Eric Garner’s death is a tragedy, but federal civil rights law has a narrow focus, one that may make it hard to bring criminal charges.
Federal law prohibits police officers from willfully depriving people of their constitutional rights. A police use of force is a federal crime only if an officer intentionally uses excessive force. Proving “willfulness” is often the biggest obstacle to federal prosecution. If an officer genuinely believed the force he used was necessary, he is not guilty of a federal crime, even if he was wrong.
Most of the criminal cases the Justice Department brings against police officers involve obvious intentional misconduct, like the Uplands Park, Mo., officer who arrested prostitutes and then sexually assaulted and robbed them, or the federal Border Patrol officer who pressed his service pistol against a man’s head during an interrogation and threatened to shoot him if he did not answer questions.
It is much harder to prove that an officer knew his force was unreasonable when it was used against a suspect who was unrestrained and uncooperative, even if the suspect was also unarmed.
Some argue prosecutors should bring criminal charges and let a jury sort it out, but federal prosecution policy does not permit that option. As a matter of fairness to defendants, federal prosecutors bring criminal charges only if they believe they can prove guilt to an unbiased jury beyond a reasonable doubt. Under longstanding federal practice, probable cause that a crime occurred is not enough to justify federal prosecution.
Given federal law’s limited reach, no one should be surprised if no officer is tried for Garner’s death in federal court. But avoidable deaths suggest the need for new policies and better training, and department policy violations justify discipline. Citizens should always demand as much.
A decision not to charge anyone does not mean nothing went wrong.
Rachel Harmon is a former prosecutor at the U.S. Department of Justice. She teaches criminal law, criminal procedure and civil rights at the University of Virginia School of Law.
