eric garner

Mayor’s Garner-Inspired Cop Discipline Overhaul Questioned

Gwen Carr (right, in pink) leads a youth march on July 17, 2019. from Foley Square to NYPD headquarters for the fifth anniversary of her son Eric Garner’s death.
Gwen Carr (right, in pink) leads a youth march on July 17, 2019. from Foley Square to NYPD headquarters for the fifth anniversary of her son Eric Garner’s death. Photo: Ben Fractenberg/THE CITY

When federal authorities refused last week to charge a police officer in the 2014 death of Eric Garner, Mayor Bill de Blasio announced a new policy aimed at speeding up justice.

Cops who kill an unarmed civilian will immediately face discipline proceedings — unless the dead person’s family wants to wait until any possible criminal case is complete or a judge orders a delay to let prosecutors investigate.

But some lawyers and prosecutors — including the acting Queens district attorney — say the NYPD or Civilian Complaint Review Board moving too quickly on disciplinary proceedings could complicate criminal prosecutions.

And the family of a man who died in police custody — one of three cases that could be immediately impacted by the policy change — said they didn’t want to hinder the state attorney general office’s ongoing investigation.

“Why turn it over to the police? I wouldn’t want that,” said Adan Lovato, whose nephew, Edwin Garcia, died as he was dragged out of his East Harlem apartment by cops in May 2018.

The reactions underscored not only the complexity of adjudicating deaths at the hands of police, but the tough choices facing the mayor, who has been criticized for not firing Officer Daniel Pantaleo after Garner died five years ago last week.

A Staten Island grand jury declined to indict Pantaleo in December 2014, setting off protests in New York and beyond. Garner’s videotaped cries of “I can’t breathe!” as Pantaleo choked him, became a rallying cry that helped fuel the Black Lives Matter movement.

Pantaleo is awaiting the verdict from his recent NYPD disciplinary trial. If found guilty by the trial officer, he faces anything from the loss of vacation days to the loss of his job.

Activists laid a black coffin honoring Eric Garner in front of Police Headquarters, on July 17, 2019.
Activists laid a black coffin honoring Eric Garner in front of Police Headquarters, on July 17, 2019. Photo: Ben Fractenberg/THE CITY

Meanwhile, the feds’ decision not to charge Pantaleo ignited a new round of protests as Garner’s mother, Gwen Carr, called on de Blasio to “stand up and be the mayor he’s supposed to be.”

De Blasio has declined to say whether he would fire Pantaleo if Police Commissioner James O’Neill doesn’t. The mayor even refused to say whether he has the power to overrule O’Neill in an unusually combative July 19 interview with WNYC’s Brian Lehrer.

“I’m not doing hypotheticals, I’m not doing personal opinions,” de Blasio said.

’Serious Legal Risks’

For years, the Police Department has waited for criminal cases — state or federal — to conclude before questioning cops involved in civilian deaths and other serious incidents.

NYPD brass can force officers involved in alleged abuse of power to testify during a so-called GO-15 interview. But that session can’t be used during a criminal proceeding because the testimony is compelled, and officers are unable to invoke their Fifth Amendment right against self-incrimination.

That’s a problem, said acting Queens District Attorney Jack Ryan, whose office is investigating one of the three current cases covered by de Blasio’s new policy.

“There are serious legal risks to the discipline going forward,” Ryan said. “Primary among them are compelled statements which create use-immunity issues that can be difficult to overcome.”

He also argued that multiple statements from the same witness can cause headaches for prosecutors, particularly if there are inconsistencies, minor or otherwise.

Cops are entitled to have their cases handled by an administrative law judge in the NYPD’s so-called trial room, under union contracts. The law judge’s recommendations are forwarded to the police commissioner, who has final say.

Attorney Sanford Rubenstein, who has handled multiple high-profile police abuse cases, argued the new policy amounted to the “mayor passing the buck to look good politically.”

“This is a determination to be made by the police commissioner,” he said. “If he wants the police commissioner to fire someone, he can.”

Hundreds marched to NYPD headquarters on the fifth anniversary of the moment Eric Garner cried, "I can't breathe!" and just a day after federal prosecutors announced they would not pick up the case.
Hundreds marched to NYPD headquarters on the fifth anniversary of the moment Eric Garner cried, “I can’t breathe!” and just a day after federal prosecutors announced they would not pick up the case. Photo: Ben Fractenberg/THE CITY

Rae Koshetz, the former NYPD deputy commissioner for trials, told THE CITY last week she doubts de Blasio’s new policy will have much impact, given the likelihood of families and judges intervening.

“If you are the family member of an unarmed civilian, the first thing you want is the criminal proceeding to go forward and, after that, to do the disciplinary case,” she said.

A Family at Odds With Police

City Hall officials said they are reaching out to the families of civilians who died in three police encounters under investigation, to check how they want to proceed. Two of the cases are being probed by state Attorney General Letitia James, whose office did not respond to multiple requests for comment.

James’ office is investigating the death of Edwin Garcia, whose relatives said last week they hadn’t heard from the city.

But they weren’t surprised: They said cops have been unresponsive since Garcia’s death, which the city medical examiner determined was accidental and caused by acute cocaine intoxication.

HIs family disagrees with that finding and contends the police were at fault. The Garcia family doubts the NYPD will discipline any of the offices involved in the case.

“We wanted more information, and we didn’t get it from the police,” said Marvin Garcia, 34, Edwin’s brother.

“When you call the police, you expect you’ll get help,” he added. “You do not expect it to end the way it did for my brother.”

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