The news that the two LAPD officers, Sharlton Wampler and Antonio Villegas, who gunned down Ezell Ford in 2014 have filed a racial discrimination lawsuit against the LAPD for their treatment was galling and infuriating. But it also again cast an ugly glare on the question that still dangles—why has there been no action against the officers?

The shooting by any standard was dubious. Ford was unarmed. He was not accused of any crime. The autopsy found that at least some of the bullet wounds were in his back. The Los Angeles Police Commission found the shooting out of policy. The killing drew the predicted fury and rage from much of the public, and demands from civil rights groups that the officers be fired and prosecuted.

Yet two years after the Ford killing, the silence is still deafening on what, if any, action will be taken in the slaying. Why?

The answer to that question lies with Los Angeles County District Attorney Jackie Lacey. It’s her call whether to charge the officers or not. Now here’s where the problem comes in for Lacey in trying to decide whether to plop a local cop in a court hot seat for abuse. The California Penal Code defines excessive force by an officer as “willfully injuring, intimidating, interfering with, to oppress or threaten a person” acting within their constitutional rights. This is a broad, open-ended brush with a gaping loophole. In almost all cases of abuse, an arrest is made and police make the case that whatever force is used is legal and lawful since the detainee allegedly was breaking the law.

The circular reasoning comes down to if someone is breaking the law, or an officer feels there is probable cause to stop and detain someone, and there is alleged resistance, any force that is used is lawful. This is a powerful qualifier that raises the legal bar on prosecuting a cop for abuse to the stratosphere.

Clearly lawmakers need to take a hard look at the wording of this statute; law enforcement agencies need to take a hard look at how and under what circumstances a lawful arrest or stop is made; and prosecutors need to take a hard look at cases where an arrest is made but officers step over the line and physically maul a suspect and regard the abusive act itself as a violation of color of law authority. But that’s the law, and this is what a prosecutor like Lacey routinely bumps up against when wrestling with whether to prosecute an officer for abuse or not.

There is almost never an independent, outside agency that will conduct a truly impartial investigation. The one agency that can do that is the U.S. Justice Department. And it acts in only a minuscule number of cases, deferring almost all such cases to local prosecutors. There have been repeated calls for governors and state legislatures to empower independent prosecutors to take prosecuting alleged bad cops out of the hands of local prosecutors, because of the alleged cozy relationship that they have with police and the fear of retaliation by police unions. So far Wisconsin is the only state that has taken the step and empowers an outside prosecutor to investigate police shootings. The bills that have been put forth in a few other states for an independent prosecutor have gotten nowhere.

Also, prosecutors often are barred from using statements made during internal investigations of officer misconduct in court proceedings on grounds of self-incrimination. This knocks out another potentially crucial prosecution weapon.

This isn’t the only problem that routinely stops Lacey and other prosecutors from nailing abusive cops. There is also the omnipresence and power of police unions. Maryland state prosecutor Marilyn Mosby was hardly the only prosecutor to find that out when she faced a titanic backlash from police unions in her ill-fated prosecution of the six officers in the Freddie Gray case. In January 2015, Bernalillo County, New Mexico District Attorney Kari Brandenburg got the bitter taste of that when she slapped charges against two Albuquerque police officers in the shooting death of homeless man, James Boyd. The backlash was swift. Her office was excluded from meetings with city officials on police violence and she herself was dumped from a case by a judge in response to police claims of conflict of interest. It was blatant, naked retaliation, and all knew it.

In Salt Lake County, Utah, District Attorney Sim Gill got the same brute treatment from police unions, when he indicted two officers in an August 2013 slaying case. This included the threat to back a challenger when he came up for re-election and the not-so-subtle drop of the race card when they took a swipe at him for his Indian ethnicity.

Two years after the Ford killing, the only thing so far that will find Wampler and Villegas in court is their lawsuit. That’s not good enough. It’s now time for Lacey to tell the public whether she will plop them in court on charges in the slaying of Ford.

Earl Ofari Hutchinson is an author and political analyst. He is a consultant with the Institute of the Black World and an associate editor of New America Media. He is also a weekly co-host of the “Al Sharpton Show” on Radio-one and host of the weekly Hutchinson Report on KPFK-Pacifica Radio.

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