The failure of local and federal prosecutors to curb police brutality.

• Author: Panwala, Asit S.

INTRODUCTION

Excessive use of force by police officers undermines faith in the criminal justice system. Citizens expect those with badges and guns to follow the law as well as enforce it, but these two roles often come into conflict. Reporter Craig Horowitz recounted that one police officer justified his hitting a suspect in the stomach when the suspect tried to run away as being necessary to reestablish authority. (1) Another police officer is quoted as saying, "[i]f someone disses you, you take him in an alley and slap him. If it's known in the street you can be stepped on, you've got a problem." (2)

Police brutality is usually defined as any excessive use of force by a police officer under color of law. (3) Police chiefs from ten major cities have agreed that the "problem of excessive force in American policing is real," rather than a rare occurrence. (4) Not only does police brutality perpetuate the notion that street justice is acceptable, but also victims are unlikely to develop respect for the law when officers abuse their lawful authority. Instead, justice requires that police officers refrain from acting like street thugs, even if they are "dissed."

Although police departments across the country have attempted to ameliorate the hostility between police officers and the community, through careful screening of applicants, minority recruitment, and community policing, police brutality remains a problem within our urban cities. Often the victims of police brutality are minorities stereotyped by the public as criminals in order to justify the reaction of white police officers. (5) As a result, police brutality deepens the racial divide in this country, and sparks riots within major cities. (6) If we revere the principle of equal protection for all, then police officers cannot stand above the law, especially when the racial dynamics of police brutality are considered. (7)

The criminal, a marginalized member of society, is in many ways the perfect victim for police brutality because of her so-called "lack of innocence." The law, however, is meant to protect every individual. If prosecutors are to uphold their roles as ministers of justice, they must investigate and prosecute all police officers accused of wrongdoing. Policing the police is essential to building public trust in government and legitimating the rules of our society. Otherwise, communities, especially those of color, become fearful of the police and understandably fail to cooperate in stopping crime. (8)

Besides hindering law enforcement, police brutality may also lead to police corruption. The Mollen Commission, for example, found that "[o]nce the line was crossed without consequences, it was easier [for officers] to abuse their authority in other ways, including corruption." (9)

Currently, there are no guidelines for determining when local or state prosecutors should take police brutality cases and when the federal government should handle them. Often cases are accepted on an ad hoc basis. In the Abner Louima case, Brooklyn District Attorney Charles Hynes and United States Attorney for the Eastern District of New York Zachary Carter, agreed that they would "sit down and decide where the case will best be prosecuted" (10) after the federal grand jury had completed its investigation. Ultimately, federal prosecutors handled the case, conducted three separate trials, and successfully obtained convictions against two police officers. (11) This Essay will suggest that federal prosecutors will be more successful in deterring police violence if they devote their resources to pattern-of-practice lawsuits against police departments, instead of handling individual cases.

This Essay will first argue that police brutality is largely ignored. Second, it will examine the obstacles facing local and federal prosecutors in obtaining convictions. Then it will compare the advantages and disadvantages of delegating primary responsibility for these cases to the state versus the federal level. Finally, it will argue that, although there are obstacles and advantages for both local and federal prosecutors, ultimately justice is best served when police brutality is primarily pursued by local prosecutors.

1. POLICE BRUTALITY IS LARGELY IGNORED

   Abusive police officers are under-prosecuted by state prosecutors. For example, the 1992 Kolts Report criticized the Los Angeles District Attorney's office for prosecuting only one deputy from the Los Angeles Sheriff Department ("LASD") out of the 382 referrals they had received in the preceding ten years. (12) The Kolts investigation also uncovered several cases that deserved prosecution, but were not pursued. (13) One such case involved a shooting incident where both witnesses and the coroner contradicted the officer's testimony by stating that the victim had been shot in the side and back, and not in the front. (14) Eighty-seven percent of the civilians shot under questionable circumstances by LASD deputies were African-American, Latino, Asian, or Pacific Islander. (15) There is an argument to be made that, given the history of state indifference to crimes against minorities, federal prosecutors should handle these cases. (16) For example, the failure of southern state authorities to curb official lawlessness against African-Americans that provided the motivation for a federal remedy for civil rights in the first place. (17)

   Although federal prosecutors have jurisdiction to handle these cases, however, it is not evident that they will exercise it. For example, the Federal Bureau of Investigation ("FBI") investigated 720 criminal civil rights complaints between 1982 and 1991 in the Central District of California, which includes Los Angeles. (18) Approximately 258 officers who were investigated worked for the Los Angeles Police Department or the Los Angeles Sheriff's Department. (19) Out of the 258 officers investigated, federal prosecutors indicted only four officers. (20) Between 1984 and 1990, the FBI investigated approximately 3,000 complaints of criminal civil rights abuse a year, but federal prosecutors presented only about fifty cases, a little under two percent, to a grand jury in each of those years. (21) In the three years preceding the Rodney King incident, there were only ninety-eight federal prosecutions of police brutality in the entire nation. (22) It appears that FBI agents in Los Angeles generally dismissed complaints on the basis of police reports which are often misleading or self-serving. (23) The failure to thoroughly investigate these complaints by interviewing witnesses and examining relevant documents demonstrates that federal authorities have not taken police brutality seriously, thereby creating an environment where police violence is tolerated.

2. OBSTACLES FACING LOCAL AND FEDERAL PROSECUTORS

   1. Double Jeopardy Concerns

      The federal government ordinarily defers to local authorities in the prosecution of police brutality. (24) In Abbate v. United States, the Supreme Court held that the double jeopardy provision of the United States Constitution is not violated when both state and federal authorities prosecute a defendant for her actions. (25) In jurisdictions such as New York, however, the state constitution forbids the state prosecution of defendants who have already been tried in the federal system. (26) Thus if the goal is to obtain a conviction, even at the cost of two trials, federal prosecutors in such jurisdictions must wait for the state court verdict before initiating their prosecution. (27) Nevertheless, federal prosecutors pursued charges against the police officers accused of torturing Abner Louima rather than wait for a verdict in state court. (28)

   2. Statutory Burdens of Proof and the Difficulty in Obtaining Convictions

      When a district attorney prosecutes police officers for brutality, the defendants are usually charged with assault or murder. (29) Admittedly, it is difficult to prove beyond a reasonable doubt that the arresting officer intended to use excessive force. State prosecutors, however, may also charge police officers with criminal negligence for firing their guns and causing injury or death. (30) These charges only require the prosecutor to show that a reasonable officer would not have feared for her safety and fired her weapon. (31) Jurors often struggle with whether the officer's actions were reasonable because the police officer is frequently the only witness as to how much resistance she encountered. (32) Furthermore, the victim was usually committing a crime at the time of the abuse. (33) Thus, police officers have the "advantage of inherent credibility with juries simply by virtue of their position." (34) Juries sometimes nullify cases because they view police officers as the "thin blue line" between order and anarchy. (35) William Bermeister, head of the New York County District Attorney's Official-Corruption Unit from 1992-2000, stated that these cases are difficult to prosecute because "jurors give officers the benefit of a doubt," and because "if you don't have an `innocent' victim, jurors don't care." (36) His unit's conviction rate at trial in 1998 was a mere twenty-five percent, far below New York County's general conviction rate of approximately seventy-five percent. (37) His unit, however, lost only two trials in its first seven years. (38)

      Bermeister claims that these cases are more difficult to prosecute under state law than under federal law because of grand jury immunity. (39) Under New York law, a person subpoenaed to a grand jury receives "transactional immunity," unless she waives it. (40) In the federal system, one receives only "use immunity." (41) Under transactional immunity, a witness who testifies to the grand jury and discusses her role in committing the crime cannot be prosecuted. (42) Under use immunity, the prosecutor may prosecute the witness, but may not use the compelled testimony or information derived from the compelled testimony...