The failure of local jurisdictions to indict police officers who killed unarmed black men in Ferguson and New York City has prompted nationwide protests this month and calls for justice and accountability for heavy-handed law enforcement tactics that disproportionately affect minority communities. With local prosecutors declining to charge cops in both the Ferguson and New York incidents, the hopes of activists are now pinned to federal investigations by the Department of Justice.To much fanfare, the DOJ's Civil Rights Division announced last week that it is probing NYPD Officer Daniel Pantaleo for possible civil rights violations in the death of Eric Garner. If Pantaleo, who administered the choke hold that killed Garner, is to be charged, the DOJ's investigation must show that he "willfully" denied Garner's constitutional protections, and that the officer used an "unreasonable" or excessive amount of force. But legal experts say the road to justice is paved with institutional obstacles.As former federal prosecutors told the New York Times, the high burden of proof required by federal Civil Rights investigations—much higher than that required by the local prosecution that failed to indict Pantaleo—is difficult to meet. The problem, prosecutors said, is that the definitions of "willfulness" and "unreasonable" force are fuzzy. "It's crystal clear that the federally protected right that we're talking about is the right to be free of an unreasonable seizure of his person— that appears in the Bill of Rights," former federal prosecutor Mark F. Pomerantz told the Times. But he added that there is "no precise definition of when force is reasonable or not."Despite video evidence suggesting that Pantaleo put Garner in a choke hold, the officer has claimed that he never intended to hurt him. And while the NYPD has imposed a ban on choke holds for nearly 20 years, the Patrolman's Benevolent Association, which represents NYPD officers, has denied that Pantaleo's takedown was indeed a choke hold. Rather, the union has claimed that Garner "was a big man who had to be brought to the ground to be placed under arrest by shorter police officers."With the DOJ probing Pantaleo's role in Garner's death, the officer could face criminal charges under the FBI's "color of law" statute that allows the agency to investigate and charge police officers previously acquitted of state charges. But history has shown the investigation process can be long and arduous. Of the thousands of civil rights complaints filed each year, only a few dozen result in charges. Even in cases that garner national media headlines, the process remains slow: A federal investigation into George Zimmerman is still ongoing, and federal prosecutors seem unlikely to file charges against Darren Wilson, the police officer who shot and killed Mike Brown in Ferguson, Missouri.On the bright side, federal charges against law enforcement officials are on the rise, according to a 2014 report from the DOJ's Civil Rights Division:In FY 2012, 59 law enforcement officers, including police officers, deputy sheriffs, and State prison correctional officials, were charged with using their positions to deprive individuals of their constitutional rights, such as the right to be free from unwarranted assaults and illegal arrests and searches. The number of cases indicted by the CRM Section has grown from a low in 2003 of 63 cases (of which 27 were police cases) to 124 in 2012 (of which 44 were police cases). From 2003 to 2012, the Section essentially doubled its case load with the same staff.
In the case of Ferguson, the DOJ could still pursue a civil case against the Ferguson Police Department, rather than against Wilson himself. Under the same "color of law" statute, if an entire police department shows a "pattern and practice" of civil rights violations, the Department of Justice's Special Litigation Section may seek civil remedies and a "consent decree" establishing a plan of reform for the local agency and its officers.According to the 2014 DOJ report, this type of federal intervention is also on the rise:The investigations conducted by CRT's Special Litigation Section (SPL) have similarly increased in both number and scope. The Section has more active police pattern or practice investigations of law enforcement agencies than any other time in the Division's history. The Section has 27 active law enforcement pattern or practice cases: 13 open investigations, three matters in litigation, and nine matters that have been resolved by an agreement that SPL is enforcing. In two of the open investigations, SPL has issued letters of finding and is in active negotiations to secure a settlement. SPL is preparing to file litigation in at least two additional matters.
The recent investigation into the Cleveland Police Department is one such example of "pattern and practice" probes. After nearly two years of investigation, the DOJ announced last week that it found that the Cleveland Police Department had shown a pattern of "unreasonable and unnecessary use of force." The City of Cleveland has agreed to work with the Department of Justice on a consent decree that will enact policing reforms intended to mediate constitutional violations. That's welcome news to activists in Cleveland, where a police officer recently shot a twelve-year-old boy who was carrying a toy gun.But while federal oversight is theoretically intended to help reduce the unreasonable use of force and other constitutional violations, the success of the DOJ's consent decrees is still up for debate. In 1997, when Congress first authorized the US Attorney General to sue police departments, Pittsburgh was the first department to catch a case. Five years later, in 2002, the consent decree was lifted and signs of reform began to fade. "Over the last 20 years, there's been a big cultural change in the structure of the bureau of police, but we're still wanting in the management department," Elizabeth Pittinger, executive director of Pittsburgh's Citizen Police Review Board, told Northeast Ohio Media Group. "If you don't have supervision, the behavior is going to perpetuate itself."Similarly, while the LAPD's 13-year consent decree imposed following the infamous Rodney King beating has been heralded as a pinnacle of reform, a 2009 study by Harvard's John F. Kennedy School of Government found "a troubling pattern" in which "African Americans, and to a lesser extent Hispanics, are subjects of the use of … force out of proportion to their share of involuntary contacts with the LAPD."So while the DOJ investigations may be one of several approaches to implementing police department, it's clearly not a silver bullet. Other reforms, like body-worn cameras for cops and special prosecutors for police brutality cases, are also on the table. And on Monday, in the wake of the explosion of recent protests over incidents in New York, Ferguson, Cleveland, and elsewhere, the DOJ revealed new guidelines for racial profiling:The new policy, which is spelled out in a memorandum circulated Monday, instructs that, in making routine or spontaneous law enforcement decisions, officers may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree, unless listed characteristics apply to a suspect description. Under the policy, federal law enforcement officers will be prohibited from acting on the belief that possession of a listed characteristic by itself signals a higher risk of criminality.
For many in the movement, though, modest reforms will not quell concerns that police departments act with impunity in their disregard for black lives. As President Obama told BET in an interview Monday, "This isn't something that is going to be solved overnight… This is something that is deeply rooted in our society. It's deeply rooted in our history."Follow Kristen Gwynne on Twitter. 
