Three years have passed since Eric Garner’s choking death at the hands of police officer Daniel Pantaleo, and the episode remains unresolved. The grand jury’s secrecy and its decision not to indict anyone, along with Comptroller Scott Stringer’s unusually swift civil settlement with the Garner Family, have left the public with insufficient answers and a sense that justice has been denied. Civil rights organizations and governmental investigators have made additional attempts to obtain information, but all have failed. The public today knows little more than it did the day after Garner’s death. The absence of a satisfying resolution of the Garner case continues to fuel public unrest and a sense that without a public resolution there can be no peace.
Eric Garner died on the afternoon of July 17, 2014, on a sidewalk in Tompkinsville, Staten Island, during a physical altercation with officers of the New York Police Department. A bystander recorded the interaction between Eric Garner and the police officers who were attempting to arrest him for selling untaxed loose cigarettes. The bystander’s video showed an argumentative Garner, but appeared to show no physical threat and no physical combativeness towards the police officers. Nevertheless the world saw Garner placed in a chokehold and fall to the ground. Garner pleaded for air before Garner’s body went limp.
The New York City medical examiner found that Garner had died from a chokehold and the compression of his chest by policer officers as they arrested him, and ruled the death a homicide. The officer who applied the chokehold was identified as Officer Daniel Pantaleo. Commissioner William Bratton placed Officer Pantaleo and Justin Damico, another officer involved in the incident, on desk duty.
The cellphone video memorializing Eric Garner’s death galvanized an immediate response from the community. Within a week protests were held from Harlem to Staten Island, many led by the Reverend Al Sharpton who stated that there was “no justification” for Garner’s death.
Staten Island grand jury investigation
On September 29, 2014, Staten Island District Attorney Dan Donovan convened a grand jury. The grand jury listened to evidence and testimony in secret for over two months, including testimony from Officer Pantaleo. On December 3, 2014, District Attorney Donovan announced that the grand jury had voted not to indict Officer Pantaleo. The announcement came nine days after a grand jury in Ferguson, Missouri chose not to indict another white police officer in the shooting death of a black teenager, Michael Brown.
The two very public deaths of Eric Garner and Michael Brown caused demonstrations to erupt in over 170 cities across the country. The public was shocked by the image of Officer Pantaleo, a white police officer, choking a black man to death while the black man screamed “I can’t breathe.” In New York City thousands flooded the streets to express outrage, resulting in the police arresting over 300 protesters. Eric Garner’s scream “I can’t breathe” became a national rallying cry for demonstrators.
Federal criminal investigation
On December 3, 2014, following the failure of the Staten Island grand jury to indict Officer Pantaleo, U.S. Attorney General Eric Holder Jr. announced that there would be a federal probe into Eric Garner’s death. Holder called for an “independent, thorough, fair, and expeditious investigation.” He called Garner’s death “a tragedy” and “one of several recent incidents across our great country that tested our sense of trust” in law enforcement.
In early 2016, federal prosecutors and FBI agents in New York were butting heads with D.C. prosecutors over whether charges were warranted—a charge which would have required proof of intent to violate a person’s civil rights. Following this disagreement Attorney General Loretta Lynch assigned the Garner case to the justice department’s civil rights division in Washington. No federal indictment, however, was filed before the end of the Obama Administration two years later. Due to the secrecy surrounding ongoing investigations the status of the Garner case are unknown post-inauguration.
The Garner family’s civil settlement
While the Staten Island grand jury was in session Eric Garner’s relatives, including his widow and mother, filed a notice of claim against the City of New York seeking $75 million in damages. The notice did not set out any specific allegations, only that the family intended to file a claim within the legal timeframe allowed.
On July 13, 2015, New York City Comptroller Scott Stringer suddenly settled with the Garner family for $5.9 million. The settlement short circuited further public litigation. The Garner family never filed a complaint in court. There was no discovery, no open court hearing, no sworn testimony, no judicial decision, and no jury verdict. Comptroller Stringer did not release additional details of the settlement, only stating that the settlement “acknowledges the tragic nature of Mr. Garner’s death,” but “the City has not admitted liability.”
Comptroller Stringer’s action stunned the City. Settlements are usually negotiated first by the City’s Law Department after a complaint has been filed with the court. Comptroller Scott Stringer effectively cut out the Law Department, the NYPD, City Hall and the public from participating in the settlement. The City Charter allows the Comptroller to settle any claims against the City. In the past the Comptroller’s office has focused on claims enjoying less public notice like sidewalk slips and property damage. Comptroller Stringer, however, implemented a strategy to settle civil rights claims prior to the filing of a complaint which, according to Comptroller Stringer, saves the City money and brings earlier closure to families. It also assures that the Comptroller, and not the Law Department, gains the spotlight in prominent civil rights settlements.
Comptroller Stringer’s decision to settle, as beneficial and alleviating to the Garner family as it may have been, left the public in the dark and cut off any hope that the Garner family’s civil suit would provide the public with an explanation and resolution.
The grand jury transcripts
District Attorney Donovan’s petition
On December 4, 2014, the day after the Staten Island grand jury concluded its investigation, Staten Island District Attorney Dan Donovan petitioned Richmond County Supreme Court Justice Stephen Rooney to allow the release of a limited list of information from the grand jury’s proceedings in the Garner case. Judge Rooney agreed to District Attorney Donovan’s request for limited disclosure “in the interest of assuring the public that the relevant evidence was presented to [the grand jury].” Judge Rooney permitted only the disclosure that the grand jury (1) sat for nine weeks, (2) heard from fifty witnesses, twenty-two of which were civilians, (3) saw sixty exhibits, (4) was instructed on relevant principles of law, and (5) voted to dismiss the indictment. In re District Attorney of Richmond County, 8 N.Y.S.3d 856 (Sup. Ct. Richmond Cty 2014)
The disclosure did not quell public concern. The disclosure contained no testimony or catalog of evidence. No insights were revealed into how the grand jury reached its decision. District Attorney Donovan’s decision to seek only limited disclosure contrasted starkly with the Missouri prosecutor’s successful efforts to release the full transcript and evidence presented to the grand jury that reviewed the shooting of Michael Brown.
The Public Advocate, Legal Aid, ACLU & NAACP petitions
Others sought the full grand jury investigation. New York City Public Advocate Letitia James, the Legal Aid Society, the New York Civil Liberties Union, and the NAACP filed petitions with the Supreme Court in Richman County to unseal and release publicly the minutes of the grand jury that voted not to indict Officer Pantaleo. The petitioners sought the transcripts of testimony to the grand jury, exhibits put in evidence and the legal instructions given to the grand jury. The petitioners argued that the public outcry and the circumstances of Eric Garner’s death established a compelling and particularized need for disclosure.
In March 2015, New York Supreme Court Justice Garnett denied the petitions. Justice Garnett ruled that the petitioners failed to establish the required compelling and particularized need for disclosure; the strong public interest in preserving the secrecy of the grand jury outweighed the public interest in disclosure.
The Appellate Division, Second Department, affirmed Justice Garnett’s decision. The Appellate Division agreed that petitioners failed to show a need beyond a generalized public interest. In addition, the Appellate Division ruled that Public Advocate James lacked the capacity to petition for release of the grand jury information. The Public Advocate’s authority, the Appellate Division ruled, was limited to powers enumerated in the New York City Charter, which included oversight of intra-city services and agency actions, but not oversight of constitutionally established offices. James v. Donovan, 130 A.D.3d 1032 (2d Dep’t 2015).
The CCRB’s petition
The Civilian Complaint Review Board filed a separate petition to unseal and release the grand jury minutes to the general public, including testimony, exhibits and legal instructions. The CCRB, established in 1993 as an independent City agency, investigates alleged misconduct of police officers, including the use of excessive force. The CCRB makes findings based on its staff’s investigations and where appropriate files recommendations for discipline with the NYPD.
The CCRB argued that it needed the grand jury information because the prosecutorial authorities had asked the CCRB to hold off on its investigation pending the conclusion of the criminal investigations. The CCRB now sought to re-commence its investigation. The CCRB argued that the grand jury testimony was the freshest sworn testimony available.
District Attorney Donovan, appearing in opposition to the CCRB’s petition, argued that the CCRB, like the Public Advocate, did not have capacity to sue.
Supreme Court Justice William Garnett agreed with District Attorney Donovan that the CCRB lacked capacity to sue, but nonetheless addressed the merits of the CCRB petition. Judge Garnett ruled that the CCRB was not authorized to examine grand jury proceedings, but rather to accumulate evidence through its own investigation and to make recommendations to the Police Commissioner. Judge Garnett noted that the CCRB had never before requested grand jury minutes to augment its investigations, and concluded that disclosure of the Garner grand jury testimony would set a bad precedent. Judge Garnett dismissed the CCRB petition. Civilian Complaint Review Board v. District Attorney, 39 N.Y.S.3d 590 (Sup. Ct. Richmond Cty 2015).
The complaint concerning DA Donovan’s conduct
In late 2014, the Staten Island Branch of the NAACP submitted a complaint to the State Grievance Committee alleging that District Attorney Donovan had violated the Code of Professional Responsibility in handling the Eric Garner case due to Donovan’s close relationship with Staten Island police officers. The New York State Grievance Committee, which governs the conduct of attorneys practicing in Staten Island, denied the NAACP’s request. The Grievance Committee wrote that it was “not the appropriate forum” for the complaint because the subject of the complaint involved the “decisions and actions of an elected public official.”
The NAACP applied to the Presiding Justice of the Second Department, the chief administrative officer of the Department, for reconsideration. The Presiding Justice also declined to pursue the complaint, stating that it was not the Grievance Committee’s role to investigate a district attorney for failing to secure an indictment.
The NAACP, not satisfied with the decision of the Presiding Justice, filed an Article 78 petition in the Brooklyn Supreme Court challenging the Grievance Committee’s decision. Supreme Court Justice Bernard J. Graham ruled in favor of the Grievance Committee and dismissed the NAACP’s petition. Judge Graham wrote that “regardless of the opinion that one might have of Mr. Donovan’s actions in presenting the Eric Garner case to the Grand Jury, the actions and conduct fall within the discretion of the district attorney and the law is firmly established that the discretionary acts of a prosecutor are shielded from the oversight of civil court review.” The Appellate Division, Second Department affirmed Judge Graham’s decision.
Staten Island Branch of NAACP v. State of New York Grievance Committee for the Second, Eleventh & Thirteenth Judicial Districts, 31 N.Y.S.3d 782 (Sup. Ct. Kings Cty March 22, 2016), aff’d 144 A.D.3d 412 (1st Dep’t 2016).
The Comptroller’s settlement files
On July 24, 2015, after Comptroller Stringer settled with the Garner family, the Civilian Complaint Review Board served a subpoena on the Comptroller demanding that the Comptroller produce reports, statements, and testimony obtained during the City’s investigation and settlement of the Garner family’s claim. The Comptroller refused, arguing that the documents were protected by the attorney-client or attorney work product privileges and by the City Charter. The Comptroller also withheld transcripts of pre-litigation hearings conducted pursuant to General Municipal Law § 50-h.
On October 16, 2016, the CCRB sued in the New York County Supreme Court to enforce the subpoena. Manhattan Supreme Court Justice James E. D’Auguste denied the CCRB’s petition with the exception of the section 50-h hearing transcripts. Judge D’Auguste ruled that the Comptroller’s internal documents that were used to settle the Garner family’s claim were protected by intra- and inter-agency privilege, attorney-client privilege, and the attorney work product doctrine. Judge D’Auguste ruled, however, that the CCRB had made a showing of good cause to subpoena the transcripts of the section 50-h hearing. Judge D’Auguste wrote that “a good faith investigation of alleged police misconduct constitutes a prima facie showing of the good cause requirement.” Judge D’Auguste ordered the Comptroller to submit the transcripts for an in camera review by the court. Civilian Complaint Review Board v. Comptroller, 33 N.Y.S.3d 675 (Sup. Ct. N.Y. Cty 2016).
The CCRB’s files
In December 2014, the Legal Aid Society filed a Freedom of Information Law request with the Civilian Complaint Review Board. Legal Aid asked for CCRB’s summary of the number of substantiated complaints brought against Officer Daniel Pantaleo before Garner’s death and any recommendations made by the CCRB to the NYPD. Legal Aid stated that the information would be used to engage the NYPD in a discussion on improving police investigative and disciplinary systems. The CCRB denied the request.
The Legal Aid Society then filed an article 78 petition in New York County Supreme Court arguing that the information was necessary to inform a public discussion about policing accountability. The CCRB defended its denial of the request by arguing that releasing the summary could subject Officer Pantaleo to harassment or public humiliation. The CCRB also argued that the records sought were exempt from disclosure under New York Civil Rights Law Section 50-a, which limits access to personnel records of police officers used to evaluate performance unless the police officer consents or a court orders disclosure.
Manhattan Supreme Court Justice Alice Schlesinger ruled in favor of the Legal Aid Society and ordered the CCRB to provide the requested summary. Judge Schlesinger ruled that the CCRB was a City agency independent of the NYPD and therefore CCRB’s summary would not be “personnel records” under Section 50-a. Further, even if the summary were to be considered a personnel record, disclosure was nevertheless warranted because the CCRB failed to demonstrate that the summary would have a substantial and realistic potential to cause abuse against Pantaleo.
Luongo v. Civilian Complaint Review Board, 15 N.Y.S.3d 636 (Sup. Ct. NY Cty. Sup. Ct. 2015).
The City is appealing the decision and has not released the limited records ordered by Justice Schlesinger.
The NYPD has yet to impose any formal discipline as a result of the Garner case. In July 2016, the NYPD completed an internal investigation into Officer Pantaleo’s actions regarding Eric Garner’s death. No details or conclusions of that investigation have been released to the public. NYPD Commissioner William Bratton said, “We are ready to proceed with our administrative procedures once the U.S. Attorney decides whether or not they are going to find a civil rights violation in the case.” The NYPD has not announced any further action.
Despite intensive political, judicial and administrative efforts, the public knows little more about the death of Eric Garner than it knew after the first viewing of the videotape of July 17, 2014. The lack of a satisfactory resolution harms the political and community life of the City.
The legitimacy of America’s criminal justice system can be measured by the level of confidence the public has in it. A public trial, which provides an airing of the facts, allows the public to believe that judicial standards of fairness are being implemented. Openness of the criminal system emphasizes both the fairness of the system and the appearance of fairness. Both are necessary for there to be public confidence in the system. When a police officer is videotaped killing an unarmed man with a chokehold, and the police officer’s innocence is determined under a grand jury’s shroud of secrecy, that confidence is severely undermined. As Chief Justice Warren Burger wrote “the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980).
Officer Pantaleo received individual justice by the grand jury’s vote; the Garner family received individual justice in the form of a $5.9 million settlement. But the public did not get justice in the sense of participating in or in witnessing the manner by which Officer Pantaleo or the Garner family received justice. The public did not receive a transparent and full explanation for the grand jury’s vote or the cash settlement. Regaining the public’s trust does not require a public spectacle. But it does require transparency. Transparency from the grand jury, the District Attorney, or the Comptroller would have done much to establish a sense of public justice.
In such circumstances perhaps the street rallying cry of “No Justice, No Peace” is not entirely inappropriate.
By: Jonathon Sizemore (Jonathon is the CityLaw Fellow and a New York Law School Graduate, Class of 2016).