I Can't Breathe

by Matt Taibbi

  The CCRB has thirteen members. Five are chosen by the city council, with one member coming from each borough. Another five are chosen by the mayor, and three are chosen by the police commissioner.

  The composition makes it sound like the system is weighted in favor of the city council, which tends to advocate for individual citizens.

  This setup is deceptive, though. Every three-member panel must have one council-appointed member, one mayor-appointed member, and one commissioner-appointed member.

  This means that as far as individual abuse complaints are concerned, the opinion of the police themselves carries as much weight as the mayor and the city council.

  And if your mayor-appointed panel member has been chosen by the likes of a Bloomberg or Giuliani, that would mean your complaint would have to survive the review of both a direct police appointee and the appointee of the mayor, who is the titular head of the police department and usually a strong ally of the commissioner.

  If by some miracle, however, your complaint makes it past these first two barriers, it then has to survive the judgment of an NYPD trial commissioner, another police-appointed official, at the APU court.

  And if by an even greater miracle your complaint impresses even this police-paid judge, it has to survive the direct veto of the police commissioner, who is usually inclined to dismiss any charges, especially since these proceedings rarely play out in public.

  —

  When Eure did his chokehold study, the numbers he dug up were mind-boggling.

  He focused specifically on ten recent instances of chokehold complaints that had been substantiated by the CCRB. The incidents included the case of a man who’d been walking his bicycle in the park when police attempted to frisk him for no reason and ended up putting him in a chokehold. In another case, a man who was carrying a newspaper in a public housing elevator ended up on the ground, with a nightstick under his neck, gasping for air, when police decided to search him.

  Eure’s report covered the period 2009 to 2014, but he wasn’t saying that there were only ten chokehold complaints during that time. On the contrary, the number of complaints of chokeholds since the practice had been banned in 1993 was extraordinarily high.

  Only a few of them, like the Ernest Sayon case, ever made it to the papers.

  Eure’s report claimed that between 2009 and 2014, there had been 1,082 complaints alleging 1,128 chokeholds by NYPD officers. Of those complaints, the CCRB fully investigated only about half, or 520 total. And of those 520 complaints, the CCRB substantiated just 10. So the vast majority of chokehold cases were never substantiated and died somewhere in the exonerated/​unsubstantiated/​unfounded/​officer(s) unidentified/​miscellaneous piles.

  Eure decided that there was still a point to be made just with those ten.

  “There are hundreds, if not thousands of unsubstantiated chokehold cases,” Eure says. “But we focused on this discrete set of substantiated cases as a way of putting attention on the baseline problem.”

  Eure found that in nine of the ten cases he examined, the CCRB recommended the strongest possible punishment, departmental charges. But in all nine of those cases, the cop in question ended up getting off with either no punishment at all or a maximum of five vacation days lost.

  In six of the nine cases, Commissioner Kelly personally overturned the CCRB’s recommendation, including one case involving a teenager who had been choked by a sergeant while handcuffed to a rail inside a police station.

  Essentially, out of more than one thousand chokehold complaints, roughly 99 percent of the cases simply disappeared. Of the remaining 1 percent that actually made it all the way through the disciplinary process, nine out of ten ended with either no punishment or a max of five days of vacation lost. Another officer died before his case could be resolved.

  In five years, the department had never once really punished an officer for a chokehold.

  —

  After the election of Bill de Blasio, all of this was supposed to change. He appointed a new chief of the CCRB, Richard Emery, a legendary civil rights attorney in New York. Newspapers described his appointment as heralding a “more muscular” CCRB, and indeed, that’s what most people expected. Emery had become famous for, among other things, rooting out and then suing over mass abuses in the police ranks. His most famous case had probably been a 2010 affair involving people arrested for misdemeanors like fare beating or pot smoking and subjected to public cavity searches—what was it with cops and cavity searches?—on the way to Rikers Island. He was the partner of Matthew Brinckerhoff, the man who had argued on behalf of the public advocate’s office in the grand jury hearing.

  The trim, silver-haired, fashionably dressed Emery came out with strong statements on the day he was introduced (coincidentally, the same day Garner was killed), saying the CCRB had never “fulfilled its promise.”

  But one person at least had reason to be suspicious of Emery’s comments.

  Tracy Catapano-Fox was a former Queens prosecutor and former clerk of the Queens Supreme Court who since June 2013 had held a very senior position at the CCRB, serving as its executive director. As befits a former prosecutor, the tall, sandy-haired Catapano-Fox is quick-witted and a sharp arguer.

  She had thrown herself into her new job at the CCRB with considerable energy and was looking forward to Emery’s arrival, among other things because of a brewing sexual misconduct issue involving some of the board members that she’d hoped would be cleaned up.

  But very quickly after Emery arrived, she found herself feeling disillusioned. For one thing, Emery had wondered openly if the CCRB should even be investigating Stop-and-Frisk complaints. This seemed like an odd position for a famed civil rights champion to take. Worse, he didn’t seem concerned that there might be a problem with the way the city was reporting Stop-and-Frisk statistics.

  Only a year before, the city had lost the landmark Stop-and-Frisk lawsuit. By January 2014, de Blasio was settling with the plaintiffs, agreeing to widespread reforms that the mayor believed would “turn the page” forever on the infamous practice.

  Even before de Blasio took office, police were already claiming that Stop-and-Frisk was a thing of the past. Among other things, they insisted that stops had declined 94 percent by the last three months of Michael Bloomberg’s administration.

  Catapano-Fox had seen those statistics and was dubious. She knew, from the CCRB’s records, that people were still complaining of being harassed. Her suspicion was that police were perhaps doing the same things they’d always done but simply not filling out a UF-250 form every time. There was no way it had dropped that much, she thought, noting that, at the time, the CCRB had not seen any significant decrease in complaints.

  When she went to Emery with her concerns and pleaded with him to do a study to see if the 250s matched up with the complaints, she claimed that he balked. In her lawsuit, she talked about having made “numerous complaints to Emery and the Board about his attempt to have the CCRB stop accepting or substantiating ‘stop and frisk’ complaints.”

  Emery denies that this conversation ever took place and insists that he himself later became concerned about the possibility that the stops had not declined as much as advertised. He was never able to establish this statistically. The point of this odd story is not to adjudicate who was correct, Catapano-Fox or Emery, but rather to point out that there was significant concern even within the CCRB that what many people in minority neighborhoods already suspected was true: that the reported 94 percent drop almost certainly didn’t really mean the end of Stop-and-Frisk—that in fact things were much the way people in places like Bay Street said they were, basically unchanged.

  Catapano-Fox and Emery also clashed over a plan that he came up with shortly after his arrival. His idea was that every substantiated CCRB complaint would first go to Emery and to the Department Advocate’s Office (DAO), which is charged with “prosecuting” the internal police trials for ninety days before proceeding to adjudication. During that t
ime, Emery and the DAO could “reconsider” the CCRB’s recommendations.

  This proposed new additional hurdle in the already hurdle-laden CCRB process would have allowed the CCRB chair to feel out the police commissioner to see if he or she intended to actually discipline the officer in question if convicted.

  If the commissioner indicated that he or she had no interest in disciplinary action, then the CCRB could change its recommendation to “unsubstantiated” or “unfounded” or whatever. Emery described this seemingly Orwellian proposal as “front-loading” the recommendation process to avoid the issue of recommendations that were “routinely altered by the police commissioner.”

  Catapano-Fox didn’t think any of these ideas made any sense and said so. Emery, for his part, insists that the new procedure was an important reform that gave the CCRB more credibility, since its recommendations weren’t being overturned as often.

  Whatever the case, Emery ultimately fired Catapano-Fox. She sued him for wrongful retaliation on the same day she was dismissed. The city later settled the case for $275,000.

  —

  Emery, like many of the city’s well-known civil libertarians, was put to the test politically by the Garner case. He was close friends with Bill Bratton. He had known him for decades and had been a close political ally, among other things encouraging him to run for mayor as a Republican in 2001.

  Emery also had a son who worked under Bratton in the NYPD’s counterterrorism unit, which was run by a former WNBC reporter named John Miller. The former newsman was one of the country’s most powerful terrorist chasers, and Emery’s son was one of his analysts.

  Before his arrival at the CCRB, Emery had been known as an abuse victim advocate. In fact, he had a reputation for being one of the great victim advocates and civil rights lawyers in a city full of them. But the CCRB job seemed to weigh on him, and many of his admirers in the legal community began to wonder if he’d changed after taking the job.

  For instance, after taking the post, he began comparing reform of the police to “space exploration,” i.e., a long and open-ended journey possibly to nowhere. Also, in a statement that seemed a bit strange given his job description, he complained that punishing cops was counterproductive.

  “Police officers, for the most part, really respond to rewards, not only discipline. They don’t do that well with discipline,” he said. “Discipline is kind of a wasted effort in many respects, I’m afraid.”

  One of the people who saw Emery’s remarks was Cynthia Conti-Cook, the Legal Aid Society lawyer. “I thought that was an odd thing for a person in charge of disciplining police to say,” she remembers.

  Nonetheless, she had hopes that the Freedom of Information Law request she sent to the CCRB on December 18, 2014, requesting access to Pantaleo’s complaints file, might produce some answers in the Garner case.

  She was wrong. Less than a week later, on December 24, she and the Legal Aid Society got a letter back from Emery’s CCRB essentially telling them to stuff it.

  “Dear Ms. Conti-Cook,” the letter from a CCRB lawyer named Lindsey Flook read. “Pursuant to the Freedom of Information Law, I am respectfully denying your request.”

  Flook cited a catchall shield for police in Freedom of Information requests, Section 50-a of the New York State Civil Rights Law.

  If the CCRB is a maze within which citizen complaints essentially die of exhaustion before police can be disciplined, the civil and criminal code is nearly as bad. Where police personnel files are concerned, it is an endless series of loopholes and cutouts designed to shield police behavior from public scrutiny.

  Passed by the state legislature in 1976 as an exemption to the 1974 Freedom of Information Law, for instance, Section 50-a held that police records in most all cases were exempt from FOIL. It said “all personnel records used to evaluate performance” of police shall be considered “confidential” and could not be released “without the express written consent” of the officers.

  This preposterous loophole meant anything that the government deemed “personnel records used to evaluate performance” of police couldn’t be released unless the officers themselves personally approved. The city added that any request about Pantaleo’s history amounted to an “unreasonable invasion of privacy.” This was an odd word to use given that the on-duty behavior of police officers is entirely a public concern.

  Legal Aid fought back, formally petitioning the court to order the release of a summary of Pantaleo’s file. The main piece of information they were after now was how many complaints against Pantaleo had been substantiated by the CCRB.

  “We seek only a few sentences summarizing the existence, number and outcomes of civilian complaints concerning on-duty conduct by an active officer,” Conti-Cook wrote.

  Not gory details, just a number. Given how many hurdles a complaint had to go through to be substantiated by the CCRB—think of Eure’s remarkable study on chokeholds—how high a number could that be, anyway?

  The CCRB responded that the release of even that much information would be “inherently stigmatizing and subject to abuse.”

  Now joined to the case, Pantaleo himself argued to the court through his attorney that he had already suffered hardship and threats because the press had published information about one of his CCRB cases, the Rice/Collins groping case.

  The judge in the case, Alice Schlesinger, wasn’t impressed. She didn’t think CCRB records were Pantaleo’s problem. Without passing judgment on Pantaleo’s actions in the Garner matter, she noted it was likely that “any adverse reactions expressed toward Mr. Pantaleo” would “have their roots in the video of that incident, which speaks for itself.”

  So Judge Schlesinger ordered that the CCRB release the summary. Coincidentally, that order came on July 17, exactly a year after Garner’s death.

  Both the city and Pantaleo appealed, however, and the case was tied up in court for another year and a half. By the summer of 2016, both sides were still months away from making oral arguments in the case. Years of pitched legal battle over a single number. Even the release of that much information was too much for the city to bear.

  —

  There was a bizarre twist to this part of the case. While Legal Aid was fighting the CCRB for disclosure of Pantaleo’s complaint history, the CCRB itself, and Emery, had petitioned a Staten Island court for disclosure of the Pantaleo grand jury minutes.

  This was a separate and distinct petition from the one filed earlier by the likes of Meyerson and the NAACP, the Post, the public advocate’s office, Legal Aid, and the NYCLU. Those were outside entities asking for a look in the tent. In this case, a city agency was asking for a look at Pantaleo’s grand jury case, not to publicize it, but to use it.

  The CCRB under Emery at the time was preparing to prosecute Pantaleo in APU, that internal police court. The CCRB, Emery says, was planning to push for an APU prosecution of Pantaleo in this proceeding once his grand jury investigation had been completed, and once the U.S. attorney had decided whether or not to file civil rights charges. But the Department of Justice, Emery says, requested that the CCRB put a hold on the APU case until the department finished investigating.

  Even though Emery’s CCRB was not disclosing Pantaleo’s records at the time—he says because the law barred him from doing so—he nonetheless petitioned the Richmond County Supreme Court for Garner’s grand jury minutes in May 2015. “We needed that material to properly assess how to discipline him,” he says.

  Emery says the CCRB would have had a much better chance at the grand jury minutes than the five petitioners who went to court in February. “We were a government agency, we weren’t going to make it public, and we had a particularized need,” he says. “This was a different case with much better precedents.”

  Nonetheless, the judge—Judge Garnett, the same judge who shot down the other five petitioners—refused the CCRB’s request to open the grand jury minutes formally. The denial came down on August 20, 2015. Emery, after meeting with the rest
of the CCRB, wrote a letter to the city’s corporation counsel, Zach Carter, asking permission to file an appeal.

  Carter quickly squashed this final effort to get the Pantaleo minutes. On September 4, 2015, he wrote to the CCRB and reminded the board that he had the authority to bar it from filing an appeal (and in fact had had the authority to bar the original motion to Judge Garnett, and would have, had he known about it). In strong language, Carter basically told everyone to cut it out:

  As to your Chair’s suggestion that the CCRB adopt a formal resolution requesting authorization to appeal, that is unnecessary under the circumstances. Your Chair has voiced his disagreement with my position on this matter on your behalf and by this writing, I have responded.

  …There may well come a CCRB case in which the rules protecting grand jury secrecy should yield to CCRB’s compelling and particularized need for evidence unavailable from other sources—but this is not that case.

  Not seeing an explicit order not to appeal, the board met again and voted 5–3 to file an appeal. Emery told Carter of the decision. Carter quickly wrote back and formally ordered the board to shut it down. “I do not authorize an appeal of the above-referenced decision,” he said, and that was that.

  The story of what happened inside the Pantaleo grand jury was such a closely held secret that the city was afraid to disclose it even to the CCRB. This was despite the fact that the CCRB was fighting with all its might to keep any information about Pantaleo from reaching the public’s ears. With this strange exchange of memos between Emery and Carter, about which the public knew nothing, the last attempt to get at the Pantaleo grand jury minutes was snuffed out.

  Emery stepped down as the head of the CCRB in April 2016, a day after he was sued by yet another female CCRB employee, this time for allegedly saying “I don’t know why everyone is acting like a bunch of pussies” after a board meeting. He’d also gotten in hot water with police earlier that year after characterizing criticism by police unions as “squealing like a stuck pig.” Police union officials, unsurprisingly headed by Pat Lynch, went crazy over the line. Emery’s tenure at the agency had been brief and, from a public relations standpoint, no picnic. He was probably relieved to return to private practice.