One Police Plaza

Daniel Pantaleo Case: A Mockery of Justice

September 11, 2017

The city’s Civilian Complaint Review Board is set to prosecute officer Daniel Pantaleo for the “chokehold” death of Eric Garner, becoming the fourth governmental agency to join the case.

All police killings of civilians, as this one is, involve politics; that is, issues beyond the killing itself. And no police killing in New York has become more political than Pantaleo’s.

That a backwater entity like the CCRB has entered the case is an implicit acknowledgement that the traditional law enforcement agencies — a district attorney’s office, the Justice Department and the NYPD — have made it a mockery of justice.

Not that it is easy to convict a cop of an on-duty killing of a civilian. In the last 31 years, only one such NYPD officer has been convicted: Peter Liang, who accidentally discharged his weapon in a Brooklyn housing complex, killing Akai Gurley.

If there’s any doubt about how difficult it is to convict a cop, consider the acquittal of the four who killed Amadou Diallo, who was standing in the vestibule of his Bronx apartment in 1999, alone and unarmed, when the cops shot at him 41 times.

Garner, 43, was killed on July 17, 2014 in Staten Island. Pantaleo had responded to local merchants’ complaints that Garner, who had 29 previous arrests, had been illegally selling “loosies,” or untaxed, cigarettes outside their stores. Garner, who stood six feet four inches tall and weighed 270 pounds, resisted arrest. Pantaleo, five feet ten inches at best, jumped him from behind and used what a cell-phone video appeared to show as a department-banned chokehold to subdue him. Garner died at the scene, his last agonizing words captured on the video, which became a mantra for anti-police activists, “I can’t breathe.”

First up was Daniel Donovan, the Staten Island district attorney, who presented the case to a grand jury. After it declined to indict Pantaleo, Donovan quit his job to run for the borough’s vacant Congressional seat. He now resides in Washington, D.C.

Enter the Justice Department in the person of Loretta Lynch, the U.S. Attorney in the Eastern District, which includes Staten Island. Her office investigated whether Pantaleo violated Garner’s civil rights. Exactly what criteria the feds use to establish such violations is amorphous. These cases are even more difficult to prove than a police killing. In the past three decades, only one NYPD officer has been convicted of civil rights violations — Francis X. Livoti for the 1994 chokehold death of Anthony Baez in the Bronx.

That a police officer, acting in the line of duty, accidentally kills a civilian, as Pantaleo perhaps recklessly or negligently did, is usually not enough to bring civil rights charges. At least two civilian witnesses, including Pantaleo’s training sergeant, testified before a federal grand jury that Pantaleo’s actions did not constitute a chokehold and were a legitimate attempt to subdue Garner.

Such hurdles raise questions about whether federal civil rights investigations are helpful or harmful. In Garner’s case, Brooklyn prosecutors under Lynch resisted bringing charges. However when President Barack Obama appointed her Attorney General in 2015, Lynch resurrected what appeared to be a dormant investigation. By the end of her term, there was no indictment and her reputation was in tatters. Her successor, Jeff Sessions, seems unwilling to announce what is clear to all — that the Justice Department’s civil rights investigation of Pantaleo is dead.

The NYPD, meanwhile, has used that investigation as a cover to take no action, saying it was adhering to the feds’ request not to prosecute Pantaleo until their investigation was completed. But they did not have to adhere to the request. After a Bronx judge acquitted Livoti of killing Baez and before his federal trial on civil rights charges two years later, then police commissioner Howard Safir tried Livoti departmentally and fired him.

Where the CCRB’s potential prosecution of Pantaleo goes remains problematic. Historically, it has been a minor agency. Although the city charter calls for full police cooperation, former commissioner Ray Kelly forbade then Deputy Chief Terence Monahan and other officers to testify before it about civilian arrests during the 2004 Republican national convention. Monahan is now Chief of Patrol.

Under an agreement struck towards the end of Kelly’s term with then City Council Speaker Christine Quinn, the CCRB can now prosecute cases like Pantaleo’s before a police judge, with Commissioner Jim O’Neill as the final arbitrator.

Pantaleo’s attorney Stuart London says the CCRB violated protocol by failing to interview Pantaleo and others. That indicates the agency is relying solely upon the video. ”They made a political decision,” says London. “I question the integrity of the process.”

Of more import may be O’Neill’s recent dismissal of a case, reported last week by the Daily News’s Graham Rayman, of an unnamed officer who allegedly used a chokehold. The department made no public announcement of O’Neill’s decision because, under the department’s interpretation of what is known as state law 50-a, announcing the decision of a disciplinary proceeding violates the officer’s rights. In a case brought by the NY Civil Liberties Union, that interpretation is now before the state’s Court of Appeals.

Would O’Neill dismiss Pantaleo’s case? It seems unlikely as O’Neill seems in lockstep with Mayor de Blasio, who might have difficulty explaining this decision to his left-wing base. On the other hand, by the time the case is tried, the mayor will have been re-elected.