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Uncategorized Holder has a compelling case in the Brown killing

Holder has a compelling case in the Brown killing



By Earl Ofari Hutchinson

AUGUST 21, 2014 — Attorney General Eric Holder has a compelling federal case in the Michael Brown killing if he decides to bring civil rights charges against Ferguson, Missouri cop, Darren Wilson.

He’s certainly taken almost unprecedented lightning-fast first steps in that direction. He’s got a phalanx of FBI agents assigned to the case. He’s authorized an autopsy by a crack medical examiner from the military. He personally travelled to the city to review procedures with Civil Rights Division attorneys and investigators. None of this would have been done without the personal approval of President Obama, who already has made more statements on the Ferguson furor and the Brown killing than he has on any other racially charged flashpoint issue during his White House tenure.

There are several factors within federal law that Holder has to look at to make the final decision whether to go forward with a prosecution. There has to be a “compelling interest” that the defendant’s conduct could constitute a federal offense and that there is sufficient evidence against the defendant that the government can obtain a conviction.

There are clear elements of each of these hard federal prosecution requirements in the Brown killing.

The compelling interest is probably the easiest of the requisites to satisfy. Wilson did not charge Brown with a crime; the 18-year-old was stopped by all accounts for jaywalking. The allegations that Brown was a suspect in a convenience store heist, and that he smoked marijuana, and even that he may have actually had some physical altercation with Warren came way after the fact. Multiple eyewitnesses have been absolutely clear on this crucial point. He was shot on the ground with his hands up. An independent autopsy has confirmed that Brown could not have been shot during a scuffle as Wilson, police, and an anonymous eyewitness claim.

The key point is that he was on a public thoroughfare when he was killed. The right to freedom of movement without the danger of undue harm is a fundamental right that’s enshrined in constitutional law and public policy. It’s inviolate. The courts have repeatedly upheld a citizen’s right to freedom of access and movement in public places.

Though there was no apparent racial motive in Wilson confronting Brown, his action clearly violated Brown’s right to exercise his freedom of movement. This directly impacts on an individual’s right to life and liberty. This civil right was violated the moment Wilson presumed that a young black man walking in a public thoroughfare had committed a crime. The safeguard of that right must be a fundamental concern of federal prosecutors.

The Brown case also strongly points to systemic issues of excessive force by police. The obvious excessive force that was used was the slaying of Brown. This strikes to the heart of another basic right of citizens, namely the right to life and liberty, and again the freedom from undue harm. His killing once more raised deeply troubling questions about the power of the law to protect citizens from their unimpeded right to life and safety. Federal prosecutors play a major role in insuring that where there’s the suspicion that an individual’s rights might have been violated solely because of their race and gender that the power of federal law is brought to bear to insure that right is protected.

Wilson was a police officer and the charge that he abused his power in killing Brown under the color of law is the linchpin of federal prosecutions of local police officers. This was the rationale that federal prosecutors used in the Rodney King beating case to bring civil rights charges against the four LAPD officers that beat King. The crucial legal point was that they acted in an official capacity when they violated King’s rights.

The Justice Department scrupulously goes to great lengths to shield itself from the charge that it’s bowing to media or public pressure to prosecute. This is why the percentage of civil rights prosecutions it authorizes is infinitesimally low, especially against police officers. Yet in the Brown slaying there are crucial federal interests in insuring the rights of individuals to be free from undue harm because of their color, age, and being in a public area merely because someone perceives they shouldn’t be in and then acts on that perception with no cause other than that belief or perception.

Holder will give serious consideration to the civil rights violations in the Brown killing. This alone sends the strong signal that civil rights violations will always be subject to full and public scrutiny by federal prosecutors. This is exactly why he has a more than compelling reason to not only consider a Warren civil rights prosecution, but has a compelling case for a prosecution.

Earl Ofari Hutchinson is an author and political analyst. He is a frequent MSNBC contributor. He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the host of the weekly Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the Pacifica Network. Follow Earl Ofari Hutchinson on Twitter:

Tim Redmond
Tim Redmond has been a political and investigative reporter in San Francisco for more than 30 years. He spent much of that time as executive editor of the Bay Guardian. He is the founder of 48hills.


  1. As a personal friend of Alex Nieto, I want to thank Tomasita for speaking truth regarding the murder of such a thoughtful, honest, hard working, compassionate young man. Immediately following his murder, I felt deeply disappointed in the mainstream news media for reporting false statements about his case. It was obvious to me that the SFPD was working with the media to cover up the TRUTH by slandering Alex’s character without even knowing him truthfully but I am confident that “what’s done in the dark, will come to the light.” Believe that!

    As a matter of fact, witnesses have come forth to testify that Alex never reached out for his legally registered taser!!! Therefore, he never aimed a taser at any of the five police officers surrounding him!!!

    Who would do that?!?!? Get Real!!!
    This is not the set of your typical Hollywood action film production!!
    Furthermore, there is no evidence that Alex had a mental health illnesses…yet, that should never be an excuse to execute someone in cold-blooded murder!!!

    As an advocate of higher education, I am deeply disturbed by the ignorant opinions of the Sam’s in this world…unfortunately, I lack the time to refute back all the misunderstanding and misjudgments… however, I won’t let it get to me… instead I will redirect my focus to be greatly inspired by the growth in our movement for social justice!!!

    Justice for Alex Nieto! Justice for Michael Brown!
    Black and Brown Lives Matter!!!

    The Truth Shall Set You Free!
    Challenge White Supremacy.
    Challenge Capitalism.
    Challenge Homophobia.
    Challenge Sexism.

    There are many, many great websites to check out, to help put the issues raised within these comments, into better perspective…
    here are a few to begin with:

    lastly, Alex would never waste his time bad mouthing someone on the internet like how I have read in the comments posted by Sam!! Alex was too busy providing for his family and protecting his community like how a real man does it!! RISE IN POWER ALEX!!! We miss you!!!!

  2. Claudia, what about the autopsy by Michael Baden showing that Brown was NOT shot from behind.

    Do we just need to ignore it because it because we want to believe that Brown was ‘running away’?

  3. What about the eye-witness report this morning on CNN, stating that Brown and his friend were running down the street away from the police (Is that jaywalking?). The eye-witness further stated that Brown did turn toward the police, clutching his abdomen) and was “going down” (from the gunshot wounds?)

  4. Again, you ignore the facts. Every eye witness account has Nieto pointing his weapon at the cops. There is no documented eye witness account that claims otherwise.

    You choose to ignore every eye witness because you want to play a cheap race card here. I’m cvalling you out on that and calling racism. A white guy who points a gun at a cop isn’t going to end up being just as dead. the only difference is that you wouldn’t give a crap

    Oh, and 14 shots isn’t a lot if you are trying to stop a guy killing a cop. in the fog of war many shots will miss, while others will hit non-vital parts and not stop a BG. This was a good shoot.

  5. The issue in the above article is systemic use of excessive force by the police, which is certainly an issue here in California. Our comment is a reply to that. Everything you have claimed, Sam, is a gross distortion and simply repeating innuendos placed in the media..blaming the victim. There is no excuse for fourteen bullets into someone who was not harming anyone. Your claim of eyewitness accounts is simply untrue.

  6. That is a stunningly biased and self-serving account of what happened. Every eye witness report has Nieto behaving weirdly and aggressively (the same problem the RO’s were instigated about) and mis-using a weapon. Moreover, and crucially, every eye-witness account has Nieto pointing his weapon at the cops, which is universally guaranteed to get you shot anywhere in the US.

    Race is irrelevant here which is why I accuse you of being a racist to try and bring that up here. All the evidence here points to the Nieto incident being a good and valid shoot.

    Why aren’t you upset about violence against whites by non-whites, which is far, far more prevalent?

  7. I don’t know what it’s like to be a black male. But I know that the officer had a clean record after 6 years of working in Ferguson. The concept that he suddenly decided to blow away a black kid for jay walking doesn’t make a lot of sense, unless he just totally snapped. I think that if Brown and Johnson had just given him a dirty look and then moved to the sidewalk we wouldn’t be talking about this today.

  8. Alejandro was known in the community as a peaceful young man. He had just eaten a burrito atop his beloved Bernal Hill in the neighborhood where he had lived all his life before going to his job as a security guard at a local nightclub. He was wearing a taser because he was already dressed for work. He was not waving the taser around or pointing it at people, since he was studying to be a law enforcement officer/probation officer, and was very familiar with law enforcement procedures, had grown up in the neighborhood, and knew better than to point something at law enforcement officers. He did not have multiple restraining orders against him. A friend with whom he had a dispute over a love interest TRIED to get a restraining order against him, but the R.O. was denied. You, Sir, are the one with the racist agenda.

  9. Exactly, Dave. There is something about these stories that attracts ideologues and troublemakers, with their wild and outlandish accounts of what they think might have happened. They ignore anything the police say, and instead superimpose their own agenda.

    What we can say with some certainty here is what is invariably true of these types of incidents i.e. that a young black male is up to no good and, rather than fully co-operate, they become beligerent and wither resist, flee or (as it seems in this case) both. You can see the same pattern with the 12-time felon Oscar Grant and many others.

    I am white and have been stopped a few times by the cops. I am always polite, fully co-operative and civil. I’ve never been shot. But if i had copped an attitude, struggled or tried to run away, then the outcome would likely be very different.

    This isn’t a black issue; it’s a behavior issue. Earl has a race-card agenda here and I’m not buying.

  10. Isn’t non-violence an important precept of Buddhism? Nieto was waving a gun around, and pointing it at people and then, fatally and stupidly, at a cop. He also had multiple restraining orders against him from his own friends and family.

    You need a better poster child for your racist agenda.

  11. re: “and even that he may have actually had some physical altercation with Warren came way after the fact”.

    Everybody agrees that there was a physical altercation, including Dorian Johnson who was with his friend Michael Brown that day. Wilson was treated for facial injuries.

    Nobody ever claimed that Brown was shot during the scuffle, as you write. The gun went off during the scuffle but everybody, on all sides, agree that Brown was shot when he was some distance away, after the scuffle.

    There is also no consensus that ‘he was shot on the ground with his hands up’. Johnson today said something to the effect that “his hands weren’t that high”. Other witnesses said that he had been shot in the back, which we now know is not true. Actually the eye witness accounts are all over the place.

    This is an important event, it is worth knowing the facts. This article is worthless. People deserve the facts.

  12. Please take an interest in the unwarranted killing by a bunch of SFPD with fourteen bullets right here in San Francisco of Buddhist Latino CCSF student Alejandro Nieto, who was harming no one exactly five months ago this Friday.

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