Why There's Little Chance The Feds Will Prosecute The Tulsa Cop

In this image made from a Friday, Sept. 16, 2016 police video, Terence Crutcher, center, is pursued by police officers as he
In this image made from a Friday, Sept. 16, 2016 police video, Terence Crutcher, center, is pursued by police officers as he walk to an SUV in Tulsa, Okla. Crutcher was taken to the hospital where he was pronounced dead after he was shot by the officer around 8 p.m., Friday, police said. Crutcher had no weapon on him or in his SUV, Tulsa Police Chief Chuck Jordan said Monday, Sept. 19, 2016. (Tulsa Police Department via AP)

Within hours after Tulsa police officer Betty Shelby gunned down Terence Crutcher who had his arms raised, was unarmed and posed no threat to the officer, a Justice Department spokesperson promised to conduct a civil rights investigation into the slaying. The swift announcement by the Justice Department of a probe was made for two reasons. The slaying was captured on a police cam, looped repeatedly on national networks, touched off a furor, and Crutcher's family held an anguished press conference demanding a prosecution. The other reason is that the Justice Department has developed a time tested template for dealing with wanton police killing cases of unarmed black men. The template is to assure the public that the department is involved, and hope that that assurance does just enough to defuse tensions and anger.

It almost always does. Time passes, emotions cool, and the public and the media move on. And in a few weeks, or more likely a few months' time, the Justice Department quietly announces that it will take no further action in the case. In short, there will be no prosecution. The reason for the non-action boils down to several thorny hurdles that virtually assure that the Justice Department won't bring charges against officers such as Shelby who blatantly overuse deadly force against unarmed civilians. Murder, whether committed by a gang member or a police officer, is still first and foremost a state matter.

The Justice Department time and again has made it clear that it is only a "backstop" to local prosecutors. This means that they rigidly adhere to the legal doctrine of separation of federal and state powers. 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 override the decision of local authorities not to retry or second guess a defendant's acquittal. In the Crutcher slaying, the Justice Department will watch carefully to see if Tulsa County District Attorney Steve Kunzweiler chooses to bring any state charges against Shelby for the killing. This will not be a decision that the Tulsa DA is likely to make quickly. So, again, the clock keeps running on if, when, or whether local prosecutors will take action. If none is taken, the Justice Department could file civil rights charges against Shelby. However, that raises the next hurdle.

There are two ironclad requisites for a federal prosecution of a police officer for the criminal use of deadly force. One is that there has to be solid proof that the officer acted either with racial animus or with reckless intent to cause malice to an individual. To proof either one is a near impossible high bar.

The other requisite is that there has to be a compelling federal interest at stake. That's vague, loosely defined and solely a judgment call by a federal prosecutor. The prosecutor must obtain prior approval from the assistant attorney general before bringing the prosecution. The few times that the Justice Department has prosecuted cops or racist vigilantes on civil rights charges after they've been acquitted in state courts, or no charged at all, it came after massive and sustained protests. Or, as in the case of the four LAPD cops who beat Rodney King, the feds prosecuted the cops after the massive riots following their acquittal in a state court.

The ultimate bar to a successful prosecution is the universal defense that all police officers give to justify a killing no matter how outrageous. It's called the "I feared for my life" defense. This defense is universally invoked and accepted by prosecutors to reject any call for a prosecution. This defense has been invoked time and again by officers even when the victim was unarmed and an autopsy has shown that the victim was shot in the back.

The Justice Department also is reluctant to step on the toes of local police officials. When the Justice Department slapped a consent decree on Pittsburgh, for instance, in 1997 after an extensive investigation found widespread police abuse and misconduct there, it walked a careful line. Federal officials made it clear that the federal government would not purport to substitute the judgment of its monitors for that of local police administrators. Many Pittsburgh officers expressed strong opposition to federal intervention of any kind.

Despite the perception that Justice Department officials are cracking down on police violence by brokering consent decrees, making tough recommendations and guidelines for training, and more rigorous monitoring of use of force incidences, the scorecard still shows that the Department has prosecuted cops in only a tiny fraction of the police abuse cases that the FBI investigates. If the Tulsa County District Attorney fails to prosecute Shelby, there's little reason to expect the federal scorecard in prosecuting police officers that wantonly kill to be upped by one more in the Tulsa slaying.

Earl Ofari Hutchinson is an author and political analyst. He is the author of How "President" Trump will Govern, (Amazon Kindle) He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.