Why Don't The Feds Prosecute Police Brutality Cases?

More than two years have passed since NYPD Officer Richard Haste chased unarmed Ramarley Graham into his grandmother's home  in the Bronx and shot him dead in the bathroom. After a grand jury declined to reindict Haste in 2013 (a first indictment was thrown out by a judge due to a technicality), more than a year has passed since the U.S. Attorney's office promised to investigate the shooting.

The family has not heard a word from anyone about developments in the federal investigation of Graham's shooting.

A large crowd of supporters joined Graham's family at Foley Square in lower Manhattan earlier this month to protest the lack of information from the U.S. Attorney's office regarding its investigation.

"As a parent standing here talking to you, it's very frustratiing not knowing what happened to my child," Constance Malcolm, Ramarley Graham's mother, told AlterNet. "So this is the reason why we're here to deliver these petitions to the DOJ to let them know we are still watching them and we want answers to what happened to Ramarley."

Graham's family and supporters collected more than 33,000 signatures of support that were hand-delivered to the U.S. Attorney's Office, southern district. For Malcolm and her supporters, it showed how unacceptable they feel the silence has been.

"My attorney has been writing, emailing, calling. No answer," Malcolm said. "I think it's warranted enough as a mom to know what happened to my child. They owe me that, to sit down with me and have a meeting to let me know where they are at this point. They told us a year ago that they were going to investigate. August 8 passed. It's one year and we're still here, the same place we were last year. Nothing has happened. We want answers to why this is not going forward."

The lack of transparency from the federal level regarding people shot dead by law enforcement officers has sparked conversations over why federal cases can go months, or even years, without grieving families hearing a word.

Janet Johnson, a criminal defense attorney based in Jacksonville, Fla., told AlterNet she has three criminal cases she is defending in federal court. She expects the grand jury process to take six months to a year before it concludes. Like the Graham family, she hasn't heard a word from the feds on their progress. Federal silence on police brutality cases is no different. 

Why the feds go silent on such cases depends on who you ask. One explanation is that prosecutors don't give public statements during investigations, even to families and their lawyers. Another issue is that they don't like to take police brutality cases because they feel they are too difficult to win at the federal level. In state court, for example, prosecutors have more options to charge someone, making the chance of conviction much higher.

In the case of Darren Wilson, the cop who fatally shot Michael Brown in Ferguson, Missouri on August 8, the feds would have a harder time making their case, Johnson said. At the federal level, prosecutors have fewer options and Johnson says the feds would have a hard time convicting Darren Wilson of any wrongdoing.

"The prosecution would have to prove that the only purpose for Darren Wilson to shoot Michael Brown was because he wanted to deprive him of his civil rights," Johnson said. "It's usually a very specific intent. It's usually a rogue cop who goes out and says, I'm going to get this guy because he's African American. There's some evil intent. It would be hard in this case because you could say he was over-zealous. You could say he was a bad cop, but it's hard to prove he acted only with an evil intention of depriving Mr. Brown of his civil rights."

The operative word is "intention." As most federal and state laws mandate, as long as an officer feels his life is in danger, he has the power to use deadly force. The law tends not to punish officers if that threat turns out not to be real.

Cases where the feds got involved include Rodney King and Abner Louima, the Haitian immigrant who was sodomized by NYPD cops with a broomstick inside a New York police precinct in 1997. The main reason cops get away with blatant acts of misconduct is because of the Supreme Court, though such cases are rare.

The Washington Post reports that several high court rulings from the 1980s have empowered police officers with wide-ranging latitude when deciding whether or not to use deadly force.

The first of the Supreme Court rulings that still govern law enforcement policies nationwide on the use of deadly force is Tennessee v. Garner. In the 1985 case, the court concluded that police officers could not shoot at a fleeing suspect simply to prevent their escape. They could shoot, however, if they had probable cause to believe the person was a violent felon and posed a significant threat of death or serious harm to the community.

The more overarching decision is the 1989 Graham v. Connor ruling, written by Chief Justice William Rehnquist and at a time when violence against police was rising amid a crack epidemic. In that case, Charlotte diabetic Dethorne Graham had rushed into a convenience store to get orange juice to stop an oncoming insulin attack but left the juice inside and left suddenly because of the long line. He asked a friend who had driven him to the store to instead drive him to another friend’s house for food.

Charlotte city police officer M.S. Connor, suspicious at Graham’s hasty exit, followed him and his friend, stopped them for questioning and didn’t believe Graham’s story about being diabetic. As Connor was checking by radio with the store, Graham got out of his car and passed out briefly. Backup officers arrived, told Graham to shut up and rammed his head into a patrol car while throwing him in the back of it.

Graham sustained minor injuries and argued that the officer’s use of force was excessive. But the Supreme Court found that the officer’s actions were justified because he reasonably believed the force he was using was necessary to prevent or detect a crime in progress.

Eric Sanders, the lawyer representing the family of Miriam Carey, an African-American woman who was fatally shot in Washington, D.C., after officers fired into her vehicle at the end of a car chase last October, told AlterNet that much more than the law is at play when prosecutors at any level decide whether or not to prosecute a police brutality case.

"These cases are political," Sanders, who served 13 years with the NYPD, said. "That's what no one is talking about. Whenever you talk about charging police officers, it's very political. Is society ready to face the fact that you have police officers who may not be upholding the law? No. Otherwise, you'd be afraid of police forces all over the United States. People want to believe police officers are beyond reproach but that's not reality. So when the Justice Department makes its decision, the Supreme Court makes its decision, it's based on giving the police the benefit of the doubt. It has nothing to do with objectivity. It has to do with subjective feelings of, 'I don't think they'd do something intentional like that.' That's the problem."

The U.S. Attorney's office decided not to press charges against the officers involved in Miriam Carey's shooting, citing insufficient evidence that the two officers who shot her used excessive force or had criminal intent. Sanders has filed "a $150 million amended federal tort claim alleging a government coverup."

But even when families sue for damages, Supreme Court rulings make successful suits for financial compensation elusive. Take the case of John Thompson, in New Orleans, La. He was convicted of armed robbery and murder and spent 18 years in prison, 14 of them on death row, because of prosecutorial misconduct. Thompson's case was overturned and he successfully sued the city of New Orleans, which employed the prosecutors, and was awarded $14 million. The Supreme Court, however, reversed that decision because it ruled that it could not be proven that the city's policies violated the Constitution.

None of these realities will sit well with the parents of Ramarley Graham, who are more than convinced Officer Haste violated their son's civil rights. Ramarley Graham's father, Franclot Graham, told supporters at the August rally he has grown weary of the lengthy legal process and that it borders on being inhumane.

"We feel as if we don't even count, like we don't even exist," he said. "We deserve more than that. I deserve, she deserves, the city, the state, the community deserves more than that. We need our day in court. We need to know what happened to Ramarley. This city has been ignoring us. From City Hall, right back to the DA's office and now the federal government. We want answers and we need them quickly. We don't need another year."

Past rulings on cases of police brutality and municipal misconduct, however, suggest that Ramarley Graham's family may not get the answer they deserve to hear.