Attorney General Lynch announced this week that the Department of Justice is conducting a “patterns or practices” probe into the Chicago Police Department. This is not a criminal probe, but would result in a civil remedy, including an agreement by the City to make changes in accordance with any findings by DOJ or a subsequent civil suit for enforcement. This comes on the heels of two high-profile police shootings of suspects over the past year or so. In the Laquan McDonald shooting, the State is pursuing murder charges. In the Ronald Johnson shooting, the State does not plan to file charges, apparently concluding that the shooting was justifiable (or, at least, that there is legally insufficient proof that it was not).
But the whole matter raises important questions of federal criminal law. Will the Feds also indict Officer Van Dyke for federal civil rights crimes related to the McDonald shooting? There is no categorical prohibition on simultaneous federal and state charges, though as I have explained before, doing so implicates the DOJ’s Petite Policy and the procedural question of which jurisdiction goes first. But remember, for example, the Feds and the State have simultaneous charges pending against Dylann Roof in South Carolina (not a police killing, but still involves federal civil rights statutes).
The bigger, broader question, though, is this: if CPD has engaged in a pattern or practice of federal constitutional violations, why have the Feds not brought more civil rights prosecutions against CPD officers recently? As I have mentioned before here, it seems strange to me that the City of Chicago is taking all of the heat for the delay in bringing the Van Dyke prosecution (which is a State prosecution, not a City thing). The Feds, it seems from what I have seen – and I may be missing something – could have brought a prosecution (and still might). And yet I have heard no criticism of them from the activists and protesters in Chicago. So if DOJ finds that there has been a pattern or practice of constitutional violations, it should at least spark some discussion of whether the Civil Rights Division and United States Attorneys Office in Chicago have missed opportunities for federal intervention up to this point, or whether they will seek individual prosecutions in the coming months (within the statute of limitations). DOJ has certainly gone after CPD in the recent past: recall that DOJ prosecuted John Burge in connection with a probe of his conduct as CPD Commander, and this probe spawned others. And it is possible there may have been other recent prosecutions of CPD officers of which I am unaware.
Now, of course, there are plenty of reasons why the DOJ might not prosecute a given police officer. Remember that under 18 U.S.C. 242, the mens rea standard is “willful,” and federal courts have had great difficulty determining what this means in a 242 prosecution, making these cases difficult for the Feds. And there is the Petite Policy on top of that, but the Petite Policy applies only where there is a State prosecution, as well. If Illinois has not been prosecuting their police, then the Feds do not have a Petite Policy excuse. Finally, it may very well be that there is not a pattern or practice that would have warranted numerous federal prosecutions up to this point, or it may be that in individual instances, the DOJ determines that there is sufficient evidence that the use of force was legally justified. But it seems that the one thing DOJ cannot legitimately claim is that this is all stuff for the state and that no substantial federal interest exists.
Merely claiming that a particular police shooting or use of force was excessive is not, without more, enough to warrant a federal civil rights prosecution. And there is always the chance that State and federal prosecutors will come to differing views about the evidence, especially in light of differences between state and federal criminal law. But this mess in Chicago should have folks asking questions not just about City and State treatment of these cases, but what the Feds may have in store on the criminal side, as well.