One Police Plaza

Pantaleo and the Feds: Enough Already!

April 23, 2018

“Justice Dept. Is Seen as Divided on Rights Case in Garner Killing,” headlined The New York Times in a Page 1 story over the weekend. This is news?

In fact, the Justice Department has been divided over Garner’s killing for the past four years.

Mayor de Bill Blasio got it right when, responding to the Times’s story, he said: “The family and loved ones of Eric Garner have waited long enough. Our city has waited long enough. After almost four years of deliberation … We once again urge the Department of Justice to show some level of decency to the Garner family and make its decision.”

Let’s go a step further. Maybe section 242 of the Civil Rights Act of 1866 — under which the feds seem unable to decide whether NYPD cop Daniel Pantaleo willfully violated Garner’s constitutional rights by using excessive force — should be rethought, if not abandoned. In the Garner case, all it has done is to have created false expectations.

Abandoning it, says Chris Dunn, associate legal director to the NYCLU, “would send a terrible message. The problem is not with the law but with those responsible for enforcing it.” 

It’s hard enough to convict a cop for anything he does while on duty. It’s particularly difficult to convict a cop for civil rights violations.

In the past 20 years, only two NYPD cops have been so convicted: Craig Yokemick, who in 1998 threw a radio at a fleeing drug suspect, killing him; and Francis X. Livoti, who caused the death of Anthony Baez in 1994 after placing him in a department-banned chokehold. Both officers had been acquitted criminally in state courts.

Anyone doubting how difficult it is to prosecute cops for civil rights violations might consider the case of the four cops who fired 41 bullets at Amadou Diallo, an unarmed African immigrant who was standing inside the vestibule of his Bronx apartment, alone and unarmed.

The four cops were acquitted criminally. The feds never even charged them with violating Diallo’s civil rights.

Garner died 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. When Garner, who stood 6-foot-4 and weighed an estimated 300 pounds, resisted arrest, Pantaleo, who stood 5-foot-10, jumped him from behind and used what appeared to be a department-banned chokehold to subdue him.

Unfortunately, the case has been draped in politics. Garner’s last agonizing words — “I can’t breathe!” — became a mantra for anti-police activists.

After a Staten Island grand jury declined to indict Pantaleo, the feds in the Eastern District took over. For a year and a half, that office, under then-U.S. Attorney Loretta Lynch, resisted indicting Pantaleo. But after Lynch’s appointment as U.S. attorney general, she resurrected the investigation in the waning days of the Obama administration, assigning the case to the Justice Department’s civil rights division in Washington.

There it lay until Friday, when news outlets reported that prosecutors in the department’s civil rights division recommended criminal charges. The Times and other media further reported that it appeared unlikely that Deputy Attorney General Rod Rosenstein would approve them.

Garner had posed no immediate threat when he was arrested. The arrest, which led to his death, occurred over minutes, as opposed to seconds when the Diallo shooting occurred. And it was all caught on videotape.

But if three law enforcement agencies, plus the FBI, can’t decide after four years whether to bring charges against Pantaleo, what can anyone expect of a jury?