Five years ago this July, a 43-year-old father and small-time street dealer, Eric Garner, was killed in explosion of unnecessary violence. Police officer Daniel Pantaleo, while an onlooker filmed his every move, wrapped an arm around Garner’s neck and squeezed until Garner died, gasping, “I can’t breathe.”
Garner’s death was subsequently ruled a homicide by the city medical examiner, and commissioner Bill Bratton said at the time of Pantaleo’s use of force: “As defined by the department’s patrol guide, this would appear to have been a chokehold.”
These two facts on their own — a death caused by human hands, the commissioner conceding a prohibited technique had been used — seemed to make an obvious case for a serious charge.
It didn’t happen. In a city famous for its prosecutors being able to “indict a ham sandwich,” District Attorney Dan Donovan of Staten Island failed to convince a grand jury to bring criminal charges against Pantaleo. Donovan was quickly rewarded for the non-indictment by being elected to congress.
Now, five years later, Pantaleo is back in the news. Having pulled a city check on desk duty all this time, he faces a “departmental” trial, which could result in loss of his job. It will be presented to the public as a prosecution, but it’s really a disciplinary hearing. The public may finally get some answers about the case, but these hearings rarely result in anything like justice.
Pantaleo is sitting before the NYPD’s Administrative Prosecution Unit. The APU is what’s known as an Administrative Law Court, meaning it’s an executive branch process, not a true court of law. This is the where the most serious internal discipline cases go to be heard.
In this case, the Civilian Complaint Review Board — the city agency charged with taking in and evaluating abuse complaints — brought the charges. Punishments range from “warning and admonishment, loss of vacation days, suspension without pay, dismissal probation, or termination from the NYPD.”
No matter what the court rules, the commissioner has the power to overturn the decision. This would probably not happen in a high-profile case like this one. But the norm is that few civilian complaints even make it to the point of being “substantiated,” and even in cases where punishments are recommended, the end result is usually underwhelming.
A study done years ago by police Inspector General Phillip Eure looked at 1,082 complaints alleging 1,128 chokeholds by police between the years 2009 and 2014. He found the CCRB fully investigated about 520 of those cases. Of those, the Board “substantiated” just ten complaints.
In those 10 substantiated complaints, the CCRB recommended the strongest possible discipline, departmental charges. But in all nine cases, the officer in question ended up either with no discipline at all, or a maximum of five days vacation docked.
In six of those nine, the commissioner personally overturned the ruling, including a case involving a fifteen year-old who was choked “while handcuffed to a metal bar within a Bronx precinct house… no discipline was imposed.”
At the hearing this week, Pantaleo’s lawyer, Stuart London, claimed his client was merely trying to “cuff” Garner, and was using an approved “seat-belt hold.” However, another witness, Inspector Richard Dee, head of training at the New York City Police Academy, said Pantaleo’s grip “meets the definition of a choke hold.”
Pantaleo’s defense is similar to the one “police sources” told the New York Post in the days after Garner’s death, that Pantaleo had used a “submission hold, “ not a “choke hold.” London reportedly tore the medical examiner’s finding of homicide in half during the hearing, calling it “worthless, completely worthless.” He blamed Garner for being in poor health, saying he was “was a ticking time bomb who set these factors in motion by resisting arrest.”
This is the defense commonly offered by police, that the asthmatic Garner essentially killed himself by refusing to move when ordered by Pantaleo and his partner Justin Damico.
About that: Street officers have to make tough judgment calls, and are often made the targets of complaints people should really be directing at higher-ups who order them to pile up arrests for statistics-hungry chiefs and politicians. But over the course of researching this case for a book that would be called I Can’t Breathe, I learned this case wasn’t one of those tough calls.
Garner was a huge, slow-moving, good-natured character. He was funny and well-liked on the street, where he was famous for being willing to argue for hours about things like sports statistics. People would come to the park just to try to wind him up about things for a laugh.
He did sell untaxed cigarettes, and did a pretty good business, with multiple employees selling for him. He organized regular car runs to states like Virginia to take advantage of a tax arbitrage created by Mayor Mike Bloomberg, who raised consumption taxes here in the mid-2000s in part to pay for the 9/11 cleanup.
This activity made Garner known to police. However, he was not violent. Moreover, he was ill that morning and spent over an hour in a bathroom shortly before his death.
When he got out of the bathroom, he crossed Staten Island’s Tompkinsville Park, where a fight broke out. Garner broke up the fight before walking on to his usual spot on Bay Street, where he leaned up the wall. He was still panting from exhaustion when Pantaleo and his partner approached.
Commissioner Bratton would say the two detectives had been dispatched to the scene because they had been “directed by a superior officer to address specific conditions.” This was a fancy way of saying someone in the precinct had seen the slovenly-dressed Garner on the street on the way into work, and sent two plainclothes cops to go clear the corner.
If you watch the infamous cell footage shot by Ramsey Orta — who’s currently in jail upstate and testified by video this week — you can see Pantaleo and his partner Damico refusing to entertain any scenario except getting Garner into a car. I was told this was probably because a beat cop sent by a superior to clear a corner needs an arrest number to show he or she did what was told.
It is true Garner refused to obey an order. But his real “crime” that day wasn’t selling untaxed cigarettes. It was looking unkempt while standing on a street in a neighborhood police had been trying for a while trying to “clean.” A series of expensive condo towers had been put up on the other side of the park in recent years. Before then, police were rare in the area.
In other words, this was not the unavoidable kind of trouble officers face, but a dubious form of “order maintenance” that should never have escalated to the level of physical confrontation.
The two detectives never spoke to Garner like a human being, but instead led off with ultimatums and macho posturing. Other police in that neighborhood handled things differently, taking the time to get to know park characters and talk to them like grownups. “If it had been anyone else, Eric might have gone,” is how Garner’s friend, John McCrae, put it.
Without a doubt, this trial is a relief to Garner’s mother, Gwen Carr, and other family members who waited this long to have something like a day in court. Still, the case is characteristic of how slowly (and ineffectually) the wheels of justice can turn.
Garner’s daughter Erica frequently complained, to me and to others, that Pantaleo was receiving city benefits and pay while she struggled to make her bills and take care of herself and her family. Erica had trouble coping in the years after her father’s death and believed it was not fair that Pantaleo had access to therapy and other help she didn’t.
She eventually fell ill and died young waiting for some kind of a break in the case. At the time of her death in December, 2017, she was still hoping that the Department of Justice would bring federal civil rights charges against Pantaleo.
That winter, in fact, there were rumors that just such a decision was coming. Erica was excited and beginning to feel optimistic, after a frightening autumn that saw her go into congestive heart failure shortly after the birth of a new son, Eric.
Erica never got to see this day because of a deal that had been made early on, in which the NYPD had decided not to proceed with internal charges against Pantaleo until the F.B.I. wrapped up its civil rights investigation.
The city last year finally gave up waiting for the feds and decided to move on with charges, which is why this APU trial is happening now. The Justice Department still has until July to file a case.
This means because the federal government took five years to make up its mind, Erica Garner had time to get frustrated by the slow pace of things, complain for years, get sick, and die, before she even got to see if the New York City Police department would stop paying the man who choked her father on video. Thinking of it with her in mind, no matter how the police court rules, it will probably be far too little, and certainly too late.