Eric Garner Rally

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NYPD Says It Won't Wait For Feds Anymore In Garner Case Disciplinary Probe

July 16, 2018 - 2:19 pm

NEW YORK (WCBS 880/CBS News/AP) -- The NYPD says it will launch its own disciplinary probe into the 2014 death of Eric Garner in police custody rather than waiting for federal officials to complete an investigation.

In a letter to Justice Department lawyer Paige Fitzgerald, NYPD Deputy Commissioner for Legal Matters Lawrence Byrne noted that Tuesday will mark the fourth anniversary of Garner’s death. For the past four years, the NYPD has not moved forward with disciplinary proceedings against NYPD officers in the case, in deference to ongoing requests from the DOJ.

But since “a definite date by which time a final decision by the U.S. DOJ will be rendered in this matter cannot be predicted,” the NYPD will now go ahead with the disciplinary probe anyway, Byrne wrote.

Byrne’s letter noted that members of the public in general and particularly the Garner family have been frustrated that the NYPD has not gone ahead with disciplinary proceedings, instead deferring to a federal probe “that seems to have no end in sight.”

Thus, the NYPD will go ahead with the disciplinary proceedings on or promptly after Sept. 1, Byrne wrote. If the DOJ announces its intention to file criminal charges on or before Aug. 31, the NYPD will hold off, the letter said.

Byrne told WCBS 880’s Rich Lamb the NYPD has been in contact with the federal government since it became involved in the case in 2014.

"I indicated to them several months ago that we couldn't wait indefinitely to proceed with our process, and we'd give them some additional time, but then, we were going to have to move ahead” Byrne said. “When I spoke with them again last week, it was clear that there was no internal timeline to reach a decision on this matter at DOJ, and so we’ve decided to give them one final block of time as a courtesy until September 1.”

As Byrne put it, “If they’re not in a position to make a decision and publicly announce it by then, it’ll be more than four years, and we feel we have to move ahead with our internal disciplinary process.”

PBA President Patrick J. Lynch issued a statement saying, “We agree that the Justice Department’s leadership should move to close Police Officer Pantaleo’s case and put an end to what has been a highly irregular fishing expedition by those seeking an indictment at all cost. However, that should not trigger a race by the NYPD to reach a pre-determined outcome in its own disciplinary processes. Police Officer Pantaleo is entitled to due process and an impartial consideration of the facts. If that is allowed to occur, we are confident that he will be vindicated and will finally be able to move forward."

Garner, 43, was stopped on July 17, 2014 outside a Staten Island convenience store because police officers believed he was selling loose, untaxed cigarettes. A video shot by an onlooker shows Garner telling the officers to leave him alone and refusing to be handcuffed.

Officer Pantaleo then placed his arm around Garner's neck to take him down. Garner, who had asthma, is heard repeating the phrase "I can't breathe" 11 times before losing consciousness. He was pronounced dead later at a hospital.

A Staten Island grand jury declined grand jury declined to file charges against Pantaleo in December 2014, but in 2016 a federal grand jury began hearing evidence regarding whether Garner's civil rights were violated, a source told CBS News at the time.

At the National Action Network in Harlem Monday afternoon, the Rev. Al Sharpton stood alongside Eric Garner’s mother, Gwen Carr, as the two called for justice after his death.

"And for this officer to have remained on payroll for four years, after clearly and admittedly being involved in this, is something that has been painful to the family and insulting to the community," Sharpton said.

As WCBS 880’s Kevin Rincon reported, Carr said she thinks about her son every day.

"You know I still have sleepless nights,” she said. “I still have nightmares."

Whether it be the DOJ or the NYPD, Carr said it is about closure.

"We don't it to be watered down,” she said. “We want a trial and we want justice."

In April, an official said civil rights prosecutors had recommended charges against Pantaleo, but that there was disagreement within the DOJ over whether it is a viable case.

According to CBS New York, in September 2017 the Civilian Complaint Review Board recommended that Pantaleo be disciplined for his actions during Garner's arrest. But at that time, a spokesperson told the station that the department was waiting for the DOJ to finish its investigation into the case.  

Criminal defense attorney Joey Jackson said the Eric Garner case amounts to a situation of “justice delayed.”

“I think just the general feeling, if you look at the choking death to begin with, that there should have at least been an indictment, right? I mean, people felt, looking at the strength of the video – and saying he can’t breathe, 11 times, I believe – that there should have been an indictment. There was not,” he said. “That angered and disappointed a lot of people who believed it was a very unjust verdict.”

The DOJ picked up the case after the grand jury declined to indict, but has also now stalled to the disappointment of many, Jackson told WCBS 880’s Joe Avellar.

“I think people are looking for at least the NYPD to do something, “ he said. “So the fact that they’re doing it now and saying, ‘Look, federal government, let us know, because we’ll defer to you, but if not, we’re moving forward,’ I think it’s the right call. I think people want to bring this to an end.”

Jackson noted that federal charges are harder to bring, since states have more tools in their toolbox.

“I mean, you can charge someone not with an intentional crime of killing him, right? Pompeo, you could say that he was negligent; that he was careless in holding him in a chokehold. You could say he was reckless – that he consciously disregarded the risk that if he held him that way and he said he couldn’t breathe, he would die,” he said.

But with federal civil rights charges, the requirement is to show an intent to violate someone’s civil rights.

 “You have to show they acted with animus,” Jackson said. “You have to show that they acted with some evilness or wicked purpose, and that generally is significantly more difficult to prove than state-level charges would be. So the federal government generally, in many of these cases, declines to prosecute. But I think the feeling is if you’re going to do that, say so, and if not, the NYPD will take it on itself, hold an administrative proceeding, and see if there can be some justice there.”

Jacksons aid the case has been dragged out far too long.

“I mean, the family certainly got a civil settlement, but that doesn’t bring him back. And I think that, you know, this really tore into the hearts and minds of a lot of people,” he said.