Fact Check: Are Prosecutors Too Quick To Let The Police Off?

By Martin Kaste

Published May 4, 2017 at 4:00 AM CDT

A Baton Rouge, La., police officer redirects traffic away from a protest march following the death of Alton Sterling last July.

The Justice Department decided not to charge the officers involved last July in the fatal shooting of a black man, Alton Sterling.

The decision is being met with anger by activists who say prosecutors are too deferential toward cops — and are too quick to let them off. That notion has been front and center since the 2014 protests in Ferguson, Mo., that followed the death of Michael Brown.

Here are four questions and answers you should know about whether that complaint is true:

1. Is the Justice Department's explanation not to prosecute the Baton Rouge, La., officers surprising?

It's not surprising. Federal prosecutors aren't in the business of bringing normal murder or manslaughter charges — that's the state's responsibility. The feds bring charges only if they see evidence of constitutional violation, a willful deprivation of someone's civil rights. In a case like this, they'd have to show the cops meant to kill Sterling, and that's hard to prove.

2. Federal prosecutors did bring charges against an officer in another shooting incident — Michael Slager, who killed Walter Scott in North Charleston, S.C., two years ago. Why did the feds pursue that case?

It's tempting to compare these cases. Both incidents were caught on video, both victims were black men, both generated a lot of community anger. The key difference was Walter Scott was shot as he was running from the officer. Alton Sterling was shot in the middle of a struggle, and it appears officers thought he was going for a gun.

That's the key in most of these cases of officers who shoot — what was the danger they reasonably perceived at the moment? That's the constitutional standard in this country: Courts aren't supposed to judge cops on whether they were actually in danger — they judge them on whether the cops reasonably believed they were in danger at that moment.

The public often sees these cases in which, say, a cop shoots someone for reaching for his waistband. There's no gun, but prosecutors don't charge because they know it's enough if a cop can convincingly say he thought there was a gun. Informally, these cases are sometimes called "lawful but awful" — at least, awful from the point of view of many in the public.

3. Have prosecutors become more willing to charge officers in this post-Ferguson era?

There's an academic at Bowling Green State University, Phil Stinson, who follows this. He's also a former cop himself. He keeps track of the number of officers charged with murder or manslaughter — federal or state charges. He says in 2015, there were 18 cops charged. That's the highest he's seen in 13 years of collecting this information. He thought that showed a post-Ferguson increase in prosecutions. But then the next year, 2016, it was down to 13 officers charged.

The truth is, these variations are not very meaningful, statistically, because the numbers of prosecutions are so small. But he thinks it might be a sign of waning interest in charging cops. And he also points out that since Ferguson, we've been getting a more accurate count of the total number of people killed by police every year — about 1,000. So the question becomes, are 13 prosecutions out of 1,000 too low? Or should we accept that 987 out of 1,000 are justifiable?

4. Has the election of President Trump and the appointment of Attorney General Jeff Sessions, who has expressed his doubts about federal intervention on local police departments, affected the likelihood of prosecution?

It's too soon to say. Generally speaking, this is really a state matter, but the feds also play a role. When they come in and do an investigation, and explore federal charges, it puts pressure on local prosecutors. It gives the community the assurance that there's another set of eyes on the case. Also, it's not clear Attorney General Sessions is against prosecuting individual officers, when warranted. He objects to the Justice Department intervening with whole departments, but the fact that federal prosecutors kept up the heat in the Michael Slager case in South Carolina may indicate individual civil rights prosecutions may still happen.