Difficult Decisions Ahead in Responding to Police Chokehold Homicide
For two weeks after the death of a Staten Island man in police custody, frustration simmered as the city awaited the results of the autopsy. The mayor offered sympathy. The police promised better training. But now, with the medical examiner’s conclusion that the death was a homicide, by chokehold and chest compression, the investigation — and most significantly, the question of whether to prosecute any police officers — rests in the hands of the Staten Island district attorney’s office.
It is a decision fraught with legal and political complications, all the more so because Staten Island is home to many police officers and, more than any other borough, is seen as sympathetic to law enforcement.
Indeed, even as the district attorney, Daniel M. Donovan Jr., continues to investigate the police officers’ actions in the death of the man, Eric Garner, the Rev. Al Sharpton has called for a Justice Department investigation and went to Washington on Monday to urge federal action.
The two largest police unions, which have vocally defended the officers who were trying to arrest Mr. Garner, planned a news conference for Tuesday morning to lash out at "police haters." On Tuesday afternoon, the new chairman of the Civilian Complaint Review Board, Richard D. Emery, is holding an unusual special meeting to address, among other topics, his investigation into hundreds of chokehold complaints against officers in recent years.
In February 2010, federal prosecutors announced that they had insufficient evidence to try the officers on civil rights charges.
But the fate of the officers involved will be in the hands of prosecutors, and as in previous cases in which police brutality was alleged, from Rodney King in Los Angeles to Abner Louima in New York, where and how a case is brought can prove as important as what the ultimate charges are.
Joel Berger, a civil rights lawyer who worked for the city’s Law Department, said that the criminal justice system was often ill suited to handle allegations of police misconduct. That can be particularly true in places like Staten Island, where support for the police is so strong. "There’s always the possibility, Staten Island being Staten Island, that they won’t indict," Mr. Berger said.
Mr. Garner died last month after being subdued by officers who were trying to arrest him because they suspected him of peddling untaxed cigarettes. During a struggle, an officer put his arm around Mr. Garner’s neck in what the police commissioner has said appeared to be a chokehold, a tactic banned by the Police Department. The encounter was recorded on video by bystanders, and Mr. Garner, after being taken down, can be heard repeatedly saying that he cannot breathe.
The officer, Daniel Pantaleo, has had to surrender his badge and gun while the incident is under investigation, and the actions of other officers and of emergency medical workers are under scrutiny as well. A spokesman for the district attorney declined to disclose whether prosecutors had presented the matter to a grand jury.
Legal experts, civil rights lawyers and former prosecutors said there was little chance that Officer Pantaleo or the other officers would be indicted on a charge of murder. But they said a lesser homicide charge, like second-degree manslaughter or criminally negligent homicide, could be possible.
For federal prosecutors to step in, they must find evidence that the officers acted with the intent to deprive Mr. Garner of his civil rights based on his race, which can be a higher standard.
"When you are trying to figure out where you draw the line between a reasonable use of force and an unreasonable use of force that violates federal criminal law, that’s a bigger gap than words would suggest," said Alan Vinegrad, the lead prosecutor in the Louima case. In New York, federal authorities often wait for state officials to complete their case; proceeding in that order creates fewer legal hurdles.
There is also the possibility, former prosecutors said, that the district attorney could find that the officers acted negligently but did not do so in a criminal manner that could support prosecution. In that event, the case would not be presented to a grand jury at all.
That result would most likely set off further protests. "My hope, and the hope of the community, is that the D.A. pursue this and get an indictment and a conviction," said Deborah Rose, who represents northern Staten Island on the City Council.
Police officers are given broad latitude to use force based on their professional judgment. An element of any case is likely to be whether their response to Mr. Garner — a 350-pound man who refused to be arrested — appeared reasonable. "The real key to the criminal prosecution is the violation of the Police Department rule against chokeholds," said Jason Leventhal, a former assistant district attorney in Staten Island who now brings civil rights cases against the department. For more than 20 years, the Police Department has banned chokeholds, though they are not prohibited by state law.
The video, recorded by a bystander along Bay Street in a crime-prone corner of Staten Island, presents some of the clearest evidence in the case; both Mayor Bill de Blasio and the police commissioner, William J. Bratton, said it appeared to show a chokehold.
But the arrest on gun charges on Saturday of the bystander who recorded it, Ramsey Orta, could add a further complication: In his two separate cases, Mr. Orta will be both a witness and a defendant before Staten Island prosecutors. "Those who say the D.A. may be conflicted may be right here," said Michael Meyers, head of the New York Civil Rights Coalition.
Mr. Leventhal said jury pools in the borough often included many people with relatives in law enforcement and would probably present added challenges in the Garner case. "It’s a very pro-police community that is going to give the benefit of the doubt to police officers," he said.
In April 1994, a Staten Island man accused of dealing drugs, Ernest Sayon, died in police custody and the medical examiner ruled his death a homicide, including "by compression of the chest and neck." A chokehold was never proven and a Staten Island grand jury declined to indict.
In the case of Mr. Sayon, federal authorities looked into his death, but Zachary W. Carter, then United States attorney for the Eastern District of New York, which covers Staten Island, declined to bring a case. (Mr. Carter, who is now the city’s top lawyer, won federal criminal convictions against the police officers accused of beating and sodomizing Mr. Louima in a precinct bathroom.)
The Sayon case came only months into Mr. Bratton’s first tenure as commissioner. Then, as now, he responded with calls for increased training of officers.
For those pushing for federal prosecution of the officers who arrested Mr. Garner, the death of Anthony Baez in 1994 provides the most similar facts, and starkest example of state-versus-federal prosecution. Officer Francis X. Livoti was accused of using a chokehold while arresting Mr. Baez after he hit a police cruiser with a football in the Bronx. Officer Livoti was acquitted during a bench trial in state court, but later convicted of federal civil rights violations, and sentenced to a seven-and-a-half-year term.
Ernest Sayon
April 29, 1994
Mr. Sayon, 22, died after a drug raid on Staten Island. The police said he struck his head on a cobblestone street, but his death was ruled a homicide by asphyxiation. He was handcuffed at the time.
STATE PROSECUTION
After deliberating for seven months, a state grand jury declined to indict three officers.
FEDERAL PROSECUTION
Federal prosecutors reviewed the case but took no action.
Abner Louima
Aug. 9, 1997
An officer sodomized Mr. Louima, a Haitian immigrant, with a broomstick in the 70th Precinct house after he was arrested in a clash between police and patrons of a Flatbush nightclub.
STATE PROSECUTION
Four officers were indicted on assault charges, and two had additional charges of sexual abuse.
FEDERAL PROSECUTION
The U.S. attorney formally took over the case in 1998, before state trials. Officer Justin A. Volpe was sentenced to 30 years in prison. Another officer pleaded guilty in 2002 to perjury. Two other officers had convictions overturned on appeal. Two officers were sentenced to probation for a cover-up.
Amadou Diallo
Feb. 4, 1999
Four officers approached Mr. Diallo, an immigrant from Guinea, on the stoop of his building, killing him in a hail of 41 bullets on the mistaken notion that he was carrying a gun.
STATE PROSECUTION
In February, 2000, all four officers were acquitted by a jury after a trial in state court.
FEDERAL PROSECUTION
A year later, the U.S. attorney decided not to press civil rights charges against the officers.
Sean Bell
Nov. 25, 2006
Five detectives fired 50 times into a car occupied by Mr. Bell and two others after a confrontation outside a Queens club on Mr. Bell's wedding day. He was killed.
STATE PROSECUTION
Three detectives were brought to trial, and a Queens judge acquitted them of all charges in 2008 after a heated seven-week trial.
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