Professor McCormick Explains Legal Process in Police-Related Deaths

December 12, 2014

Professor McCormick helps explain the legal processes that could follow an officer-involved death.

Professor McCormick appeared live on KSDK TV 5 the night the Ferguson grand jury decision was announced and has since spoken with St. Louis Public Radio and the International Business Times to help provide legal context. With several questions still remaining about where the Ferguson case could go moving forward, we asked Professor McCormick to write for The Sidebar to help explain the legal processes that could follow an officer-involved death.

By Professor Marcia McCormick

Our system of law and government recognizes that some acts can cause multiple kinds of harm and so provides overlapping penalties for the same conduct as a result. Acts that injure people are sometimes crimes, torts, or result in liability under special statutes. Those same acts might invoke interests usually protected by states or interests usually protected by the federal government. And not only are the people who do the act responsible, but sometimes their employer might be responsible too. And the "or" in those sentences is misleading because sometimes the same act will fall into all of those categories, and they all could be pursued. Shootings, especially by police officers, are just that kind of act.

Killings by police officers can lead to criminal punishment, like imprisonment or fines, and they can lead to civil penalties, like damages to the family. The law that imposes the penalty might be state law or federal law. And the civil penalty might be imposed on the officer and the entity the officer works for. The following chart lays out the basics:


Who is penalized Source of penalty Type of penalty Who can seek the penalty Type of legal question
The officer State criminal law Prison sentence The state, usually through a county prosecutor Did the officer knowingly cause the death of a person? If yes, did the officer do so because he or she believed that person was about to seriously injure or kill the officer or someone else?
The officer State tort law Damages The individuals injured Did the police officer fail to exercise the care he or she should have to avoid injuring the person? Did the police officer have a bad motive for killing the person?
The officer Federal civil rights criminal law, 18 U.S.C. § 242 Prison sentence and/or fine The federal government, usually through the Department of Justice Did the officer know when he killed the person that there was a very good chance he was using excessive force or did he have a bad motive?
The officer Federal civil rights civil statute, 42 U.S.C. § 1983 Damages The individuals injured Would a reasonable officer in this officer's situation have realized he or she was using excessive force, given the way U.S. Supreme Court cases have defined that?
The police department Federal civil rights civil statute, 42 U.S.C. § 1983 Damages The individuals injured Did the police department do something that made this killing happen, like have a policy that made it more likely or failing to train its officers, and should high level officials have known that officers would use excessive force or have improper motives?
The police department A number of federal civil rights statutes Orders to change the policies that lead to injuries; damages for the individuals harmed if the officers had improper motives The federal government, usually through the Department of Justice, and the individuals harmed if the officers had improper motives Have officers in this entity engaged in a pattern or practice of conduct that deprives people of rights protected by the Constitution or federal law, like using excessive force or having improper motives for their conduct?

Complicating this already complicated system, the standard of evidence or proof we apply to each legal question depends on whether it is a crime or a civil action and on what stage of legal proceeding is at issue. Generally, at trial, crimes must be proven beyond a reasonable doubt, and civil actions must be proven more likely than not.

The question before the grand jury in St. Louis County was whether there was probable cause (the legal standard) to believe that Officer Wilson had committed a crime under state law. The legal standard of probable cause asks whether the information presented would make a prudent person believe that the officer probably committed a crime. Because this question is relatively small, the effect of the grand jury's finding that there was no probable cause was also relatively small. It meant that Officer Wilson would not be charged with a crime at that time, but no more. The law allows a Prosecuting Attorney to bring a charge, which will be subject to a different kind of probable cause hearing before a judge, or a new grand jury to be convened to consider whether to bring a charge. There is no time limit on when the matter could be reconsidered.

And the grand jury's decision had no effect on any of the other potential legal actions to impose penalties. Because the source of the law, federal v. state, civil v. criminal, and the legal questions are different, those actions could still be pursued. And, in fact, the U.S. Attorney General has said that the Department of Justice will continue to pursue its investigations into the officer and the Ferguson Police Department. In short, the "case" is far from over.

Summer Reflections: 2L Michael Dowd-Nieto Shares Experience at Law Program in Madrid

Second-year law student Michael Dowd-Nieto experienced Madrid as a student and as an intern at a Spanish law firm.

Summer Reflections: 2L Melissa DeClue Interns with Aircraft Manufacturer Airbus in Toulouse, France

Second-year law student Melissa DeClue spent the first half of her summer taking classes in Madrid, Spain, and the second half interning for aircraft manufacturer Airbus in Toulouse, France.

Summer Reflections: James Callahan IV Interns at CDC

Third-year law student James Callahan IV fulfilled his dream of working for the CDC over the summer as a public health law intern.

Summer Reflections: 3L Aida Herenda Discusses Her Internship at St. Jude

Third-year health law student Aida Herenda spent the summer in Memphis, Tennessee, working as a legal intern in the Office of Legal Services at St. Jude Children’s Research Hospital.