​Are the Feds Finally Going to Press Charges in the Eric Garner Case?

The internal machinations of federal law enforcement have been the biggest news story in America since Friday, when FBI director James Comey told Congress agents are looking into a new cache of emails possibly relevant to their investigation of Hillary Clinton. Since then, the Wall Street Journal reported officials at the Justice Department and FBI have been squabbling over how and whether to press ahead with the probe. But there's another weird Department of Justice/FBI dispute that has been hovering in the background of American life for a while now, and this one isn't about classified documents, insecure emails, or the future of a prominent politician.

Instead, this fight is about a man's life and why he lost it.

Last week, the New York Times reported the feds have swapped out the New York investigators and lawyers on the Eric Garner case, signaling NYPD officer Daniel Pantaleo might still face charges for violating the black man's civil rights by placing him in a lethal chokehold in 2014. To back up a bit, after a local grand jury declined to indict Pantaleo on charges of manslaughter or criminally negligent homicide that December—igniting protests across the city and country—the feds in Washington announced they were opening their own civil rights probe. "Our prosecutors will conduct an independent, thorough, fair and expeditious investigation," then-US attorney general Eric Holder promised.

Expeditious probably wasn't the right word, because despite video of Garner begging 11 times—"I can't breathe!"—for air after being wrestled to the sidewalk, Holder's vow came nearly two years ago. Meanwhile, Pantaleo remains with the force (albeit on modified duty) and has even seen his pay go up.

But word of a staffing change has injected new life into the case, even as it raises fresh questions about the federal government's role in probing some of the most outrageous police-brutality cases in America. For a sense of how to read the tea leaves—and what, exactly, it takes to charge a cop with violating someone's civil rights in this country—we spoke with Jonathan Smith, executive director of the Washington Lawyers' Committee for Civil Rights and Urban Affairs. Before taking that gig, Smith completed 18 investigations as the head of the DOJ's Civil Rights Division's Special Litigation Section, including, most notably, the case centering on the death of Michael Brown, in Ferguson, Missouri.

VICE: Before we go into the latest developments in the Garner case, can you break down how the feds get involved in these types of cases generally?
Jonathan Smith: So the federal government has one criminal civil rights statute, the 18 U.S.C. 242, which permits the US to prosecute people for willful violations of someone's civil rights. It's a fairly high standard, and different than most state standards, where you may have various different crimes that a police officer can commit, including negligence or recklessness. Willfulness is the same standard as you'd have to prove someone engaged in deliberate murder, or first-degree murder, essentially for the purpose of depriving a person of their civil rights. It's a very difficult standard to meet, and so that's why, just as a general matter, you see many more state prosecutions of police officers than you see federal prosecutions.

Nevertheless, during the Obama administration, the feds have brought about 600 successful "color of law" prosecutions—they are called "color of law" because it's violation of someone's civil rights under the "color of law." A lot of them [have been] against corrections officers, and police officers, with sexual assault.

The responsibility for enforcing 242 resides in the DOJ's Civil Rights Division's Criminal Section, and they partner with US attorneys' offices around the country on those cases. The authority to approve a prosecution rests with the assistant Attorney general for civil rights, although, of course, the will of the [local] US attorney is obviously important. The cases are investigated by the FBI, and the FBI has a special unit of agents inside each of the districts to work specifically on civil rights cases. And so, all of the factual development of the case—the kind of things you'd expect the police investigator to do—is done by FBI agents. They make a recommendation as to whether to prosecute or not, but the decision is ultimately made, based upon the career prosecutors' recommendation, by the assistant attorney general.

Got it. And the staffing shakeup reported last week centers on cooperation—or lack thereof—between the local office and DC. What's the dynamic like there?
What happened here was that—as far as I can tell reading the press, I have no inside information—the agents in the Eastern District of New York have been replaced with investigators from the FBI. It appears also that there's a greater role from the main [Department of] Justice civil rights lawyers, and a diminished role for civil rights lawyers in the district, who have been replaced to complete the Eric Garner investigation.

Now this investigation has been going on for a very long time. In most investigations of civil rights violations—particularly where there's been a prior review by a state prosecutor—they move much more quickly. There are some relatable examples, in some high-profile cases; it took a very long time with Trayvon Martin, and that was a hate-crime investigation, not a "color of law" prosecution. But this is an extraordinarily long time to have a case unresolved, in terms of a decision whether to decline prosecution, or to bring charges, especially given that everything was on video. It's not like there's a huge factual record that needs to be developed. That suggests to me that there's a conflict between either the field office in New York, or the US attorney's office in New York, and main Justice over how the case should be handled.

The combination of the delay and the development of this week give a fairly clear indication that there are concerns from some of whether to bring a case or not. That's what I think is going on. I think it's fairly complicated by the fact, too, that this is Loretta Lynch's [old] district [when the AG was still a US attorney]. I'm confident that that's making things more complicated.

As you mentioned, it seems clear the feds in DC want to move forward with this case. Is this all about politics, as the head of New York City's biggest police union is complaining?
The issue of politicization is a serious one. And you saw the blowback that can come from that with the [failed] prosecutions in Baltimore [of the cops behind Freddie Gray's death]. I think it's unfortunate, because I think there were prosecutable cases in Baltimore, but they weren't prosecuted the way it was handled. So you want to get to a place where there's complete integrity in the process. I don't know what the political forces are at play in main Justice—my guess is that there are strong views on whether the case, from a political perspective, should be prosecuted, or not prosecuted. I suspect there are different views on that.

I do know that the career prosecutors in the civil rights division—I have been thoroughly impressed with them. I've been a prisoners' rights lawyers for most of my career, and I've done mostly civil rights in the criminal justice space. I'm not like, the guy who hangs out with career prosecutors. But I was impressed with their ability to make their recommendation without taking into account how it would be received politically. And I've seen them face real political headwinds with integrity. So my guess is that, if the career staff in the Civil Rights Division are pushing for a prosecution, that's because that's where they think the facts led them. That's not because they're getting pressured from someone up the chain.

This move gives me confidence that they're doing an assessment of the facts of the law, and that's what going to guide the decision to make a recommendation to Vanita Gupta, the assistant attorney general for the civil rights division. The political pressures are real, when you look at cases like Trayvon Martin, like Michael Brown, like others. I'm sure that there's enormous political efforts to try to address the political needs of the US government. But I have a lot of faith in Gupta; she's a remarkable person. I think this [staffing change] is more likely to get it out of politics, than put it deeper into politics.

You've obviously worked on cases like this before. What makes the Garner case different?
They're all similar in the sense that, when you have these high-profile shootings, and when the local prosecutor has declined, there tends to be an enormous lack of community confidence in the decision of the local prosecutor. You saw that with Eric Garner, and you saw it with the prosecutor who declined charges in the Tamir Rice [case]. He lost his job as a result of failing to bring that prosecution—that's another decision the DOJ hasn't yet made. If you look at the record there, where the prosecutor was leaking out his expert reports in advance, it was totally self-serving, and he knew there was going to be a declination in that case. You need a fair broker; someone who can come in and say, "That was a political decision made by the prosecutor," or not. In that way, whatever's decided in Garner is very important to not only the Garner family, but that whole community. So they know whether or not the grand jury decision that they don't believe in was really was the right decision.

The thing about Garner is that [in the past], I've not seen, at least publicly displayed, a split inside the department over whether to bring the case, or not. And that is sort of interesting—that's what makes this case different. There's an apparent difference in views, and I don't know whether that's a difference of views based on the facts of the law, or driven by some of these other factors and pressures that people are under, like being worried about doing something in anticipation of the upcoming election. I don't know what might be on the minds of the US attorney, or the FBI, or the head of the field office. There might be a separate set of things that are coming into play here. But this public flip is rare. You might well have these decisions, but they get played out behind closed doors. To have them played out in the newspaper is very rare.

As you say, it's very hard to prosecute this particular crime. And 96 percent of the time, no federal civil right charges are brought against police officers accused of violating said rights. So what's realistic for Garner's family and their supporters to expect now?
I've had the honor and humbling experience to sit on panels with Erica Garner, and the suffering that she's experienced by not getting a decision is palpable. And that family, and that community, really deserves to get an answer from this question, and so I'm hoping that this signals that their wait is coming to an end; that they can get an answer to what's going to happen. I think they're better equipped to deal with an answer, even if it's one they don't like, than to have it to be hanging out there, without an answer. And the sort of sense that the inability to even reach a decision is denying the justice that they feel that they deserve. So I was very encouraged when I saw this move.

Until this last week, I was not optimistic. It was taking too long, and all those sorts of things made me feel that the longer this wore on, the less likely that I thought charges would be brought. But the move this last week changed that a little bit for me, and I wonder now whether or not there's a higher chance that this case is brought. One of the difficulties with these prosecutions is that, under the Fourth Amendment, you've got to show that there was a disproportionality, because the officer has to have violated his rights under that amendment, to be free from the seizure that resulted in death. And so, you'd have to show that that force is excessive, and you'd have to show the point in time in which the force was excessive, because in most circuits, they do what they call a final frame analysis, which means that you don't look at anything leading up to the use of force, but the moment that the force was applied. So what the defense is going to look like here is, Show me on the video the moment when Garner stopped resisting. And that's the moment the force became excessive.

But the problem with that is, if that's the way it plays out in the courtroom, and that's the way the judge lets the case get tried, it's very difficult. Some courts will look at it this way: There have been trials where people put up photos, and say, "Is he resisting here?" in order to find that particular moment. But what's really warranted here is the totality of the circumstances, and the disproportionality to the crime that was being committed, and the need to restrain him at all. But if you can get all that into account—which is where the law really should be—and if they can find the totality of all that happened willfully deprived his rights, then I think they have a much better shot. And that's how some of these things are playing out, in terms of the legal analysis. As we understand the facts, how do we understand them in terms of: When did the violation of the rights occur? Was it the course of conduct? Or was there a moment? If there was a moment, then that gives the defense arguments to make.

**It's been more than two years since Garner was killed. Do you think the feds will charge Officer *Pantaleo* with violating that man's civil rights?**
It's certainly more likely, in my mind, this week than it was last week. And I was growing very pessimistic that he'd be charged, based on just the time that had gone by. But this [latest staffing change] changes that dynamic.

This interview has been lightly edited and condensed for clarity.

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