Derek Chauvin and three others involved inGeorge Floyd 's death reportedly face federalcivil rights charges.- Former federal prosecutors say DOJ may charge Chauvin if his sentence on state murder charges isn't substantial.
- The DOJ may also seek a second conviction to ensure Chauvin doesn't walk free on appeal, they said.
Federal prosecutors have been reportedly building a civil rights case against Derek Chauvin and the three other former Minneapolis police officers who were at the scene of George Floyd's murder.
Two former federal prosecutors told Insider Chauvin could face charges related to depriving individuals of their Fourth Amendment rights that could theoretically carry a death sentence - though they say that would be unlikely.
Proving law enforcement officers violated a suspect's civil rights isn't easy, and historically the Justice Department doesn't bring cases for all officers accused of misconduct. But in Chauvin's case, evidence that would likely be used in a federal civil rights trial was already gathered and presented in his murder trial, according to Barbara L. McQuade, former U.S attorney for the Eastern District of Michigan.
"The length of time the knee was on the neck, for example," McQuade said. "I think we would, once again, see expert witnesses talking about whether this was a reasonable use of force or an excessive use of force."
A jury in Hennepin County, Minnesota, found Chauvin guilty of second-degree murder, third-degree murder, and second-degree manslaughter at his criminal trial in April. Chauvin was taken immediately into custody and he is expected to be sentenced in June.
Justice Department officials reportedly planned to arrest Chauvin at the courthouse and charge him with civil-rights violations if he was found not guilty in Floyd's killing or if there was a mistrial. Despite Chauvin's conviction, federal prosecutors are still planning to ask a grand jury to indict him, J. Alexander Kueng, Thomas Lane, and Tou Thao on civil rights charges, according to The Minneapolis Star Tribune.
In Chauvin's case, prosecutors reportedly are asking a grand jury to evaluate his actions in the violent 2017 arrest of a 14-year-old boy in addition to the Floyd case.
Prosecutors said in court documents tied to the murder trial that Chauvin struck a Black teenager in the head with a flashlight and placed him in a prone position for 17 minutes, the Star Tribune reported, ignoring the boy's pleas that he couldn't breathe.
To convict, a jury must find officers willingly violated a suspect's rights
The burden of proof is high in civil rights cases involving law enforcement officers because the jury has to find that the officer knew he was violating the suspect's rights and not just making a mistake, McQuade and Daniel Richman, a former prosecutor in the U.S. Attorney's Office for the Southern District of New York, told Insider.
"It is that willfulness that can be tricky to prove," McQuade, a professor at the University of Michigan Law School, said. "It has to show that the deprivation of rights was deliberate, and so you'd have to have evidence that showed the person knew that they were violating the person's constitutional rights."
The constitutional right in question in this case is the Fourth Amendment right protecting citizens from unreasonable seizures, as well as excessive use of force, she said.
If an federal indictment is brought, the jury at trial will be instructed that they must look at the case from the view point of a reasonable officer on scene, McQuade said, keeping in mind that for police situations may evolve and depend on split-second decisions. The jury can't convict an officer of willfully violating the law if it finds they simply panicked in a challenging situation, she said.
"That gives officers room to make mistakes," McQuade said.
Richmond, a professor at Columbia Law School, told Insider the jury would also be instructed that all they need to do to find an officer acted willingly is to find he knew his actions were unreasonable.
"It's a very demanding burden of proof, but it is one that once it is operationalized it allows a jury to convict an officer who really knows he's going over the line," he said.
Federal prosecutors may seek charges to ensure Chauvin doesn't walk free if his state conviction is overturned
There were 49 federal civil rights cases brought against officers in the US in 2019, according to Transactional Records Access Clearinghouse, a research organization at Syracuse University. When considering the number of police use of force allegations around the US, the frequency that the DOJ gets involved is low, McQuade and Richman told Insider.
The burden of proving the officer's willingness to violate a suspect's rights can be a high bar, according to McQuade. The federal government doesn't often pursue these cases in part because its policy is not to bring criminal charges unless there is admissible evidence that would make it probable to obtain and sustain a conviction, she said.
It's also unusual for the Justice Department to bring federal charges in a case where there has been a state conviction. But it has happened when a case is so significant that state and federal prosecutors want two convictions to serve as "a backstop" to each other, McQuade said, in what is known as the petite policy.
"It says, generally, that federal prosecutors should not duplicate the efforts of state prosecutors, unless there is some substantial federal interest that has not yet been vindicated," she said.
Federal prosecutors may be waiting to move forward until Chauvin's sentencing in the murder trial, and if the time he is committed seems sufficient, they'll back off from the federal case, McQuade said.
Prosecutors could also be seeking a secondary conviction so Chauvin won't be able to walk free if he successfully appeals down the road.
"By having a second conviction in place, there is a sort of a belt-and-suspenders approach to a case that is of substantial interest to both the state and federal government," McQuade said.
She predicted the US could be entering an era of increased federal prosecution of police misconduct cases.
"During the Trump administration, there was definitely a pivot in the other direction," McQuade said. "It seems a renewed commitment to holding police accountable when they abuse their power, that seems to be what Attorney General Merrick Garland has said he would do, and he seems to be doing it."
If federal charges come down, don't expect a speedy trial
The Speedy Trial Act says a defendant has a right to a trial within 70 days of being charged, but usually the defense requests more time to organize a case, McQuade said.
"By the time an indictment is filed, the prosecution has had a lot of time to get its ducks in a row," she said. "So they've lined up an expert and had them probably testify to the grand jury, or at least interviewed them. They're usually ready to go."
In the Chauvin case, the defense might be somewhat prepared after going through the state murder trial. But the attorneys might want to seek out new experts, McQuade said.
"The charges are slightly different. They'd want to review all the evidence and explore plea negotiations," she said. "So in all likelihood it can take six months to a year before a federal case would actually go to trial."
Jury selection would also be a lengthy process in a federal civil rights case against any of the officers.
In Chauvin's murder trial, it took two weeks of voir dire to select a jury that a judge found could be impartial in the case as attorneys questioned more than 100 people about their views on Black Lives Matter, protests, and policing. McQuade said that process could be even more fraught in a subsequent federal case.
"I think you could argue it may be even more difficult, right?" McQuade said. "Because after the verdict, there is perhaps a sense among members of the public: 'Well, we already know he's guilty because the jury already found him guilty.'"