I Can't Breathe

by Matt Taibbi

  This, he said, was the issue in the Garner case. There was the law, and then there were the facts of what happened. “A guy got killed,” Meyerson said. “That gets lost on everybody.”

  Meyerson believed that the mere fact that Judge Garnett was focused on inane issues like DiNapoli proved that the discussion had moved too far from the matter at hand. He kicked himself for not saying so.

  “One of the things I wanted to say but failed in courage to say it was, ‘Judge, the fact that we’re having this abstract discussion and you’re asking these questions in fact makes my point why you should be disqualified.’ I really regret not having said that.”

  Meyerson understood that the other lawyers, whom he all respected, disagreed with his approach in court with Garnett. He knew they felt their best shot was to argue the law, such as it is. He’d gone another route.

  “At the end of the day,” he said, “I turned to Matt [Brinckerhoff] and I said, ‘You know, whatever the nature of the exercise I engaged in, maybe it will guilt him into something.’ ”

  —

  It didn’t. On March 19, Garnett quietly issued a decision shutting down the effort to unseal the grand jury. As expected, he wrapped his arms around the doctrine of compelling and particularized need and held on for dear life, using it to strike down all the petitioners’ requests.

  “What would they use the minutes for?” he asked. “The only answer which the court heard was the possibility of effecting legislative change,” he wrote. “That proffered need is purely speculative and does not satisfy the requirements of the law.”

  Dan Donovan, by then deep into the process of running for Congress, was quoted in the press saying that he would “adhere to Judge Garnett’s well-reasoned decision.” He said this without irony, as if there was a chance that he might suddenly decide not to adhere to it and break open the files for public view.

  The petitioners appealed, and Meyerson and others sought several new avenues of attack. But for most people following the case, the suspense was over. Staten Island had circled the wagons. Unless the federal government intervened, nobody would ever find out what went on in that grand jury room.

  THIRTEEN DANIEL

  Just before Christmas 2011, a young African American video producer named Charles Roberson got in his car on the North Shore of Staten Island and drove toward a 99-cent store. His plan was to get detergent there, then go to a local laundromat to do his laundry. He knew there was a special at the laundromat, like maybe the machines were half off if you got there before noon, so he was in a bit of a hurry.

  He had just bought detergent and was about to take his laundry out of the car when, out of nowhere, he heard police telling him to freeze. Roberson ended up with his hands on his car’s trunk and his pants and underwear pulled down around his ankles. A young white officer was strip-searching him in broad daylight.

  “I felt the wind, it was cold,” he recalls. “I’m like, ‘Why are you doing this?’ ”

  Roberson felt that there was something a bit off about the officer, like he was looking for an excuse to go off. “I kept thinking, ‘This guy is unstable. He’s going to hurt someone.’ ”

  The group of police tossed his car, popped his trunk, found nothing illegal. Finally, after a lot of profanity and groping, they told Charles to get the fuck back in his car and leave.

  Charles did so, his head spinning. He felt violated and furious. He wanted to sue, press charges, do something.

  Charles had a female friend who convinced him to walk into the 120th Precinct to complain. He walked up to the desk and began to tell the desk sergeant a story about being strip-searched in the street. Suddenly, as he was talking, the young cop who’d strip-searched him walked past in the corridor.

  Charles pointed. “That’s the guy! That’s the cop that pulled my pants down!”

  As he pointed, Charles’s friend went to the front desk and asked for the name and badge number of the officer. She wrote it down:

  Pantaleo, Daniel. Badge #13293

  Roberson confronted Pantaleo, who told him he was “just doing his job” and that he’d been stopped because he was seen coming out of a “known drug location.”

  “The ninety-nine-cent store is a known drug location?” Roberson asked, incredulous.

  They parried a little more, then finally Charles asked one last time: “Why did you need to pull my pants down? What was the point of that?”

  “I was just doing my job,” Pantaleo said. “You went to the spot.”

  For a long time, the incident rattled Roberson. The stop was one thing, but the strip search, whose sole point seemed to be to humiliate him, was too strange to make sense of.

  “I wondered, did this guy’s girlfriend leave him for a black guy or something? Did he want to see what I was packing? I don’t know why he did it.”

  —

  Three months after Roberson’s encounter, in March 2012, Pantaleo and three other officers stopped three black men on Jersey Street, not far from where Eric Garner lived. He ordered the three men—Morris Wilson, Darren Collins, and Tommy Rice—out of the car to be searched.

  The stop appeared to be a classic fishing expedition, albeit a more successful one than the stop involving Roberson. Pantaleo and his fellow officers said they spotted crack and heroin in “plain view,” on the backseat of the car, which gave them cause to arrest all three.

  In fact, all three seem to have been rousted out of the car before police saw any drugs.

  Once the men were outside the car, police searched them. Wilson had the drugs on him. The other two men got the Charles Roberson treatment. According to a lawsuit later filed by Collins and Rice, “Pantaleo and/or [another officer] pulled down the plaintiffs’ pants and underwear, and touched and searched their genital areas, or stood by while this was done in their presence.”

  Pantaleo and the others took them back to the precinct after that and repeated the whole ritual, forcing them “to remove all of their clothing, squat, cough, and lift their genitals.”

  Wilson, in a plea deal, later admitted to having drugs on his person. Collins and Rice were charged, but their cases were dismissed down the line. It was a humdrum case of test-a-lying and fishing with dynamite: stop a whole car, fudge the probable cause, violate a right or two or three, charge everyone, let the courts sort it out.

  Long after charges had been dropped against Collins and Rice, their lawsuit finally went through. The NYPD ultimately had to pay out $30,000, or $15,000 for each man strip-searched.

  —

  In 2012, it seems, a young black man from Staten Island named Rylawn Walker contacted a lawyer named Michael Colihan and told a story about having weed planted on him by a cop named Daniel Pantaleo. The incident took place at 225 Park Hill Avenue, the exact spot where Ernest “Kase” Sayon had been killed.

  Colihan, a one-man operation who’d sued a lot of cops over the years, didn’t see anything unusual in Walker’s case at the time. He’d seen plenty of cases of cops “flaking” suspects, either planting stuff on them or massaging the probable cause. This looked like a run-of-the-mill flaking.

  He sued the NYPD on Walker’s behalf along with two other plaintiffs, alleging civil rights violations, and ended up settling for $15,000 in that case, too. Later on, Walker’s brother, Kenneth Smith, also filed suit over the same incident, also claiming to have been jailed for nothing by Pantaleo that night. Colihan remembers reading about the Garner case and being struck by the name of the officer.

  “I thought, ‘I know that name. It’s an unusual Italian name,’ ” he says.

  Then it hit him.

  “I have an open case with that guy.”

  —

  Despite being infamous around the world thanks to Ramsey Orta’s video, Pantaleo throughout late 2014 and early 2015 remained an almost perfect cipher. He didn’t speak to the press, his grand jury testimony was secret, and the city had mostly settled the lawsuits he’d been involved with before he ever got a chance to be depo
sed. Apart from what the police told the press, there was little available about his past.

  The public was told that Pantaleo grew up on the South Side of Staten Island, on the white side of the Mason-Dixon Line. This is a part of the city where there is an empty chair at the dinner table somewhere on almost every block, a testament to how many firefighters and police from here died during 9/11. These neighborhoods are intensely patriotic and proud of their contributions to the city. The families are close-knit, politically well organized, and resentful of the “city problems” they feel they pay to clean up with their tax dollars.

  Pantaleo’s father is a retired New York City firefighter, his uncle a city cop. Daniel went to Monsignor Farrell High School in Staten Island and moved from there to the College of Staten Island.

  He joined the NYPD in 2006, beginning his work in what was called a “condition unit.” Basically this meant doing Broken Windows stuff, making quality-of-life arrests.

  After the Garner incident, Pantaleo hunkered down at his home on Elmira Street on the South Shore, saying little to anyone, even his neighbors, who naturally were interrogated by reporters on a regular basis in search of any kind of clue into his behavior. But even when the neighbors talked, the mystery of Pantaleo only deepened.

  “He’s like a shadow,” an elderly neighbor told the Daily News. “He’s in and out.”

  “I’ve never seen him at all,” added an MTA worker named Donald Petosa.

  On Bay Street, there was little debate. Pantaleo was talked about like the Bogeyman of Staten Island, a drug-planting, crotch-grabbing monster who should have been stopped years ago. The park regulars and inhabitants of nearby projects who claim to remember him describe him as young, inexperienced, and with more muscle than brains. “Motherfucking hothead” is how McCrae described him.

  In the courts and in police circles, it was different.

  “I can’t believe it was him. He was one of the better ones,” was a common observation in the halls of Staten Island criminal courts. Lawyers pointed to the “relatively small” number of federal abuse lawsuits that had been filed against him.

  “What’s he got, two, three?” offered one attorney, shrugging. “There are guys on the force with a dozen, fifteen, even twenty lawsuits.”

  —

  On the day after the announcement that Daniel Pantaleo would not be indicted, Pat Lynch, the bombastic union chief, issued a full-throated defense of his officer. Lynch’s defiant remarks came to be known among some wisecracking reporters as the “literally an Eagle Scout” speech.

  “[Pantaleo] is a model of what we want a police officer to be,” said Lynch. “He’s a mature, mature police officer, motivated by serving the community. He literally is an Eagle Scout.”

  Lynch added that Pantaleo had had “very few” citizen complaints against him in a career spanning some three hundred arrests.

  What kind of number was “very few” to someone like Pat Lynch? What was in Pantaleo’s file?

  From Thomas Gilligan, the man who’d shot James Powell in Harlem half a century ago, to Charles Lee Ratliff, the man who’d shot Carnell Russ in Arkansas in the seventies, through the present, the officer with a lengthy abuse history who should have been removed years before a fatal incident has been a consistent character in brutality stories. Was Pantaleo the latest?

  —

  In late February, Erica for the first time saw a copy of the lawsuit her father had written by hand in Rikers Island, the one about being groped and digitally penetrated on the streets of Staten Island. The sight of her father’s miserable handwritten missive made her physically unwell but also galvanized her to continue the fight on his behalf. It was too late to prosecute a lawsuit for the groping incident, but there were other things she could do.

  By then she had been leading weekly marches and meetings on the Staten Island Ferry, but now she also filed Freedom of Information requests with the city, seeking information on the background of Daniel Pantaleo. Hers was the second major effort in this direction.

  On December 18, 2014, two weeks after Lynch’s Eagle Scout speech, a young Legal Aid Society lawyer named Cynthia Conti-Cook had also submitted a Freedom of Information request to the Civilian Complaint Review Board, or CCRB, the city agency in charge of processing and investigating complaints of police abuse. The CCRB was also, at least theoretically, in charge of disciplining officers in noncriminal situations.

  If Dan Donovan’s grand jury was the first black box in the Garner case, the personnel file of Daniel Pantaleo would be the second. This was no surprise, because the bureaucracy the city had built to deal with bad police behavior was designed to be impenetrable. The CCRB in particular turned out to be an organization so complicated that even the most skilled lawyers had difficulty understanding how it worked. As multiple people connected with the Garner case would discover, it was a maze where citizen complaints went to die.

  —

  In the years before Eric Garner’s death, the residents of heavily policed neighborhoods in New York had demanded the creation of an independent inspector general, someone who was not a cop to oversee the police department and help rein in abuses. The city council pushed for the idea. But the mayor, Michael Bloomberg, denounced the plan as one that would “outsource management of the police to unaccountable officials.” Police Commissioner Kelly likewise blasted the very idea of an IG, saying it would imperil the lives of police.

  The council nonetheless passed a bill—and overrode Bloomberg’s angry veto—to create a new IG’s office, its first appointment falling to new mayor Bill de Blasio. Philip Eure (pronounced “yore”) seemed to have the perfect résumé for the job. Tall, affable, and African American, he’d come up from Boston’s tough Roxbury neighborhood to go to Stanford and then Harvard Law. For ten years he’d managed a similar operation in Washington, DC, called the Office of Police Complaints.

  The New York job, especially in light of its famous/infamous Stop-and-Frisk program, was a massive challenge he was eager to take up. He would be heavily funded and tasked with hiring a staff of about fifty, who in turn would be given free rein to investigate the problems of one of the world’s biggest police departments.

  He was still hiring staff when Garner was killed. Immediately, Eure, whose offices didn’t even all have working phones yet, was thrust into the middle of a perilous national controversy—and a dicey political situation.

  “If we don’t do something, people will talk” is how Eure recalls the dilemma. “But at the same time, we didn’t want to replicate the work of the Staten Island DA, the feds, the Internal Affairs Bureau, or anyone else.” He pauses. “So we settled on a systemic review.”

  Eure decided to look at the question of how the city had handled complaints of police chokeholds in the past. He soon dove down into the bureaucratic rabbit hole with the Garner family and the Legal Aid lawyers.

  —

  In New York, if you get beat up by the police, there are really two places to complain.

  The most common destination is the CCRB. The organization is supposed to be an independent civilian agency, with no ties to the police, as unthreatening to walk into as the DMV or an emergency room. If you have a problem with police, you’re supposed to call them up and explain: I was walking down the street, police stopped and questioned me, then they knocked me down and broke my finger, etc.

  The CCRB takes your info down, then conducts its own investigation. When they’re done, they make a presentation to a three-member panel of CCRB members.

  After that presentation, the CCRB panel makes one of six recommendations: substantiated, exonerated, unsubstantiated, unfounded, officer(s) unidentified, and miscellaneous.

  “Exonerated” means the CCRB agrees that the officer did it but finds that he or she was justified.

  “Unfounded” means they have positive evidence that the cop didn’t do it.

  “Unsubstantiated” means they don’t think there’s enough evidence to say one way or the other.

&
nbsp; “Officer(s) unidentified” is self-explanatory: maybe it happened, but we can’t figure out which officer knocked your head against a radiator.

  And “miscellaneous” usually means the CCRB found the officer involved isn’t on the force anymore, so whatever.

  But if it’s “substantiated,” it moves on. Typically, that means the commencement of a proceeding before the Administrative Prosecution Unit, which is basically a court within the police department.

  The APU holds trials, but it’s not a court of law. It’s what’s called an administrative law court, which exists entirely within the executive branch, rather than the judicial. In the case of the New York City APU, technically everyone present at a hearing, from prosecutors to judges to defenders, is a member of the police department.

  This makes it an odd choice for judging police misbehavior, but the APU hears all substantiated cases of police misconduct. If, at the end of these “trials,” the APU court determines the officer is guilty, it makes a recommendation for discipline. This can be as serious as dismissal and as trivial as “instruction” or “command discipline,” which can be just a talking-to from your precinct chief, who might not even really care.

  But the APU’s ruling isn’t final. All rulings in favor of discipline are sent in the end to the commissioner’s desk. The commissioner, in turn, can unilaterally decide to overrule everyone.

  This long and winding system means that any complaint has to complete a series of extraordinary hurdles before an individual police officer is punished. Within each one of those hurdles are multiple subhurdles.

  For instance, even if the initial investigators believe your complaint and recommend action, you still have to get past a three-member panel of the CCRB, which tends to be stacked against the public.