Civil Rights Cases Rarely Tried, US Justice Dept. records show

Tom Boland (wgcp@earthlink.net)
Sun, 21 Mar 1999 12:38:12 -0800 (PST)


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http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/1999/03/20/national110
1EST0523.DTL&type=printable
FWD  AP Headlines - Saturday March 20 11:23 AM ET

     CIVIL RIGHTS CASES RARELY TRIED

     By MARTHA MENDOZA Associated Press Writer

Edward Swans was hogtied and left on his belly in a holding cell in the
Lansing, Mich., jail.

It was shortly before noon on a bitterly cold February day in 1996, and
Swans was no stranger there. He'd been arrested 30 times in his 40 years,
and police knew him to be a chronic drug abuser, homeless and mentally ill.
He was also a veteran and the father of five young children.

Five hours earlier, he had stumbled into the jail booking room, shirtless
and shivering. Police had given him coffee and a shirt, then took him to a
homeless shelter where a worker found him ``possibly manic'' and ``very,
very nervous.'' He walked away.

It was shortly after that that police got a 911 call: an altercation
between Swans and a woman. When they responded, Swans was foaming at the
mouth, talking to God.

And he kicked and punched one of the officers.

Returned to the jail, he thrashed as officers tried to strap him in a
restraining chair. They moved him into an isolation cell to hogtie him.

At 11:43 a.m., a detention officer turned on a video camera. Its images
show eight officers in the tiny room.

``I didn't do it,'' Swans kept saying. He urinated on the floor, causing
the officers to slip. Officers tied Swans' wrists and ankles together on
his back, restraining his head and shoulders. By the time he was tied,
Swans wasn't moving.

The 40-year-old black man struggled for a moment. He could not breathe in
this position. And he died.

Did the officers, all white, mistreat Eddie Swans because of his race?
That's the claim of his father.

The FBI investigated and sent its report to federal prosecutors.

What happened next? Nothing.

In fact, that's what usually happens.

In 96 percent of the roughly 2,000 civil rights criminal cases referred
each year to U.S. attorneys by the FBI or other agencies, federal
prosecutors take no action.

By comparison, these prosecutors go to court nine out of 10 times when
police send them immigration cases, three out of four times for drug cases.
Across the board, the federal government prosecutes about half of all
criminal matters referred by police.

The Associated Press analyzed computer records of all 1.4 million cases
considered by the Justice Department between 1992 and '96, and reviewed
department reports and case memos obtained through the Freedom of
Information Act.

Civil rights crimes are the department's lowest prosecutorial priority, the
record shows.

Most civil rights cases involve allegations of abuse, rape or homicide by
police or other law enforcement figures. Are federal prosecutors reluctant
to prosecute police?

No, says Acting Assistant Attorney General Bill Lann Lee, who heads the
Justice Department's 47-lawyer civil rights section.

``The vast majority of complaints do not result in prosecution because in
many cases the evidence indicates that no violation occurred, there is
insufficient evidence to satisfy the law's high burden of proof, or the
police department or local prosecutor has already taken action against the
officer, which removes the need for a federal prosecution,'' Lee said.

The burden of proof in civil rights crimes includes showing intent - that a
perpetrator ``willfully'' deprived someone of a civil right.

Harvard constitutional law scholar Laurence Tribe said imposing a greater
burden of proof when prison guards and police officers are accused is not
reasonable.

``Indeed, it seems outrageous,'' he said, ``since the gravest abuses of
power - and the gravest threats to personal liberty and security - are
those in which the very individuals to whom we look for the preservation of
law and of order turn out to be the
predators.''

The Rev. Edward Swans thinks it's outrageous, too. After his son died in
the Lansing jail, he sued the city, and in 1997 jurors in a federal civil
trial awarded his family $12.9 million.

``To me, this is blood money, money off of my son's life,'' said the elder
Swans, who runs a small cinderblock church in the town of Covert, near Lake
Michigan. ``That's not justice. If there were justice, those police would
be behind bars.''

The award was upheld in November by U.S. Chief Judge Richard Enslen, who
expressed his personal outrage at the city for Swans' death.

``This was almost a case of `justice denied' because, but for the video,
there would have been no contradictory evidence to the testimony of the
defendants,'' Enslen wrote. ``This should cause court observers to wonder
how many similar cases went unproved without the awful, but truthful eye of
the camera.''

City officials are appealing the verdict.

``The officers were doing their job,'' Lansing Mayor David Hollister said,
acknowledging, ``I can't sit here in good conscience and tell you it won't
happen again.''

In fact, in 1995 a jury had found the city liable for $1.5 million in the
death of Richard Vine, who died in the same cell as Swans after a struggle
with guards.

Why were the police not prosecuted?

Justice Department attorneys' report closing the Swans case said: ``There's
not enough evidence to show that the subjects intended to cause the death
of the victim nor is there enough evidence to show that they intended to
deprive him of his civil rights.''

Last April, Assistant Attorney General Lee was asked about the case while
attending a forum in Detroit on police misconduct. He promised to have
prosecutors take another look at the case.

Nothing has happened since. U.S. Attorney Michael Detmer in Grand Rapids
said he asked attorneys representing the Swans family for the videotape of
the jail death and any other evidence they can show him and has heard
nothing back.

``What do you want me to do? Issue a subpoena?'' he asked. ``I'm still
happy to look at the case.''

Swans' attorney Richard Foster said he wondered why federal investigators
do not gather the evidence they need.

``The Department of Justice has appeared to be content with private groups
and private lawyers fighting the political battles against state and local
government officials in the civil rights arena,'' said Jim Green of West
Palm Beach, Fla., a former American Civil Liberties Union attorney who
makes a living suing communities over illegal police searches and beatings.

``It's too bad,'' he said. Lawsuit settlements ``do little to discourage
abuses.''

Fred Isler at the U.S. Commission on Civil Rights in Washington, D.C., is a
contact point for civil rights complaints of all kinds. The most serious
allegations - racist attacks, police brutality, prison beatings - go to the
Justice Department's criminal civil rights unit. Isler estimates he
forwards about 700 of those a year.

``Here's what happens,'' he said. ``We get a form letter back saying that
Justice basically does not feel that the complaint is in their jurisdiction
and encouraging the person to get a private attorney.''

There are practical reasons for hesitating to prosecute police, according
to Roger Clegg, a Reagan administration Justice Department official and now
general counsel of the Center for Equal Opportunity, a Washington, D.C.,
group that challenges civil rights regulation in the business world and
racial quotas in education.

Civil rights complaints are disproportionately brought by criminals, he
said. ``Which is not to say that criminals don't have rights, but there are
some credibility problems with a higher percentage of these complaints ...''

Prosecutors have a much better chance of winning other types of cases,
which makes drug or immigration prosecutions a better use of resources, he
said.

Civil rights laws grew out of the Civil War and the sweeping changes to
abolish slavery.

In 1871, Congress passed the Ku Klux Act so that police who escaped local
prosecution after recklessly harming black people could be brought to
justice in federal court.

Federal civil rights law puts teeth in the Constitution's 14th Amendment,
which guarantees equal protection for all. When Americans complain that
their civil rights have been criminally violated, it falls to the Justice
Department to judge whether a complaint has merit.

``A lot of these cases are meritless. Most of them are,'' said Monte
Richardson, executive assistant U.S. attorney in Tampa, Fla. ``We get
complaints about police brutality when someone is drunk and the police
officer grabbed them and arrested them and they got a bruise on their arm.
They'll take a picture of the bruise and send it to us. We get a lot of
that.''

If a plausible complaint comes across Richardson's desk, he sends it to the
FBI for a preliminary investigation. The FBI investigation is sent to
Richardson and an attorney at the civil rights division in Washington, D.C.
Then, together, the attorneys decide whether to investigate further,
prosecute, or drop the case.

Almost always, they and their fellow federal prosecutors drop it.

Tron Brekke, an FBI spokesman who for six years headed the bureau's office
of civil rights, said he doesn't dwell on the lack of action taken on
criminal civil rights cases sent to the Department of Justice for possible
prosecution.

``We'd all be manic-depressives if we looked at the fact that 98 percent of
these cases go nowhere,'' said Brekke. ``We're doing a service, we feel, to
the extent that we investigate and review all the complaints.''

The FBI and other law enforcement agencies typically receive about 10,000
complaints a year alleging a civil rights crime. After screening, about
2,000 cases annually reach prosecutors.

Deputy Assistant Attorney General Thomas Perez, who oversees criminal civil
rights, said his attorneys review every case the FBI brings them. He could
not explain why complaints sometimes are ignored for more than a year.

``I suggest you go there,'' he said, pointing across the street at the FBI.
The bureau had pointed to Justice to get the answer.

``I know of no genre of cases that are more difficult to prove,'' said
Perez. ``We do our best, and I think we do it well.... The law is being
vigorously enforced.''

When the Justice Department does prosecute civil rights cases, it wins
convictions 83 percent of the time, a rate 3 percent higher than for all
cases. But federal prosecutors around the country offer several reasons why
they decline cases so often.

``I think it can be a more difficult burden even than beyond a reasonable
doubt because you have a law enforcement officer who jurors are going to
presume is doing a good job,'' said U.S. Attorney William Blagg in San
Antonio, Texas.

``There are different credibilities in the two types of witnesses we're
dealing with,'' agreed U.S. Attorney L.J. Hymel in Baton Rouge, La. The FBI
brought 285 criminal civil rights investigations to prosecutors in Hymel's
district between 1992 and 1996. None were prosecuted.

Does this mean likely instances of criminal civil rights abuses are turned
down?

``Yeah, all the time,'' said Mike Gennacoe, an assistant U.S. Attorney in
Los Angeles. ``A lot of cases are closed when it's just the word of an
officer against the word of the aggrieved.''

David Burnham, co-director of TRAC, a federal records clearinghouse in
Washington, D.C., said the large sums paid by public agencies to defend
civil rights lawsuits show that the system is not working.

``When cops and prison guards use their power to brutalize the public, the
rule of law demands that they be held accountable for their crimes,'' said
Burnham. They are not, he said.

The chief complaint heard from the Justice Department's civil rights staff
is that it can't do more without more funding. This year they received a
raise, to $6.7 million from $4.9 million last year for the civil rights
division criminal unit. Some say that's still inadequate.

``The Civil Rights Division of Justice is so small it's sort of the dance
band of the Titanic,'' said Stephen Bright, director of the Southern Center
for Human Rights in Atlanta. ``We're always referring things up there, and
they just don't have the staff to deal with them.''

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