The video of a deputy sheriff in Richland County, South Carolina forcibly subduing and arresting a Spring Valley High School student is now widely available. As with all of these cases, my inclination is to wait until we have more evidence before rendering any kind of judgment on the legality of the officer’s conduct. Still, I admit the video is very troubling. Officers are permitted to use whatever force is necessary to effect an arrest, but the question here is whether this force was excessive under the circumstances (i.e., was it necessary for him to do what he did?). So like others of its kind, the case raises questions about whether the officer’s use of force was legally permissible. I noted, however, that the Sheriff today indicated that the FBI and Justice Department were conducting a criminal investigation (at the Sheriff’s request, as I understand it). Are they the only ones? If so, why is that? Why not the local South Carolina prosecutor, as well?
I can understand that an internal affairs investigation would generally seek to determine whether the deputy in question violated any departmental policy or regulation, but not inquire as to whether the officer committed a criminal offense (though it seems to me that those things may sometimes overlap with one another). But is there no state criminal law in South Carolina that the officer would have violated if it is determined that his conduct was not authorized by departmental policy or regulation? Surely there is, even if it is not a traditional civil rights protection statute, like 18 U.S.C. section 242, the statute pursuant to which the Feds are investigating the case now (it is possible that they will have their eyes on other criminal federal civil rights statutes, like the Shepard-Byrd Act, but I imagine the evidence of that kind of crime will be sufficiently thin at this point that 242 will be the main focus of attention).
One of the consequences of living in a world where cell phone cameras are so ubiquitous, and where sharing such videos via social media has become so commonplace, is that state officials – not just the federal government – may feel particular pressure to pursue investigations and even prosecutions of police officers within their jurisdictions where allegedly excessive force appears on video. The public outrage over these videos is often too significant to ignore. And so, sometimes, are the politics, an unfortunate consequence of an otherwise valuable technological resource for evidence-gathering.
In the past, many states could not be trusted to investigate and prosecute police violations of civil rights; thus the need for a strong federal approach to civil rights protection on the criminal side. To be sure, section 242 is a powerful statute, where it applies. But that statute requires a “willful” violation of civil rights, and the case law on what constitutes “willfulness” is an absolute mess. Some federal prosecutions of police officers will therefore not be pursued, simply because the statutory mens rea term is too difficult to prove in the particular case. State law, however, could fill in those gaps, and even serve as an alternative even where the Feds feel that they can make a case. As we have seen in South Carolina already this year (and in Baltimore, as well), some state-level prosecutors are responding to the public outrage surrounding these prominent allegations of excessive force by going aggressively after police officers.
Is our traditional reliance on the federal government, to swoop in and protect the civil rights of citizens through a criminal prosecution, now a thing of the past? Have social media and the ubiquity of cell phone cameras created a political environment that has compelled state officials to take criminal prosecution of their police more seriously? If that is true generally, will it be true in the Spring Valley High case?
Of course, where the State and the Feds both wish to pursue criminal prosecutions, someone must draw lines. They will have to agree on a who-goes-first strategy, and the Feds will have to determine whether the Justice Department’s Petite Policy should apply to prevent a federal prosecution at all. Where States were unwilling to use their own criminal law to prosecute police, this issue was not a problem for the Feds. Nor is it a problem where States are willing to prosecute but forego a prosecution in deference to the Feds. And even in times when States have pursued officers for excessive force and failed, the Feds were there to pick up the pieces (think officers Powell and Koon of the LAPD, after the Rodney King video surfaced – acquitted in state court, convicted in federal court). But I am wondering whether it has become too politically toxic for states not to pursue at least a criminal investigation, and even a criminal prosecution, in situations where cell phone videos have captured evidence of what might be excessive force. And in states that do not have strong criminal laws that target this specific conduct, I also wonder whether they should be considering such legislation – perhaps analogous to the federal civil rights statutes.
I do not mean to conflate all of these cases of alleged excessive force; some are quite different from others, and some will show force that was entirely lawful. Perhaps it will be determined that the officer acted lawfully in the Spring Valley High case. Perhaps there will be no need for a state level criminal investigation at all, or perhaps one actually is happening or is now being contemplated, or perhaps the Feds will find insufficient evidence to proceed with a prosecution. I have said before that pursuing criminal investigations and prosecutions based on political pressure, or political incentives, is no way to run a criminal justice system. But sometimes the video evidence will do more than spur a political narrative; sometimes it may show a real injustice that the criminal law must address. So regardless of what conclusion is reached in the Spring Valley High case, it seems clear that digital technology and social media are having a significant impact upon the way that we enforce civil rights in America today.