Nov 27, 2014

    Ferguson may benefit from Seattle's experience

    FERGUSON officer Darren Wilson will not face criminal charges for shooting and killing Michael Brown, according to the decision by a grand jury. It's a controversial ruling, one that seems almost certain to fracture that community and the country. I know firsthand how difficult it is to prosecute police officers.

    In 2010, I was the chief federal prosecutor in Seattle. That year, there was a number of high-profile incidents involving the use of force by Seattle police officers.

    Things reached fever pitch when Seattle police officer Ian Birk shot and killed John T. Williams, an unarmed Native American woodcarver. Mr Williams was walking on a downtown Seattle street, tool in hand. As he crossed the street in front of a police car, the officer got out, followed Mr Williams and ordered him to drop his knife.

    Just seven seconds later, when Mr Williams failed to comply, the officer shot him multiple times. Later, that officer testified he felt threatened.

    Like the shooting of Mr Brown, this case went to the local and state authorities for review of possible criminal charges. In January 2011, a local inquest jury found that the officer was not in danger, and that Mr Williams (who had hearing impairments) did not have adequate time to drop his knife.

    But a majority of jurors also found that the officer did believe Mr Williams was a threat. Under state law, the prosecutor must prove an officer acted with malice and without a good faith belief that the shooting was justified. There was insufficient evidence to meet that standard, so the local state prosecutor determined state charges could not be brought.

    Many in the community protested against the decision and called on the federal authorities to act.

    My office joined the Justice Department Civil Rights Division to conduct two investigations: a criminal civil rights probe, and a separate broader look at whether the police were systematically using force in an unconstitutional way. (This is happening right now in Ferguson too.)

    After looking at the facts, we concluded that we couldn't bring criminal civil rights charges. Federal law sets a very high bar, and essentially requires proof beyond a reasonable doubt that an officer intended to deprive a person of his civil rights. Evidence that an officer feared for his life or acted according to training could defeat such a case. It is exceedingly difficult to prove such specific motivation. On the one hand, we want the police to be able to make split-second decisions necessary to protect us. But we also want to ensure deadly force is used only where necessary.

    But even where individual criminal cases cannot be brought against an officer, a system that fosters unconstitutional policing can be corrected.

    Eventually, our other investigation concluded the Seattle Police Department had a pattern of using unconstitutional force and found troubling evidence that it acted with racial bias.

    Months of acrimony followed. We engaged the police and political leaders, and consulted national experts on all aspects of policing. This type of broad outreach is challenging but essential. Involving police officers in the solution is particularly important.

    Opposition was stiff at times. Political leaders were bitterly divided. But under threat of litigation, the city finally agreed to a broad consent decree entered in federal court. The order required wholesale changes in how and when the police used force, how they were trained and how they will be held accountable.

    The process of remaking the department began. Now, every aspect of reform must be reviewed and approved by the federal judge and his appointed monitor. This ensures independence, helps insulate the process from political and budgetary pressures, and increases public trust and confidence.

    New policies and training on using force, dealing with mentally ill and biased policing were developed. A Community Police Commission, comprising a broad cross section of community members and police officers, was created to oversee the changes and foster positive dialogue. The parties are in the process of agreeing to and measuring outcomes.

    One significant benefit already is that all dispatchers and officers have received training on crisis intervention and how to deal with people in crisis.

    Today, both the city and the department have new leaders who have embraced reforms. Years of work remain to implement the new policies and truly change the culture. But all parties - community, the police, elected leaders and the Justice Department - are building the type of department the city needs and wants.

    These are the lasting changes that are possible in any city, including Ferguson.


    The writer was a United States attorney in Western Washington for five years, until last month.