One Police Plaza

Don't Count on the Feds

December 8, 2014

Some politicians, journalists and general loudmouths have called for federal intervention in the “chokehold” death of Eric Garner now that a Staten Island grand jury failed to bring an indictment against police officer Daniel Pantaleo.

Don’t be fooled. The feds are no panacea.

Stated criteria for federal intervention in police-related deaths is the willful violation of a victim’s civil rights, which involves excessive police action. Because “willful” and “excessive” are subjective, such intervention can be arbitrary, subject as much to politics as to law.

The feds chose not to intervene after grand juries failed to indict cops in the deaths of Timothy Stansbury in 2004 and Ramarley Graham in 2012 [at least not formally in Graham’s case.]

Stansbury was shot on the rooftop of his Brooklyn housing project, apparently accidentally, by a patrolling cop. Graham was shot in the bathroom of his Bronx apartment by a cop who thought he had a gun. Both Stansbury and Graham were unarmed.

Nor did the feds intervene after the cops who shot and killed Sean Bell following his bachelor party in 2006 were acquitted by a Queens judge. Bell, too, was unarmed.

In perhaps the NYPD’s most egregious violation of a victim’s civil rights, police fired 41 bullets, killing Amadou Diallo, an unarmed African immigrant as he stood in the vestibule of his Bronx apartment in 1999. He, too, was unarmed. The four cops were acquitted. The feds chose not to intervene.

In fact, in New York City, the feds have intervened in only one recent case that involved a cop. Coincidentally, that case also involved a chokehold. The defendant, police officer Francis Livoti, used it in 1994 on Anthony Baez — like Garner, an overweight asthmatic — which led to his death.

The feds, who convicted Livoti of violating Baez’s civil rights, intervened because of circumstances unique to that case.

Unlike the cops in the Garner case or in the others cited above, Livoti was not responding to what cops thought was potential criminal activity. Rather, he had interjected himself into a peaceful situation — a midnight football game by the Baez family outside their Bronx home. He then instigated a fight with Anthony Baez.

Livoti was first acquitted in Bronx State Supreme Court by Judge Gerald Sheindlin [the husband of Judge Judy], who in his decision issued a bizarre obiter dictum.

In it,Sheindlin cited “a nest of perjury,” which seemed to refer to testimony by cop Daisy Boria, who testified that Livoti’s cop buddies had gathered in the 46th precinct parking lot to concoct their testimony. This raised a number of concerns. It wasn’t until months later that Sheindlin revealed that he thought the perjurer was Boria.

Then there was the case of Haitian immigrant Abner Louima, sodomized by a cop with a broomstick in the bathroom of the 70th precinct in 1997. In that case, the feds took it over early from Brooklyn D.A. Joe Hynes with his acquiescence — something rarely agreed to by state prosecutors. Hynes maintained it would be easier to convict the cop in federal court. [He also feared a repeat of criticism that followed his failed prosecution of Lemrick Nelson for fatally stabbing Yankel Rosenbaum, a Hasidic rabbinical student, during the 1991 Crown Heights riots].

Although the feds convicted police officer Justin Volpe of sodomizing Louima, they got a key part of the case wrong.

Louima testified that a second cop had held him down in the bathroom while Volpe sodomizd him. But when Volpe pleaded guilty, neither federal prosecutors nor the somnambulant 82-year-old district court judge, Eugene Nickerson, demanded that Volpe identify that cop.

Instead, the feds convicted officer Charles Schwarz, while a more likely cop suspect, Thomas Wiese, was acquitted.

Schwarz’s lawyer, Stephen Worth, even argued there was no second man, and that Louima had imagined him, possibly because he was terrified inside the bathroom. A federal appeals court excoriated Worth, although he may have been correct.

Along with calls for federal intervention, there have been calls for a special prosecutor to replace Staten Island District Attorney Dan Donovan, who has been termed “pro cop.”

Writing in the Daily News, journalist Ron Howell cited former Gov. Mario Cuomo’s appointment in 1987 of then special state prosecutor Hynes to take over the racially charged Howard Beach case from Queens District Attorney John Santucci, who agreed to step aside. In that case, a black man was killed by a car while being chased by white youths. Under Hynes, three main suspects and nine people over all were convicted.

Yet appointing a special prosecutor can be fraught with bad politics. Following the killing of police officer Kevin Gillespie in the Bronx in 1996, then Gov. George Pataki appointed a special prosecutor to remove the case from Bronx District Attorney Robert Johnson, who Pataki felt was “anti-cop.” Gillespie’s killer hanged himself in prison so the appointment became moot.

Ask yourself: would anyone want a special prosecutor to replace Brooklyn D.A Kenneth Thompson, who has announced he will call a grand jury to examine the death of Akai Gurley, who was shot last month by a cop in a housing project stairwell?

Those, like Howell, who decry Donovan’s failure to bring an indictment against Pantaleo in Garner’s case might better understand the grand jury’s decision by reading the account of former NYPD captain Ernie Naspretto, which also appeared in the Daily News last week.

“The public has every right to question why Eric Garner died while being arrested, particularly for such a minor infraction,” Naspretto wrote. “But once a police officer determines an arrest is warranted, he can’t change his mind and not arrest someone simply because the infraction is minor and the individual doesn’t want to go. …

“The use of force by police, even when executed ‘perfectly’ in terms of procedure and law is unnerving to view. It is quite understandable why the public would assume they are watching brutality as opposed to a lawful action.”

Naspretto then relates the following anecdote. “Sometime in 1983, long before these incidents could be captured on cell-phone videos, I responded to an ambulance case in East Harlem. When I arrived, EMTs told me the woman wouldn’t cooperate and her family told them her doctor insisted she go to the E.R.

“The woman was about 60, barely 5 feet tall, and couldn’t have weighed more than 100 pounds. I walked over to her and smiled. She smiled back, and hit me with a right open hand that nearly knocked me out. After initially being stunned, I grabbed her wrists and attempted to get them behind her back while my partner tried to handcuff her.

“We never hit her. Yet, if that incident was on YouTube, it would be two heavyset white cops manhandling a frail, elderly, black woman in her own home in front of her family.”

ATTACK DOG KELLY. Greg Kelly was in attack dog mode as he interviewed Bill Bratton on Good Day NY last Thursday.

He kept interrupting Bratton, as well as his co-host, Rosanna Scotto, to demand answers from the police commissioner: Why are shootings up? Why are you allowing protestors to tie up bridges across the city? Do you agree with Mayor de Blasio’s instruction to his son Dante to be wary of the NYPD?

So angry did Kelly look and sound that you felt he might grab reach out and grab Bratton by the throat.

Good Day NY apparently did not think it relevant to inform viewers that Kelly is the son of former police commissioner Ray Kelly, who has never forgiven Bratton for taking his job 20 years ago when then mayor Rudy Giuliani appointed Bratton to replace Kelly. Nor does he much care for de Blasio, who based his mayoral campaign on discrediting Kelly Sr.’s policy of Stop and Frisk that targeted young blacks males as potential criminals.

The more strident Kelly became, the softer were Bratton’s replies. He said the number of city shootings was among the lowest on record. He said de Blasio was speaking as a father. And he said that there would be no mass arrests of protestors — as had occurred under Kelly when thousands of protestors were arrested during the 2004 Republican National Convention, which resulted in $18 million in settlements and litigation that continues to this day.