I Can't Breathe

by Matt Taibbi

  Some time later, Emery would reflect on his time at the CCRB. His tenure at the agency had been dominated by the Garner case. Garner had been killed, after all, on Emery’s first day on the job. “It hovered over everything,” he recalls. “The whole time I was there.” And even as he took criticism from lawyers and activists who blasted his CCRB for not releasing Pantaleo’s records, Emery was burdened by knowledge about the case he couldn’t share at the time.

  During the course of his agency’s preparation for a possible prosecution of Pantaleo in a police trial, the NYPD had made some nonpublic investigatory materials available to the CCRB. Corporation counsel Zach Carter had even made reference to this in one of his letters to Emery and the CCRB, in which he castigated them for seeking access to the grand jury minutes. “[The] NYPD ultimately relented and provided access to evidentiary materials in July 2015, including tape recordings of the interviews of the target, Officer Pantaleo, and other witnesses,” Carter wrote on September 17, 2015.

  As CCRB chief, Emery therefore had access to materials that none of the many police critics following the case had. He had seen the autopsy photos. “Just horrifying,” he recalls. He also had been able to review some of the investigatory materials, and says they left him without much doubt about the matter, at least in terms of the internal CCRB prosecution he ostensibly would have led.

  “There was a very strong case that I would have pursued, seeking the most serious form of discipline for Pantaleo,” he says now. Without elaborating on the specifics, he says that his review included “the autopsy photos, the medical examiner’s report, and a very skillful interrogation of Pantaleo by IAB [Internal Affairs Bureau] investigators.”

  Emery is quick to point out that he’s not offering a judgment on whether or not Pantaleo could or should have been indicted criminally. He could speak only of Pantaleo’s vulnerability to police discipline. On that score, though, he says he had no doubt.

  “Those three things,” he repeats, referring to the autopsy photos, the ME report, and the IAB interview, “made it a very strong case for the most serious discipline, in my view.”

  Perhaps, if he had remained in office long enough to conduct a prosecution of Pantaleo—APU trials at One Police Plaza are public, even though the public rarely attends them—Emery’s tenure might have been remembered for bringing some of that information to light. But he never got the chance to show how his office would have responded to that opportunity.

  In June 2017, there was a quiet announcement in the New York Post that the CCRB had moved to substantiate an excessive force complaint against Pantaleo. The paper noted that this decision could result in “an administrative NYPD trial,” which left open the possibility that some of this evidence might still see the light of day. But it was also possible that a deal could be reached that would keep the lid on everything. Three years after Garner’s death, the case was still a maze of dead ends. Virtually every avenue that might have led to disclosure of what police and prosecutors knew remained closed.

  —

  In late spring, a series of envelopes began showing up on Erica’s doorstep.

  Inside each one was a denial of her FOIL requests. Some of the city’s letters used language that seemed cut and pasted from the arguments the CCRB had thrown at Legal Aid.

  Releasing the information requested, the city told Erica, would constitute an “unwarranted invasion of privacy” and “could endanger the life or safety of any person.” It also would “interfere with law enforcement investigations and judicial proceedings.”

  Erica was floored by the language. Her father had been killed by a police officer with a history of abuse incidents. If her request was “unwarranted,” what would have constituted a warranted request?

  “It didn’t make any sense to me,” she said.

  —

  While the fight over Pantaleo’s records was going on, a similar battle was taking place in the city of Chicago over another police killing, involving a seventeen-year-old named Laquan McDonald. McDonald had been shot sixteen times by police on October 10, 2014, while the Garner grand jury was hearing whatever case Dan Donovan was putting on.

  Chicago police said McDonald was shot because he had lunged at cops with a four-inch knife while they were investigating break-ins at a trucking yard.

  But there were questions about the case from the start. In April 2015, the FBI launched an investigation into the case. Days later, the city approved a $5 million settlement to McDonald’s family, but still no one really knew what happened.

  In May, a Freedom of Information Act request was filed by a freelance reporter named Brandon Smith, who like Conti-Cook was part of a project aimed at compiling data about police abuse complaints. His was one of sixteen different efforts to obtain police video of the incident.

  It wasn’t until November 19, 2015, more than a full year after McDonald’s death, that a judge ordered the release of the video, over the objections of Chicago mayor and former Obama chief of staff Rahm Emanuel.

  The video was finally released on November 24 and showed that McDonald was clearly walking away from police when he was gunned down. A single officer, Jason Van Dyke, shot him all sixteen times.

  Virtually simultaneous with the release of the video, Van Dyke was charged with first-degree murder. The horrifying video by then was just the latest in a series of gruesome scenes that had gone viral since the death of Garner.

  Those included the killing of twelve-year-old Tamir Rice in Cleveland, shot for carrying a toy gun by police who began firing seconds after arriving on scene; unarmed Walter Scott, shot at eight times after being pulled over for a broken taillight in North Charleston, South Carolina; Freddie Gray, who had his spine broken in a police van in Baltimore; Dajerria Becton, a bikini-clad fifteen-year-old girl thrown to the ground by a white officer named Eric Casebolt at a pool party in McKinney, Texas; Sandra Bland, a twenty-eight-year-old black woman found hanged in a cell in Waller, Texas, after being detained for an illegal lane change; and countless others.

  The FOIA request leading to the release of the video was clearly a major reason that Van Dyke was charged with murder at all. Law enforcement had lied repeatedly in that case, claiming an assault that never happened. It was only when it couldn’t be denied anymore that charges were filed.

  And there was one additional detail that came out as a result of the FOIA request: Van Dyke had at least twenty different civilian complaints on file, including an excessive force case for which the city paid out $350,000. The database project Smith was involved with showed that as many as 402 different Chicago officers had twenty or more complaints on file, with one officer having a high of sixty-eight.

  When the McDonald video was released, and news of Van Dyke’s history became public, protests engulfed the city of Chicago.

  But halfway across the country, in New York, the history of the officer in the most infamous case of all remained secret.

  —

  Within a month or so after Eric Garner’s death, his stepfather, Ben Carr, began to frequent the spot where Garner died. He and others, including fellow North Carolina native Doug Brinson, set up a memorial with candles and posters and other items at 200 Bay.

  A little Plexiglas box containing flowers and cards would remain for years. Carr would frequently come by with a bottle of Windex and a rag, shining and cleaning it for hours, pouncing on even the smallest speck of dust. If anyone spit on the sidewalk near the spot, he would immediately douse it with bleach and mop the whole sidewalk in a fury. The shrine became his personal mission.

  His presence raised eyebrows among the Bay Street regulars, who didn’t know quite what to make of him. Some were resentful that he occasionally told people to behave this way or that near the box. Others just learned to steer clear of the spot when he was around.

  Standing at the box in the days after the Laquan McDonald video went public, Carr told a story about his youth.

  One night in the late 1950s, when he was about twelve
years old, Carr crouched in the bushes near his house, waiting, a rifle in his hands. This was in rural Rocky Point, North Carolina, right around the time of the historic Brown v. Board of Education decision desegregating America’s schools.

  “I had a twenty-two and an eighteen-shot rifle,” he said. “I got my first gun when I was eleven. We used to go hunting for squirrels and rabbits.”

  Carr lived in a cul-de-sac off Route 117, a little looping road called Pennsylvania Avenue, where both blacks and whites lived. “All the families worked at the sawmill,” he said. “We was all poor.”

  During the Brown case, a tall, broad-shouldered, then-little-known lawyer for the NAACP named Thurgood Marshall had lampooned the argument made by white America that chaos would somehow ensue if black and white kids who already played together were allowed to go to school together.

  “They play on their farms together, they go down the road together,” he said. “But if they go to elementary and high school [together], the world will fall apart.”

  Marshall might have been talking about the rural Carolina neighborhood where Ben Carr grew up. Not only did the boys and girls on Pennsylvania Avenue play in one another’s yards, the white and black parents watched and disciplined one another’s children.

  “The white parents would whip our asses, and our moms would whip their asses,” he says now, laughing. “If we needed something they would loan it to us, and if they needed something, we would loan it to them. We lived together and it was cool.”

  But one of the black residents on the block was a local teacher (Carr calls him “the professor”) who had the gall to go work for the white public school when integration began. The rednecks in town didn’t like it, and one night, they burned a cross on his lawn. Carr remembers seeing the flames licking the night air.

  The black men on the street doused the fire and then set up in the bushes by the side of the road with rifles, pellet guns, and any weapons they could get their hands on. “We knew that they liked to come back and burn your house down,” he says. “It didn’t matter if you were in it.”

  Because the stretch of Pennsylvania where he lived was a U-shaped road, it was a good spot for an ambush. “If you came in,” Ben says now, “we got your ass.”

  Ben waited in the bushes with his .22 that night, but they never came back. Did he know who they were?

  “They wore masks,” he said. “But we knew who they were.”

  Decades later, he stood on Bay Street and traced a finger right down the middle of his face, recalling the men in masks who had burned a cross in his neighborhood when he was a child.

  “They had two faces. One with the mask and one without.”

  The fight over personnel secrecy, he said, was the same thing.

  “Back then they had masks,” he said. “Now they have uniforms. Then they hid behind the masks. Now they hide behind the uniforms. We know their faces, but we don’t know nothing else.”

  Not long after, Carr had a mild stroke while driving a car and nearly lost his life. He stopped coming around the spot so often. Except for the little Plexiglas box, it was as though nothing of note had ever happened here.

  FOURTEEN RAMSEY

  Friday, February 19, 2016, just after noon. Ramsey Orta, famous for his phone-camera video of the last moments of Eric Garner’s conscious life, is holed up in an apartment somewhere in the Bronx. He is wanted by police, but he’s not sure what to do. Afraid for his life, he’s thinking of running.

  The previous Sunday, he and his new wife, Bella Eiko, got into an argument at their place in the Baruch Houses, on the Lower East Side.

  The two had married very quickly after meeting the previous year, and their relationship ran very hot and very cold. Sunday had been one of the cold days. They had a dispute, things got ugly, and the back-and-forth spilled out into a Duane Reade. This led to police being called and Bella being grilled by detectives.

  Bella Eiko is a striking young African American woman who’d only just moved from Oakland and had a young child from a previous relationship. She had a pleasant manner but sometimes seemed anxious. She would smile and say one thing in a tight, staccato rhythm one minute and frown and sigh out the opposite a moment later.

  In the station, she says, police told her she couldn’t make arrangements for her son until she gave a statement.

  “I panicked,” she says. “I was under duress. I didn’t know what I was saying.”

  So she “gave police what they wanted,” eventually making a statement about being threatened by Ramsey. The story may have had a few truths in it, but it was clearly also true that Bella, who was active in the Black Lives Matter movement, did not want to help the police by giving evidence against her famous husband. She seemed mortified and conflicted by the whole situation.

  She almost immediately recanted, but the deal was done. Police moved swiftly to obtain a warrant to grab Orta off the streets. Already one of the planet’s most oft-arrested people, Ramsey was about to head back to jail one more time. But before the police got their warrant, he split uptown and set himself up in a friend’s apartment in the Bronx, trying to win himself some time to think things through.

  On the phone from his hideout, a wired and freaked-out Orta gave a frenzied history of his eighteen-month saga as the suddenly famous amateur videographer who had brought the mother of all global controversies down on America’s biggest police force. He sounded very much on edge.

  He explained that he expected to be arrested at any minute and feared for his life. Although he’d told his story a hundred times, he seemed frustrated that he was still misunderstood. More than anything, he was worried about what might happen to him in custody.

  “What I’m asking for is for help,” he said. “I’m in a very, very dangerous situation, where I actually had to shoot a video to explain that if I died, it wasn’t suicide.”

  He took a deep breath and paused to look outside.

  “Where do you want to start? Because I could start from two years ago, or I could start from now,” he said. “This shit has been going on since I took this video. Everything hit the fan from that moment.”

  —

  He started at the beginning.

  Orta traced his troubles back to the night Garner was killed. After shooting the video he’d returned home to play video games in his bedroom when police drove by his place, shining a spotlight in his window.

  “It was a warning,” he said. “I didn’t see it at the time, but it was.”

  His serious legal problems started a few weeks later. Late at night, just outside the Richmond Hotel, a flophouse up the street from where Eric Garner was killed, police stopped Orta and a young girl. He’d been in a room at the Richmond with a seventeen-year-old named Alba Lekaj, whom Ramsey now says he did know, although he told reporters otherwise at the time.

  Police said they caught Orta handing her a gun and arrested him.*1

  Orta’s account of the case was all over the place. He not only had to worry about talking himself into jail, he had to worry about what his then wife, Chrissie, would think about him being in a hotel room with a seventeen-year-old girl. He gave multiple explanations for what went on in that hotel. The one he settled on ultimately was that he was in there doing business. “She was an addict,” he says. “I was selling her drugs.”

  When Orta and Lekaj came out of the hotel, two plainclothes police approached them and started to question them. These two officers swore that Orta slipped Lekaj a .25 caliber Norton pistol at that moment.

  This is the problem with the Stop-and-Frisk era. There are so many cases where police clearly invent the reasons either for a stop or a search that it makes it hard to know what the truth is in any arrest where the evidence is the say-so of a police officer.

  Was Jeff Thomas swallowing a baggie of crack? Was Eric Garner really selling cigarettes before he was killed? And did an experienced criminal like Ramsey Orta actually slip a pistol to a seventeen-year-old girl in direct view of two plainclothes p
olice?

  Whatever happened, the encounter as written up by the arresting officers didn’t make much sense.

  Police claimed that Orta wasn’t being targeted that night. They said they were “conducting enforcement operations” in the Bay and Victory neighborhood where Garner worked. They added that they saw him and Lekaj going into a “known drug prone location,” i.e., the hotel, which gave them the probable cause to stop them.

  Now, from his hideout in the Bronx, Orta completely denied everything, pointing out that his prints weren’t on the gun. He also insisted that the fact the gun wasn’t loaded was important. “If I’m such a master criminal, what am I doing with a gun with no clip and no fucking bullets?” he says.

  Orta’s lawyer at the time was a Staten Island–based attorney named Matthew Zuntag. Zuntag had represented him in other cases and had Orta’s trust. Zuntag tried to contest multiple aspects of the gun case, among other things by trying to organize a DNA test to prove Orta had never touched the weapon. But there were multiple delays, and by the new year he was still waiting.

  “I’m stuck,” he told reporters after a court hearing on January 22, 2015. Orta by then had started to become a cause célèbre among lefty protesters, who saw him as a symbol to rally behind in the emerging national movement.

  They packed his January hearing, many of them wearing “Black Lives Matter” and “I Can’t Breathe” buttons, and followed him after court in a short march to the spot where Garner had been killed.

  Haltingly, Orta was trying on political activism for size, realizing that his name meant something to people.

  But even as he stood on Bay Street with protesters that January afternoon, Orta had already caught another bust. Unbeknownst to him, he’d become the target of an undercover drug operation almost as soon as he’d bailed out on his gun case.