Federal, civil avenues remain for pursuing action against Darren Wilson

Officer Darren Wilson and the Ferguson Police Department are not out of the woods yet. While a St. Louis-area grand jury failed to indict Wilson on criminal charges for fatally shooting unarmed black teenager Michael Brown, there are several avenues the Justice Department and Brown’s family can — and likely will — take to pursue legal action against both Wilson and the Ferguson PD.

After protests erupted in Ferguson and the greater St. Louis area in the wake of the Aug. 9 shooting, Attorney General Eric Holder instructed the Justice Department’s Civil Rights division to launch a civil rights investigation into the case as well as a separate probe into patterns of racial discrimination and excessive use of force within the Ferguson and St. Louis police departments.

Both investigations are ongoing, and they remain independent of Monday’s grand jury decision.

But the burden of proof for bringing federal civil rights charges against Wilson will be much higher than it was in the criminal case. The Justice Department will not only have to demonstrate probable cause, which local prosecutors failed to do, but also that Officer Wilson “willfully” deprived Brown of his civil rights when he fired his gun “under the color of law” – in other words, by acting as a police officer rather than a normal citizen.

Attorney General Holder acknowledged as much in a statement Monday night, stating: “federal civil rights law imposes a high legal bar in these types of cases.” That legal burden has proven difficult to satisfy in similar high profile cases. George Zimmerman, the neighborhood watch volunteer who shot and killed unarmed 17-year-old Trayvon Martin in 2012, has still not been indicted on any federal charges despite an ongoing Justice investigation.

If the federal investigation stumbles or drags on for years, the Brown family may also pursue a civil action against Wilson, the police department and the city of Ferguson for wrongful death. The Brown family’s attorney, Benjamin Crump, told MSNBC on Monday before the grand jury decision was released that if no state or federal charges are filed, then that step would be “the only remedy they will have left.”

The Brown family might have an easier time winning a civil case than St. Louis County prosecutors would have had convincing a jury to convict Wilson. Whereas a criminal conviction would have required all 12 members of the jury to find Wilson guilty beyond a reasonable doubt, a civil suit would hinge on demonstrating a "preponderance of evidence" to determine wrongdoing.

There is also the question of Wilson’s future as a police officer. So long as Wilson is not under indictment, he is legally permitted to work and remains a sworn officer on paid leave, Ferguson Police Chief Tom Jackson has said. Jackson, however, has ordered an internal department investigation into the shooting, which may find Wilson guilty of misconduct that warrants his dismissal from the force.

Separately, the state of Missouri could also revoke his police license if it determines that a crime has been committed — regardless of whether criminal charges have been filed. According to Missouri law, the state need only determine that Wilson “has committed any act while on active duty or under color of law that involves moral turpitude or a reckless disregard for the safety of the public or any person” in order to decertify a police officer.

Given the public profile of the incident, it seems likely Wilson will ultimately be relieved of his duties by one of these avenues, Leo McGuire, a former Bergen County, New Jersey sheriff, told Al Jazeera.

In the event he is fired, Wilson would be able to invoke well-established legal protections in order to fight his termination and could seek the defense of police unions.

In Wilson's statement Monday night, he thanked his supporters and maintained that he "followed his training and followed the law" when he opened fire on Brown that evening. But absent from the letter was any indication that Wilson intended, or even expected, to return to active duty.