The DOJ’s Civil Rights Division in Washington, D.C., is reviewing the case, according to sources familiar with the investigation. The case has been primarily handled by the FBI and U.S. Attorney’s Office in Brooklyn, New York.
“This is kind of like doing due diligence on the investigation,” said Richard Frankel, an ABC contributor and former FBI agent who oversaw the federal Garner investigation when the feds first came in.
Garner died on July 17, 2014, after being placed in a chokehold by Officer David Pantaleo during an arrest for selling untaxed cigarettes in New York City.
The incident, which was caught on video, was one of a number of high-profile incidents of unarmed black men killed by white police officers that have sparked outrage and protests across the country and a flashpoint in the Black Lives Matter movement.
“I can’t breathe,” which Garner can be heard saying in the video, became one of the movement's rallying cries.
The New York Police Department said today that its own investigation into the incident is ongoing, but that at the request of DOJ, it is waiting to move ahead with administrative proceedings.
“We are continuing to watch the situation, standing by on what we will do, and we are waiting to hear from them [federal prosecutors] at this point,” said Deputy NYPD Commissioner Larry Byrne.
What Does This Mean?
One possibility is that federal prosecutors closest to the investigation don’t believe there is enough evidence to bring charges, but are being pushed by DOJ in Washington, D.C., to continue the investigation and bring a case forward, according to civil rights attorneys who spoke to ABC News.
Even if the Justice Department decides to bring charges, a grand jury still needs to indict for the case to move ahead.
Another concern may be that the federal prosecutors in New York could be too close to the issue and people involved to impartially evaluate the case.
Earlier this week, The New York Times reported that disagreements over whether to bring charges had caused a shake-up among the prosecution team.
If someone wants there to be a trial, a shuffle within the prosecution team indicates that this is more likely, according to Barry Friedman, professor of law at New York University.
However, it’s possible that other factors resulted in an additional review.
"Reasonable minds could easily differ in a case like this because of the nature of the legal standard,” said Daniel Richman, professor of law at Columbia Law School.
The Department of Justice and the U.S. Attorney’s Office declined to comment on the case.
Where Does the Case Stand?
When former Attorney General Eric Holder announced the launch of the civil rights investigation, he said, “We must seek to heal the breakdown in trust that we have seen.”
Last year, Garner's family settled with New York City for $5.9 million, but so far criminal charges have been stalled.
In 2014, a grand jury on Staten Island decided not indict Pantaleo in connection to the death of Garner. That decision meant that the only potential criminal charges would come from the pending federal investigation.
At that point, FBI agents in New York, NYPD investigators and prosecutors from the U.S. Attorney’s Office formed a team to begin the civil rights investigation, according to Frankel.
"Two years is long, but not unheard of," for a case like this, he said.
A review by DOJ could be a way of "dotting the I’s and crossing the T’s," he added.
How Likely Are Charges?
In order to convict in the federal civil rights case, prosecutors need to show that officers willfully violated Garner’s constitutional rights.
But stepping over the line of appropriate behavior doesn’t necessarily mean a willful violation, according to attorneys familiar with case law.
The video helped the investigation, but it's not conclusive, according to Frankel. "The problem with video is you never see everything," he said.
Pantaleo’s attorney, Stuart London, told ABC News that the DOJ should accept the recommendation not to indict Pantaleo “rather than impair the integrity of the investigation by allowing politics to replace the rule of law."
"This matter has been thoroughly investigated by a state grand jury as well as experienced FBI agents and assistant U.S. attorneys. The recommendation is apparently that there was no civil rights violation. It is unprecedented to continue shopping for new FBI agents who support a predetermined result," he said in a statement.