When cops are suspects, feds often take years to file charges

As anguished families wait, a Washington Post review finds the average civil rights case takes three years for a ruling.


People attend a vigil for Eric Garner near where he died after he was taken into police custody July 22, 2014, on Staten Island. Federal authorities still have not decided whether to file civil rights charges against the officer involved. (Spencer Platt/Getty Images)

It was July 2014 when Eric Garner died after a violent struggle with New York City police on a Staten Island street, an encounter captured on video and replayed worldwide. When a local grand jury declined to indict any police officers, federal authorities announced in December 2014 that they would launch their own civil rights investigation.

Nearly four years later, no decision has been made on whether to file charges. “It’s a horror show,” said Jonathan C. Moore, the Garner family’s lawyer. “The family’s very frustrated.”

In November 2017, Bijan Ghaisar died after being shot by two U.S. Park Police officers in Fairfax County, Va., an episode also captured on video. The FBI and the Civil Rights Division of the Justice Department took over the case within three days. As the first anniversary of that killing approaches, the names of the officers and an explanation of their actions have been withheld by federal authorities. The Ghaisar family has not been told where the investigation stands.

“To wait like this is like being underwater and not being able to breathe,” said Kelly Ghaisar, Bijan Ghaisar’s mother. The family has pleaded with the Park Police and the Justice Department, held public demonstrations, and finally filed a lawsuit in search of answers to why Ghaisar, 25, was shot repeatedly in the head as he slowly steered his Jeep Grand Cherokee away from two officers. His family said he was not armed, and Fairfax County Police Chief Edwin C. Roessler Jr. confirmed this at a recent police chiefs’ conference in Orlando.

The anguish of the Garner and Ghaisar families over what they see as needlessly drawn-out investigations is common for those who think they or their families have been the victim of police brutality or other misconduct.

Justice Department investigations into sworn law enforcement officers — police, jail guards and sheriff’s deputies — often take years. An examination by The Washington Post of more than 50 recent civil rights cases filed by federal prosecutors against such officers found an average of slightly more than three years elapsed from the day of the event to the day that charges were filed. The cases were all the subject of Justice Department news releases in the past year announcing either charges or a conviction in a federal prosecution of civil rights violations “under color of law.”

Those are only the cases with charges filed. A study of more than 13,000 misconduct cases submitted to the Justice Department over 20 years, conducted by the Pittsburgh Tribune-Review in 2016, found that no charges were filed in 96 percent of them.


Bijan Ghaisar’s family gathered with supporters in front of the Justice Department in May to demand answers in his shooting death by U.S. Park Police. From left are his sister, Negeen Ghaisar, her husband, Kouros Emami, Bijan’s father, James Ghaisar, and his mother, Kelly Ghaisar. (Bill O’Leary/The Washington Post)

A cumbersome process within the Justice Department for seeking charges and the high legal standard for prosecuting law enforcement officers contribute to the slow pace. In addition, law enforcement officers are sometimes reluctant to testify against colleagues, and jurors can be reluctant to convict them.

But many experts said another key factor is that no one is demanding the Justice Department move more quickly in civil rights cases to resolve the tensions of a community and the miseries of a family.

“The bottom line is there’s no pressure,” said Roy L. Austin Jr., an attorney for the Ghaisar family who was formerly a top official in the Civil Rights Division at the Justice Department. “They don’t care how long it takes because there is no one telling them they need to get it done sooner. So they aren’t concerned about the impact it may have on the community or the impact it may have on the family. That’s just their way, because they are answerable to no one except their immediate bosses.”

A number of police chiefs at the Orlando conference made a similar point, noting that leaders of federal agencies don’t have constituents who confront them at community meetings or barrage them with angry emails. Local political leaders can hold police chiefs accountable, but federal investigators do not face that pressure.

In the Garner case, The Post reported in April that prosecutors in the Civil Rights Division have recommended charges against the officers involved, but they haven’t been able to get approval from the top levels of the Justice Department, including Deputy Attorney General Rod J. Rosenstein and Attorney General Jeff Sessions. So the case languishes.

Garner’s case is not an exception. In Louisiana, a group of sheriff’s deputies who brutally beat an inmate weren’t charged for nearly five years. In Florida, a police chief who allegedly ordered people to be falsely arrested wasn’t charged for more than four years, by which time one of the suspects had been wrongfully imprisoned and deported. In Kansas, a highway patrol trooper who beat an arrestee was only charged after four years.

This keeps officers and their families in a nerve-racking limbo as well. “There’s a pace that seems like it’s forever,” said Ronald T. Hosko, a former FBI agent and president of the Law Enforcement Legal Defense Fund, which helps officers who need financial or legal assistance in such cases. “They take their time,” he said of the Justice Department. “There’s no rush, and I think some of that is tactical. They’re trying to be thorough. But as time goes by, some of the heat is taken out of the community and then they give you the result nine months later.”

Bijan Ghaisar, 25, of McLean, Va., died Nov. 27, ten days after being shot by U.S. Park Police. This is what’s known about the shooting.

 

The Justice Department declined to make anyone available for an interview on the subject. But the agency released a statement that said: “It is important to understand that ‘color of law’ cases in particular have an extremely high burden of proof and it takes time to put together an airtight prosecution. Every single color of law case is unique and length depends on a plethora of factors, including: available evidence, the number of witnesses and subjects, local procedures, and grand jury availability.”

There haven’t been any definitive studies done on the delays in federal civil rights cases, according to Craig Futterman, a University of Chicago law professor and director of the Civil Rights and Police Accountability Project. But he and other experts said the federal statute — which requires prosecutors to show that a law enforcement officer intentionally deprived someone of their rights — creates a high bar for charging.

“Federal law makes it harder to charge a police officer with violating someone’s rights than often what it would take to charge a civilian,” Futterman said. “The prosecutors face a high burden. That’s a good thing.”

As a result, the FBI or other federal investigators have to dig deeper to prove intent, Hosko said. “I think you end up with a much longer investigation,” Hosko said, “that delves into a specific intent to violate the Constitution. Not just any intent to hurt you or stop you. The officer had to know what they were doing was wrong and they’re going to violate your rights. … Where you see these cases start to drag is when the FBI is looking for that added malicious intent.”

Those investigations involve layers of bureaucracy. When the Civil Rights Division in Washington steps into a case, the line prosecutor must write a detailed memo seeking authorization to call witnesses before a grand jury, Austin said. That memo must be approved by the prosecutor’s supervisor, and then by the chief of the section, and then by a deputy assistant attorney general and finally an assistant attorney general, approvals which can take time, Austin said.

The Civil Rights Division insists on bringing all witnesses before a grand jury to lock in their sworn testimony, Austin said. But the scheduling of those grand jury hearings depends on when the civil rights prosecutor from Washington can travel to the jurisdiction, and fitting those witnesses in among other cases being pursued by local prosecutors. The local jurisdiction is not always particularly friendly to the out-of-town prosecutor seeking to indict a local cop, Austin noted, which can cause scheduling delays.

If, after presenting the witnesses to a grand jury, a prosecutor wants to seek an indictment, another series of memos and approvals is required, Austin said. Sometimes the Justice Department also creates an “indictment review committee” of seasoned prosecutors to take an additional look, he said.

After all that, there can still be disagreement within the Justice Department. “There can be a fight between the local U.S. attorney and the civil rights division,” Austin said, with one side advocating charges and one opposing charges. “It totally depends on who wins that argument.”

Though The Post’s examination of recent civil rights cases found a three-year lapse between the event and federal charges, the Justice Department’s statement said that “it would actually be more accurate to measure from the time that Civil Rights Division finds out about the case, to its indictment. In many cases there are local investigations that take place well before the Division gets involved.”


Hickory, N.C., police Sgt. Robert George was arrested in an assault on a motorist in November 2013. Nearly five years later, he has not faced trial. (Catawba County Sheriff’s Office/Catawba County Sheriff’s Office)

That’s sometimes true. In Hickory, N.C., Sgt. Robert George allegedly pulled a female motorist out of her car in November 2013 and slammed her face first to the ground; she suffered injuries, which required oral surgery. Local prosecutors charged George in March 2014 but never took the case to trial. In April of 2018, the federal civil rights division obtained an indictment against George for violating the woman’s civil rights by excessive force. The case is pending.

A. Bradley Smith, the woman’s attorney, said he wasn’t sure why or when federal prosecutors decided to pick up the case as it lay dormant in state court. “Her hope,” Smith said of the woman, “continues to be at some point she will have her day in court, and bring a conclusion to all this.”

Another hurdle to prosecution is what Futterman called “the blue wall of silence, you’re loyal to your fellow officer.” Former FBI special agent Billivan Johnson said, “Most of these investigations that involve police officers, sometimes it’s difficult to get cooperation.”

In March, state prosecutors in Minneapolis filed a murder charge against the officer who shot and killed Justine Ruszczyk Damond eight months earlier. But the city’s top prosecutor said uncooperative officers had slowed down the investigation.

Many of the hurdles in other federal cases aren’t present in the Ghaisar case, which began when he drove away from a minor fender bender in which he had been struck from behind by another car. The two Park Police officers soon located him and pulled him over, but Ghaisar drove off when officers approached him with guns drawn. Shortly after, Ghaisar stopped and then drove off again. When he stopped for a third time, and then tried to maneuver around the Park Police cruiser, both officers opened fire.

The entire incident was captured by a Fairfax County officer’s in-car camera as he followed the pursuit. Rather than wait for local prosecutors to rule, the Justice Department took over the case almost immediately because federal officers were involved, unlike most cases. Over the Justice Department’s objections, Roessler released the video of the shooting in January. There appear to be no other witnesses to the shooting, on a dark residential street, besides the Fairfax officer and his video camera. The case is being handled by the U.S. attorney in Washington, for undisclosed reasons.

“There is a complete lack of pressure to move things any faster,” Austin said. “The DOJ is in no rush to indict civil rights cases generally.”

 

Tom Jackman, October 23, 2018, Washington Post, “When cops are suspects, feds often take years to file charges”, https://www.washingtonpost.com/crime-law/2018/10/23/when-cops-are-suspects-feds-often-take-years-file-charges/?noredirect=on&utm_term=.32ff2e79fbb7

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After six months of silence in Park Police killing, Bijan Ghaisar’s family protests at Justice Department


Negeen Ghaisar, left, the sister of Bijan Ghaisar, and her husband Kouros Emami lead a group of friends and family around the Justice Department to demand answers in Bijan Ghaisar’s shooting death by U.S. Park Police officers. (Bill O’Leary/The Washington Post)

Six months after Bijan Ghaisar was fatally shot by two U.S. Park Police officers on a Northern Virginia side street, hundreds of family members, friends and supporters marched around the Justice Department building Saturday chanting, “We want names — we want justice — we are Bijan.”

Other than the video of the incident recorded by Fairfax County police, virtually no information has been released about the shooting, including the names of the officers or the reasons they fired nine times into Ghaisar’s Jeep Grand Cherokee as he sat behind the wheel, apparently unarmed. Both the FBI, who is investigating the case, and the Justice Department said Saturday they had no comment on the case.


Bijan Ghaisar, far right, with his family: mother Kelly, sister Negeen and father James. (Ghaisar family)

“Where the hell are all the good cops?” asked Negeen Ghaisar, the victim’s sister, to an often tearful audience. The lengthy silence in the case has horrified her family. “My grandfather is a retired police colonel and police chief. He said the good cops outweigh the bad cops. Where the hell are you?”

Rep. Don Beyer (D-Va.) has been pressing the Park Police and the FBI for answers for months, with little success. “It’s beyond my imagination why it has taken so very, very long. … Little by little, the FBI is sacrificing its credibility. I have one request. Please Director [Christopher] Wray, finish the investigation and release the report.”

State Sen. Scott Surovell (D-Fairfax) and Fairfax County Supervisor Pat Herrity (R-Springfield) also lent their voices to the demand for answers, as did speakers from Amnesty International, Mothers Against Police Brutality, the Iranian-American Community Center and the Avalan Institute.

Ghaisar, a 25-year-old accountant from McLean, Va., was shot on Nov. 17 by two U.S. Park Police officers as he sat behind the wheel of his Jeep in the Fort Hunt area of Fairfax County, Va. His family said he was unarmed and shot four times in the head. The Park Police and the FBI, which took over the investigation of the case, have declined to discuss the case since the incident occurred. The Park Police have refused to identify the officers involved, which most police agencies do shortly after a shooting. The officers remain on administrative leave with pay, Sgt. James Dingeldein, a Park Police spokesman, has said.

Ghaisar had been involved in a minor fender bender after he stopped in a southbound lane of the George Washington Memorial Parkway just north of Alexandria, Va. A Park Police report states Ghaisar drove away from that incident without speaking to the driver who had hit him, and a Park Police cruiser with two officers inside spotted the Jeep minutes later on the parkway south of Alexandria and tried to pull him over.

A Fairfax County police officer joined the pursuit and turned on his in-car video camera. The footage from that camera, released by Fairfax police Chief Edwin C. Roessler Jr. in January, shows Ghaisar stopped in the right lane of the parkway, then drove off as the Park Police officers approached him with guns drawn. Several minutes later, after driving at a reported 58 mph, Ghaisar pulled onto an exit off the parkway and stopped again. Again the officers ran to his Jeep with guns drawn, and again Ghaisar drove off.

Video captures chase and fatal shooting by U.S. Park Police of Virginia man

Fairfax County Police released video on Jan. 24 of U.S. Park Police chasing Bijan Ghaisar’s vehicle on Nov. 17 and firing shots. Ghaisar, 25, later died.

At the intersection of Fort Hunt Road and Alexandria Avenue, Ghaisar stopped a third time. The officers again hurried to the Jeep with pistols drawn. Ghaisar’s Jeep appears to start rolling around the Park Police car blocking his way, with the officers to the side. The video shows the officers firing nine times into the Jeep.

Ghaisar lived for 10 days after the shooting, and was pronounced dead on Nov. 27. Though there is a full, clear video of the incident and a Fairfax County police officer as a witness to the entire episode, the Justice Department has given no indication of when a decision might be made on whether the Park Police officers will be charged with a crime.

Kadia Koroma, an FBI spokeswoman, said the investigation was ongoing and she had no information to release Saturday. Devin O’Malley, a Justice Department spokesman, said the department “does not acknowledge or otherwise comment on investigations.”

Last month, Beyer asked FBI Director Wray to meet with him to discuss the case. Wray declined. Federal prosecutors have also intervened with Arlington County, which received the initial 911 calls on the traffic accident, to prevent them from releasing the tapes of those calls, which might indicate why Park Police pursued Ghaisar so intensely.

“Knowing my son,” said his mother, Kelly Ghaisar, “he would never run from the police. But he would run to save his life. What was Bijan’s crime for deserving a death sentence? I’ll tell you. He insulted an officer’s ego.” She and Beyer both noted that the officers appeared to violate Park Police policy on both pursuing Ghaisar and using force against him.


Kelly Ghaisar, mother of Bijan Ghaisar, addresses friends and family gathered in front of the Justice Department to demand answers in her son’s death in November after being shot by U.S. Park Police officers. (Bill O’Leary/The Washington Post)

“Those officers killed my son and are getting paid,” Kelly Ghaisar said, “sitting at home with full protection, while we watched our son with bullets in his head. We have no rights. If you think you have rights, you don’t.”

“Today marks 184 days,” said family friend Shirin Golesorkhi Kavyani, “since Bijan, a bright, positive, passionate soul who believed in honesty and peace, was shot by the U.S. Park Police. 184 days of grieving. 184 days is too long for Bijan’s family with no answers.”

The Park Police do not have either body-worn cameras or in-car cameras. Last week, the Ghaisar family sent a letter to Park Police Chief Robert MacLean imploring him to move forward on cameras. “What is required for you to take this seriously?” the letter by James, Kelly and Negeen Ghaisar asked. “Another unnecessary and devastating killing by one of your officers?… It is far past time for you to take action to ensure that all of your officers have body cameras.”

Tom Jackman, May 19, 2018, Washington Post, “After six months of silence in Park Police killing, Bijan Ghaisar’s family protests at Justice Department”, https://www.washingtonpost.com/news/true-crime/wp/2018/05/19/after-six-months-of-silence-in-park-police-killing-bijan-ghaisars-family-protests-at-justice-department/?noredirect=on&utm_term=.1d1f273c886b