Early in last night’s Democratic debate in South Carolina, Senator Bernie Sanders was speaking in response to a question about police uses of force. Sanders then said, “This is a responsibility for the U.S. Justice Department to get involved. Whenever anybody in this country is killed while in police custody, it should automatically trigger a U.S. attorney general investigation.”
It’s a fascinating suggestion. And while I am inclined to favor a robust federal role for civil rights investigations and prosecutions, I’m not sure about the scope of Senator Sanders’ suggestion. The way he said it – “while in police custody” – was odd. Does he mean that an investigation should ensue anytime a person dies and is “in custody,” as we understand that term in the context of, say, Miranda rights? Or did he mean that an investigation should occur whenever a person dies while at a police station, or while in handcuffs? (one can be “in custody” and not be handcuffed or even formally arrested) Or did he mean to say that any police-involved killing should trigger a federal investigation, whether or not the person is legally in custody? I’m probably nitpicking here and he likely meant the latter. But the distinction is important in law enforcement.
Moreover, it seems that the whole premise of his suggestion is that the Justice Department has a role because of the potential civil rights implications. That is, of course, true as a matter of federal statute. See 18 U.S.C. 242. Killings by police officers raise two distinction questions under the statute: 1) was the killing a result of constitutionally excessive force; and 2) if so, did the officer act willfully? I suppose Senator Sanders is saying that every police-involved killing raises those questions and only an investigation will give us good answers. But is that not true of nearly every encounter with police, whether it involves a death or not? For example, if police conduct a simple investigative stop of Suspect X, but do so without reasonable suspicion, that is a violation of the Fourth Amendment. Yet Sanders has not, to my knowledge, suggested that all such cases automatically be investigated by the Justice Department, though there certainly would be a good faith legal basis for doing so in order to determine if there was in fact a violation and if the violation was willful.
And if his concern is excessive force cases only, then first, why limit the suggestion in such a way? After all, civil rights violations occur even when excessive force is not an issue, see above. And second, why limit it to uses of force resulting in death? After all, excessive force can be employed in ways that do not cause death. Tamir Rice or Laquan McDonald, for example, could hypothetically have been shot but not killed.
Finally, Senator Sanders does not explain what should happen where a parallel state investigation or prosecution is occurring (as it sometimes – and maybe, today, often – will). Should the Feds wait? Would Sanders displace the Petite Policy in this category of cases? Or is he saying that even if a violation is discovered, the Petite Policy can still apply? I get that this was a quick suggestion during a debate, and he certainly had no obligation to get this deep into the weeds in that forum, but I’m interested in seeing him expand on this idea.
I imagine that Senator Sanders was saying the following: a police-involved killing should automatically trigger a federal civil rights investigation, but federal civil rights investigations are not limited to police-involved killings. I think the Senator needs to explain why he does not go farther with respect to automatic action by DOJ, but I also wonder just how much different the world would look if this specific idea is eventually adopted. In any event, I imagine that the Civil Rights Division in a Sanders Justice Department would be busy indeed. But I wonder: what would his DEA look like?