Early on, Ses­sions’s tack on po­lice shoot­ings is tested

The Washington Post Sunday - - POLITICS & THE NATION - BY MATT ZAPOTOSKY matt.zapotosky@wash­post.com Wes­ley Low­ery con­trib­uted to this re­port.

When the Jus­tice Depart­ment an­nounced last 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-yearold 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 that 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 that 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 Repub­li­can­con­trolled 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 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-yearold 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 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.

JONATHAN BACHMAN/REUTERS

Com­mu­nity mem­bers gather last week in Ba­ton Rouge at a vigil out­side the Triple S Food Mart after the Jus­tice Depart­ment an­nounced that it would not charge two po­lice of­fi­cers in the death of Al­ton Ster­ling, who was shot in the back three times.

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