Remember Eric Garner? He was killed on July 17, 2014. It was captured on video. It was the subject of intense scrutiny. So how, then, is it possible that more than two years later, the Department of Justice is still “investigating” it? Well, they aren’t, exactly.
The Justice Department has replaced the New York team of agents and lawyers investigating the death of Eric Garner, officials said, a highly unusual shake-up that could jump-start the long-stalled case and put the government back on track to seek criminal charges.
While it’s unclear when the investigation “stalled,” the reason, that two years have elapsed and the memory has faded, is now clear.
Federal authorities have been investigating whether officers violated Mr. Garner’s civil rights in his fatal encounter with the police. But the case had been slowed by a dispute because federal prosecutors and Federal Bureau of Investigation officials in New York opposed bringing charges, while prosecutors with the Civil Rights Division at the Justice Department in Washington argued there was clear evidence to do so.
Phrases like “been investigating” are misleading. The actual investigation should have been over in a week, if that long. The rest of the time was, to the extent it was anything, internal squabbling over what to do about it. The New York contingent, both agents and AUSAs, had long ago decided that NYPD officer Daniel Pantaleo got a pass. The civil rights folks at Main Justice disagreed.
In recent weeks, the F.B.I. agents who have been investigating the case were replaced with agents from outside New York, according to five federal officials in New York and Washington. Federal prosecutors in Brooklyn are no longer assigned to the case. It is not clear whether civil rights prosecutors from Washington will work alone in presenting evidence to a grand jury in Brooklyn and in trying the case if charges are eventually brought.
This is disturbing on many levels. While Pantaleo’s “chokehold,” as concluded by NYPD Police Commissioner Bill Bratton at the time, and as disputed by others, resulted in Garner’s death, the New York contingent doesn’t see a problem. Whether that’s because they bought the defense that it was merely a “wrestling move,” or that it was Garner’s fault for not complying, or they just decided to cut the cop a break is unclear.
So the first issue, whether Garner’s death, ruled a homicide by the medical examiner, was a violation of his civil right to live, didn’t make the cut locally. Bear in mind, this investigation began when now-AG Loretta Lynch was still United States Attorney for the Eastern District of New York. Had Lynch wanted a prosecution, this would have happened a long time ago.
That it seems clear to so many that Garner, who posed no threat to officers and could have been taken into custody alive, ended up dead because of police impatience and intolerance of another black guy who wasn’t doing as they commanded needs no further discussion. That the FBI and AUSAs in Brooklyn don’t share that view should be clear given the two years since the death, during which no action was taken.
That’s the first disturbing level. Call it racist. Call it professional courtesy. Call it the latitude a cop gets when he kills someone. It doesn’t matter. Garner’s dead and they decided to give Pantaleo a pass.
But the Department of Justice takes this first disturbing level to new depths when it replaces the New York contingent with the Washington crowd. This is a variation on the underlying rationale against double jeopardy, if the first “investigators” don’t give you the result you want, just replace them with another group who will.
As much as I may think that Pantaleo’s conduct warranted criminal prosecution, and given that former Richmond County District Attorney Daniel Donovan got away with sabotaging the grand jury presentment to make sure that didn’t happen, it’s one of the better cases for federal civil rights review. After all, if there is any justification for a second bite at the Big Apple, it’s when the prosecutor makes sure no prosecution will happen under his watch.
But this is getting ridiculous. The feds conducted their “investigation,” to the extent there was anything to investigate, and still Pantaleo got a pass. So they’re going to do a Mulligan with new prosecutors who are dedicated to prosecuting despite the New York outcome? What’s the message here? That when they want to get someone, they will just keep switching people until they find someone willing to do what they please? Is that supposed to give us faith in DoJ’s integrity?
It’s quite possible, likely even, that the perspective of the Office of Civil Rights at Main Justice takes a very different view of how this case should go. They’re not as closely aligned with the world of street cops as the local FBI office, or the trench prosecutors in EDNY. They don’t “feel” as accommodating toward street cops as feds on the street? It certainly looks that way.
But then, does that make Main Justice right and the local FBI and AUSAs wrong?
Or is the New York contingent too close to the action to take a detached view of Pantaleo’s killing of Garner? Are they too accommodating of the difficulties a street cop endures, the routine takedown of a black guy for doing, essentially, nothing? And perhaps more than “essentially,” actually nothing beyond not complying because he took issue with the cops taking him down and taking him in when he committed no crime?* Only a cop (or a cop’s dear friend) would feel that a person who did nothing should happily acquiesce to his baseless arrest.
Should this case have been prosecuted in the first place. Of course. But when it requires a change of team, after a grand jury no-billed, at Justice to find someone willing to do what now appears to be a political prosecution, Garner’s killing has hit a new low in legal integrity. Sure, the new team will present and indict, but it won’t prove Pantaleo deserves it, but only that DoJ can ultimately get whatever outcome it wants. The Garner case was bad before. Now it’s even worse.
Update: The New York Times chimes in (a day late) with this:
Ms. Lynch’s decision was immediately attacked from opposite directions, showing what a muddle the case has become. The head of the New York City Patrolmen’s Benevolent Association, Patrick Lynch, accused her of trying to take a “third bite at the apple” after two investigations had failed to reach what he called a “predetermined outcome” implicating Officer Pantaleo. Other critics accused the Justice Department of continuing to drag its feet by not holding officers accountable.
As painful as it is to agree with Pat Lynch, Loretta handed him an a third apple on a silver platter. Yet, the Times hasn’t given up the spin:
A simpler, less cynical conclusion is that there is an honest disagreement among the lawyers and investigators and that Ms. Lynch chose the best way forward.
This would be a fine and heartwarming explanation, but as Occam’s Razor dictates, the simplest explanation only works to the extent it takes into account all known facts. This does not, and bears the stench of the end justifying the means. Yet again. Had this been a black cop killer rather than a cop killing a black man, would the Times try so hard to rationalize it away?
*The “loosies” excuse was post hoc rationalization. Only after Garner’s death did the story about “loosies” magically appear and become part of the myth of the case.
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Did the New York feds officially no-bill?
What intrigues me about this development is that it seems as though the FBI and the Brooklyn AUSAs took Daniel Pantaleo’s grand jury testimony in the state case at face value — as if self-serving testimony marshaled by a friendly prosecutor is ever a thing to be taken at face value. This may explain why Main Justice cried foul. Or not.
From the article, there was no federal grand jury, so no federal no bill. But what were they looking at? Who knows. Under New York law, they wouldn’t (or at least shouldn’t) have access to Pantaleo’s grand jury testimony, as it should be under seal. We can speculate as to why Main Justice decided to switch out the NY crew, but no matter what ultimately happens, it’s now tainted by this manipulation.
A simpler explanation according to Occam’s Razor – and an easily believable one – is that Main Justice believes the New York contingent to be too much in bed with the local cops. Bringing people from outside bypasses those issues of coziness and allows an outsider’s view, without making excuses for this guy or that guy in the local cops because you’re beer buddies at the bar.
That would have been a perfectly fine explanation for having Main Justice handle this from the outset. But having put NY in charge, then pulling it from them when the outcome didn’t match Main Justice’s expectations, it taints everything.
“Only a cop (or a cop’s dear friend) would feel that a person who did nothing should happily acquiesce to his baseless arrest.”
The word “happily” is doing a lot of heavy lifting in that sentence. I don’t think ANYONE thinks someone should “happily” acquiesce. But the arrestee’s happiness is irrelevant. A person who did nothing should acquiesce to his arrest (if lawful), and you don’t have to be a cop – or even like cops – to feel that.
“If lawful” is doing the heavy lifting in yours. For a guy who committed no crimes, and certainly nothing that was observed by the police, and has been hassled over and over, just because the cops say so doesn’t make an arrest lawful. But if your point is that the potential for harm is less if one complies now and complains later, of course. For someone who has gone through that more than a few times, however, it gets tedious, and trying to argue one’s way out of a baseless arrest appears to be worth a try.
Do note that the alternative to submitting to an unlawful arrest is the same as to a lawful one: being prepared to fight to the death, or escape, or hold out under siege.
And there’s no way around this. It’s an inevitable consequence of granting arrest powers to anyone for anything. The best we can do is hope that unlawful arrests will be punished after-the-fact and hopefully thereby discouraged – which of course is sadly not happening very often these days.
“Trying to argue one’s way out” is certainly worth a try, but if things have gotten to the point where the cops have initiated force (by, say, putting their hands on you) and you have physically resisted (by, say, trying to shrug them off) then I think the time for words has long gone past. Surrender, or fight as if your life depended on it – because at that point it does.
Yes and no. Life on the street can be a little more complicated than that. Regardless, you don’t die for it.
Except when you do.