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July 23, 2018

P.D. Charges Garner Cop as Patience With Federal Probe Thins

PBA, John Jay Prof Wary That Pantaleo May Be Fall Guy for Brass

By Mark Toor

A little more than four years to the day after Eric Garner died of rough handling during an arrest for allegedly selling untaxed cigarettes, the NYPD served administrative charges on the officer most-closely identified with the takedown.

Officer Daniel Pantaleo, 33, was presented with the charges July 20, an NYPD spokesman said July 21. The department said it was legally barred from disclosing the charges, but sources said they involved using a chokehold, a move that the NYPD has barred for 25 years, on Mr. Garner July 17, 2014.

Right to ‘Impartial Hearing’

“Pantaleo has a right to a full and impartial hearing of all the evidence in the case,” Patrick J. Lynch, president of the Patrolmen’s Benevolent Association, said in a statement. “We are confident that he will finally be vindicated.”

The NYPD has held off on administrative charges against Mr. Pantaleo because of an investigation by the U.S. Department of Justice into whether he violated Mr. Garner’s civil rights. That investigation, by all reports, has been stalled for many months.

Deputy Commissioner for Legal Matters Lawrence Byrne wrote to the Justice Department July 16 that if the investigation was not finished by Aug. 31, the NYPD would proceed with charges.

TIRED OF WAITING: Calling for all the cops involved in the fatal confrontation with her son, Eric Garner, to be held accountable, Gwen Carr said, ‘It’s been four years, and my family has not seen any responsibility taken by the de Blasio administration for the police misconduct.’ (The Chief-Leader/Michel Friang)

“Understandably, members of the public in general and the Garner family in particular have grown impatient with the fact that NYPD has not proceeded with our disciplinary proceedings and they have difficulty comprehending a decision to defer to a Federal criminal investigation that seems to have no end in sight,” he wrote.

Members of Mr. Garner's family, who have long demanded that someone be held accountable, made themselves more visible in the past couple of weeks as the fourth anniversary of his death approached July 17. On the anniversary, his mother, Gwen Carr, demanded the administrative prosecution of all officers involved in his arrest—and what she called the cover-up that followed.

DOJ: It’s Your Move

DOJ told the NYPD to go ahead, saying the department’s plans would not affect the timeline of its investigation.

The PBA agreed with the department’s call for an end to the Federal probe but raised doubts about the fairness of a departmental trial.

“We agree that the Justice Department’s leadership should move to close Police Officer Pantaleo’s case and put an end to what has been a highly-irregular fishing expedition by those seeking an indictment at all cost,” Mr. Lynch said. “However, that should not trigger a race by the NYPD to reach a pre-determined outcome in its own disciplinary processes.”

Any disciplinary trial would be pure theater, said Eugene O’Donnell, a former police officer and prosecutor who now teaches at the John Jay College of Criminal Justice. “I think the NYPD is trying to please its critics first and foremost,” he said in an interview, referring to Mr. Garner’s survivors and such supporters as the Rev. Al Sharpton.

Blame Cop on the Street

An administrative prosecution would follow the department’s unwritten policy of blaming patrol officers for the failures of higher-ups, he said. News reports have said that the order to arrest sellers of loose cigarettes like Mr. Garner came from the office of then-Chief of Department Philip Banks III. Mr. Banks, now retired, was never held to account, nor was any other officer above the rank of Sergeant.

“As usual,” Mr. O’Donnell said, “the whole issue will be reduced to what a patrolman did…The people who should be in the trial room will never be in the trial room.”

Mr. Pantaleo, part of a plainclothes anti-crime team in the 120th Precinct, wrapped his arm around Mr. Garner’s neck while arresting in a Staten Island park. Mr. Garner, who had a record of more than 30 arrests, said he was doing nothing wrong and did not cooperate with officers trying to take him into custody.

Yanked Him Down

Mr. Pantaleo yanked Mr. Garner, who at nearly 400 pounds was twice his size, to the ground as the suspect repeatedly shouted, “I can’t breathe!” About an hour later, Mr. Garner was dead in a hospital emergency room. The Office of Chief Medical Examiner said death was caused by “compression of neck (chokehold), compression of chest and prone positioning during physical restraint by police.” Acute and chronic bronchial asthma, obesity and high blood pressure were listed as contributing factors.

A second officer has already been charged: Sgt. Kizzy Adonis, a supervisor on duty during the takedown. She arrived at the scene only after it was completed. She was charged in January 2016 with failure to supervise; the NYPD said it filed because a statute of limitations set by the Sergeants’ contract was looming. Edward D. Mullins, president of the Sergeants Benevolent Association, said at the time that she did nothing wrong.

She and Mr. Pantaleo were placed on modified duty without their badges and service weapons.

Grand Jury Passed

A Staten Island grand jury declined to indict Mr. Pantaleo in December of 2014, leading to protests by city residents who interpreted a bystander’s cell-phone video as conclusive evidence that Mr. Pantaleo had used a forbidden chokehold.

Mr. Garner was one of a number of unarmed black men who perished in encounters with law-enforcement officers in 2014, and the anger over those deaths fueled protests after the grand jury’s decision.

With local efforts to prosecute Mr. Pantaleo at an end, DOJ opened an investigation into whether the officer had violated Mr. Garner’s civil rights. As is the usual practice, the city agreed to hold off on administrative discipline until the civil-rights investigation was concluded.

News reports said the case became bogged down in disputes between DOJ prosecutors in Brooklyn and Washington over whether a chokehold was actually used, and whether they could successfully prove to a jury that Mr. Pantaleo had intentionally caused Mr. Garner’s death.

A year after Mr. Garner’s death, City Comptroller Scott Stringer settled the Garner family’s lawsuit for $5.9 million.

Teach Them to Fight

Mr. O’Donnell said the incident raised other issues involving the Police Department.

“The department hasn’t acknowledged that most officers have no street-fighting skills at all,” he said of the failure to bring down Mr. Garner safely. He called it “a bungled takedown of a very large person.”

He also weighed in on the chokehold debate, saying, “There’s no objective evidence that this was a chokehold or that the cop even knew what a chokehold was. Just throwing your arm around someone’s neck is not a chokehold.”