Federal investigation set for Eric Garner case

December 5, 2014 By Eric Tucker, Associated Press and Charisma L. Troiano, Esq., Brooklyn Daily Eagle Brooklyn Daily Eagle

Loretta Lynch. AP Photo/J. Scott Applewhite

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The Justice Department will conduct a federal investigation into the chokehold death of an unarmed black man after a grand jury in New York City declined to indict the white police officer who applied the move, Attorney General Eric Holder said Wednesday.

Brooklyn federal prosecutor Loretta Lynch, President Barack Obama’s nominee to replace Holder who announced in September that he will step down from office, promised that the investigation “will be fair and thorough, and it will be conducted as expeditiously as possible.”

Lynch’s district presides over the Eastern District of New York, which encompasses Staten Island and will be conducting the investigation.

In their investigation, federal prosecutors will look for potential civil rights violations in the July 17 death of Eric Garner, 43, who was confronted by the officer on suspicion of selling loose, untaxed cigarettes.

A video shot by an onlooker showed Garner telling officers to leave him alone as they tried to arrest him. One officer then responded by wrapping his arm around Garner’s neck in what appeared to be a chokehold.

The federal investigation was announced hours after a New York grand jury chose not to indict Officer Daniel Pantaleo, who remains on desk duty. The grand jury could have considered multiple charges, from murder to a lesser offense such as reckless endangerment, but Staten Island District Attorney Daniel Donovan said jurors found “no reasonable cause” to bring charges.

Chokeholds are banned under New York Police Department policy. But police union officials and Pantaleo’s lawyer argued that the officer used a legal takedown move taught by the police department because Garner was resisting arrest. The medical examiner ruled Garner’s death a homicide and found that a chokehold contributed to it.

The Justice Department and New York dealt with this very issue in 1998 when a federal jury convicted a NYPD officer in the chokehold death Anthony Baez. Officer Francis Livoti was indicted by a Bronx grand jury for the death of Baez, but it was acquitted by a judge following a non-jury bench trial. Federal prosecutors stepped in and charged Livoti with civil rights violations. The officer served six and a half years behind bars on a seven and a half year sentence.

As in the Baez case, the Justice Department had been monitoring the outcome of the local Garner investigation before announcing its own probe. The Garner federal investigation will be similar to a separate federal investigation already underway, involving the Aug. 9 shooting death in Ferguson, Missouri, of Michael Brown, an unarmed, black 18-year-old. A county grand jury in that case decided on Nov. 24 to not indict the white police officer, Darren Wilson.

To mount a federal prosecution in police misconduct cases, officials have to satisfy a difficult legal standard — that the officer willfully violated a victim’s civil rights and used more force than the law allowed. Though the legal standard will be the same in both the Ferguson and New York cases, there are important differences between the two investigations, said William Yeomans, a former Justice Department civil rights official.

“One big difference, and one thing I think makes this an easier investigation, is the existence of videotape,” Yeomans said. “We didn’t have that in Ferguson, and we would know much more about what happened in Ferguson if we had.”

The distinction between the Baez case and the pending Garner investigation is that a state grand jury had already found reason to indict that officer involved — there was some clear indication of wrongdoing. Officer Pantaleo, in the Garner case, was found to have acted within reason, a finding of no wrongdoing. It may be difficult, after an original finding of no wrongdoing, for federal prosecutors to now find that Pantaleo acted with willful intention.

He said that while he did not know all the facts in the case, an argument that the force was necessary seemed harder to make in Garner’s death.

“[Garner] was helpless, and of course, in the videotape, you can hear him saying repeatedly, that he couldn’t breathe,” he said. “He was clearly not in any kind of threatening posture.”