Lots of left-skewing folks, including me, have expressed irritation at the Justice Department’s delay in charging the former president for trying to replace Congress with a battalion of deadbeat dads who still listen to Ted Nugent. But things are looking up. The fact that the feds executed a search warrant at Trump’s Florida pleasure palace should inspire some confidence. And the charges levied against four LMPD officers involved in Breonna Taylor’s murder, including a charge against former officer Brett Hankison for conduct that a Louisville jury already found him not guilty of, might stoke one’s optimism, too. What do these charges mean for what we can expect out of this DOJ in coming months?
The main statute under which the four LMPD officers are charged was part of a post-Civil-War act meant to give the federal government power to enforce the law in places where states would not. Crime and punishment were handled locally in those days; it was rare for the feds to dirty their hands with plain-old murders and robberies. But white supremacists were terrorizing the South during Reconstruction, and Southern states weren’t doing much to stop them. As one congressman put it in 1871, “men were murdered, houses were burned, women were outraged, men were scourged, and officers of the law shot down, and the State made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent. The State, from lack of power or inclination, practically denied the equal protection of the law to these persons.” Laws like the one LMPD officers are charged under allowed federal agents to mop up the Klan without the help of state governments.
The 2015 murder of Walter Scott in South Carolina provides an example of how this is supposed to work today. A bystander captured a video of officer Michael Slager shooting Scott eight times in the back, from a considerable distance, as he was running away. As you may have guessed, Scott was Black and Slager is white. The judge declared a mistrial when one of the jurors refused to convict, despite unmistakable evidence that Scott’s death was a coldblooded assassination. The feds took over the case, and Slager got 20 years.
With this history in mind, Hankison’s second round of charges might make more sense. The state’s little dog couldn’t get the job done, so in barges the federal pit bull. The difference here is that Hankison was tried and acquitted of exactly the same conduct the feds charge him with now. Laypeople often ask, “Isn’t that double jeopardy?” It probably should be, but the Supreme Court says it’s not. We should be suspicious of this kind of power, which is regularly directed at people who state prosecutors are mad at. In the rare event that a defendant is found not guilty after a trial, state prosecutors will sometimes go running to Big Brother to make sure that someone goes to prison, no matter what any ol’ jury says. I’ve seen them do this many times, and it’s almost never directed at crooked cops.
The decision to re-prosecute Hankison is even more curious when you consider that federal prosecutors will have to convince a jury composed not just of Louisvillians, but of Nice White Jurors from surrounding counties, too. These Nice White Jurors are more likely to be pro-cop, and therefore less likely to convict someone of firing shots wildly into a neighboring apartment. And the prosecutions of the other officers, at least on the charges connecting their lies to Breonna Taylor’s death, are anything but a slam dunk. Still, accountability is accountability. While I don’t love the fact that the feds have the power to charge someone for something they’ve already been acquitted of, at least they’re occasionally using that power against cowboy cops. That’s a notable improvement from previous administrations.
There’s another piece here that’s helpful for context: Last month, three former Minneapolis officers — J. Alexander Kueng, Thomas Lane and Tou Thao — were sentenced on federal charges under the same statute used to prosecute Hankison and the other LMPD officers. Those three were popped by the DOJ for “failing to intervene” so as to prevent George Floyd’s death. None of them will do more than four years in prison, but the fact that the feds went after them in the first place means something.
The overall picture is one of a Justice Department that is willing to take risks to do what’s right. Up until now, courts and prosecutors have been telling cops that even the most reckless Deadpool-style policing will be excused: fi ring into moving cars full of children? Fine. Making up charges on the spot so someone gets thrown in jail? No biggie. Blasting golden retrievers and tossing concussion grenades into occupied cribs? Yawn. As someone who used to sue cops all the time, it’s been next to impossible to convince the federal courts that they should be subjected to simple monetary penalties, let alone criminal ones.
That’s what makes the charges against the LMPD officers so extraordinary. In the past, the feds have been willing to overlook any bad behavior by police during a home invasion if someone shoots at a cop. Lying on a search warrant is practically something they teach at the academy, so they haven’t gone after officers for that one either. Thao and Keung were just standing around watching their colleague kill a man; I don’t remember hearing of cops getting charged for that ever in my life. There’s a political dimension to consider, too. The FBI and LMPD work together a lot, and these prosecutions will almost certainly damage their relationship. So even if charging a bad cop seems like a no-brainer, in a sense, it’s still an act of bravery. The feds didn’t have to do it (and historically speaking, they haven’t).
Regular readers will know to take my tempered praise of the DOJ for what it’s worth, which isn’t much. Federal law enforcement still has racist and classist roots, and it’s hard to imagine that the DOJ would have pursued these charges had the Taylor and Floyd murders not captured so much national attention. And of course, underlying all this is America’s chronic insistence on clubbing every social problem over the head with the criminal law. There’s not much that’s objectively “good” about this situation overall. But if you’re turning over stones looking for hope wherever you can get it, I think there’s some to be found. •
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