I Can't Breathe

by Matt Taibbi

  Describing Carnell Russ, Meyerson went on:

  “He was shot between the eyes at point blank range when he went in to post a bond for a speeding ticket, and there was an argument whether or not he should get a receipt.” He paused. “His family was sitting outside in the car.”

  Meyerson then told the story of going all the way to Washington to sue the attorney general for failing to investigate Russ’s death. The NAACP in that case, he said, had been “injured because of the defendant’s failure to undertake a sincere and meaningful investigation of Carnell Russ’s death. We could substitute Eric Garner’s death here.”

  And a federal judge ruled that the NAACP had standing to sue in that nearly exact case because the state had indeed failed, and the NAACP, an organization founded for the exact purpose of defending African Americans against being lynched, or shot between the eyes over a speeding ticket, or strangled over a cigarette, had a clear interest in securing the civil rights of its clients.

  “And so we say, Your Honor,” he concluded, “that the NAACP has a specific and compelling interest in this matter.”

  Meyerson went on like this for a while, then sat down. His basic point was that these cases have been going on for decades if not centuries and have so often played out to no result locally that the federal government had to assert the power to step in. When he was done rehashing all the old tales of hangings and shootings and murders, the gallery went silent for a minute. The room felt full of ghosts.

  —

  A few weeks before this hearing, Dan Donovan had shocked the North Shore of Staten Island by announcing that he was running for Congress, to fill the seat of multiple felon Michael Grimm.

  The governor was a few weeks away from calling a special election for May 5. Seemingly, Donovan would want to capitalize on any opportunity to get his face in front of voters. But he was nowhere to be found in the hearing, electing instead to have Assistant DA Anne Grady stand in his place.

  Grady, a thin woman with red hair and an anxious, rabbity disposition, had an unenviable task at the hearing. Her boss, after all, had only weeks before argued to a judge in a sealed motion that the grand jury needed to be unsealed.

  Now he wanted Grady to argue the exact opposite in public.

  It was a delicate balancing act and everyone present would have understood if she had just punted her rebuttal time and offered some forgettable, boilerplate remarks on behalf of the DA’s office.

  But Grady went in the other direction. When the five petitioners were finished speaking, she launched into a strident and defiant monologue in defense of the district attorney’s position. She spoke quickly and bounced from point to strange point, talking, for instance, about the importance of secrecy in protecting sources.

  Why, she said, just look at Deep Throat, the source in the Watergate case. How long did they keep his identity secret?

  It was hard to imagine anything having less to do with a police murder on the streets of Tompkinsville than Watergate, but Grady nodded her head in emphasis as she made the point, as if the whole courtroom was with her.

  Garnett grew impatient and asked her to move on. She did and eventually made it to the strangest point of all. She had been listening to all of these petitioners’ arguments about the need to inform “the people” about what had happened in the grand jury, and clearly those arguments had grated on her. She now waved a hand in the direction of those other lawyers and offered her take.

  “The Legal Aid Society, as they are the public defender, suggests that the segment of the public with the need for disclosure is New York City’s indigent criminal defendants,” she says. “The NAACP says it represents people of color, to use their expression, who have a higher risk of interactions with the police.”

  She went on: the public advocate, she said, claims to represent all citizens of New York City, as does the NYCLU.

  She took a deep breath. “I submit, Your Honor,” she went on, “that the only ‘public’ with legally cognizable interest in the case are the residents of Staten Island, the county of Richmond.”

  A low hum rose in the courtroom as Grady went on to reiterate that the only public with a legitimate interest in the case was the citizenry that had voted in the borough’s elected officials. They, and the grand jurors who had already spoken in the case, were the true public, and they’d already had their say.

  “The public has spoken,” she said. “And that public body has said an indictment should not be returned.”

  She concluded, bitterly, “I suggest [that the] interest that the non–Staten Island segment of the public asserts to critique the work done by the members of the Staten Island grand jury is simply of no moment.”

  Those last three words, “of no moment,” hung poisonously in the air. It was the age-old argument: we don’t need outsiders coming in to tell us our business. The argument was as old as America, a country where southern white resentment over anyone telling them how to deal with “their” blacks was written into the Constitution.

  The hearing went on for a little longer, but about two hours in, Garnett mercifully gaveled it to a close. It had been a tense, unpleasant affair, with lots of genuinely hurt feelings.

  Jewel Miller glared back in the direction of the DA’s table as the crowd filed out of the courtroom, still focused on Anne Grady’s argument. “What the fuck did she mean, ‘We’re the people’? Like they’re the only people?” she said, shaking her head. “That shit is crazy. Staten Island is crazy.”

  Erica was seething, too. “Literally I wanted to just get out of my seat and run up and snatch that lady’s wig off,” she says. “The only thing I could see was the back of her head. It was just a whole lot of nonreasons that she was giving. It was so disrespectful.”

  —

  Five days after the Garner hearing, on February 10, an interesting thing happened across the bay, in Brooklyn. A cop was indicted by a grand jury for killing an unarmed black man. Back on November 20, just before the Garner grand jury rendered its fateful decision, a Chinese American rookie police officer named Peter Liang shot and killed twenty-eight-year-old Akai Gurley in an East New York project tower.

  Liang and his partner, Officer Shaun Landau, had been conducting a “vertical” search of a tower in a place called the Pink Houses. It’s a project with a tough reputation for drugs and violence. Verticals were another innovation of the Broken Windows/Stop-and-Frisk era. A pair of cops would enter a tower, ascend staircases at opposite ends, check each floor, then finally meet on the top floor to compare notes. On the way, they would stop people, ask for ID, empty pockets, and, as they saw it, stop suspicious characters and gather intel.

  Daniel Pantaleo had done such duty in Staten Island. Project residents in New York for the most part deeply resented these searches. The idea of having to bring ID with you to empty trash pissed people off. Even worse was the notion of having to deal with police patrols in what most people considered their own hallways.

  The practice, yet another Broken Windows gambit with an Orwellian name—it was called Clean Halls—would eventually become the focus of a lawsuit, after people across the city reported a wave of absurd arrests.

  Jaleel Fields was eighteen years old when he got busted during a vertical patrol in his own project home, not far from where the Gurley incident took place. In that case, Fields simply got on and off an elevator that happened to have two patrolmen in it. During the elevator ride, police got into an argument with another young man, and Fields made the mistake of laughing and telling the boy he didn’t have to talk to the police.

  Ultimately the cops got angry and arrested Fields for the catchall offenses of “obstructing pedestrian traffic” and “obstructing government administration.” They claimed, among other things, that the skinny young man had prevented people from entering the elevator.

  Fields caught a rare break. His lawyer, Martha Grieco, had the extreme good fortune to get a tape from the public housing authority showing Fields not only not blocking traf
fic but standing aside, almost like a doorman, to wave other people into the elevator.

  “You just get used to it,” Fields says now of how the police operate. “That’s just the way they work.”

  The paradox of Broken Windows is that it relied upon enhanced contact with people to be effective. No longer just sitting in cars driving in circles, no longer even just pacing sidewalks, police were going up stairwells and crisscrossing hallways, stopping people indoors. Obviously they only did this in certain neighborhoods, i.e., “where the crime is.”

  Add in a statistical imprimatur to secure a certain number of tickets and arrests and you had a highly combustible situation. Cops went into buildings looking to bust people, and people expected to be messed with in their own hallways. More things could go wrong. The Gurley case went wrong.

  Liang was ascending a staircase on November 20 with his hands on his weapon when, two floors below, a door opened. Gurley walked through with his girlfriend, Melissa Butler. The young couple was just going outside.

  Liang panicked and fired a shot that ricocheted off a wall and hit Gurley through the heart. He then went down the stairs toward Butler, who was kneeling in a pool of Gurley’s blood, trying to resuscitate him. Instead of helping, Liang just kept walking. The two officers did return to the scene but only stared at Butler as she tried to administer CPR. Liang said he didn’t know if he could do CPR better than Butler, so he didn’t intervene.

  The case proceeded almost as an exact inverse of the Garner affair. Whereas Bratton had quickly thrown Pantaleo in the soup, describing his takedown as a chokehold, in the case of Liang he immediately called the death “accidental.”

  Meanwhile, Brooklyn district attorney Ken Thompson, an African American, proceeded exactly as Donovan had not. He asked the grand jury to hand out a spate of serious charges, and he worked fast. On February 10, the grand jury complied, hitting Liang with second-degree manslaughter, criminally negligent homicide, second-degree assault, reckless endangerment, and two counts of official misconduct.

  Cops and ex-cops across the city were furious. Many felt sure Thompson had pressed for an indictment solely to avoid a riot in his borough. One of those critics was Joseph Concannon, the ex-captain and leader of the pro-police marches, who fumed over the “waterfall” of felony charges.

  Concannon had his own history with vertical searches that informed his view of the Gurley case. He remembered being a rookie in the 114th Precinct and doing a vertical at Twenty-first Street and Broadway, in the Astoria section of the city, in a building where a “man with a machete” had been reported. He and a bunch of other police reached the floor in question, and sure enough, there was a guy waving a machete around.

  “We’re all trying to say, ‘All right, how do we get a machete away from this fucking idiot?’ ” he says, remembering. “And one of the senior guys goes, ‘Very easy. Here, watch this.’ ”

  Concannon pauses.

  “He goes down, he starts talking to the guy, and then he body slams him against the wall. The machete flies away, and everybody is okay at the end of the day. I was like, ‘Okay. I guess that was a plan.’ ”

  Concannon explains the parallel.

  “This guy Liang, he’s a rookie cop. He enters probably one of the most dangerous housing projects in the city. He’s probably scared to bejeesus. It’s not his culture, it’s not in his line of thinking. All he knows is the briefing that he’s been given, and he’s probably been given a healthy briefing about what’s going on there.

  “He’s going down the stairs in blackout conditions. There’s no light.” Concannon pauses and playacts Liang’s reaction.

  “Okay, you want me to go to a housing development?” he says. “That’s fine. You want to go with no lights? Yeah. You’re a cop, don’t worry about it.”

  Concannon shakes his head. Nobody can imagine what it’s like to be in that situation, he says.

  “This is a young guy,” he says. “This could have been me in that parking lot. This could have been me shooting this guy with the freaking machete in a hallway.” He pauses. “I don’t know if you know what it’s like to be in an apartment hallway with six cops, with only your gear and your uniform on. It’s like fighting Godzilla for space.”

  Concannon inadvertently had cut right to the heart of the problem. Liang was scared. He was a nervous visitor to an alien culture. His conception of life in the Pink Houses came entirely from a police briefing. This to him was only a dangerous place, not a place where people raised kids, fell in love, watched Giants games, told bad jokes, and ate Christmas dinners. People who lived there had no identity for him apart from the fact that they were potential threats.

  A cop ascending a staircase in a white neighborhood who was so pre-terrified of the residents that he pulled the trigger at the first sound he heard would be derided as a paranoid lunatic.

  Similarly, the idea that a fat white guy selling hot smokes on a street corner was a grave threat would be laughed at as absurd. But a 350-pound black man is plausibly described in the press as someone who scared pedestrians, a threat needing to be defused.

  Try to imagine a world where there isn’t a vast unspoken consensus that black men are inherently scary, and most of these police assaults would play in the media like spontaneous attacks of madness. Instead, they’re sold as battle scenes from an occupation story, where a quick trigger finger while patrolling the planet of a violent alien race is easy to understand.

  Concannon was so mad about Thompson’s grand jury that he began arranging for a demonstration in support of Liang. His take on the situation was that Kenneth Thompson was a plant, a guy with “history.”

  “Al Sharpton, the whole nine yards,” he said. “He is not an inconsequential member of the NAN network.”

  For the protest, he had a huge amount of cooperation from the city’s Chinese American community, which rallied to Liang’s cause.

  March 8, 2014. It’s a little more than a month after the Garner hearing, on a bitterly cold Sunday afternoon. About three thousand people gather for a demonstration outside City Hall at the southern tip of Manhattan.

  Most of the people gathered here are Chinese. They stand in the freezing cold and hold up signs that say things like “SUPPORT P.O. LIANG” and “NO SCAPEGOATING.”

  In a strange twist on the racial tensions already swirling around this issue, many in the crowd insist that Liang would not have been indicted if he had been white. In this sense it is both a pro-police protest and an antidiscrimination protest, which puts it in a new category of the city’s racial dynamics.

  “Not fair,” says one of three middle-aged Chinese women who had come to the protest together.

  Why is it not fair?

  “Because Peter Liang is Chinese. Okay?”

  The three women frown and walk away.

  “He was doing his job. Accidents happen, but he was not trying to kill anyone,” says Tso Chung, forty, who stood nearby.

  He goes on: “Other officers, when they do things, they [are not indicted].”

  Chung cites the Garner case as one such example.

  It was a tale of two grand juries. The borough with the white district attorney had taken forever to get no indictment from a special grand jury. The one with the black DA had taken little time at all to get murder charges from a regular grand jury. There had been little call from protesters for Thompson to recuse himself from the Gurley case, even though he was in exactly the same situation Donovan had been in with Garner. Both men were perceived as having acted out of racial solidarity. Both were judged to have done the right thing by their respective constituencies. In war what matters most is not right or wrong, it’s whose side you’re on.

  —

  One person who didn’t necessarily think Thompson did the right thing was Meyerson, who in the days after the Liang protests sat down in his office and pondered the whole strange case. Meyerson’s take on Thompson was the same as his take on Donovan, that law enforcement can’t be trusted to
investigate law enforcement.

  “I actually think that it’s great that Ken Thompson got the indictment, but my position from the outset was that Ken Thompson should have disqualified himself,” Meyerson said. “As progressive as he may be as a district attorney, we can never forget that he’s still a district attorney.”

  Meyerson was still waiting for an answer from Judge Garnett after the Staten Island hearing. He didn’t seem to be on the edge of his chair in suspense. The outcome seemed predictable. Still, he was troubled. The Garner case had raised thorny questions about what path any attorney should choose to take in a legal system that may not be functioning correctly.

  Meyerson talked about a line from a book by Thomas Oliphant called Praying for Gil Hodges, about Jackie Robinson’s Dodgers. “Every important American story is punctuated by race,” the author wrote. Racial tumult is buried deep in the body of American society. Because of slavery and the fallout from it, it is, Meyerson reflected, our original sin. But we’re unable to face it.

  Like prisoners of ourselves, we seem doomed to repeat patterns over and over. Meyerson talked about the Kerner Commission of the late sixties, convened by LBJ to study the causes of race riots. LBJ had hoped to learn that some instigator or group was conspiring to turn otherwise patriotic black Americans to riots and protest. But the commission found just the opposite.

  “The Kerner Commission said that the trigger point [of riots] is that police are viewed as an occupying force in black and brown communities,” he said. “Fifty years later or forty-five years later, whatever it is, in Ferguson, reports will say the same thing, that police are viewed as an occupying force. Everything’s changed and nothing has changed.”

  In nearly half a century of litigating police abuse cases, Meyerson had become fixated on the idea that the law was becoming a thing too much of itself, self-deceiving and disentangled from morality. He cited Edmund Burke, the British parliamentarian from the 1700s known for his support of the American Revolution. Burke, he said, worried about the “separation of the law from the right…what’s more important than what lawyers tell you you should do is what reason, justice, and humanity tell you you ought to do…You ought not to separate these things out, because when you begin to diverge those two, you are leading yourself down a very dangerous path.”