The moment that Ferguson police officer Darren Wilson gunned down Michael Brown the cry went up for a federal investigation and prosecution of Wilson on civil rights charges. Brown’s family, attorney, and many civil rights leaders had absolutely no confidence that Wilson would ever be arrested, charged or indicted.
A non-indictment tosses the ball back to the Justice Department. U.S. Attorney General Eric Holder certainly has had a firm and visible hand print all over the Brown killing case. He quickly flooded Ferguson with teams of federal investigators in the aftermath of the killing, ordered an autopsy of Brown, and made several high profile appearances in Ferguson and St. Louis. He’s also filed civil rights charges against nearly 400 cops during his tenure. That number far exceeds the number filed during the George W. Bush years. Holder certainly could make the case that Wilson abused his power in killing Brown under the color of law and this violated several key civil rights statutes. This is the linchpin of federal prosecutions of local police officers. This was the rationale that federal prosecutors used in the Rodney King beating case to bring civil rights charges against the four LAPD officers that beat King. The crucial legal point was that they acted in an official capacity when they violated King’s rights. But that’s still a high bar to prove.
And the Justice Department time and again has made it clear that they are only a “backstop” to local prosecutors. This means that they rigidly adhere to the legal doctrine of separation of federal and state powers. The killing of Brown, as all potential criminal cases, was first and last a state matter, and the feds scrupulously defer to local authorities to bring charges. If state or county prosecutors won’t bring charges or bungle the prosecution when they do, the Justice Department does not regard it as its responsibility to usurp the decision of local authorities not to retry or second guess a defendant’s acquittal.