September 21, 2015 5:15 pm



Cops' 'Armchair Judges' Voicing Public's Outrage



As if using the heading “An Open Letter to All of Those Inclined to Jump to Conclusions” wasn’t direct enough, Pat Lynch then addressed it “To all arm-chair judges.”

He was incensed by the coverage of Police Officer James Frascatore’s open-field tackle of ex-tennis star James Blake outside a mid-Manhattan hotel. While an editorial in this newspaper that appeared on stands Sept. 15—the day the Patrolmen’s Benevolent Association president fired off his letter—laid out in some detail reasons Police Commissioner Bill Bratton would have to think hard about whether Mr. Frascatore could continue to serve as a cop, there was little question that the New York Times’s take on the subject, which began, “Yes, they can start by firing him,” was what really lit Mr. Lynch’s fire.

It was a striking departure from the ruminative tone that usually characterizes Times editorials; just as importantly, the paper of record holds the most sway with powerful people in New York and beyond, including Mayor de Blasio. While it is Mr. Bratton who will ultimately make the decision about Officer Frascatore’s status with the NYPD—assuming the Manhattan District Attorney’s Office doesn’t intervene—this is one of those cases in which the Police Commissioner won’t have to be directly told to know what his boss would like to see happen.

‘Not Qualified to Judge’

The body of Mr. Lynch’s letter began, “If you have never struggled with someone who is resisting arrest or who pulled a gun or knife on you when you approached them for breaking a law, then you are not qualified to judge the actions of police officers putting themselves in harm’s way for the public good.

“It is mystifying to all police officers to see pundits and editorial writers whose only expertise is writing fast-breaking, personal opinion, and who have never faced the dangers that police officers routinely do, come to instant conclusions that an officer’s actions were wrong based upon nothing but a silent video. That is irresponsible, unjust and un-American. Worse than that, your uninformed rhetoric is inflammatory and only serves to worsen police/community relations.”

After briefly raising the possibility that there were “mitigating circumstances” that led Officer Frascatore to use the level of force he did against a man who was standing against a column of the hotel in poor position to flee if the cop had merely approached and verbally confronted him, the PBA leader stated, “Let all of the facts lead where they will, but police officers have earned the benefit of the doubt because of the dangers we routinely face.

“The men and the women of the NYPD are once again disheartened to read another knee-jerk reaction from ivory-tower pundits who enjoy the safety provided by our police department without understanding the very real risks that we take to provide that safety. Due process is the American way of obtaining justice, not summary professional execution called for by editorial writers.”

The line about “pundits who enjoy the safety provided by our police department without understanding the very real risks that we take to provide that safety” had an unfortunate echo of the court­room speech by Colonel Jessup written by Aaron Sor­kin in his play “A Few Good Men” and immortalized by Jack Nicholson in the movie version as he attempted to justify the order that led to the accidental death of a Marine at the hands of his colleagues. Implied in it was that the media critics of Officer Frascatore’s action were weakening the NYPD and, by extension, jeopardizing that safety.

Police Commissioners, often when feeling sorry for themselves, have enjoyed invoking Teddy Roosevelt’s line about credit belonging to the man in the arena rather than those who from the sidelines criticize his actions. The violin virtuoso Jascha Heifetz put it more pithily and without the machismo when he told Roger Kahn nearly a half-century ago, “Critics are the words without the music.”

Goes With the Territory

But what Mr. Lynch was decrying as unfair commentary by unqualified observers is the essence of the editorial side of the journalism business. Most sportswriters never made the grade as athletes, yet they as well as columnists opine on and second-guess the skills and decision-making of Lebron James, Tom Brady and Alex Rod­ri­guez. Political columnists, few of whom have been through the travails of a cam­paign or understand the difficulty of passing worthwhile legislation, freely weigh in on candidate gaffes or the lack of courage shown by legislators in acceding to compromises that water down the final version of a bill. And rock critics often gleefully denigrate the guitar skills or vocal range of performers who overcome the natural inhibitions about exposing themselves to audiences of thousands.

It is part of the fabric of journalism in a free society: those doing the job properly are cutting through the public-relations hype and the myth-making and myth pres­ervation that allow those in power to hoodwink the public if no one is paying attention and calling them out. And those who reflexively defend people—including cops—who have done something unprofessional or unlawful are doing a disservice to both their profession and the society they are supposed to be serving.

A breathtaking example was offered the day after Mr. Lynch’s letter by a Post colum­nist who accused the Times of “braying like a lynch mob,” making “inflammatory accusations” and acting as if “all cops are guilty until proven innocent.”

‘Hang the Racist Now!’

“Hell,” columnist Michael Goodwin—a former Times reporter on both the political and sports sides—thundered, “why bother with an investigation, the facts, the presumption of innocence and due process. Let’s hang the racist bastard now!”

It was an impressive display of outrage, however much it distorted the Times’s hard-hitting but more-nuanced editorial.

But it had one glaring flaw: it made no mention of the fact that four days prior to the Times piece, the front page of Mr. Goodwin’s own news­paper featured the head­line “Psycho Cop.” Either he was hoping no one noticed, or his critics who have accused him of figuratively using a paint-by-numbers technique in adhering to the Post’s party line had given him too much credit: his lack of careful attention to his own work extended to his not reading the rest of the paper, either.

And while the Times editorial might seem more damaging to Mr. Frascatore because of the paper’s gravitas, the brazen headline from a paper celebrated for them was more significant in its reflection of the public consensus that has emerged about the incident. The Post is almost always rallying to the defense of cops, even when it is alone among print-media outlets in doing so. That searing characterization of Mr. Frascatore, based in part on pending civilian complaints against him, reflected just how damning the surveillance videotape of his manhandling of Mr. Blake looked to the public, non-police eye, regardless of how much Mr. Lynch railed against taking it as gospel.

Claim He’s Done Worse

The reality is that the accusations that several Queens residents have made against the four-year cop involve alleged conduct that if true would be far more disturbing than what he did to Mr. Blake. While it is Officer Fras­­catore’s bad fortune to have been caught on video using excessive force against a tennis player who during his career enjoyed an impeccable reputation that had as much to do with his on- and off-court conduct as his skills with a racquet, those unresolved complaints that have now come to public light raise unsettling questions—some of them voiced by Mr. Blake—about why the cop was still on the streets at the time of the incident.

Two of the incidents actually sound worse than what’s seen on the videotape of Officer Frascatore’s takedown of Mr. Blake. In a 2012 incident, Leroy Cline said that when he was pulled over for what turned out to be a broken taillight, when he asked the cop why he was stopped, he was punched in the face. Officer Frascatore arrested him for assaulting a police officer, claiming Mr. Cline bit him; that charge was dropped by the Queens District Attorney’s Office after Mr. Cline’s attorney produced medical records and a finding that the cut on the cop’s hand “was consistent with him punching Mr. Cline in the mouth,” according to the Times. A CCRB complaint regarding that incident is still pending.

The other CCRB case involves a claim that Officer Frascatore was one of several cops who stopped Warren Diggs for riding his bicycle on a Queens sidewalk. When they demanded he produce identification, Mr. Diggs, who was standing in his driveway, moved toward his house to get it, but alleged that one cop grabbed him and Officer Frascatore punched him in his temple, knocking him to the ground, then jumped on him and began pummeling him.

Wife Also Arrested

Mr. Diggs, the Times reported, was charged with marijuana possession and resisting arrest, while his wife was briefly arrested for tampering with evidence for taking the bicycle inside their house.

The outrageousness of the conduct alleged in the two incidents—and the believability the charges gained in the wake of the videotape of the Blake incident and Officer Frascatore’s not reporting it to his superiors, as is mandated—undoubtedly were factors in the Times’s unusually heated editorial, which also excoriated Daniel Pantaleo, the Staten Island cop whose use of a chokehold contributed to the death of Eric Garner 14 months ago.

But as Arnie Kriss, a former NYPD Deputy Commissioner for Trials, noted the day after that editorial appeared, “For a great newspaper, they seem to forget the two most important words in the American justice system: due process.”

His view of the Blake video­tape is similar to most observers’ and diametrically at odds with Mr. Lynch’s: “it was more force than was needed.” Combine that with Officer Frascatore’s failure to inform his superiors of the incident, and the voided arrest that followed, and Mr. Kriss said, “I think there could be a finding, easily, that he violated departmental rules and regulations.”

If the departmental trials process “factored out who the victim was,” he continued, the incident by itself “does not rise” to a firing offense. And not reporting it to his superiors “by itself [is] not a dismissible charge.”

‘Deed Bad, Cover-Up Worse’

Taken together, however, Mr. Kriss said, “If the deed is bad—which it is based on this video—then the cover-up is worse. Then that penalty is pointing toward a termination.”

What department officials ending with Mr. Bratton would also have to take into account, he added, was wheth­er Mr. Fras­catore was “otherwise a good officer,” weigh­ing commendations against disciplinary infractions and CCRB complaints.

“Termination should not be determined by newspapers jumping up and down,” Mr. Kriss said. But, “the real thing here is why he engaged in this conduct. I don’t see anything on that tape to explain it.”

And so, even setting aside Mr. Blake’s good character and the particularly bad timing for the NYPD, with the incident occurring as the U.S. Open was moving toward a rousing finish in Queens, “I don’t see how [the cop] gets out from under this.”

That would be particularly true, Mr. Kriss continued, if either the Cline or the Diggs CCRB complaints wind up being substantiated, which would mean that CCRB officials and ultimately Mr. Bratton disbelieved Officer Frascatore’s testimony in at least one of those cases.

‘If He Lied, He’s Ruined’

“If he lied, whether in a report or under oath, then he’s no good any more as a police officer,” he explained. “You tell me how a jury is going to believe that officer once a defense lawyer brings out that history. He’s worthless.”

The Queens cases, in which the victims were easier targets because they were less likely to have their accusations taken seriously, are more troubling. It was reported that in spite of the pending CCRB complaints they produced, Officer Frascatore was on the path to a promotion to Detective. In the wake of the Blake incident, a pattern has begun to emerge of a white cop willing to use excessive force in dealing with black people he believed he could make a case against, however flimsy the basis for it.

Those pending cases preceded Mr. Bratton’s tenure as Police Commissioner, but they suggest a lack of vigilance on the part of department officials in dealing with officers facing troubling allegations. The same was true of Officer Pantaleo, who was accused by two men in 2012 of forcing them to strip at 10:30 one morning on a Staten Island street and then, while searching them, slapping their testicles, which he claimed was part of a search for drugs.

Taken Too Cavalierly?

The city settled that case a few months prior to the Garner incident for $30,000. It’s the kind of in-between sum that pulls it out of the nuisance category without rising to a big hit, but it’s substantial enough to suggest city lawyers were worried about the possibility of a jury believing the case against Officer Pantaleo. Yet the NYPD appears to have regarded the payout as the end of the matter, since there’s no indication that the cop was disciplined or sent to the department’s Psychological Services unit to determine his fitness for duty.

And the problem with these smaller-if-unsettling incidents not being addressed by the department is that they offer an in-house version of the Broken-Windows Theory. The worst-case example of that was Police Officer Francis Livoti, a hot-tempered cop during the early 1990s whose commanding officer at the 46th Precinct in The Bronx recommended that he either seek psychological counseling or a transfer to a less-active command.

Mr. Livoti didn’t have to because he was a PBA delegate who had ingratiated himself with both the union’s president at the time, Phil Caruso, and the Bronx Borough Commander, Louis Ane­mone. It didn’t matter that beyond his nasty habit of stopping petty offenders and then jabbing two fingers into their throats, Officer Livoti had once shoved a Lieutenant during an argument. All that got him was the assignment of a Sergeant to ride with him and orders to avoid unnecessary confron­tations.

A Football’s Fateful Bounce

Because the Sergeant still had probationary status, a politically-connected union delegate like Mr. Livoti did­n’t necessarily have to respect his rank. That was how, when a football accidentally struck their patrol car as they idled on a Bronx street just before Christmas in 1994, Officer Livoti bounded from the car, attempted to arrest two of the brothers who had been tossing it, and when one of them, Anthony Baez, resisted, deployed the chokehold that contributed to his death.

Mr. Bratton had become Police Commissioner earlier that year; Officer Livoti was another headache he inherited from previous NYPD re­gimes. PBA officials engaged in a cover-up that may have been intended as much to shield the union from civil liability for its delegate’s actions as it was to protect Mr. Livoti. And Chief Anemone, whom Mayor Rudy Giuliani later made his Chief of Department, offered a stunning defense of Officer Livoti as the kind of active officer you needed in a tough pre­cinct, notwithstanding that pre­cinct Captain’s determination that he was just the kind of time bomb that could explode without warning in such an environment.

Mr. Livoti wound up being acquitted in a Bronx Su­preme Court trial in which the judge, Gerald Sheindlin, offered a muddled explanation after stating he believed that a “nest of perjury” existed among cops in the pre­cinct. The most interesting after-effect of that case was the social relationship that developed between the judge and his wife, best known as Judge Judy, and Mr. Giuliani. The NYPD subsequently fired Officer Livoti, and in 1998 he was convicted of Federal civil-rights charges and sentenced to 7½ years in prison by U.S. District Judge Shira Scheindlin.

NYPD, Union Accountable

That was how all the favor-calling and manipulation to keep Officer Livoti where he wanted to be, though clearly unfit, had wound up: with the cop behind bars and a man who was dead for no other reason than that he had tried to argue with an unstable bully who wanted to arrest him and his brother for the crime of a football inadvertently striking a patrol car. Both the Police Department and the PBA bore a heavy responsibility for letting it happen.

Commissioner Bratton was gone by the time Officer Li­voti was convicted, but the crime occurred on his watch and figures to have been burnished into his memory. It’s hard not to believe that chapter of his experience won’t play a role in determining the fates of Officers Pantaleo and Frascatore in the NYPD.

Mr. Lynch was an officer in the NYPD at the time; a year after Officer Livoti’s conviction, he was elected PBA president. He has run a different kind of regime than Mr. Caruso, but the nature of his job compels him to stand up for his members even if there’s good reason to question whether doing so damages the image of cops as a whole.

Someone Has to Speak

That is why it falls to columnists and editorial writers, overheated as they may sometimes be, disinclined as they might be to factor in the stresses and dangers of police work to rationalize an act that can’t be justified as a regrettable-but-forgivable consequence of those pressures, to demand that something be done. They are seeking both appropriate punishment and a signal to the rest of the police force—the great majority of which does its job conscientiously and resorts to force only when absolutely necessary and in carefully-measured portions—that some lines can’t be crossed without real consequences.

And the fact that in cases like this, whatever backlash occurs on behalf of the officers tends to be overwhelmed by the larger public’s sense that such consequences help maintain the delicate balance between cops and the communities they patrol, explains why Mr. Lynch’s open letter is unlikely to gain much traction.