Oct 31, 2016

Justice Department May Charge Garner Officer

Overrules Brooklyn Prosecutors


PATRICK J. LYNCH: 'End this fishing expedition.'

The U.S. Department of Justice has removed local FBI agents and Assistant U.S. Attorneys from the investigation into whether Police Officer Daniel Pantaleo violated Eric Garner’s civil rights, according to the New York Times, with other newspapers suggesting the step was taken as a prelude to filing civil-rights char­ges against Mr. Pantaleo.

Robert Capers, the U.S. Attorney for the Eastern District of New York, recommended that no charges be brought, the Daily News reported.

At Odds Over Case

The Times, which was the first to report the reshuffling of the Garner team, said that prosecutors in the DOJ’s Civil Rights Division in Washington believed the evidence warranted charges against Mr. Pantaleo, who may have used an NYPD-prohibited chokehold in bringing down Mr. Garner during an arrest in Staten Island on July 17, 2014. The suspect died about an hour la­ter of a heart attack.

However, Federal officials working out of the Brooklyn-based U.S. Attorney’s Office, which covers Staten Island, disagree, the paper reported.

They were particularly concerned about prosecutors’ ability to prove intent, which is required in a civil-rights case, according to the Times.

“You would basically have to prove that he went out that day looking to hurt someone,” the Daily News reported, quoting a law-enforcement source. Washington and Brooklyn prosecutors also disagree on whether a video of the arrest made by a bystander shows Mr. Pantaleo using a chokehold, the Times said.

And, it said, career prosecutors at the Justice Department believe Mr. Pantaleo should be prosecuted even if there is a strong chance of losing in court, the paper said.

“The case is now firmly in the hands of the DOJ, which appears to have overruled recommendations from Brook­lyn prosecutors and FBI investigators not to indict the NYPD cop,” the Daily News reported, quoting sources.

PBA: ‘Deeply Troubling’

Patrick J. Lynch, president of the Patrolmen’s Benevolent Association, called the DOJ’s action “deeply troubling. Two separate investigative teams have already spent more than two years reviewing the evidence in this case, without any action. Now, it appears that they are taking a third bite at the apple in an effort to reach a predetermined outcome. It is time to end this fishing expedition and let Police Officer Pantaleo move forward.”

The person in charge of the case is U.S. Attorney General Loretta Lynch, who was U.S. Attorney for the Eastern District when the civil-rights probe was announced after the Staten Island grand jury’s decision. The Times said, however, that she may now be influenced more by the opinions of Civil Rights Division prosecutors in Wash­ington.

Mayor de Blasio, who had criticized a Staten Island grand jury’s decision 23 months ago not to indict Mr. Pantaleo in a state case, told reporters Oct. 26, “I am not a lawyer and I don’t speculate on the prosecution dynamics, but I will say this much: I have tremendous respect for Attorney General Loretta Lynch, and the Justice Department has always been the gold standard in terms of protecting civil rights. So I am sure she has reasons for what she has done. And our message to her is we will cooperate in any way she asks.”

Started Over ‘Loosies’

Police sought to arrest Mr. Garner, a 43-year-old petty criminal with 30 prior arrests, for allegedly selling loose, untaxed cigarettes in a park on Staten Island. The suspect, who was morbidly obese and had a host of other health problems, said he was doing nothing wrong and refused to cooperate with officers who wanted to arrest him.

While arguing with another officer, he pushed away Officer Pantaleo’s hand when the cop tried to cuff him. The officer then moved to bring him to the ground, at one point throwing his arm around Mr. Garner’s neck in what many who saw a bystander’s video of the incident believed was a chokehold.

The suspect cried “I can’t breathe! I can’t breathe!” after Mr. Pantaleo yanked him to the ground and pressed his face into the pavement. He lay on the ground, unconscious but receiving no treatment from police or medical workers, until he was loaded into an ambulance and taken to a hospital. He died of a heart attack there about an hour after his struggle with Mr. Pantaleo.

In December 2014, a Staten Island grand jury declined to indict the officer. Mr. Pantaleo’s attorney, Stuart London, said his client had told the grand jurors that he did not use a chokehold but rather a different hold he had learned in the Police Academy.

But many who saw the video believed Mr. Pantaleo had put Mr. Garner in a chokehold, and their indignation was fueled by the refusal of Dan Donovan, then the DA and now a U.S. Congressman, to explain the grand jury’s decision. Mr. Donovan cited grand-jury secrecy rules, although in the past information on deliberations has been released in cases of strong public interest. However, the Appellate Division of State Supreme Court has upheld secrecy in the Garner case, a ruling which is now before the Court of Appeals.

The fallout from the grand-jury decision led to days of protest and a rift between the Patrolmen’s Be­nevolent Association and Mayor de Blasio over language the Mayor used in questioning the decision. It also led to accusations that DAs steer grand juries to protect police officers, and resulted in an executive order from Governor Cuomo allowing Attorney General Eric Schneiderman to appoint himself a special prosecutor in cases of unarmed civilians killed by police.

Still on Restricted Duty

Mr. Pantaleo remains on restricted duty without his weapon and badge while the Federal inquiry proceeds. Any NYPD disciplinary action is on hold pending that investigation. (In fact, former Police Commissioner Wil­liam J. Bratton said a 40-year-old state confidentiality law that the NYPD recently realized it was violating meant the department might never announce any action against Mr. Pantaleo.)

The only officer punished in connection with the case so far was Probationary Sgt. Kizzy Adonis, the patrol supervisor in the 120th Pre­cinct when the Garner arrest occurred. The NYPD said it had to place her on modified duty because state law puts an 18-month limit on filing administrative charges. Edward D. Mullins, president of the Sergeants Benevolent Association, expressed outrage at the move, saying Sergeant Adonis had arrived on the scene after the takedown was over.

“She asks her driver, who’s a certified Emergency Medical Technician, is he okay,” Mr. Mullins said in March. “He says yes. She confirmed that an ambulance is on the way. She did everything she was instructed to do. What more was she supposed to do, spray him with MACE?”