Sometimes when there is a Justice Department review of a fatal police shooting, the review ends with a sparse announcement that investigators have ended their work and concluded there is no case to be made.

DARRIUS STEWART

Occasionally there will be a little more detail about the factors that went into the conclusion.

But U.S. Attorney Ed Stanton went into more detail Tuesday, Sept. 27, when he announced the Justice Department review of the 2015 shooting death of Darrius Stewart by Memphis Police Officer Connor Schilling concluded there was “insufficient evidence” to pursue a charge that Schilling violated Stewart’s civil rights.

And the detail centered on what federal investigators found was ample evidence that Stewart resisted arrest in what Stanton described as “uncontroverted evidence that Stewart and Schilling engaged in a prolonged and violent struggle before Schilling shot Stewart.”

Stanton said the conclusion was reached at the end of a “comprehensive independent review” of the case by his office, the Civil Rights Division of the U.S. Justice Department and the FBI that included witness statements, video footage and other information from the Memphis Police Department and Tennessee Bureau of Investigation probe of the incident.

Since murder or manslaughter is a state charge, the federal civil rights statutes are what federal prosecutors and Justice Department investigators have reviewed in fatal police encounters in Memphis since at least the 1971 beating death of Elton Hayes at the end of a car chase that involved Memphis police and Shelby County Sheriff’s deputies.

In the Hayes case, the federal review followed a trial of four police officers and four deputies. All were acquitted by a jury.

Stewart was a passenger in the car stopped by Schilling on Winchester Road in Hickory Hill. The federal investigation confirmed that Stewart was wanted on out-of-state warrants, with authorities in the other state seeking extradition. The police scanner traffic showed Schilling was told to take Stewart to jail on the warrants, Stanton said.

And that’s when the struggle began.

“The presented evidence in this case does not contradict Schilling’s assertion that Stewart was resisting arrest. In fact, much of the evidence corroborates it,” Stanton said, noting that at one point Stewart was on top of Schilling and had Schilling’s handcuffs.

“Stewart’s active resistance weighs against a claim that Schilling’s use of force in this case was unreasonable,” he added. “The evidence also cannot prove that Schilling did not reasonably believe Stewart posed an immediate threat to Schilling’s safety.”

Attorneys for Stewart’s family, who are suing the city in a civil case, dispute that and have said that even if Schilling’s first shot was in self-defense, the second shot as Stewart was getting up was not.

The federal investigation reached a different conclusion.

“The evidence also do not prove beyond a reasonable doubt that Schilling’s second shot was unreasonable,” Stanton said. “Much of the evidence tends to show that the second shot followed only a few seconds after the first.”

The District Attorney General’s office turned the investigation of the shooting over to the TBI, which presented its findings to a Shelby County grand jury. In November, the grand jury decided Schilling would not be charged with any crimes under state law despite a recommendation from District Attorney General Amy Weirich that Schilling should be charged with voluntary manslaughter.

The federal investigators also consulted the Shelby County Medical Examiner and a forensic scientist with the TBI.

Stanton said the question for federal investigators was whether the evidence supported a federal charge that Schilling violated the civil rights of Stewart.

Even if Schilling was mistaken or made the wrong judgment in using deadly force, Stanton said the federal standard for a civil rights case is that he must have willfully acted to violate Stewart’s civil rights. And the federal investigation found no willful violation.

The standard is important because ultimately the TBI investigation found Schilling violated several department policies that the MPD was pursuing before Schilling went on medical leave and was later allowed to retire on a disability.

The policy violations are not crimes, but they can lead to an officer being fired.

U.S. Rep. Steve Cohen, the former legal adviser to the Memphis Police Department who sought the Justice Department review, indicated he understood the legal logic behind the decision. But he argued Tuesday, Sept. 27, that it doesn’t change his opinion of what he termed “a miscarriage of justice.”

“The standard for an indictment for a federal civil rights charge is extremely high, so I understand and respect U.S. Attorney Stanton’s decision,” Cohen said in a written statement. “But there can still be a miscarriage of justice even when civil rights violation standards are not met.”