Yet again, the Chicago Police Department finds itself at loggerheads with State’s Attorney Kim Foxx about charging a criminal with a crime. First, it was low-level crimes that Foxx declined to prosecute. Then it was celebrity nonsense, with the Jussie Smollett hate-crime hoax. Next, it was the murder of a little girl. And now, it’s a deadly gang shootout. The larger issue is whether the police (and the public) have any options when a prosecutor refuses to prosecute, even when the evidence for guilt seems overwhelming.

On August 15, seven-year-old Serenity Broughton was sitting in the backseat of a car with her six-year-old sister. A gunman blasted away at someone near the car, killing Serenity and critically wounding her sister. Even in a city as violent as Chicago, the death of a little girl hit home. Chicago PD detectives worked around the clock and built a case against a suspect. But Foxx’s office declined to arrest the suspect and attempted instead to cast blame on police by implying that their investigation was deficient. Meantime, five participants in a gunfight that killed one person were released from custody this week, with Foxx reportedly citing “mutual combat” as the reason for dropping the case.

What can police do when a prosecutor won’t prosecute?

Most major felony charges require the approval of prosecutors. In Broughton’s case, the Chicago PD used an “emergency override” procedure to arrest and charge the suspect without prosecutor approval. But Foxx would not let that stand. She called the police chief, and the arrested suspect was un-arrested. Even if Foxx had not succeeded in freeing the suspect at that point, she would have done so at the first official hearing. That rules out one option for the police to make charging decisions in defiance of Foxx.

The next option for police is to find another prosecutor. This approach worked in the Jussie Smollett debacle. After Foxx’s office dismissed the charges, an outraged judge appointed a special prosecutor to take over the case. The special prosecutor recharged Smollett with felony offenses for making false reports to the police. Those charges remain pending.

But unless you find a supportive judge and the case is as notorious as Smollett’s, then the appointment of such a special prosecutor is extremely unlikely. The police still can take cases to state attorneys general or federal prosecutors, but both have limited jurisdiction over cases involving murder and lack the capacity to handle all the cases that a politician like Foxx fails to prosecute. Another dead-end for the police.

A time-honored approach for police dealing with a recalcitrant prosecutor is to take the case to the media and the public. In 2017, an outraged police union publicly attacked Philadelphia’s then-district attorney Seth Williams for failing to charge a teenage girl who punched a cop in a scuffle. The local press ran with this story and others critical of Williams, but now the media tide has turned. Philadelphia police would love to use the media to attack progressive district attorney Larry Krasner, who has presided over a soaring murder rate, rising public disorder, and general disrespect for the police. But the local newspaper of record, the Philadelphia Inquirer, has endorsed Krasner twice. Nor do police tend to get good press in other cities with progressive prosecutors. Cross another option off the list.

Formal legal remedies offer an intriguing possibility. In some states, citizens can bring private criminal complaints to force a district attorney to file substantiated charges. In Georgia’s Ahmaud Arbery murder case, the state attorney general charged the local district attorney for not bringing charges against all three defendants initially. If an attorney general can charge a local district attorney for failure to indict in one homicide case, then the Illinois attorney general might be able to charge Foxx for not doing so in the Broughton or the Smollett cases, though politics will surely come into play. Perhaps Broughton’s family or another private citizen could bring an action in equity, demanding an injunction to force Foxx to follow the law and uphold her oath. Prosecutorial discretion is a core principle for prosecutors, but it doesn’t confer unlimited power.

Ironically, by the terms of 42 U.S.C.A. § 1983, prosecutors would be liable via a civil rights suit for their de-prosecution decisions if such choices were based on race, but prosecutors have absolute immunity under that statute, so they can’t be liable. However, under the language of 34 U.S.C.A. § 12601—the federal provisions that empower the Department of Justice to investigate and impose sanctions or consent decrees on police departments for a “pattern or practice” of misconduct—the DOJ could do the same thing to prosecutors who systematically fail to uphold the law.

Is there any chance that the Biden Justice Department would be willing to wade into this political thicket? Don’t count on it. But some state attorneys general now have similar authority, so a law-and-order attorney general could attempt this strategy with a progressive urban prosecutor.

A darker and more depressing option for the police is simply to stop policing. If prosecutors like Foxx, Chesa Boudin in San Francisco, Marilyn Mosby in Baltimore, and a growing cast of others won’t prosecute crimes, then maybe the police shouldn’t bother trying to arrest people. Just stay in your patrol car and drive around, cleaning up the shell casings and the bodies after the shooting stops. Debate has persisted about de-policing linked to civil protests, as in the so-called Ferguson Effect triggered by the protests after the shooting of Michael Brown in Ferguson, Missouri. There may be a similar de-policing movement taking place in cities like Chicago—call it the Foxx Effect.

The nuclear option is simply to quit. The police can put up with being attacked by criminals; that’s part of the job. They can live with media coverage claiming that they are racist thugs. They can laugh at law school professors who criticize law enforcement tactics; that’s like having toddlers throw feathers at you. But when the police work day and night to bring charges against violent and clearly guilty offenders, trying to achieve closure for victims’ families, only to see those arrests thwarted at every turn by prosecutors like Foxx, it may be time to find another job. Increasingly, police seem to be doing just that.

In short, police don’t have many options if prosecutors won’t prosecute. They can’t charge offenders themselves. Not enough law-and-order minded prosecutors have jurisdiction. Depending on the media is a dead end if the media shields progressive prosecutors from criticism. Some novel legal theories could yield promising results, but taking that path depends on someone having the political will and moral courage to bring the first case. De-policing or quitting entirely may become the only viable alternatives for police. The big losers in the case of CPD v. Kim Foxx will be the people of Chicago, who will be left with no police, a non-prosecuting prosecutor, and more dead children.

Photo by Kamil Krzaczynski/Getty Images


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