil Rights Division prosecutors and those of the U.S. Attorney’s Office for the Eastern District of New York about whether charges were appropriate. She did so late enough in her tenure, though, that the matter fell to Sessions, who has yet to voice his opinion publicly.
Wesley Lowery contributed to this report.