Feb. 28, 2016

No Federal Charges In Teen’s Slaying by Cop Who Feared ‘Weapon’

But NYPD Begins In-House Inquiry Requiring Lesser Standard for Guilt

By Mark Toor

PREET BHARARA: Cop had reason to believe teen had gun.

The Federal civil-rights investigation into the death of 18-year-old Ramarley Graham, shot four years ago by a plainclothes NYPD officer who had chased him into his grandmother’s bathroom, was closed without charges being brought against the officer, U.S. Attorney Preet Bharara announced March 8.

Police Commissioner Wil­liam J. Bratton subsequently said the department was considering administrative charges against Officer Rich­ard Haste.

Waited for the Feds

“Normally, when the Federal agencies begin an investigation, usually a civil-rights investigation, we take a step back until they finish their investigation,” Mr. Bratton said March 10 in response to a reporter’s question. “And that’s what we did.”

Mr. Haste, working in plain­clothes with the 47th Precinct Street Narcotics Unit, had followed Mr. Graham from a bodega believed to be involved in the drug trade. Other officers who thought they saw Mr. Graham with a gun broadcast that detail over the radio.

Mr. Haste pursued Mr. Graham into his grandmother’s apartment and, in front of the woman and Mr. Graham’s 6-year-old brother, shot him when he allegedly dipped his hand into his waistband.

No gun was found. A small bag of marijuana was found on the floor near the toilet, most likely dropped by Mr. Graham in an attempt to avoid arrest.

The death of Mr. Graham triggered protests by Bronx residents and others angry that a young, unarmed black man had been killed by a white police officer. His parents, Constance Malcolm and Frank Graham, demanded the Federal investigation.

‘A Mistaken Belief’

“The weight of the evidence indicates that, at the time the shooting took place, Officer Haste believed Mr. Graham to be in possession of a firearm that was tucked into the waist­band of his pants, for which Officer Haste believed Mr. Graham was reaching,” according to a statement from Mr. Bha­rara’s office.

“Although Officer Haste ultimately was proven to be mistaken in his belief, the determination as to the willfulness of his actions must be assessed in light of his knowl­edge at the time of the shooting. The investigation revealed no evidence to refute Officer Haste’s claim that he shot Mr. Graham in response to his mistaken belief that Mr. Graham was reaching for a gun.”

‘Bad Judgment’ No Crime

Mr. Bharara said in the statement, “Neither accident, mistake, fear, negligence nor bad judgment is sufficient to establish a Federal criminal civil-rights violation.”

Patrolmen’s Benevolent Association President Pat­rick J. Lynch said in his own statement, “While we are gratified that there will be no charges, there is no winner here. The officer was working to combat the scourge of guns and drugs in the community. The good-faith effort to combat those ills brought us to this tragedy. We extend our sympathies to the family.”

After the shooting, Mr. Haste, who had never been given the training promised for street-narcotics officers, was placed on modified duty. His Sergeant, Scott Morris, was transferred to the Property Clerk Division. Three other officers involved in the operation were also transferred.

Mr. Haste was indicted on manslaughter charges. But in May 2013, Bronx Supreme Court Justice Steven Barrett dismissed the indictment because Bronx prosecutors had erroneously told grand jurors that they didn’t have to consider whether other officers had warned Mr. Haste that Mr. Graham appeared to be armed.

2nd Jury Didn’t Indict

Three months later, a second grand jury considered the evidence but declined to indict.

In January 2015, the city settled a wrongful-death suit filed by Mr. Graham’s family for $3.9 million.

Ms. Malcolm responded to the U.S. Attorney’s announce­ment with, “To wait four years and get this decision, it’s like a slap in the face.” Mr. Graham said the decision was “heartbreaking…but we’ll just move onto the next fight—which is firing the officers immediately.”

A further controversy arose when Mr. Bharara, in speaking to the Graham family, denied Mr. Bratton’s claim that he had requested that the Police Department delay its internal investigation until the Federal probe was completed. Asked later by reporters about this, the Police Commissioner said there had been “a miscommunication” and the department had never been asked by the U.S. Attorney’s Office to defer its probe.

The Livoti Exception

While such requests are sometimes made, there was one notable NYPD exception: when it held a departmental trial of Police Officer Francis Livoti 20 years ago after he had been acquitted of criminal charges in the death of Anthony Baez by a Bronx Supreme Court Justice but before a Federal civil-rights investigation of the incident was completed.

In that case, Officer Livoti was convicted in the internal proceeding and fired in 1997, a year before a Federal jury found him guilty of having violated Mr. Baez’s civil rights, which led to a 7 ½-year prison sentence. The December 1994 incident occurred while Mr. Bratton was Police Commissioner, but by the time the NYPD trial was held, he had been replaced by Howard Safir.

An NYPD spokesman last week brushed off that precedent, noting it had occurred two decades ago.

It’s possible, as well, that politics played a role in the NYPD moving so swiftly back then. There had been public outrage over the Baez case and Mr. Livoti’s acquittal in a state trial, in part because the confrontation was provoked by the officer—whose penchant for excessive force had prompted his commanding officer to advise him to either seek psychological help or transfer to a quieter precinct—after a football Mr. Baez and his brothers were throwing in front of their house accidentally struck his patrol car twice.

There had also been testimony during that trial that fellow cops had met on three different occasions to coordinate their statements about the incident.

A Political Headache

The firing of Mr. Livoti helped defuse a potential negative issue for then-Mayor Rudy Giuliani, coming in the same year in which he sought—and easily gained—re-election.

The explanation given when Federal prosecutors ask the NYPD to delay internal proceedings is that they don’t want anything that happens in the course of such a probe and trial to potentially compromise a future civil-rights case.

An internal trial requires a lesser standard of proof than “guilty beyond a reasonable doubt.”

Three City Council Members who have figured prominently in policing issues expressed “extreme disappointment” in Mr. Bharara’s decision not to prosecute Mr. Haste. They were Vanessa Gibson, chair of the Committee on Public Safety, and Jumaane Williams and Brad Lander, who led the Council’s fight against former Mayor Michael Bloomberg’s aggressive stop-and-frisk campaign.

Call for Accountability

They said in a statement, “It is clear that someone who was unarmed was killed and to date no one has been held accountable.

“Thus, we call upon the Mayor and the Police Commissioner to launch an internal investigation into the circumstances surrounding Ramarley Graham’s death and further urge the Mayor to honor the request for a meeting made by the Graham family over a month ago.”

Donna Lieberman, executive director of the New York Civil Liberties Union, also expressed disappointment, saying, “How can New Yorkers have faith in a criminal-justice system that repeatedly fails to hold law enforcement accountable?”