Could Brandon Tate-Brown Family File Criminal Charges if D.A. Won’t?

Protesters demonstrate outside City Hall in Philadelphia on Thursday, April 30, 2015. The event in Philadelphia follows days of unrest in Baltimore amid Freddie Gray’s police-custody death. Photo | Matt Rourke, AP

So D.A. Seth Williams won’t bring criminal charges against the officers who shot Brandon Tate-Brown. That doesn’t means the chances for a criminal prosecution in the case have been completely eliminated.

Tate-Brown’s family could still try to press criminal charges. So could activists groups here.

Pennsylvania law allows private citizens to initiate criminal complaints, a feature of the law that is mostly used in relatively minor cases. But a similar law in Ohio is being used by activist groups to press criminal charges against the officers who shot the teenager Tamir Rice in Cleveland; Philadelphia activists say they’re watching that case, and are willing to follow suit in similar cases here.

“I do think there are situations — perhaps the situation of Brandon Tate-Brown — that we should use that law to exercise our rights for justice in Philadelphia,” said Bishop Dwayne Royster, executive director of POWER, the activist organization that has helped organize #BlackLivesMatter protests in the city in recent months. (He also plans to join Tamir Rice protests in Cleveland during an upcoming trip to the city.)

It might not be easy, however.

For one thing, even private citizens who want to bring criminal charges must understand the law and how it is applied. The private criminal complaint form available from the Pennsylvania Courts website asks users for as much information about the potential defendant as possible, along with a summary of the offense and a citation of which law was broken during the offense. (Here’s the state law detailing the requirements of a complaint.)

Go to all that trouble, and there’s still the next obstacle: The private complaint must be reviewed by the district attorney.

In a case like Brandon Tate-Brown’s, where the D.A. has already decided not to bring charges on his own, that might seem like the end of the story. But there’s one more opportunity: The D.A.’s opinion can be reviewed by the Court of Common Pleas.

The court can’t simply decide that charges are warranted, said Jules Epstein, director of advocacy programs at Temple University’s Beasley School of Law. Instead, it must decide a prosecutor abused his or her discretion by refusing to pursue the private complaint. The law, Epstein noted, allows prosecutors a substantial amount of leeway.

“Abuse of discretion is a pretty hard standard to meet,” Epstein said.

What that means, Epstein said, is that activists who do try to use the law should be prepared for difficulty. “Sure, it’s an available means, but not that easy,” Epstein said. “Not in a case like this.”

It would also be a novel use for the law. Art Heinz, a spokesman for the administrative office of Pennsylvania Courts, said private criminal complaints are used most often in landlord-tenant disputes and other relatively minor cases. (And used surprisingly often: More than 58,000 such cases were filed in Pennsylvania in 2013; more than 17,000 cases ended with a guilty plea, while nearly 10,000 more went to trial that ended in a guilty verdict.)

Brian Mildenberg is the attorney for Tanya Brown-Dickerson, Tate-Brown’s mom. He’s pursuing a civil lawsuit against the city in the matter. For now, that’s the route he wants to take: “We can best pursue (the matter) through a civil suit,” he told Philly Mag.

But on Monday, Mildenberg put out a call for Williams to review the evidence again and bring criminal charges in the Tate-Brown case. (Williams later declined) And he suggested that private criminal charges may yet be a possibility.

“We’re going to take this step-by-step, incrementally,” Mildenberg said. “If we were refused, we’ll take it from here.”

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