Garner

SHOULDN'T WAGE THIS BATTLE ON THE GROUND: While ex-cop Daniel Pantaleo's struggle with Eric Garner that ended in the latter's death may be the inspiration for a bill criminalizing cops' use of force if it is deemed excessive, that proposal by State Attorney General Letitia James misses the real problem: the need for greater accountability at the top of the Police Department in adhering to the law.

Maybe State Attorney General Letitia James isn't thinking of running for Governor, with or without Andrew Cuomo standing in her way, after all.

Because if the legislation she served up May 21 is any indication, subjecting cops statewide to prosecution if it was determined that they used force against someone before it became a last resort, she's oblivious to what's been going on in the city, both on the streets and politically. 

Violent crime has continued a steady rise that began in mid-spring of last year, with shootings sky high and murders continuing to climb as well. And while recent polls are light enough on the number of people they surveyed to raise doubts about their precision, they are also consistent with the trend in earlier surveys, with three candidates who have resisted the defund-the-police mindset—Eric Adams, Kathryn Garcia and Andrew Yangin the top three spots.

And if the city, with its 6-1 ratio of registered Democrats to Republicans, isn't buying the idea that what's wrong with life here is that the NYPD's budget hasn't been sufficiently eviscerated and cops haven't been ostracized enough, what's the likelihood that making their jobs more difficult will be just the ticket that suburban and upstate voters want to punch in next year's gubernatorial election?

Too Late for Legislative Action?

There's also the curious timing of the press conference at which Ms. James unveiled the measure. Besides doing it early on a Friday afternoon, a time when politicians normally release stories they'd rather got minimal media attention (anyone who doesn't remember seeing a story about it in the next day's New York Times didn't miss itonline coverage was all it got), she did it at a point in the legislative session when it may be hard to get serious consideration.

That perception grew when State Sen. Diane Savino, one of the more-prominent voices on law-enforcement issues in Albany, said May 26 that she hadn't yet gotten a copy of the bill, even though the Legislature is scheduled to adjourn for the year June 10.

"One would think it's a pretty important piece of legislation," she said in a phone interview. "In my opinion, I think it's something we should have hearings on, where we can hear not only from the employee groups whose members are affected but people in the [police] academies as to whether this makes some sense. You would think that would be pretty important after the experience with the diaphragm bill."

She was referring to the bill approved by the City Council and signed into law by Mayor de Blasio last July under which city cops can be criminally prosecuted if, in the course of subduing someone, they compress that person's diaphragm. Among the negative effects of that law is that it's made cops reluctant to confront people in situations where it might be warranted, and to summon back-upssix cops on the scene is even better than four, one veteran patrol officer told me last yearrather than having just two officers handle the situation, because then each cop can grab a limb and get a suspect under control without approaching the diaphragm.

When it was mentioned to Ms. Savino that after brief concerns were expressed by some Council Members that the compression law might need to be amended, they subsided once public attention shifted, she replied, "Sure. Nobody's touching anybody, except for the criminals pushing people off subway platforms."

The rhetoric from the police unions regarding Ms. James's last-resort bill was predictable.

'Makes Cops' Jobs Harder' 

Police Benevolent Association President Pat Lynch said, "The only reasonable solution will be to avoid confrontations where force might become necessary. The bottom line: more cops and more regular New Yorkers are going to get hurt." And his Detectives' Endowment Association counterpart, Paul DiGiacomo, said that as Ms. James "proposes new ways to make the jobs of the police even more difficult and dangerous, the already-emboldened criminals are also paying attention."

But the fact that their remarks weren't surprising didn't mean they weren't right. Ms. James's solution to the reality that cops sometimes escalate situations and wind up using more force than might have been needed is as simplistic as the responses by some of those officers are. It was hard not to conclude that, while she called her bill the Police Accountability Act, it could easily have been labeled Eric's Law, since it seemed aimed squarely at the police handling of the incident on a Staten Island street that led to the death of Eric Garner seven years ago.

Most of the blame, understandably, has been attached to Mr. Pantaleo's actions that began with his attempt to handcuff Mr. Garner while the petty criminal was still arguing his case with the officer's partner, Justin D'Amico. Then, after Mr. Garner brushed his hand aside, the officer moved quickly from an attempt at a seatbelt hold that was thwarted by his target's girth to using the department-banned chokehold, and after bringing him to the ground, mushing Mr. Garner's face into the pavement even as he moaned, "I can't breathe!"

But the mishandling of the incident began with the orderreportedly given by then-Chief of Department Philip Banksto make arrests in the area for selling loose cigarettes because of a complaint by local merchants. Mr. Banks was a holdover from the Bloomberg administration, appointed to the NYPD's top uniformed position by Police Commissioner Ray Kelly. He was known to have a close relationship with the Rev. Calvin Butts, one of the city's most-influential black ministers, and at the time of the promotion, Mr. Kelly was staring at an upcoming Federal trial involving abuse of stop-and-frisks, which had escalated from 97,000 in 2002the first year of his second stint as Commissionerto 685,000 in 2011.

Chief Banks had gotten where he was because he knew how to play politics, and he may have figured ordering arrests for selling loosies would ingratiate him with local store-owners a lot more than taking the smarter step of referring the situation to the Department of Consumer Affairs for civilian enforcement. It was one of numerous poor judgments he made during his time in the jobhe also became chummy with a number of corrupt characters, from then-Correction Officers' Benevolent Association President Norman Seabrook to a pair of Orthodox Jewish businessmen, Jona Rechnitz and Jeremy Reichberg, who used money to gain favorable treatment from both the NYPD and Mr. de Blasio. Mr. Seabrook, Mr. Rechnitz and Mr. Reichberg were all convicted of bribery-related charges; Mr. Banks was spared because Federal prosecutors concluded he was dumb but not dishonest.  

Other Cops Not Charged

None of the cops who were at the scene when Mr. Pantaleo began forcibly arresting Mr. Garner were charged or disciplined for their failure to render assistanceas their jobs require them to doonce Mr. Garner was lying on the ground, unconscious and in handcuffs after his repeated protests that he couldn't breathe. They were given immunity from prosecution in return for testimony that wasn't enough for then-District Attorney Dan Donovan to get a Staten Island grand jury to indict Mr. Pantaleo, which was particularly astonishing because a cellphone video of the confrontation offered strong evidence of probable cause to charge him.

The only officer who faced disciplinary charges was Sgt. Kizzy Adonis, who arrived on the scene as Mr. Garner was brought to the ground. While she said she had told officers who were on top of Mr. Garner, further restricting his breathing, to get off him, she was charged internally with failure to supervise.

No discipline was taken against the officers' precinct commander, either, for their lackadaisical reaction, first in not rendering assistance, then in showing no urgency when a private ambulance crew finally showed up, leading one of the Emergency Medical Technicians to speak to Mr. Garner as if she believed he was faking unconsciousness.

One mayoral candidate, Ray McGuire, has said that if elected he would hold the entire department command structure responsible for the kind of bad decisions and breakdowns in responsibility that can occur in use-of-force cases. There's logic to that: if such a mandate existed at the time of the Garner case, would Mr. Bratton not have wanted to be involved in the original discussion about making arrests for such a minor crime if his job might depend on it?

But ultimately, some of the responsibility falls on the Mayor as well. Two weeks after Mr. Garner's death, Bill de Blasio, just seven months into his term, convened what he described as a summit of concerned parties to discuss how to avoid recurrences. During a press conference afterwards, the Rev. Al Sharpton departed from the usual protocol to say that if they really were serious, city officials would perp-walk cops who behaved the way Officer Pantaleo had, adding that if Mr. de Blasio didn't bring about changes, he would make himself the Mayor's "worst enemy."

Got Rolled by Bratton

At the time, it seemed that the Reverend Al had reverted to his old sidewalk act, and was showboating at the expense of a Mayor he had helped elect and Mr. Bratton. Subsequent events, however, suggest he suspected the Mayor was going to get rolled by his Police Commissioner and didn't want to be a fellow patsy.

Mr. de Blasio's strong stand against stop-and-frisk during the 2013 campaign had led to concerns about whether his ideological leanings would end the years of crime decreases in the city, and created pressure for him to choose as the head of the NYPD someone who had the confidence not only of its officers but of the business community. This meant that as badly as Mr. Bratton had wanted to return to the job he'd been forced from in 1996 by Mayor Rudy Giulianiwho resented his getting too much credit for the drop in crime that he believed was rightfully hisMr. de Blasio needed him more to establish credibility in that area. 

That may explain why he went along with Mr. Bratton's claimafter a Staten Island grand jury declined to indict Mr. Pantaleo in December 2014that Federal prosecutors requested that the NYPD hold off on a disciplinary trial until they'd made a decision as to whether to bring civil-rights charges.

This occurred at a time when the Mayor's standing with rank-and-file cops and their unions had grown more-precarious, particularly after he addressed a black church congregation in Staten Island hours after the grand jury decision was announced and spoke of the time when he had warned his then-teenage son Dante about being careful in any encounter he might have with the police.

The PBA accused the Mayor of throwing its members under the bus by implying that they couldn't be trusted. Given the alternatives available to himcriticize the DA for failing to get an indictment despite compelling video evidence, pledge that Officer Pantaleo would never again patrol the streetsMr. de Blasio had made the worst possible choice. It further reverberated against him when 17 days later, two Brooklyn cops were murdered by a crazed ex-con who had come to New York from Baltimore that afternoon after vowing to avenge Mr. Garner's death.

Just Kept on Waiting

Officer Pantaleo remained on the NYPD payroll, collecting overtime and raises the PBA negotiated for its members, as the years passed, even after Mr. Bratton stepped down in the fall of 2016. When Donald Trump became president two months later, it seemed particularly futile to keep waiting on the Justice Department: if it hadn't decided to pursue civil-rights charges under President Barack Obama, how could it have realistically been expected to do so once a Trump appointee was U.S. Attorney General?

Yet Mr. de Blasio let the string play out, and it wasn't until the spring of 2018 that NYPD charges were brought against Officer Pantaleo. It took more than a year for the trial to be held and a guilty verdict rendered, and in August 2019 NYPD Deputy Commissioner for Trials Rosemarie Maldonado recommended that he be fired.

The Mayor said justice had finally been done, slightly more than five years after Mr. Garner's death. He didn't, however, clearly state that he expected Mr. Pantaleo would be fired. The final decision on this rested with Mr. Bratton's successor, James O'Neill, but a more-assertive Mayor would have put his thumb on the scale without giving a direct order, and let the Commissioner know that someone was going to be dismissed.

Mr. O'Neill, without getting a clear hint that it could be him, had the misguided idea of trying to negotiate a deal with the PBA, using then-Chief of Department Terence Monahan as the go-between, under which Officer Pantaleo would be permitted to retire. The agreement was apparently vetoed by Mr. de Blasio, and by the end of the year, Mr. O'Neill left for a less-demanding job in the corporate world.

The mere attempt to allow Officer Pantaleo to retire after he forced the department to convict him in a long-delayed internal trial was a prime example of what criticsincluding some of the mayoral candidatessay is a police culture that must be sharply altered if meaningful change is to occur.

Need Change at Top

Arnie Kriss, a former Deputy Commissioner for Trials during Mayor Ed Koch's first term who has worked as both a prosecutor and a defense attorney, said he thought Attorney General James's bill might have a tough time in Albany but that he wouldn't comment on its merits until he'd seen what it said. 

But he argued that most of the department's controversies over the past decade, on matters ranging from stop-and-frisk to the since repealed Section 50-a of the state Civil Rights Law to tensions with the Civilian Complaint Review Board, had occurred because "too many people have thought they were smarter than the statute."

By "people" he meant domineering Commissioners like Mr. Kelly and Mr. Bratton. He also mentioned the decision by then-Commissioner Bernie Kerik after the four cops accused of fatally shooting Amadou Diallo in 1999 were acquitted by an Albany jury the following year not to make them submit to departmental trials, something Mr. Kriss called "a dump job."

Commissioners who have decided they're not answerable to the public, he continued, give improper orders and "it's the cops out in the street who are suffering. They go out and do their job and they're following instructions" on matters like stop-and-frisk, which was one of the matters on which the NYPD under Mr. Kelly maintained a quota until the heat he started to feel by 2012 led him to issue a departmental order instructing cops to focus on "quality" stops rather than quantity.

"Under Bratton and Kelly," Mr. Kriss said, "they committed more civil-rights violations than you and I have seen in our lifetimes. Not in the Deep South, but in fairly liberal New York City."

The pendulum has swung back in police officers' favor lately because of the continued crime problem, but Mr. Kriss said that public disenchantment with a double standard of justice was not going to dissipate at a time when the number of people of color in the city's population is continuing to grow.

'Neanderthals Gotta Go'

For that reason, he said, Ms. James's bill was targeted at the wrong level of the NYPD.

"The people who have to be held responsible are the people who run the system," Mr. Kriss said. "The Neanderthal attitude has gotta change."

He was skeptical, however, about Mr. Adams's vow to make himself, as Mayor, the final disciplinary authority for the NYPD, which could dilute the Commissioner's power, as well as his standing with cops in the field.

Should Mr. Adams be elected, he said, "If he tries to run the department while he's running the city, why? If he's got a good Commissioner, they should do that on their own."

If he's right, then the change is likely to come not via a misguided bill that has no realistic hope of being approved this year, if not beyond that. Rather, it will come from the voters' choice for Mayor, with the best chance being if the person they choose hasin contrast to the incumbentthe ability to make the necessary changes at the top of the department while earning the respect of cops at all levels.  


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