One Police Plaza

New York and Chicago: Blame the Feds

November 30, 2015

While the nation’s eyes are on Chicago and the fatal police shooting of black teenager Laquan McDonald, this week marks a year since the non-indictment in the NYPD “chokehold” death of Eric Garner, an African-American man of Staten Island.

One obvious link between the two cases are the damning videos, without which we’d have different outcomes. A less obvious and more intriguing link is the Justice Department’s standard protocol of investigating potential civil rights violations after local authorities conclude their cases. Those federal investigations seemingly take forever and have been cited by both NYPD Commissioner Bill Bratton and Illinois' Cook County State’s Attorney Anita Alvarez to justify their having taken no action against the cops who killed McDonald and Garner.

After a judge ordered the release of a video that shows Chicago officer Jason Van Dyke shooting McDonald 16 times, Van Dyke was indicted on a charge of murder — just hours before the recording was released. Alvarez then said she would have indicted Van Dyke sooner but was waiting for the feds to complete their investigation.

A Staten Island grand jury did not indict NYPD cop Daniel Pantaleo in Garner’s death, which was captured on video by a civilian. It showed Pantaleo’s arm around Garner’s neck and Garner saying, “I can’t breathe.”

Police Commissioner Bill Bratton has said he will take no action against Pantaleo — who, 17 months after Garner’s death, remains on modified assignment — until the feds complete their civil rights investigation.

Assistant U.S. Attorney Taryn Merkl, who heads the Eastern District’s Civil Rights unit, declined to comment on the status of the Pantaleo investigation. Sources say it’s now in the hands of the Justice Department in Washington. A Justice Department spokeswoman described it as “ongoing.”

PBA lawyer Stu London, who represents Pantaleo, points out that such investigations can take up to five years. NYPD officer Craig Yokemick was acquitted of causing the 1998 death of Kenneth Banks, a fleeing drug suspect, by throwing a radio at his head. The feds indicted him in 2003, a day before the statute of limitations would expire, London said. Yokemick pleaded guilty to two felony charges.

The feds are also investigating a fatal police shooting two years before Garner’s death. That’s the case of police officer Richard Haste, who in 2012 fatally shot a fleeing black teenager, Ramarley Graham, inside his Bronx apartment. Haste’s indictment was thrown out by a judge. A second grand jury declined to re-indict him. Like Pantaleo, he remains on modified assignment. 

“The feds are still interviewing people,” says London, who also represents Haste.

In Pantaleo’s case, says London, “The feds were incredibly thorough and even interviewed people who did not testify before the state grand jury.”

Police sources say federal prosecutors initially thought Pantaleo’s case resembled that of Frank Livoti, who was acquitted in 1996 by Bronx Judge Gerald Sheindlin of using a chokehold that caused the death of Anthony Baez. Livoti was subsequently convicted of federal civil rights violations.

But contrary to Bratton’s position on Pantaleo, Livoti was tried administratively by the department before his federal trial — against the wishes of federal prosecutors who urged the department to wait. He was found guilty and dismissed by then-Commissioner Howard Safir.

Police sources say Bratton is using the feds’ civil rights investigation as cover not to discipline Pantaleo now. “By not proceeding departmentally until the feds complete their investigation, he’s giving Pantaleo the benefit of the doubt,” says a person familiar with the case.

Similarly, Bratton hasn’t dismissed probationary cop Peter Liang, who is accused of mistakenly shooting Akai Gurley in a Brooklyn housing complex. Probationary cops can be dismissed summarily without a departmental trial, and traditionally they are for serious offenses like this one.

Meanwhile in Chicago, prosecutor Alvarez’s statement that she did not indict officer Van Dyke because of the feds’ investigation raises troubling questions — specifically about cover up and protecting the police department and Mayor Rahm Emanuel, who was in the midst of an election campaign when McDonald was shot.

“It makes no sense for Alvarez to say she had held up indicting Van Dyke because of the feds’ investigation,” says a top New York City prosecutor. “At least in the northeastern states the feds let you do your investigation. They never told us not to go forward. They only step in when your investigation is complete.”

Things also don’t look so good for police superintendent Garry McCarthy, who as a former top NYPD official was disarmed, handcuffed and arrested a decade ago by the Palisades Parkway police for refusing to pay what turned out to be the most expensive parking ticket since the invention of the automobile. [See NYPD Confidential, Jan. 23, 2006.]

Alas, he could become a sacrificial lamb in Chicago.