12/06/2006 08:30 pm ET | Updated May 25, 2011

Federal Probes No Antidote to Police Killings

First outgoing Congresswoman Cynthia McKinney called for a federal probe into the police shooting of 88-year old Katherine Johnston in Atlanta, and other recent police shootings of blacks. Next Al Sharpton took up the cry and called for Congressional hearings on the killings. Then New York activists screamed for the Justice Department to investigate the slaying of groom to be Derrick Bell outside a Queens nightclub by NYPD undercover cops. Black leaders and activists make the by now reflexive call for a federal probe into a questionable police shooting for a simple reason. They don't trust police and city officials to investigate themselves, let alone take any action to punish officers that may be guilty of excessive force.

But in almost all cases that the feds investigate they don't do anything either. Despite boasts by Justice Department officials that they have cracked down on police violence, the Department prosecuted cops in only a tiny fraction of the police abuse cases that the FBI investigated.
The see-no-evil policy of the feds toward police violence comes at a time when the number of police abuse complaints nationally remains high. The Department gets about 15, 000 complaints yearly. Nearly 200 FBI agents and more than two dozen attorneys in the Department's Civil Rights Division have sole responsibility to investigate and prosecute civil rights cases, and that includes police abuse. The overwhelming majority of the civil rights cases the Department investigates are police abuse cases. In response to widespread protests over the lack of federal action on police abuse cases, the Violent Crime and Control Act of 1994 authorized the Justice Department to collect data on the frequency and types of police abuse complaints.

But crunching the numbers on police abuse, while it helped the feds get a handle on how widespread police misconduct was, didn't help much when it came to actual prosecutions of police offenders. It's not hard to see why. The attorneys that defend cops accused of abuse almost always are A-team attorneys. They are highly skilled, and have had much experience defending police officers accused of misconduct. They seek to get as many whites on a jury as possible. The presumption is that white jurors are much more likely to be middle-class, and conservative, and much more likely to believe the testimony of police and prosecution witnesses than black witnesses, defendants, or even the victims. The same rule applies to black or Latino jurors. They are generally middle-class, and share the same biases, and negative attitudes toward those they perceive as the criminal element as many whites.

Prosecutors have a big task in trying to overcome these pro-police, racial attitudes and perceptions. Studies show that many whites believe that blacks are more likely to engage in criminal conduct than whites. A 2003 Penn State University study found that many whites are likely to associate pictures of blacks with violent crimes, and in some cases where crimes were not committed by blacks they misidentified the perpetrator as an African-American. In Atlanta, police were investigating suspected drug dealing at the house where Johnston was killed. In Queens, police were investigating suspected drug and other criminal activities at the club where Bell had left. That automatically cast a cloud of criminal suspicion on the victims.

Then there's the problem of getting federal prosecutors to mount a vigorous prosecution against bad cops. The Justice Department has long had on the books an arsenal of civil rights statutes to prosecute abusive police officers. Yet it almost always takes major press attention, large-scale protests, or a deadly riot, such as the L.A. riots in 1992 following the Rodney King verdict, for it to use its legal weapons in police abuse cases.

Federal prosecutors complain that they can't nail more cops involved in dubious shootings or for abuse because they are constrained by the lack of funds and staff, victims who aren't perceived as criminals, credible witnesses, and the public's inclination to always believe police testimony. They also claim they are pinned in by the almost impossible requirement that they prove an officer had the specific intent to kill or injure a victim in order to get a conviction. These are tough obstacles to overcome and since the Justice Department is in the business of winning cases many prosecutors are more than happy to take a hands-off attitude toward police misconduct cases.

Yet, a prosecution in a police shooting case, even a failed prosecution, sends a powerful message to law enforcement agencies that the federal government will go after lawbreakers no matter whether they wear a mask or a badge. A federal prosecution puts police and city officials on notice that they must take stronger action to rein in the use of excessive force in their departments.

Sharpton, McKinney, and other police practice observers are alarmed and rightly so that hyper aggressive policing is again on the rise, and that it could lead to more tragic shootings such as in Atlanta and Queens. The call for a federal probe when these shootings occur is a good call. Just don't expect it be the antidote to police killings.

New America Media Associate Editor Earl Ofari Hutchinson is a political analyst and social issues commentator, and the author of The Emerging Black GOP Majority (Middle Passage Press, September 2006).