Not long after two Chicago police officers shot and killed an unarmed Esau Castellanos after a brief car chase on the city’s North Side, the FBI began a criminal investigation into whether police had violated the civil rights of the pizza delivery man and father of three.
The March 2013 shooting seemed ripe for federal intervention. The officers had said Castellanos fired at them from close range, forcing one officer to dive for safety, but a gun was never found. Then, the officers’ accounts shifted, and they suggested a second person might have been involved.
More than three years after Castellanos’ death, no charges have been brought, and the direction of the federal inquiry is uncertain.
To many, the FBI — and, with it, the U.S. attorney’s office — are law enforcement agencies of last resort, federal authorities to whom victims of police abuse or misconduct can turn when local officials fail to respond. Unelected and largely immune to political pressure, they are, by design, seen as white knights of law enforcement.
And, indeed, community activists and the family members of those shot by police have urged federal officials to take a more active role in investigating the incidents, hoping they will be more aggressive than local authorities. Earlier this year, the families of two black Chicago teens killed in separate shootings in 2013 called upon federal authorities to take a fresh and independent look at what transpired.
Critics of Cook County State’s Attorney Anita Alvarez’s handling of the fatal shooting of Laquan McDonald — the 17-year-old whose videotaped shooting roiled the city and contributed to Alvarez being ousted from office — pointed to federal officials as a model for how to investigate and prosecute police use of deadly force against citizens. They believed federal officials would have moved more aggressively.
Nearly two years after McDonald’s death, and eight months after the release of the dashcam video, federal prosecutors have yet to bring any criminal civil rights charges against Officer Jason Van Dyke for the shooting or against any of the officers on the scene whose official police reports of what allegedly happened were contradicted by the video. Van Dyke has been charged with murder, but by Alvarez’s office.
Federal officials’ lack of movement on the McDonald and Castellanos cases are just the latest examples of their reluctance to bring criminal charges in police shootings.
Chicago police have shot 702 citizens — killing 215 — in the past 15 years, according to Police Department records obtained by the Tribune under the Freedom of Information Act. Not once have federal law enforcement officials brought criminal civil rights charges against an officer in those shootings.
The office of U.S. Attorney Zachary Fardon declined to answer questions about why the federal investigations have taken years, and why no Chicago cop involved in a police shooting has been charged.
An examination of government data and interviews show federal authorities have brought civil rights charges against law enforcement in the Chicago area in two dozen cases over that time period, but none of them involved shootings of citizens by the police.
“They’re almost an irrelevancy to us. They don’t reach out to us and we don’t bring them things,” said the prominent civil rights lawyer Jon Loevy. “Maybe it’s a question of their priorities. A lot of these things that have been happening, they certainly could look at them.”
Higher standard to charge
U.S. Department of Justice officials say that as much as they would like to bring more federal civil rights cases, their hands are tied by laws that require them to prove that officers acted willfully — that is, they intentionally sought to deprive someone of their constitutional rights. Incompetence, bad training or mistakes in judgment do not meet that standard.
It is, by all accounts, a high bar to clear for a prosecutor. State and local prosecutors can charge officers with a variety of crimes for conduct that is reckless or negligent; in the case of a fatal shooting, say, they can charge first- or second-degree murder or manslaughter.
Federal prosecutors, by comparison, have fewer options.
“At the federal level, it would be better to have a bigger toolbox,” said Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and a former section chief in the Justice Department’s civil rights division. “They have a screwdriver when they need a hammer.”
When federal prosecutors have brought cases, the incident often was captured on video or the officers’ accounts were undermined by other evidence, according to a Tribune examination of government data. Justice Department statistics show 18 law enforcement officials — including two prison guards and one U.S. marshal who had charges dropped against him — have been indicted in federal court in Chicago on criminal civil rights charges from Jan. 1, 2000, through Dec. 31, 2015.
Among the cases: former Chicago police Cmdr. Jon Burge for perjury in connection with the torture of suspects; three Cicero officers caught on video beating someone; a Cook County sheriff’s deputy for mistreating a Maywood detainee, also caught on videotape.
Indeed, many of the cases federal officials brought involved beatings of people in custody. Those tend to involve a restrained victim and occur over a period of time — even a short period — which indicates willfulness, compared with shootings, which by their nature are more likely to be a result of split-second decisions.
The U. S. attorney’s office in Chicago provided the names of six additional police and correctional officers it said were indicted on criminal civil rights charges during that period. One of those was James Micetich, a Cook County sheriff’s deputy accused of hitting a jail inmate in the waiting room area of Cermak Hospital, the facility that often treats jail inmates. That case is pending in federal court.
Lack of data
The FBI and U.S. attorney’s office in Chicago, in fact, have burnished their reputations on investigations and prosecutions of political corruption and organized crime. They also have increasingly focused on terrorism, as have federal law enforcers around the country.
Here in Chicago, it is difficult to get a handle on exactly the role federal authorities play or how often they are asked to investigate questionable police shootings. Cook County prosecutors do not keep statistics on how often they seek assistance from the FBI or the U.S. attorney’s office. The Independent Police Review Authority, the city agency that investigated more than 400 shootings by Chicago police officers since it was created in fall 2007, only began this year to track cases referred for possible federal investigation.
For its part, the federal government also lacks complete or accurate data on police shootings. The Justice Department could not say how many times a police officer has been prosecuted on civil rights charges for wrongly shooting a citizen. In the wake of a series of shootings by police recently, FBI Director James Comey called the lack of data on officer-involved shootings “embarrassing and ridiculous.”
The U.S. attorney’s office in Chicago could not determine if a city officer has ever been prosecuted federally for an on-duty shooting.
The FBI, the lead agency for investigating what are called color of law violations, investigated 368 cases across the country in 2014, with charges being brought against officers of various departments — police officers as well as prison and jail guards — in 72 cases. The FBI refused to say how many were handled by its Chicago office.
Federal officials decline to act on the vast majority of allegations against law enforcement. The Pittsburgh Tribune-Review found that from 1995 through 2015, federal prosecutors declined to pursue civil rights charges against law enforcement officers 96 percent of the time.
Smith, the former Justice Department section chief, said a willful intent standard often makes it difficult to bring charges. He said that he favored a less stringent standard of “recklessness,” where an officer was aware but indifferent that his conduct would violate someone’s rights.
“We have a crisis in policing,” he said. “Up until recently, the federal government did not meaningfully commit to its role of holding police accountable.”
‘They are all law enforcement’
Lawyers who handle civil rights cases say federal law enforcement officials are as much a part of the tightly knit law enforcement community as state and local prosecutors, often working together on task forces and other efforts. As a result, they have been reluctant to pursue cases against local police.
The Justice Department is conducting a separate, civil investigation of the Police Department’s practices in police shootings.
“Whenever law enforcement has to police law enforcement, they have a difficult time having an objective view,” said Chicago lawyer Ed Fox, who has filed numerous lawsuits against city police. “They are all law enforcement. They can see themselves in that position.”
Activists, too, say that the federal authorities could do more on police shootings. That, they say, would send a signal both to police and to other enforcement officials that the federal government takes seriously its role in investigating and prosecuting criminal civil rights cases.
“The federal government in many ways has turned a blind eye to the overpolicing of black people and to the violation of their civil rights,” said Charlene Carruthers, the national director of the Black Youth Project 100, which hopes to focus the attention of young people around justice issues. “The issue is not just that the local governments aren’t listening. The federal government isn’t listening.”
Yet Carruthers acknowledged that protesters have not targeted federal officials the way they have Alvarez and others. Protesters have gathered in Daley Plaza, at City Hall and hearings of the Chicago Police Board, but not the Dirksen Federal Building, where the offices of the U.S. attorneys are located. Carruthers offered a rather pedestrian reason why demonstrators avoid the Dirksen building.
“It’s hard to get the ears of the folks who are more than a dozen floors away,” she said.
Federal authorities in the Chicago area have, of late, attempted to defuse some of that criticism, as well as educate the public about their role in civil rights investigations, appearing at community forums around the city to explain the limitations of the nation’s civil rights laws.
In many instances, federal law enforcement officials allow local prosecutors to take the lead, employing what they call a backstop approach — stepping in when those local prosecutors do not bring charges, the case is mishandled or when a jury returns a not-guilty verdict that officials believe is a miscarriage of justice. One example: the Rodney King case, in which four Los Angeles officers in the 1990s were acquitted by a jury of beating King during a traffic stop.
Cases investigated for years
The most recent federal criminal civil rights case involving a deadly shooting was brought against former South Carolina police Officer Michael Slager, who shot and killed Walter Scott as he fled a traffic stop in April 2015. That shooting was caught on video by a bystander with a cellphone.
Slager had already been charged in state court with murder by prosecutors in North Charleston. The Charleston County prosecutor, Scarlett Wilson, has said she believed prosecutions on separate but parallel tracks made sense as they “vindicate separate interests.”
The murder charge addresses his death, she said, while the federal charges address the alleged violation of his constitutional rights.
That contrasts with how the deaths of McDonald and Castellanos have played out. Federal officials have not brought charges in connection with McDonald’s shooting, though it seems to bear similarities to Scott’s shooting, and has the added element of officers writing questionable police reports — acts that suggest the officers may have intentionally covered up for a fellow officer.
The Castellanos shooting appears to involve officers shifting their accounts of what happened. Officers Juan Martinez and Shawn Lawryn had told detectives that, after they began to pursue Castellanos’ vehicle, he crashed. As they approached the wreckage, they said, he opened fire, forcing them both to dive to the ground to dodge the bullets. They responded by firing 19 shots, hitting Castellanos three times.
Martinez even said he had been shot in the head, although in fact he had not been shot and officers never recovered a gun.
Martinez simply had scrapes and bruises.
Two years later, the officers suggested in sworn depositions for the first time that a second person might have been in the vehicle with Castellanos.
It is unclear where the federal investigation now stands. Martinez said in a sworn deposition as part of a lawsuit from the Castellanos family that he had been interviewed by the FBI, perhaps in the summer following the shooting. Lawryn said in his deposition he had referred the FBI to his lawyer.
The officers are on administrative duty.
The city of Chicago, in the meantime, has settled the lawsuit from Castellanos’ survivors. The city will pay them $3.75 million.
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