Jason Van Dyke gets out of prison tomorrow. Will he face new federal charges for killing Laquan McDonald?

Jason Van Dyke
Chicago Police Officer Jason Van Dyke listens during his trial for the shooting death of Laquan McDonald, at the Leighton Criminal Court Building, Monday, Sept. 17, 2018 in Chicago. Associated Press
Jason Van Dyke
Chicago Police Officer Jason Van Dyke listens during his trial for the shooting death of Laquan McDonald, at the Leighton Criminal Court Building, Monday, Sept. 17, 2018 in Chicago. Associated Press

Jason Van Dyke gets out of prison tomorrow. Will he face new federal charges for killing Laquan McDonald?

WBEZ brings you fact-based news and information. Sign up for our newsletters to stay up to date on the stories that matter.

The calls for the U.S. Justice Department to bring federal charges against former Chicago police officer Jason Van Dyke have grown louder as Van Dyke’s release from prison approaches, but experts are split on just how likely federal intervention really is.

Van Dyke was convicted of second-degree murder and 16 counts of aggravated battery for shooting teenager Laquan McDonald to death while Van Dyke was working on-duty in October 2014. The resounding conviction was undercut in some people’s eyes a few months later when Cook County Judge Vincent Gaughan sentenced Van Dyke to 81 months in prison, setting him up to spend just a little more than three years behind bars because of how Illinois calculates time served.

Now, those three years are up and Van Dyke is scheduled to be released on Thursday.

“He doesn’t deserve to get out, period!” McDonald’s grandmother, Tracey Hunter, said at a press conference at Rev. Jesse Jackson’s Rainbow PUSH headquarters last week. “Because if the tables were turned, my grandson would have never seen the light of day.”

Activist Will Calloway, who fought to get the video of McDonald’s murder released to the public in 2015, has been leading the call for federal prosecutors to bring civil rights charges against Van Dyke, organizing protests and press conferences in the last few weeks.

“We’re calling on our federal government to intervene,” Calloway said at the PUSH presser. “This is a clear and direct message to every awful law enforcement officer all across the country, if Jason Van Dyke is released. He is the epitome of everything that is wrong with law enforcement in our country.”

Calloway’s push has been supported by some of McDonald’s family, including Tracey Hunter, who called Calloway an angel sent by God, and McDonald’s aunt, Tanisha Hunter. This week the National Association for the Advancement of Colored People joined the chorus, calling for the attorney general to step in.

Former federal prosecutors agreed there is nothing legally preventing the office from filing charges against Van Dyke for killing McDonald and allegedly depriving the 17-year-old of his civil rights because of the color of his skin. The question is why they would prosecute the case now, more than seven years after the murder, and whether they can be persuaded to pursue the case by public pressure.

Former federal prosecutor Renato Mariotti said he does not believe federal charges against Van Dyke are likely. The feds started investigating McDonald’s killing in 2015, giving them ample time to weigh a federal case against the officer.

“I strongly suspect that charges were considered at the time, and the U.S. Attorney’s Office made a decision not to move forward with charges. And so I doubt that they would change their mind,” Mariotti said.

Sergio Acosta, a partner at Akerman law firm and himself a former assistant U.S. attorney, agreed that new charges against Van Dyke are unlikely.

“It would be unusual … given the length of time that’s gone by. They’ve obviously known what the results were of the state prosecution. It’s a discrete event, that is the actual shooting of Laquan McDonald … it wouldn’t normally require seven years of investigation to make that decision,” Acosta said.

Acosta said he did not believe political or public pressure would force the U.S. attorney’s hand, but did not rule out charges being filed, noting that there is no statute of limitations because the alleged crime is a capital offense. And he said the Justice Department’s refusal to declare the case closed leaves open the possibility.

Roy L. Austin, a former official in the civil rights division of the U.S. Department of Justice, said the long delay could be explained by the change in presidents. The DOJ under former President Donald Trump had a much different position on police shootings than the current Justice Department under President Joe Biden.

“I have no confidence in the prior administration and how it handled police violence,” Austin said. “So you’re really looking at the relatively short period of time that Attorney General [Merrick] Garland has been in his position. And I think it is fair to say for him and his team’s decision that it hasn’t been all that long.”

Austin said when considering whether to bring federal charges after a state prosecution, the Justice Department will look at how long the defendant spent in prison. And he said in Van Dyke’s case, federal officials will be asking themselves, “Is three years and some months sufficient punishment for a murder, and especially this murder?”

“My gut is that the federal government would step in, but you wish they would have done so sooner and not because of the outcry that they are currently seeing,” Austin said.

And he does believe the public attention will be a factor.

“Ultimately, I think Attorney General [Merrick] Garland is going to make a decision based on the facts, not based on the fact that people are angry,” Austin said. “But you can’t ignore the fact that making noise, making it clear that you are unsatisfied or unhappy in a way that attracts public attention, certainly influences the federal government to respond, and to at least explain why it will or why it will not take a certain action.”

A spokesman for U.S. Attorney John Lausch, the top federal prosecutor in Chicago, declined to comment on the calls for federal charges.

One family member of McDonald’s who does not want to see federal charges against Van Dyke is McDonald’s great uncle, Rev. Marvin Hunter.

Hunter is still outraged by the short sentence given to Van Dyke. But he believes it is time to stop focusing on the individual officer and direct energy toward reforming policing in Chicago and the nation.

Hunter said those seeking further punishment for Van Dyke are only seeking revenge, while he is looking for justice.

“I’ve spent most of my life and time trying to get the general public, and our people in this country as a whole, to understand that the problem was not Jason Van Dyke, it is the system that he worked for,” Hunter said.

Patrick Smith and Chip Mitchell report on criminal justice for WBEZ. Follow them at @pksmid and @ChipMitchell1.