The Riots & After: Better Fed than Dead

Why make police brutality a federal case?

The video images of Los Angeles police officers beating Rodney King shocked the nation. Americans rarely have an opportunity to view, much less contemplate, the excessive use of state power by the police. Reactions to the officers' acquittal ranged from surprise to visceral anger, from stunned disbelief to the pyrotechnic.

I personally experienced the anger. By chance, I drove through South-Central Los Angeles several hours after the verdict. My car was attacked and badly damaged. Even as I escaped unharmed, I appreciated the irony of my predicament: I had spent the past five years prosecuting police-brutality cases for the Department of Justice. I was as disappointed as any at the jury's verdict.

Despite the department's pending investigation of the Rodney King beating, only after the state acquittal did the press and public become aware that the officers still faced federal prosecution. Some wondered why the Department of Justice hadn't acted sooner. Others, including some libertarians, asked why a federal prosecution did not constitute double jeopardy.

Chicago Tribune columnist Stephen Chapman, for instance, calls the federal prosecution "a trial mounted for political ends." Is this second trial taking place only because, as Chapman argues, George Bush "wants to look responsive to the black community"? Are we retrying the four officers because the jury didn't get it right the first time?

The Constitution indeed protects the LAPD officers from double jeopardy. But the federal government can independently prosecute a police-brutality case, even after an acquittal in a state court, for good reason. Residents of the United States are expected to obey both federal laws and the laws of the state in which they reside; the laws themselves, and the level of punishment meted out for breaking them, can differ.

State and local prosecutors also face pressures and incentives that can make it difficult to conduct a proper trial. And, most important, federal prosecution of criminal civil-rights violations helps ensure that everyone receives the equal protection of the law the Constitution guarantees—especially when that protection is denied by law-enforcement officers, who act as agents of the state.

The Department of Justice had begun its own independent investigation of the Rodney King beating immediately after it occurred. The Federal Bureau of Investigation, the department's investigative arm, had been gathering evidence; prosecutors in the Criminal Section of the Civil Rights Division had been reviewing and evaluating that evidence. Had the state not prosecuted, federal action was inevitable.

Title 18 of the United States Code, Section 242, makes it a crime for any person who acts as an agent of the state intentionally to deprive an inhabitant of the United States of a right secured by the Constitution or any other federal statutory law. This law was enacted in 1866 to enforce the 14th Amendment. Its purpose was to safeguard from abuses of state authority individual rights, including freedom from arrest and detention by unconstitutional methods, prohibitions against extorted confessions, and the right to a fair trial. Since state authorities had widely abused these individual protections, the statute was necessary at the time. It is just as necessary today.

Federal authorities use Section 242 to prosecute law-enforcement officers who use excessive force during an arrest. Under this section, in any given year, police officers are convicted of everything from gratuitously striking to intentionally and wrongfully killing a suspect.

In the case of the LAPD officers, federal prosecutors properly remained on the sidelines until the jury in Simi Valley handed down its verdict. The Department of Justice seeks to preserve limited prosecutorial resources and defers to the principles of federalism whenever states decide to prosecute. Any time an officer is convicted and receives a sentence commensurate with the crime, no federal prosecution will follow. Thus the Criminal Section can direct its own resources at those crimes which might otherwise go unpunished.

Ideally, local criminal-justice authorities would prosecute all crimes at the state level, including those committed by local police. Yet such prosecutions are often politically risky for local prosecutors, who are, after all, elected officials. The public perceives the police as the "thin blue line" that protects law-abiding citizens from vicious criminals. Any time police officers are prosecuted, critics accuse the prosecutors of coddling criminals.

Additionally, by the very nature of their work, local prosecutors must depend on and work closely with the police. It is hardly surprising that local officials might wish to find any excuse to avoid prosecuting police-brutality cases. If the Department of Justice always prosecuted first, regardless of any state prosecution, it would provide an easy excuse for local authorities to do nothing about police brutality.

When local authorities try but fail to adequately prosecute and punish law-enforcement officers for civil-rights violations, the Department of Justice must then decide whether to pursue a federal case. The department has established guidelines that govern when a federal prosecution may follow a state trial. Before federal prosecutors may seek an indictment, the case must satisfy two conditions: Further prosecution must satisfy an unvindicated federal interest; and the federal prosecution must be likely to succeed.

The outcome of the local trial may determine if there is an unvindicated federal interest. For example, a local jury may vote to acquit on state charges despite overwhelming evidence that federal law was violated. The LAPD acquittals may satisfy this condition.

After an acquittal in state court, federal prosecutors must then determine how likely they are to succeed in a second trial. If the state prosecutors proceeded in good faith before an unbiased trial court that admitted the appropriate evidence, an acquittal may indicate that the jury honestly harbored reasonable doubt. In such instances, it's hard to see what difference it makes whether the case was tried in federal or state court. The guidelines sensibly prohibit a "let's try it and see" approach.

Often, however, peculiarities in a state trial may lead to an acquittal; subsequent federal prosecution would likely result in conviction. For example, federal jury pools are drawn from federal judicial districts, which are often more ethnically and demographically diverse than state pools. If in a state trial jurors were excluded solely because of their race, retrial by a federal court may be appropriate. Other considerations have included the different rules of evidence in federal trials, additional evidence available to federal prosecutors, and flawed trial tactics or weak prosecutions by local authorities. Any of these factors may enter the Department of Justice's analysis of the Simi Valley verdict.

It is also important to recognize that not all state prosecutions of police officers are conducted competently, legitimately, and in good faith. In 1990, for instance, an elected county prosecutor in Arkansas charged the county sheriff with assault only after it became apparent that, despite local efforts to thwart the investigation, the Department of Justice intended to prosecute him for beating a suspect in his custody. Upon reviewing the trial, federal prosecutors became suspicious of the local prosecution: The prosecutor had not subpoenaed essential witnesses, had ignored entire lines of evidence, and had presented unconvincing arguments for conviction. To no one's surprise, the jury voted to acquit.

In such a case, to argue that "double jeopardy" should prevent the federal government from conducting an independent prosecution is to argue for a system that allows local corruption to successfully thwart justice. It is to argue for a system where an American's constitutional right to be free from the abuse of state authority is secured only by that same authority. The federal jury convicted the Arkansas sheriff and he was sentenced to prison.

Even when the local jury convicts, unvindicated federal interests can remain. State judges often give convicted police officers light sentences. Some of these punishments are legitimate; others aren't. By contrast, federal convictions for civil-rights offenses can lead to prison sentences of many years and fines totaling thousands of dollars. When law officers violate civil rights, probation, suspended sentences, or even minimal jail time may not constitute a sufficient punishment or deterrent.

Not too long ago, a San Juan police officer was convicted of aggravated assault by the Commonwealth of Puerto Rico. He had intentionally beaten an innocent pedestrian who was out for an evening stroll. The pedestrian died from the beating. The presiding judge fined the officer $500, and he was subsequently reinstated. Such a sentence sends a message to other officers that civil-rights violations are not serious offenses, even when those violations lead to the death of an innocent person. The officer was prosecuted in federal court, convicted of a felony, and sentenced to prison.

This example underscores the need for independent federal enforcement of civil-rights laws. The federal government must be able to secure constitutional rights to life and liberty, especially when local authorities fail to do so. Constitutional protections apply equally, whether you're in Louisiana, Los Angeles, or Alaska; these protections certainly include the right to be fairly tried before being subjected to severe punishment by agents of the state. Civil libertarians need to recognize that federal prosecution of law-enforcement officers who use excessive force often provides the only check on such unrestrained state power.

Dirk G. Roggeveen is senior litigation attorney for the Institute for Justice in Washington, D.C.