FBI investigation into Jamar Clark shooting remains open

Though no charges will be brought in Hennepin County against the two Minneapolis police officers involved in the November shooting death of Jamar Clark, federal investigators are still in the midst of a criminal civil rights investigation requested by Minneapolis Mayor Betsy Hodges.

Hodges asked the U.S. Department of Justice to begin a separate investigation after Clark, 24, died on Nov. 16. The FBI is leading the investigation which will be reviewed by the U.S. attorney's office in Minnesota and prosecutors from the Justice Department's civil rights division. A Justice spokesman said Wednesday that the investigation is still ongoing and that "experienced federal prosecutors and FBI agents are conducting a review of all available evidence in this case in an expeditious and thorough manner."

The federal probe is likely considering either charges of conspiracy by the two officers, Mark Ringgenberg and Dustin Schwarze, to violate Clark's civil rights or deprivation of civil rights under "color of law," that is, a violation of those rights by those specifically working in an official capacity (including a police officer). A violation of the latter statute that results in a death carries the potential for a multiyear or lifetime prison sentence, or the death penalty.

Thomas Heffelfinger, a former U.S. attorney for Minnesota who is now a private attorney in Minneapolis, said such charges are harder to prove than those considered by Hennepin County attorney Mike Freeman.

He called Freeman's announcement that evidence did not support state criminal charges a turning point in the federal investigation.

"You have to start with an unjustified killing" and establish that it was done to deprive Clark of constitutional rights, Heffelfinger said.

Mark Osler, a University of St. Thomas law professor who was a former federal prosecutor in Detroit, said much of the evidence federal investigators are analyzing is likely to be similar to what was shared by Freeman on Wednesday.

"There's a limited amount of video out there," Osler said. "There's a limited number of witnesses to have seen the events."

But Heffelfinger said any federal criminal civil rights case must look well beyond what happened during the 61-second interaction between the officers and Clark.

"I [would] want to know about these two guys' interactions with people of color," Heffelfinger said. "Is there a pattern here with these two guys that you can establish — that their conduct with Clark was part of a pattern?"

If the federal investigation finds Clark's death to be justified but also unearths a pattern of civil rights violations by Minneapolis police officers, Heffelfinger said, the Justice Department could issue a consent decree like in Ferguson, Mo., that would require specific steps be taken by the city.

Any such report, Osler added, could then be compared with evidence shared by Freeman on Wednesday.

Stephen Montemayor 612-673-1755