Shortly after Gov. Mark Dayton found out that a metro area police officer shot Philando Castile during a traffic stop, he did what Minneapolis Mayor Betsy Hodges did before him and what many protesters wanted: He called for a federal investigation. Some congressional leaders joined the chorus.

When local politicians call for a federal investigation, it sounds bold and aggressive. It shows your constituents that you are taking the issue very seriously. It also passes the problem on to somebody else.

In the deaths of Jamar Clark last November and now Castile, however, federal prosecutors have fewer options than prosecutors at the local level. If you think charges against an officer equal justice, you are far less likely to get that justice when a case goes federal. Demanding a federal probe may look good, but it may in fact be bad strategy.

“I’m not going to accuse anyone of trying to avoid the issue,” said Thomas Heffelfinger, a former U.S. attorney for Minnesota. “But as a politician, if the first thing you do is call for the feds, yet you know how hard it is for them to prosecute, you are setting [the process] up for failure.”

Take the Clark case as an example.

After Clark’s death, a federal investigation was launched, bringing FBI and special prosecutors from the U.S. Justice Department Civil Rights Division to Minneapolis to work with an experienced investigator here. Their investigation was separate from that of the Minnesota Bureau of Criminal Apprehension (BCA). The latter looked into accusations of homicide, while the feds focused on whether the officers violated Clark’s civil rights, as defined by federal statute.

We now know what happened. Neither found enough evidence to charge the officers in Clark’s death.

But the federal investigation was actually the tougher case. To prove the shooting violated Clark’s civil rights, the feds would have had to prove, without reasonable doubt, that the officers acted with specific intent to do something the law forbids — one of the highest legal standards in criminal law.

It wasn’t enough to show they did bad police work, that they acted negligently or had bad judgment. They had to intend to harm or kill Clark because of his race, something that is nearly impossible to prove.

The testimony of witnesses was contradictory and forensics backed up the police version of events. A reasonable jury would have reasonable doubts as to whether police intended to kill Clark, so U.S. Attorney Andrew Luger did what the law demands: He declined to charge the officers. In the Castile case, Luger’s office is “monitoring” the local investigation and will help if called upon.

Federal law does not allow a U.S. attorney to charge a lesser crime, such as manslaughter or negligent homicide. But local laws do. That’s why you saw charges, thus far unsuccessful, against six officers in the Baltimore death of Freddie Gray. Although juries have found them not guilty, at least they were charged in a process that was open.

“Anybody enforcing state law has the full run of state statutes to charge an officer, from murder in the first degree to assault,” said Heffelfinger. “There is more statutory opportunity at the local level.”

Heffelfinger said that because Castile had a gun, and the attorney for the officer has said the officer’s reason for stopping Castile was because he matched a suspect description in a robbery case, it would be very difficult to make a federal case that his rights were deprived because of race.

“I understand the desire for an independent investigation,” said Heffelfinger. “If we want to give the Legislature something to do, they have the option to establish an independent prosecutorial branch” for these situations. It could be through the state attorney general’s office, or by legislation that establishes outside county attorneys to handle the case. Heffelfinger said he “absolutely” favors such an effort; the Falcon Heights incident signals a need for a statewide look into police-public altercations.

There is more state leaders should do, and probably should have done months ago. At a recent news conference, Dayton mentioned President Obama’s Task Force on 21st Century Policing, saying that he had “asked for a copy.” He said he’d be open to convening a similar task force at some point.

“That’s premature,” Dayton said. “That’s not why we are here today. We don’t have solutions today.”

Since the Clark shooting happened eight months ago, putting the region on edge and our state’s police-public relationship in the international spotlight, there was ample time to get a copy of that report and perhaps gather some local and national experts in police procedure. We still might not have had solutions today, but we would perhaps be a little closer to them.

Instead, we’ve had statewide inertia and scant leadership on the issue.

Numerous police departments have made progress, and we should seek their input. Ironically, Dallas is often mentioned as a national model. Columbia, Mo., and Camden, N.J., have gotten kudos.

Bring representatives to Minnesota to meet with outstanding law enforcement people here, as well as a wide range of people from the community, and work on this thing. Yesterday.

Meanwhile, Gov. Dayton, you can borrow my copy of “21st Century Policing.”

 

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