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It’s going to be hard for the DOJ to prosecute the cop who killed Eric Garner

Pallbearers carry Eric Garner's casket
Pallbearers carry Eric Garner's casket
(TIMOTHY A. CLARY/AFP/Getty Images)

After calls from New York Senators Charles Schumer and Kirsten Gillibrand, Attorney General Eric Holder and New York Mayor Bill de Blasio announced a federal investigation into the death of Eric Garner.

Demanding a federal investigation is a good way for politicians like de Blasio, Schumer and Gillibrand to show their concern about police violence. Unfortunately it's not likely to bring justice for Garner.

Simple murder and manslaughter aren't federal crimes. But killing someone can be one in special circumstances, including when it's an intentional violation of civil rights. What the DOJ can do is bring charges under the federal civil rights statute in order to prosecute Pantaleo for Garner's death. And that legal standard is difficult to meet: prosecutors would have to prove that Pantaleo willfully deprived Garner of his civil rights. A police officer intentionally killing someone outside of the set of circumstances in which deadly force is permitted would qualify. But a civil rights charge requires proof of intent, whereas a state manslaughter case could be made by demonstrating negligence,

That's not to say that the federal investigation couldn't result in a successful prosecution. A federal case would have some advantages. The trial would probably be held in Brooklyn, before a jury that might be less inclined to be sympathetic towards a police officer than one in Staten Island would be. Federal prosecutors have considerable resources at their disposal, and fewer ties to the NYPD than the Staten Island District Attorney's office. And there is some precedent for federal police-misconduct prosecutions succeeding after state cases failed. For instance, in 1993, after the LAPD officers who beat Rodney King were acquitted in state court, the DOJ brought federal civil rights charges against them. Two were convicted.

And Pantaleo's actions were shocking. Chokeholds have been banned by the NYPD since 1993 on the grounds that they are excessively dangerous, because they can cut off the flow of blood and oxygen to the brain. And yet Pantaleo placed Garner in a chokehold while arresting him for a non-violent offense — the sale of untaxed cigarettes. The incident was captured on video, so there can be little confusion about what occurred. A New York medical examiner ruled Garner's death a homicide.

But the fact that the grand jury refused to even indict Pantaleo — despite the video evidence — does not bode well for a future federal case.

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