Mayor de Blasio spent the early part of his March 31 media availability talking about a police-reform plan he had put together with the City Council a couple of weeks earlier that among other changes would ask the state to make it easier to strip cops convicted of misconduct of their pension rights.
It had been released earlier in the month under the heading of NYC Police Reform and Reinvention Collaborative Draft Plan. It called for "a pension-reduction or forfeiture remedy for the most-egregious misconduct cases; for example, where there is death or serious physical injury which creates substantial risk of death or which causes serious and protracted disfigurement, protected impairment of health or protracted loss or impairment of the function of any bodily organ."
As the Mayor put it during the availability, "We address things like ensuring that if someone has—an officer committed a serious act of misconduct, and it's been proven through due process—calling upon the state to cancel pensions in that case."
His remarks, during a session in which three Council Members also spoke about the proposed changes, made it sound so reasonable.
'Stealing the Pensions of Courageous Cops'
But as Detectives' Endowment Association President Paul DiGiacomo pointed out in a text late that afternoon, "The law currently on the books ensures cops lose their pensions if convicted of a felony. The Mayor's time would be better spent working with us on stopping the violent crime from skyrocketing, instead of stealing the pensions of courageous cops who risked their lives for decades" in cases that don't involve such convictions.
In a subsequent phone interview, he said, "Somebody who spent 20 years serving the people of the city and only did one thing wrong—that's one big fine, taking away their pensions. That's a tremendous monetary penalty."
He questioned the Mayor and Council focusing on this "reform" at a time when shootings continue to rise in the city.
"Why are they doing things like this when people are being killed every day?" Mr. DiGiacomo asked. "They're not doing anything to help the families of the good kids who are being killed by stray bullets. That's disgraceful."
A hint of the emotional weight behind this particular change may lie in the proposal that directly precedes it in the joint plan from the Mayor and Council: a bid for another amendment to state law permitting the city to suspend without pay for more than 30 days cops involved in "egregious conduct" involving death or the same type of injuries outlined in the pension-revocation item.
The present 30-day cap, "no matter how long disciplinary proceedings take to resolve," the plan stated, "minimizes the immediate consequences for the officer and removes incentive for the disciplinary process to move forward quickly." It therefore wants a change in the law "to require that suspensions or terminations based on charges resulting in death or serious injury to the public, or other cases at the Commissioner's discretion, be unpaid until they are resolved."
Inspired by Pantaleo Case?
It's hard not to view the proposals taken together as a response to the five-plus years it took following the death of Eric Garner for Police Officer Daniel Pantaleo to be fired after he was found guilty in an NYPD trial of using a department-banned chokehold that was a factor in the fatal outcome.
Left unsaid is that Mr. de Blasio himself was a prime culprit in the long delay, during which Mr. Pantaleo following the initial 30-day suspension received full salary, complete with contractual raises and built-in overtime pay while also accumulating additional pension credit to boost his eventual retirement allowance.
Told by Police Commissioner Bill Bratton in 2014 that the Justice Department had asked that the departmental trial be put off until it determined whether civil-rights charges should be brought against the Staten Island cop, the Mayor didn't force the issue even after Mr. Bratton left in the fall of 2016 and a few months later, the Obama Justice Department became the Trump Justice Department. It was not until mid-2018 that internal charges were finally brought against Officer Pantaleo.
But believing that the department ultimately did the right thing in firing the veteran officer rather than going ahead with a last-minute deal that would have allowed him the softer landing of a voluntary retirement does not mean that Mr. Pantaleo is an appropriate poster boy for such drastic financial treatment. Had he been indicted by the Staten Island grand jury that heard the charges against him, the proposed unlimited suspension without pay would have lasted for a year or more after Mr. Garner's July 17, 2014 death before a trial could have realistically been held. If Officer Pantaleo had been convicted of a felony, his pension would automatically have been revoked.
But short of such a conviction, it's not a closed case that his actions merited forfeiting his partial pension. Unlike one notorious case 27 years ago in which a hotheaded cop caused the death of a man he choked because a football being tossed by the man and his brothers outside their family home had twice accidentally struck the patrol car in which he was sitting, Mr. Pantaleo was involved in a legitimate police action when he tried to arrest Mr. Garner for allegedly selling loose cigarettes.
Blame Rests Higher Up
The fact that it was one of the pettiest crimes imaginable to be arrested for was not Officer Pantaleo's fault, however much his judgment in forcing the issue might be questioned. The order to make such arrests, based on complaints from neighboring merchants along the small strip where Mr. Garner plied his trade, reportedly came from Philip Banks, who as Chief of Department was the NYPD's ranking uniformed officer.
Smarter thinking at the top of the department and at City Hall would have made the determination that this was a civil matter best handled by the Department of Consumer Affairs. Instead the order was made for arrests, and Mr. Garner's decision to resist despite being badly out of shape and suffering from physical maladies including a heart problem and asthma, combined with Officer Pantaleo's decision to resort to a chokehold once he discovered Mr. Garner was too beefy to be able to use a seat-belt hold against, created the biggest crisis of the de Blasio administration.
No punishment was imposed against Mr. Banks, although he abruptly retired several months later rather than accept a lateral transfer from Chief of Department to First Deputy Commissioner when Mr. Bratton offered it. Nor was any discipline handed down to the half-dozen or so cops at the scene who neither tried to offer medical assistance to Mr. Garner as he lay on the sidewalk, handcuffed and unconscious, nor encouraged private Emergency Medical Technicians to show some urgency about doing so when they arrived at the scene.
Amid this cluster of overreaction at the upper end of the department and inertia on the street, however much weight Mr. Pantaleo deserved to carry by himself, loss of a pro-rated pension based on 13 years' service may have been too great a burden.
Those who disagree might want to consider another case in which an undercover cop was denied his pension by Police Commissioner Ray Kelly in what anyone looking at it fairly would view as overkill.
A Tragic Mistake
That, too, was a notorious case, although it didn't rock the city as Mr. Garner's death did. It was the death of Sean Bell in November 2006, and it galvanized public attention for two reasons: the 50 shots fired by officers at what turned out to be a car full of unarmed men, and the fact that it occurred less than 24 hours before Mr. Bell was to be married.
The fatal confrontation stemmed from a tragic, if understandable, misread of the situation by the Detective involved, Gescard Isnora. He was working undercover inside Club Kalua, a notorious bar in Jamaica that had been the subject of complaints by neighborhood residents of illicit activity that prompted NYPD surveillance.
At about 4 a.m. on the last Saturday of the month, Mr. Bell and two friends who were celebrating his last night of bachelorhood exited the club and wound up in a loud argument with a man standing outside, Pierre Coicou, who placed his hand in his coat pocket in a manner that suggested he was holding a gun. One of Mr. Bell's friends, Joseph Guzman, allegedly said something about getting a "gat" of their own, and Detective Isnora, who heard the start of the argument from inside Kalua, came out and moved swiftly after Mr. Bell and his two companions, fearing that they planned to return for a drive-by shooting.
The NYPD rules bar undercover officers from taking police action, largely to prevent them from blowing their cover, as well as from identifying themselves as cops. Detective Isnora apparently believed the circumstances were urgent enough to ignore those guidelines when he pursued the three men. When he spotted them inside Mr. Bell's vehicle, he identified himself as a cop and ordered them not to move.
Mr. Bell, who was later found to have been intoxicated at the time, may have focused more on the gun the Detective was pointing at them than on Mr. Isnora's saying he was a cop. Or he may have heard him clearly and panicked at the thought that he could wind up in custody at the time that he was supposed to marry Nicole Paultre. Whatever the reason, he drove his car directly into Detective Isnora, striking him with enough force that an imprint of the officer's jeans was left on the vehicle's front bumper. He then put the car in reverse and smacked into an unmarked van that was carrying police back-ups.
Thought He Saw Gun
Mr. Bell then put the car in drive and headed toward the Detective again. Mr. Isnora claimed, however, during his departmental trial, that seeing Joseph Guzman reach down and then bring something up was what prompted him to yell "Gun!" and begin firing into the car. He discharged 11 shots, with four other officers firing 39 more—31 of them by Det. Michael Oliver. When the shooting stopped, Mr. Bell was dead and Mr. Guzman had suffered 17 wounds and the other passenger, Trent Benefield, had been struck four times.
No gun was found inside the car. But there was no way for Detective Isnora to have known that Mr. Guzman's loud threat to "get the gat" as they headed to their car was just late-night bluster.
Nonetheless, the Queens District Attorney's Office filed criminal charges against Mr. Isnora, Detective Oliver and Det. Marc Cooper, with the first two men accused of manslaughter, which carries a maximum sentence of 25 years in prison. On April 25, 2008—17 months after the incident—Queens Supreme Court Justice Arthur Cooperman acquitted all three of them in a packed courtroom whose spectators included the Rev. Al Sharpton, sitting with Mr. Bell's family, and Patrolmen's Benevolent Association President Pat Lynch, sitting alongside then-DEA leader Mike Palladino.
The judge, during a 10-minute explanation of his verdict, said he concluded Mr. Guzman and Mr. Benefield were not credible witnesses. The pivotal moment in the trial occurred when Mr. Guzman, after hours of tough cross-examination by three lawyers for the Detectives in which he portrayed himself as being a peacemaker during the argument with Mr. Coicou rather than someone who had threatened to retrieve a gun, got up from the witness chair to shout at attorney Anthony Ricco, "Where you from! Where you from!"
Justice Cooperman also noted that while Mr. Coicou on the witness stand denied that threats were made during his argument with Mr. Bell and Mr. Guzman, he previously told the Queens DA's Office that Mr. Guzman made the "get my gat" remark. The judge said Mr. Coicou had given the men the impression that he had a gun in his pocket and was prepared to use it, and "another threat was made by Joseph Guzman to retrieve a gun."
He added that the question of whether the overall police response to the scene outside Club Kalua—which was later shut because of the drug-dealing and prostitution that took place inside its doors—was marred by "carelessness and incompetence" was a matter to be determined in "other forums." That reference was at least partly directed at Lieut. Gary DiNapoli, who was subsequently charged by the NYPD with failing to prepare a thorough plan to deal with possible trouble inside or outside the club. He, along with Detectives Oliver and Cooper, were allowed to retire and keep their pensions under deals to avoid departmental trials.
No Mercy for Isnora
Commissioner Kelly, however, refused to approve such a deal for Detective Isnora, and late in 2011, NYPD Deputy Commissioner for Trials Martin Karopkin found the veteran cop guilty of firing his weapon outside police guidelines and violating department rules against undercovers taking police action.
Mr. Palladino, knowing what the ruling could cost Mr. Isnora, told this newspaper's Mark Toor, "Taking his livelihood and his pension would be excessive in my opinion, because that is usually reserved for those who tarnish the badge and get involved in criminal behavior. Isnora was acting in good faith and in performance with his lawful duty, and it would be unfair to lump him with those who have committed crimes."
But Mr. Kelly took precisely that action. He never explained why he landed so severely on a cop who, whatever violations of department guidelines he committed in pursuing and confronting Mr. Bell and his companions, had cause, according to the trial judge, to believe that a violent crime might be committed if he did not intervene.
There was some speculation within the department that the firing was something then-Mayor Michael Bloomberg wanted as a response to protests in the black community, even though Officer Isnora was African-American and the Detective who fired the most shots—and was allowed to retire while retaining a partial pension—was white.
In that case, what DEA President DiGiacomo called "a tremendous monetary penalty" was levied against a cop who was part of an undercover operation motivated by community complaints, and showed enough restraint that, even when struck hard the first time Mr. Bell drove his car at him, did not fire his gun.
Police Commissioners who impose such a draconian penalty, given the circumstances in that case, at least face accountability in the form of public criticism of their actions. Given the way that the Mayor and the Council were stampeded by pressure from protesters last summer into significantly cutting the NYPD's budget and making other changes that have already proved detrimental to law enforcement, with others to come, should anyone be welcoming the prospect of the law being changed to take discretion away from Police Commissioners regarding officers' pensions?
Brooklyn Assemblyman Peter Abbate, who heads the Committee on Government Employees, said March 31 that he had not seen a copy of the home-rule resolution the Mayor and Council would send to Albany requesting an amendment to the state constitution. That, he said, would be needed to end the shielding of police pensions from loss in cases in which officers have completed the 20 or 22 years of service—depending on when they joined the Police Pension Fund—that guarantees them full payment.
"If they were convicted of a crime, that would be one thing," he said, alluding to the fact that currently a misdemeanor conviction does not automatically cost an officer his pension. But even with the leftward tilt of the State Legislature in recent years, he said a resolution establishing such a penalty for the "egregious misconduct" it describes seemed unlikely to gain approval in Albany.
Noting that it was not until 2017 that legislators approved a measure stripping those who were convicted in court of public corruption of their pensions, Mr. Abbate said, "I think it would be very difficult to pass without a criminal conviction."
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