Holder to Ferguson: Hey, we're still working on the case

This curious statement from the outgoing Attorney General came at a curious point in time. With the grand jury’s announcement in Ferguson pushed off until 8 pm local time — and then read out with a surprisingly lengthy preamble before getting to the point — the time for the Department of Justice to remind everyone that the federal civil-rights investigation had not yet finished should have been early enough in the day to calm the crowds before they began to riot. Instead, Holder issued his statement even later than Barack Obama did, when no one in Ferguson had the time or the inclination to read it:

“While the grand jury proceeding in St. Louis County has concluded, the Justice Department’s investigation into the shooting of Michael Brown remains ongoing. Though we have shared information with local prosecutors during the course of our investigation, the federal inquiry has been independent of the local one from the start, and remains so now. Even at this mature stage of the investigation, we have avoided prejudging any of the evidence. And although federal civil rights law imposes a high legal bar in these types of cases, we have resisted forming premature conclusions.

“Michael Brown’s death was a tragedy. This incident has sparked a national conversation about the need to ensure confidence between law enforcement and the communities they protect and serve. While constructive efforts are underway in Ferguson and communities nationwide, far more must be done to create enduring trust. The Department will continue to work with law enforcement, civil rights, faith and community leaders across the country to foster effective relationships between law enforcement and the communities they serve and to improve fairness in the criminal justice system overall. In addition, the Department continues to investigate allegations of unconstitutional policing patterns or practices by the Ferguson Police Department.

“Though there will be disagreement with the grand jury’s decision not to indict, this feeling should not lead to violence. Those who decide to participate in demonstrations should remember the wishes of Michael Brown’s parents, who have asked that remembrances of their son be conducted peacefully. It does not honor his memory to engage in violence or looting. In the coming days, it will likewise be important for local law enforcement authorities to respect the rights of demonstrators, and deescalate tensions by avoiding excessive displays—and uses—of force.”

Of course, neither Obama nor Holder knew the grand jury’s decision before the dragged out conclusion, no more than anyone else did except for the prosecutor and the Brown family, which was notified in the afternoon. Even a personal appearance from Obama and Holder wouldn’t have prevented what followed. People came to Ferguson itching to riot, and a riot would have ensued even if Wilson had been indicted. Demonstrators set more than two dozen fires in Ferguson, looted, assaulted bystanders, carjacked an elderly man and ran him over, and so on. Twenty-nine people were arrested, and this will likely continue for the next several days, announcements from Holder and Obama notwithstanding.

The legal scene, at least, shifts to Washington DC, while the DoJ investigates the Brown shooting. The Washington Post reports on both tracks being pursued by Holder — the potential case against Darren Wilson for civil-rights violations in the incident, and a broader look at policing practices in Ferguson. The first track doesn’t appear promising for agitators in Ferguson:

The department’s investigation of Wilson appears to be less likely to lead to federal charges. Investigators have said that the evidence at this point is not strong enough to bring criminal civil rights charges against Wilson.

As in similar cases, federal law sets a high bar for bringing civil rights charges against a police officer. Federal prosecutors must prove beyond a reasonable doubt that the officer intended to violate a victim’s constitutional rights.

The investigation of Wilson is being conducted under a federal statute that makes it a crime for a person with government authority, which is legally referred to as “acting under the color of law,” to “willfully” deprive a person of a right or privilege protected by the Constitution or federal law.

There have been leaks for the last couple of months about the unlikelihood of charges against Wilson. The incident began when Wilson told Brown and his friend to stop walking in the middle of the street and escalated rapidly from that point. That hardly suggests that there was an intent to deprive the decedent of his civil rights, and the grand jury’s evidence that the struggle began at the police car completely undercuts a civil-rights prosecution. The only real chance for indicting Wilson was with the grand jury, and as the prosecutor outlined last night, the evidence points to a completely different conclusion of self-defense. (The grand jury reports can be found here.)

The broader investigation into Ferguson’s policing may give demonstrators some hope of a win, though. According to McClatchy, evidence from the state of Missouri appears to give Justice a reason to press onward:

The other ongoing investigation is much broader, as a federal team probes whether there has been a pattern and practice of discriminatory behavior by the Ferguson Police Department. This investigation likely will take many more months but ultimately could lead to systemic reforms.

“There, I think the federal government is going to act,” Peter A. Joy, a professor at Washington University School of Law, predicted several weeks ago at a school panel discussion.

Attorney General Eric Holder initiated the broader Ferguson investigation in early September. Undertaken by the Civil Rights Division’s Special Litigation Section, the investigation is focusing on the Ferguson Police Department’s use of force; stops, searches and arrests; discriminatory policing; and treatment of detainees inside the Ferguson city jail.

The federal investigators, for instance, are digging into data concerning Ferguson traffic stops.

Last year, African-Americans drove 86 percent of the 5,384 cars stopped by Ferguson police officers, according to the state’s annual racial profiling report. African-American drivers were twice as likely to be searched and twice as likely to be arrested as white drivers, according to the report.

That probe may take years, though, so it won’t do much to defuse the situation in Ferguson over the next few days or weeks. The family will almost certainly pursue a wrongful-death lawsuit against the city and against Wilson personally, but that will also take years. It’s unclear what prospects that lawsuit will have, given the grand jury’s findings, but the city may want to settle the case quickly to get out from underneath the controversy.

At this point, one thing is clear: The mob in Ferguson isn’t interested in statements from Holder and Obama about the efforts still being made. They wanted an outcome, not justice. Promising them a different outcome from the DoJ and not delivering in the end may end up producing the same outcome we saw last night, and are likely to see the rest of the week.