Eric Garner's body lies in a coffin for viewing before his funeral at a church in Brooklyn. (Photo by Andrew Lichtenstein/Corbis via Getty Images)
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—VICE 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 changes that dynamic.
This interview has been lightly edited and condensed for clarity.
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