On Monday evening, St. Louis County Prosecuting Attorney Robert P. McCulloch announced that a grand jury decided not to indict Ferguson, Missouri, police officer Darren Wilson for the Aug. 9 shooting death of unarmed teenager Michael Brown. The announcement concluded a tumultuous summer of mass protests against police violence and racial discrimination. Although the decision will be a disappointment to many, those who follow prosecutions of police for use of excessive or unwarranted force say a decision not to indict Wilson is unsurprising. There are major legal, institutional and social impediments to prosecuting police. Thousands of officers are involved in shootings every year, resulting in about 400 deaths annually. However, successful criminal prosecution of a police officer for killing someone in the line of duty, if no corruption is alleged, is extremely rare. Even when officers are convicted, the charges are often minimal. For example, Coleman Brackney, a Bella Vista, Oklahoma, police officer who was convicted of misdemeanor negligent homicide in 2010 after shooting an unarmed teen to death while in custody in his cruiser, went on to rejoin the police and was recently appointed chief of police in Sulphur Springs, Oklahoma.

Structural barriers

There are significant structural barriers to successful police indictment or prosecution. For one, investigations are usually conducted by a combination of police detectives and investigators from the prosecutors’ office. Prosecutors tend to take a greater role when there is a reason to believe that the shooting might not be justified. However, they must rely on the cooperation of the police to gather necessary evidence, including witness statements from the officer involved and other officers at the scene. In some cases they are the only living witnesses to the event. The close collaboration between police and prosecutors, which is an asset in homicide investigations, becomes a hindrance in police shooting cases. In most cases, the prosecutors’ reliance on the cooperation of police creates a fundamental conflict of interest. As a result, prosecutors are often reluctant to aggressively pursue these cases. Moreover, the local elected district attorneys often want to avoid being seen as inhibiting police power. Even in communities where distrust of police is common, no prosecutor ever got thrown out of office for defending the police. At its core, the public sees the DA’s office as a defender of law and order and expects these officials to uphold them. The way prosecutors handled the Wilson case illustrates this conflict of interest. It took prosecutors months to collect and present evidence to the grand jury. While this has the appearance of thoroughness, it also has the effect of creating a public cooling-off period as short-term demands for prosecution become muted. The radically different approach of the St. Louis County DA is telling. Typically, prosecutors make a short presentation to the grand jury in which they call for specific charges to be considered and then put on their best show of the evidence to see if it passes muster. Indictments occur in more than 90 percent of cases, owing to the low threshold of probable cause and the one-sided nature of the proceedings. In Wilson’s case, however, the DA said he planned to provide the grand jury with all the evidence and allow them to decide, without any prompting, whether an indictment was justified and for what offense.

The American public and its representatives need to realize that there are better ways to prevent crime and serve the community than licensing excessive police force.

The DA hoped to accomplish two things. First, this approach allowed him to absolve himself of any responsibility for the outcome. Second, it served to confuse and undermine the confidence of the grand jury. Normally, the jury is given clear guidance and overrules prosecutors only in extreme cases. By giving the jurors a wide variety of conflicting evidence and little framework in which to evaluate it, the DA is opening the door to a he said/he said dynamic in which they may err on the side of caution and avoid an indictment.

Legal hurdles

There are also huge legal hurdles to overcome. State laws that authorize police use of force, which are backed up by Supreme Court precedent, give police significant latitude in using deadly force. In the 1989 case Graham v. Connor, the Supreme Court ruled that officers may use force to effect a lawful arrest or if they reasonably believe that the person represents a serious physical threat to the officer or others. This means that police may use force over any resistance to arrest and that if the resistance escalates, officers may escalate their force. The court also said that the totality of circumstances must be judged with an understanding of the split-second nature of police decision-making. Furthermore, in Missouri and many other states, even a perceived effort to take an officer’s gun justifies the use of deadly force. Therefore, in judging the reasonableness of the officer’s actions, the jury may consider factors such as the alleged perpetrator’s size and previous actions as well as the officer’s training and guidance. All this creates numerous avenues for justifying police action based on the officer’s reasonable understanding of the situation rather than a more objective post hoc assessment. Juror mindset creates yet another challenge to successful indictments and prosecutions. Grand juries and criminal court juries consist of local residents. Even in periods of heightened concern about police misconduct, most citizens retain a strong bias in favor of police. Popular culture and political discourse are suffused with commentaries about both the central importance of police in maintaining the basic structural integrity of society and the dangerous nature of their work. In addition, the legal standard for judging police misconduct calls on jurors to put themselves in the officers’ shoes, further strengthening the tendency to identify with the police.

Race relations