Civil Rights Cases Often Shunned, Survey Shows

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 when 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 into a restraining chair. They moved him to 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% 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 1996, 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 Atty. Gen. 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.

After Edward Swans died in the Lansing jail, his father, the Rev. Edward Swans, 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 cinder-block 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 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?

The 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.”

In April 1998, Assistant Atty. Gen. 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. Atty. 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.

“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 wonders 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.”

Criminal Past Hurts Victims’ Credibility

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 that 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 Klan 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% of these cases go nowhere,” Brekke said. “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 Atty. 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,” Perez said. “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% of the time, a rate 3% 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. Atty. William Blagg in San Antonio, Texas.

“There are different credibilities in the two types of witnesses we’re dealing with,” agreed U.S. Atty. 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,” Burnham said. 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.”