Darren Wilson May Not Face Charges, But Ferguson's Police Department Is Still on the Hook

The family of Michael Brown may still get their day in court—in a civil rights lawsuit against the Ferguson Police Department.

But the focus would shift from Ferguson Police Officer Darren Wilson’s personal responsibility for the shooting death of Michael Brown, which did not lead a St. Louis County grand jury to recommend charging Wilson with a crime. Instead, it could be filed against the Ferguson Police Department for improper police procedures based on the testimony by Wilson that has been unsealed following the grand jury’s decision.

That is the conclusion of legal experts who have been parsing the case and pointing to precedents such as the lawsuit and legal settlement that followed the shooting death of Oscar Grant in Oakland, California, by a Bay Area Rapid Transit Police officer in 2009. While the civil rights lawsuit could take years to wind its way through the courts, the admission by Wilson that he chose not to carry a taser—because it was unwieldy—is one example of how the Ferguson Police Department could be vulnerable because their officer was not prepared to use non-lethal force.

“You may not like the appearance of Taser, you may not like the perception of Taser, but the bottom line is Taser saves lives. It saves cops’ lives; it saves suspect lives,” Bernard Kerik, the ex-New York City Police Commissioner, told the Washington Times.

Kerik, who the Times noted served on the board of the company making Tasers a decade ago, is among a growing chorus of voices inside police and legal circles suggesting that Ferguson’s department could be vulnerable to a civil rights suit over police procedure.

Eric Guster, a Birmingham, Alabama attorney, laid out a pathway to a civil rights suit in an article in TheRoot.com, where he said: Michael Brown’s parents could sue the police department; could pursue charges relating to police procedures—as opposed to personal responsibility for their son’s death; would not be blocked from doing so by the grand jury’s decision not to charge Wilson; and could emerge with a legal settlement.

As ThinkProgress.org has pointed out, there is a firm basis for that course of action.

“Another federal civil rights law prohibits law enforcement from engaging “in a pattern or practice of conduct . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” To the extent that Wilson’s actions — or the subsequent actions of police armed with riot gear, tear gas and “non-lethal” ammunition — constitute such a “pattern or practice,” police in Ferguson could find themselves on the losing end of a federal lawsuit.”

The conservative Washington Times quoted other longtime police officers, such as Ronnie Frigulti, who was the FBI’s principle firearms instructor in Los Angeles from 1980 to 1997, who confirmed there is an ongoing debate in police circles about requiring officers to carry less-lethal weaponry. “If we’re going to have Tasers in a department, I think it shouldn’t be optional,” he said. “I think every officer should have one and be trained with it.”

Officer Darren Wilson did have a taser, but told the grand jury that he didn’t want to carry it because it was unwieldy—a choice that may clash with department policy or show that the department lacked a clear policy on non-lethal weaponry.

Such a suit would not be the first civil rights action to result from the police killing of Michael Brown this past August. Black Lawyer for Justice, a Washington, D.C. group, sued the Ferguson Police Department for breaching the civil rights of protesters after it and other local departments used excessive force to stop demonstrators in August. That lawsuit is seeking $41.5 million in damages.   

The U.S. Department of Justice also has an open civil rights investigation but has not yet announced if any charges will be brought.

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