In waning weeks as Attorney General, Loretta Lynch asserts more control over Federal prosecutors in New York

The Brooklyn U.S. Attorney, Robert Capers, had been steadily increasing his office's role in New York justice matters. Like his counterpart in Manhattan, Preet Bharara, Mr. Capers has begun to experience pushback from D.C. Justice officials on politically-sensitive investigations.

By exerting discretion over the Eric Garner civil rights investigation, D.C. Justice officials appear to be resetting a stalled investigation, even as the race-based policing tactics of the NYPD go unaddressed.


In an effort to move forward on a civil rights investigation of a police officer-involved homicide, the U.S. Department of Justice has replaced the team of prosecutors and agents involved in the investigation.

The investigation has been examining whether New York Police Department officer Daniel Pantaleo violated the civil rights of the now late Eric Garner when Officer Pantaleo applied a deadly chokehold on Mr. Garner in 2014.

News of the investigative team replacement was reported by The New York Times.

By asserting more direct control over the Garner civil rights investigation, U.S. Attorney General Loretta Lynch has removed all doubt that management of significant cases in New York's Federal prosecutors' offices are determined in D.C.

U.S. Attorney General  Loretta Lynch  was formerly the nation's top Federal prosecutor in New York's eastern district. Source : Official Portrait, U.S. Department of Justice/Public Domain

U.S. Attorney General Loretta Lynch was formerly the nation's top Federal prosecutor in New York's eastern district. Source : Official Portrait, U.S. Department of Justice/Public Domain

The team of prosecutors that had been overseeing the investigation prior to the shake-up were from the U.S. Attorney's Office for New York's eastern district. The office, based in Brooklyn, was formerly headed by Attorney General Lynch before she was nominated to become Attorney General by President Barack Obama.

The agents that had been working in partnership with the prosecutors were from the New York Field Office of the Federal Bureau of Investigation. A request made by Progress Queens for an interview for this report was not answered by press officials with the New York Field Office.

According to a report published last July by The New York Times, prosecutors and agents in New York opposed pursuing civil rights violations charges against Officer Pantaleo, setting up a clash of opinions with DOJ officials in D.C.

The overt moves by D.C. Justice officials to assert control over the politically-sensitive Garner investigation comes in the waning weeks of Attorney General Lynch's term as the nation's top law enforcement official. The next president has discretion to appoint not only new Cabinet secretaries and their under secretaries but all of the U.S. Attorneys in the nation.

Federal civil rights investigations involving wrong-doing by police departments have involved the Civil Rights Division of the DOJ, which is headed by Vanita Gupta, the principal deputy assistant attorney general.

D.C. Justice officials have exerted discretion to investigate particular NYPD officers in the past, such as of Officer Francis Livoti in the 1994 chokehold death of Anthony Baez. D.C. Justice officials also have authority to investigate police departments for patterns and practises of discrimination or other legal violations.

It is not known why D.C. Justice officials would attempt to steer the direction of the Garner civil rights investigation so late in an election year. Dena Iverson, a DOJ spokesperson, declined requests by Progress Queens made for information and interviews to the DOJ and to the U.S. Attorney's Office in Brooklyn.

Under Ms. Gupta, the DOJ has been accepting of or slow to deal with each of : police brutality, police officer-involved homicides, the militarization of America's police forces, and race-based policing tactics. Because of political sensitivities to criticism, the restaffing of the Garner civil rights investigation may be a short-term attempt to cast D.C. Justice officials as being more reform-minded than they have been willing to demonstrate before now.

In the past, Ms. Gupta has addressed issues of police misconduct and the consequences of race-based policing. At the 2015 annual luncheon of the Colorado Lawyers Committee, Ms. Gupta sought to use the DOJ's investigation of the Ferguson Police Department as evidence of the DOJ's efforts to address race-based policing policies, according to her prepared remarks.

Even as D.C. Justice officials seek to control the direction of the Federal civil rights violation of Mr. Garner's death that may lead to the filing of charges against Officer Pantaleo, the DOJ is leaving intact "Broken Windows," the race-based policing tactic of the NYPD that led to the deployment of police officers to arrest Mr. Garner on accusations that he had been trying to sell 50-cent loose cigarettes on the street.

In the summer of 2014, the NYPD, under former Commissioner William Bratton, authorized an offensive against low-level crimes. That operation, code-named "Summer All Out," was noted in a report filed by the journalist Azi Paybarah for the news Web site POLITICO New York. The "Summer All Out" offensive represented an extension of the NYPD's "Broken Windows" policing tactic to target individuals, who commit minor crimes, in an effort to prevent major crimes from being committed. Mr. Garner was reportedly the target of police attention due to past accusations that Mr. Garner sold untaxed, loose cigarettes.

Ten days after Mr. Paybarah's report was published, Mr. Garner was choked to death by Officer Pantaleo.

The choking death was ruled a homicide by the New York City Office of the Chief Medical Examiner.

"Broken Windows" is a central approach to policing by the NYPD, and police reform activists have blamed it for increasing mistrust between police and community, particularly amongst communities of color. A study conducted by the New York City Department of Investigation has debunked a central tenant of the NYPD's "Broken Windows" policing, namely, that by combating minor crimes, police officers can deter major crimes. Moreover, "Broken Windows" has been described as racist and classist. Despite these indicators, DOJ officials, including Ms. Gupta, have refused to examine the way NYPD officers use race as a way to discriminate against New Yorkers.

After a New York grand jury refused to indict Officer Pantaleo on criminal charges and after the Garner family agreed to a financial settlement from the City of New York, the DOJ's civil rights investigation was the last remaining proceeding through which the public held a lever to compel some form of reform and accountability at the NYPD, particularly since it has been noted that Federal prosecutors in New York have refused to prosecute NYPD officers for officer-involved homicides. An investigation conducted by The New York Daily News showed that of 179 NYPD-involved fatalities, only three police officers faced indictment. Although Gov. Andrew Cuomo (D-New York) issued a decree, conferring special prosecutor powers on State Attorney General Eric Schneiderman (D-New York) in respect of prosecuting officer-involved homicides, those powers were narrowly construed and do not apply to Federal, civil rights investigations.

Loyalty by New York's top Federal prosecutors to the culture that protects NYPD officers from accountability for police corruption and officer-involved fatalities transcends identity politics. Federal loyalty to the NYPD also matches the loyalty that State and Municipal prosecutors have shown to police officers.

On 24 February, advocates for police reform gathered outside the Brooklyn U.S. Attorney's Office to criticise inaction by the Nation's top Federal prosecutor in New York's eastern district, U.S. Attorney Robert Capers, because, as one activist said, "[T]he system will not hold itself accountable," according to a YouTube video of the demonstration. Activists noted despite U.S. Attorney Capers being a Black man, it was not known why his office would stall on the Garner civil rights investigation.

The telegraphing by the DOJ of its interest in breaking through the prosecutorial inaction on the Garner civil rights investigation was met with cautioned praise by one police reform activist, who noted the DOJ's lack of action on the larger issues of race-based policing by the NYPD.

"The Justice Department would never undermine the credibility of the NYPD, the largest and most influential police department in the world," said Josmar Trujillo, a notable grassroots police reform activist in New York City, in a statement issued to Progress Queens.

"Despite clamorings by members of Congress, and similar investigations in Ferguson and Baltimore, where the similarities to the NYPD's 'zero-tolerance' were explicitly cited in a DOJ report on what led to the terrible dynamic between the Baltimore PD and the Black community there, the NYPD's 'Broken Windows' policies will never be touched by the DOJ," Mr. Trujillo added.

"Eric Garner wasn't only killed by Det. Daniel Pantaleo (as well as the inaction of other officers and first responders), he was also killed by a racist policing theory that has ravaged low-income communities of color across America for decades. So although holding Pantaleo [accountable] is still important, especially for the families, who deserve some semblance of justice, it's important to note the limits of seeking true change at the Federal level," Mr. Trujillo said.

The DOJ's failure to undertake an institutional examination of the NYPD comes at a time when the troubled police department is the reported subject of a wide-ranging Federal corruption investigation being led by U.S. Attorney Preet Bharara, the nation's top Federal prosecutor in New York's southern district. Despite having prosecuted large cases of corporate, political, and campaign corruption, thus far U.S. Attorney Bharara has refused to support the formation of a public commission to investigate the NYPD, similar to the Knapp Commission, or to appoint a committee of prosecutors to investigate the NYPD, as he did with the pattern and practises committee that investigated Rikers Island for Constitutional violations.

As U.S. Attorney Capers was increasing the role of his office in New York's justice matters, the DOJ served a check on his office's independence

In a follow-up report to the restaffing of the Garner civil rights investigation, The New York Times noted that the investigation reset was notable for exposing a rift between the U.S. Attorney's Office and D.C. Justice officials. However, it is not uncommon for D.C. Justice officials to direct the work of Federal prosecutors. A highly bureaucratic agency, the DOJ issues central policy that Federal prosecutors must follow. When in doubt, Federal prosecutors routinely confer with D.C. Justice officials. Prosecutors are lawyers, and, in the legal profession, consulting with other attorneys is how law is practiced. That the disagreement between Brooklyn Federal prosecutors and D.C. Justice officials existed is not so much notable as is the fact that D.C. Justice officials countenanced the disagreement for so long, given the power imbalance between the Attorney General and senior DOJ officials in D.C. and Federal prosecutors in the U.S. Attorney's Office in Brooklyn.

What should also be notable is that, if D.C. Justice officials were so concerned about the integrity of the Garner investigation, the coziness between each of the Brooklyn Federal prosecutors' office, the New York Field Office, and the NYPD should have triggered a systemic review about the integrity of Federal oversight of the NYPD. Restaffing only the Garner civil rights investigation was a deliberate act to give short shrift to the larger issue. The narrow reading by the DOJ of Federal oversight of the NYPD was a political act, as noted by Mr. Trujillo, the police reform activists, who predicted that the DOJ would never question the integrity of the NYPD.

The DOJ's steps to advance the Garner investigation also comes at a time when U.S. Attorney Capers had been increasing his office's involvement in New York's justice matters, generally.

It was the office of U.S. Attorney Capers, which pressed securities fraud charges against former hedge fund manager and former pharmaceutical executive Martin Shkreli. Mr. Shkreli attracted public scorn after he raised the price of the prescription medication Daraprim by more than 50 times. Daraprim is used to treat malaria and AIDS-related infections.

When an investigation by the Manhattan Federal prosecutors' office turned up alleged pension fund corruption involving Norman Seabrook, a former top New York City municipal union official, the Brooklyn Federal prosecutors' office reportedly opened an investigation into alleged wrong-doing by Platinum Partners, a hedge fund implicated in the controversy. For the most part, wrong-doing by Wall Street has been being the purview of the office of U.S. Attorney Bharara. However, the investigation of Platinum Partners was launched from the Brooklyn Federal prosecutors' office.

One of the reported witnesses in the Federal investigation of the campaign finance activities of Mayor Bill de Blasio (D-New York City) is Harendra Singh, a restaurateur, who has been identified by the media as a coöperating witness in the high-profile corruption case the office of U.S. Attorney Capers has initiated against County Executive Edward Mangano (R-Nassau).

And when Aqueduct Racetrack and A&L Cesspool Service Corporation, both based in Queens, were caught dumping polluted water into New York's storm sewers and into the Gowanus Canal, respectively, Assistant U.S. Attorneys from the Brooklyn Federal prosecutors' office brought charges against the polluters, creating a new brain trust on environmental law within U.S. Attorney Capers' office.

Despite the appearance of independence given to U.S. Attorneys to prosecute cases that they see fit to bring, there have been times when New York's U.S. Attorneys have pulled back from exerting too much independence from the political realities of Washington.

U.S. Attorney Bharara was forced to issue a public statement last January, indicating that Federal prosecutors did not have enough evidence to charge anybody with crimes associated with the reported obstruction of the now-shuttered Moreland Commission, a corruption-fighting investigatory panel both formed and dissolved by Gov. Cuomo.

Recently, The New York Times published a report that reportedly cleared Mayor de Balsio of alleged wrong-doings in the wide-ranging Federal corruption investigation that has included a review of his campaign finance activities. It is not known how The New York Times obtained sensitive information about findings of an on-going corruption investigation of a significant political figure. James Margolin, a spokesperson for the press office that supports U.S. Attorney Bharara, has in the past said that DOJ policy forbids his office from commenting about or acknowledging investigations. In a recent interview, Mr. Margolin said that that policy also forbids him from commenting on whether press reports that speculate about the status of reported investigations are accurate, even if the press reports appeared to him to be inaccurate.

In some cases, the policies set by D.C. Justice officials in respect of some criminal investigations of significant political figures require Federal prosecutors in U.S. Attorneys' Offices to consult with D.C. Justice officials.

Government reform activists have speculated that efforts made by each of Gov. Cuomo and Mayor de Blasio to form closer relationships with actual or potential Presidential candidates during the 2016 election cycle served to sufficiently encumber reported investigations into their political and campaign finance activities with conflicts of interest with senior D.C. Justice officials, creating the possibility that political motivations would influence the direction set by D.C. Justice officials of major corruption investigations.