In Police Violence Cases, Time Works Against Justice

While the nation is gripped by new police killings, hope quietly fades in the Eric Garner case

Eric Garner died after being placed in a police chokehold nearly two years ago. Credit: Spencer Platt/Getty

I had the honor of appearing this morning on Democracy Now! with Erica Garner, daughter of Eric Garner, on the depressing subject of the approaching anniversary of her father's killing at the hands of an NYPD officer. Her family's story is a cautionary tale.

With the Alton Sterling and Philando Castile cases still fresh in the public's mind, this might be a good moment to reflect on what tends to happen with these cases years down the line.

In researching this subject for a book, a few things have become clear. One is that unless there's video, or multiple witnesses, there's usually no consequence at all for police violence, not even on the civil side. The overwhelming majority of incidents simply disappear.

For instance, New York Inspector General Phillip Eure, who oversees the NYPD, did a study of chokehold incidents in the city two years ago.

He found that between 2009 and 2014, there had been 1,082 complaints alleging 1,128 chokeholds by NYPD officers.

Of those complaints, the Civilian Complaint Review Board fully investigated only about half, or 520 total. And of those 520 complaints, the CCRB substantiated just ten.

Eure found that in nine of the ten cases he examined, the CCRB recommended the strongest possible punishment: departmental charges. But in all nine of those cases, the cop in question ended up getting off with either no punishment at all, or a maximum of five vacation days lost. And in six of the nine cases, then-commissioner Ray Kelly personally overturned the CCRB's recommendation.

Essentially, out of more than 1,000 chokehold complaints, roughly 99 percent of the cases simply disappeared. Of the remaining 1 percent that actually made it all the way through the disciplinary process, nine out of ten ended with either no punishment or a maximum of five days' lost vacation. Another officer died before his case could be resolved.

In five years, the department had never once really punished an officer for using a chokehold.

The Garner case might have just as easily disappeared into that grim statistical picture. Reports have surfaced that the official police account of the incident didn't even mention a chokehold, saying only that two officers took Garner to the ground "by his arms." Minus the famed video taken by civilian Ramsey Orta, the world might never have known what happened that day.

But even in cases where there is video and/or some other kind of indisputable evidence, these cases rarely end in a way that the families would consider just. Police officers are rarely indicted, much less convicted, and families are rarely provided with even the most basic answers. The families sometimes receive settlements, but that's it. That's the political calculus now: money, but no change and no reform.

Two years into the Garner case, this pattern has played out more or less exactly. The family was granted a $5.9 million settlement a year ago. But the city has dug in and refused to budge at all on a whole range of other issues, from unsealing the grand jury testimony to releasing any information about possible abuse complaints in the file of Daniel Pantaleo, the officer who placed Garner in a chokehold.

The latter fight, over the information in Pantaleo's CCRB file, has been going on for nearly a year and a half.

Way back in December 2014, a few weeks after a Staten Island grand jury decided not to indict Pantaleo, the Legal Aid Society submitted a Freedom of Information Law request to the CCRB.

The group asked the agency to disclose information about Officer Pantaleo's complaint history: the number of complaints made against him, how many of those complaints were substantiated, and a series of other questions.

The CCRB told the Legal Aid Society to stuff it. It cited a series of court cases to deny the requests, including Daily Gazette Co. v. City of Schenectady, which concerns a bunch of goofball off-duty cops in upstate New York who in 1997 pelted a civilian's car with eggs while on the way back from a bachelor party.

In that case, two local newspapers tried to get information about the incident via a FOIL request. Citing section 50-a of the New York State Civil Rights code, the court held that the records were exempt from FOIL because "all personnel records used to evaluate performance" of police were to be considered "confidential" and "could not be released without the express written consent" of the officers.

This preposterous loophole means anything that the government deems "personnel records used to evaluate performance" of police can't be released unless the officers themselves personally approve.

Citing this and other cases, the CCRB said any request about Pantaleo's history amounted to an "unreasonable invasion of privacy."

Legal Aid fought back, formally petitioning the court on February 17, 2015, to order the release of a summary of Pantaleo's file. They were not even asking to hear the full stories behind each case. The main piece of information they were after was how many complaints against Pantaleo had been substantiated by the CCRB — not even gory details, just a number. Given how many hurdles a complaint had to go through to be substantiated by the CCRB, how high a number could that be, anyway?

The CCRB responded that the release of even that much information would be "inherently stigmatizing and subject to abuse."

Pantaleo argued to the court through his attorney that he had already suffered hardship and threats because the press had published information about one of his CCRB cases.

A judge named Alice Schlesinger wasn't impressed. She didn't think CCRB records were Pantaleo's problem. Without passing judgment on Pantaleo's actions in the Garner case, she noted it was likely that "any adverse reactions expressed toward Mr. Pantaleo" would "have their roots in the video of that incident, which speaks for itself."

So the judge ordered that the CCRB release the summary. Coincidentally, that order came on July 17th of last year, exactly a year after Garner's death.

Both the city and Pantaleo appealed, however, and the case has been tied up ever since. It will be a surprise if it's resolved anytime soon. Very long stretches of waiting, piled upon more stretches of waiting, are another consistent feature of these cases.

Erica Garner filed her own FOIL request last year. She'd watched as police union chief Pat Lynch issued a full-throated defense of the man who'd killed her father, in a rant reporters sometimes colloquially deride as the "literally-an-Eagle-Scout speech."

"He's a model of what we want a police officer to be," said Lynch. "He's a mature, mature police officer, motivated by serving the community. He literally is an Eagle Scout." Lynch added that Pantaleo had had "very few" citizen complaints against him in his career.

What did Lynch mean by "very few" complaints? What had Pantaleo done before?

Erica Garner filed a FOIL request, asking for information about Pantaleo's history. But at virtually the same moment when the city comptroller's office was deciding how many millions of dollars to offer her family in a civil settlement, other city offices were clamping down and drawing a line in the sand, refusing to tell her family anything at all about the history of the man who'd killed Eric Garner.

The city denied Erica's request, using language similar to the arguments the CCRB had thrown at Legal Aid.

Releasing the information requested, the city told Erica, would constitute an "unwarranted invasion of privacy," and "could endanger the life or safety of any person."

As Erica mentioned this morning on Democracy Now!, these answers came as a shock to her. Her request was an "unwarranted" invasion of privacy? Her father had been killed by a police officer with a history of abuse incidents. What would have constituted a "warranted" request?

And why is there an expectation of privacy surrounding the work history of a public employee like a police officer? Why should what a police officer does at work on behalf of the public ever be considered private? The same goes for a politician, or tollbooth operator, or anyone who works for the government, for that matter.

In brutality cases like the choking of Eric Garner or the shootings of Alton Sterling or Philando Castile, there is often an enormous amount of public scrutiny in the immediate days and weeks after the incident.

But often, some of the more egregious behavior takes place months and years later, when the cameras have moved on. These cases die slow, painful deaths in windowless bureaucracies over long periods of time. Something always comes into play — some weird bureaucratic detour or legal loophole — that keeps bad police out of jail, and families and the public in the dark.

It's important to pay attention in the beginning. But it's just as important later on.

Editor's note: Erica Garner will be holding a rally at 5 p.m. in Staten Island this Sunday, July 17th, the two-year anniversary of her father's death. Details here.