Explaining the federal civil rights investigation in the Clark case

The state investigation into the shooting death of Jamar Clark is over, but federal authorities may still be working for months to decide whether the two police officers violated civil rights laws.

One day after the shooting, Minneapolis Mayor Betsy Hodges asked the U.S. Justice Department for a federal probe.

The key players are investigators from the FBI who will present evidence to the U.S. Attorney's Office and the U.S. Department of Justice.

A federal grand jury will then review the case to decide whether Minneapolis police officers Mark Ringgenberg and Dustin Schwarze violated civil rights laws.

After the Minnesota Bureau of Criminal Apprehension finished its investigation, it handed it over to Hennepin County Attorney Mike Freeman who declined to take it to a grand jury and decided to review it himself.

Federal civil rights laws, however, require a federal grand jury to convene to review cases. A federal prosecutor cannot review cases for civil rights charges.

How is the federal investigation different from the state's?

Freeman found the officers' use of deadly force justifiable under state law. He said he was not able to prove beyond a reasonable doubt that the two officers didn't shoot Clark to protect themselves.

Federal authorities are most likely looking at two statutes that focus on "conspiracy" and "deprivation of civil rights." Under Title 18 of the U.S. Code's Section 241, which deals with "Conspiracy Against Rights," the key element is having two or more people conspiring to hurt someone. The penalty varies from a fine to imprisonment of up to 10 years or both. That law could apply in the Clark case because there were two officers involved.

The other statute is more specific to police officers. Title 18 of the Code's Section 242, which deals with "Deprivation of Rights Under Color of Law," says law enforcement officers and public officials such as mayors, city council members and judges, are not allowed to use their authority to intentionally deprive someone of their civil rights based on their race. A conviction here can be as serious as a death sentence.

Both statutes deal with civil rights violations, meaning, a conspiracy to "injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States."

Police officers are rarely ever convicted under those two statutes, said former U.S. Attorney for Minnesota Tom Heffelfinger. He could only remember working on a case that resulted in one conviction back in the 1980s where an officer injured a civilian.

"It is a significant bar," he said. "In the Clark case, you not only have to overcome the justification issue, but you also have to be able to establish that at the time of shooting, an intent to deprive somebody of their civil rights."

Despite the high bar, a federal prosecutor could try to prove that a pattern of civil rights violations by the officers existed, either against Clark alone, or an entire community by these two specific officers.

"And if you can establish a pattern by the officers of violating people's civil rights," Heffelfinger said. "That's relevant evidence as to whether or not at the time of this shooting he was acting with the intent to deprive Mr. Clark of his civil rights."

What could come of the federal investigation?

1) A federal criminal civil rights investigation could either bring an indictment against the officers or a "no-bill" decision, meaning no charges.

2) It could lead to a larger inquiry, a more public process than the secret grand jury process.

This is separate from a criminal investigation. It's a civil complaint that would look at an entire police department's pattern of behavior. Evidence gathered during the criminal part of the investigation could lead to this civil inquiry, but it's not clear whether federal authorities are gathering data beyond the Clark case. They typically don't share what they're looking at in ongoing investigations.

A criminal charge seeks to punish the offender with prison time or a fine, while a civil case would seek to change policies and practices by a governmental entity or a police department.

If the Justice Department decides to take a broader look at the entire Minneapolis Police Department, as it did in several other cities recently like Cleveland, Ferguson, Mo., and Los Angeles, it could come up with what's called a "Consent Decree."

How has the federal government intervened on the local level?

Earlier this month, the DOJ announced it found evidence the Ferguson Police Department engaged in a pattern of misconduct.

The investigation came after the shooting death of Michael Brown. Officer Darren Wilson was not charged with any criminal civil rights violations himself, but the DOJ says the Police Department will work with federal authorities over the next few weeks to come up with a plan to address racial tension in the city.

That plan would be subject to a court-ordered consent decree, an agreement in lieu of legal action, between the city and the DOJ.

This week, the federal government and Newark, N.J., also entered into their own consent decree. The Police Department didn't admit to allegations of misconduct but the agreement put goals in place to ensure "that police services delivered to the people of Newark fully comply with the Constitution and the laws of the United States, promote public and officer safety, and increase public confidence in the Newark Department."

What would a federal oversight look like?

No police department in Minnesota has ever entered into an agreement with the Department of Justice, but several other departments across the country have over the past few years.

The Los Angeles County Sheriff's Department, East Haven Police Department in Connecticut and the Miami Police Department are examples of departments that have agreed to take steps to make sure officers follow federal civil rights laws.

The process requires a court-appointed monitor and oversight by the Justice Department's Civil Rights Division to make sure new training, policies and procedures are put in place to correct the problems.

In Cleveland, the DOJ found a pattern of excessive force by police. Attorney Matthew Barge, vice president of the Police Assessment Resource Center, a consulting firm based in New York and California, was appointed the monitor of the program. The firm has been involved in reforms in Milwaukee, New Orleans and Portland, Ore., to help departments come up with solutions and ensure compliance.

The Cleveland agreement came after the shooting death of 12-year-old Tamir Rice in 2014. Barge was appointed last fall.

Reuters reports the firm's maximum expenses are $4.95 million over four years and the city's agreement with the DOJ requires a monitor for at least five years. Cleveland officials estimated $13 million to implement reforms in the consent decree.

Could a federal agreement happen in Minneapolis as a result of the Jamar Clark probe?

Mayor Hodges is the person who asked for a federal investigation into Clark's death, but it's not clear if federal authorities are looking at any information beyond that one incident. A spokesperson for the U.S. Attorney's Office of Minnesota said it's not a "pattern and practice" investigation.

However, Heffelfinger said sometimes criminal violations bring more information to light to prompt a broader review of an entire department.

"The whole thing with these civil investigations is that they're trying to look at bigger issue that may have been identified in the course of conducting a criminal investigation," he said. "And they take those issues and have discussions with the city about improvements."

It's not yet known exactly what type of evidence the federal authorities are looking at because the Clark case is still under investigation. But it is possible they could be looking at criminal as well as civil inquiries based on what they've done in other cities.