MANHATTAN (CN) — New York City’s attorneys astonished a judge Monday in a suit over the death of Eric Garner, saying their police force is not obligated to discipline officers who kill, injure or violate the rights of civilians.
“It’s not a duty,” New York City Law Department attorney Steven Kitzinger asserted during hourlong oral arguments on Monday. “It is discretionary.”
Manhattan Supreme Court Justice Joan Madden appeared incredulous of the argument. Repeatedly asking the lawyer to clarify the position, Madden asked Kitzinger whether he could envision any case where a commissioner has a duty to discipline an offending officer rather than just open an investigation.
Referring to the New York City Charter, Kitzinger replied: “I think that grants a power."
Justice Madden will test that claim in deciding a petition over whether to open an inquiry of Garner’s 2014 chokehold death.
Long before George Floyd’s dying gasps of “I can’t breathe” renewed momentum in the Black Lives Matter movement, a viral video of Garner using the same words in Officer Daniel Pantaleo’s chokehold a little more than half a decade ago sent thousands of New Yorkers onto the streets. The national outcry led to state, federal and administrative inquiries, as well as the disciplinary trial that led to the Pantaleo’s firing.
The Department of Justice and local prosecutors in Staten Island declined to pursue criminal charges against the officer, and Garner’s family claims that these proceedings have produced more questions than answers.
“There is no area of local government where public accountability is more necessary than policing, especially when police conduct results in the loss of life,” Garner’s family said almost exactly a year ago in a 25-page petition.
“Yet, there has been scant information released by the city about Mr. Garner's death,” they wrote. “For example, the city has not even identified all of the NYPD officers present at the scene. Further, the public has been made aware of only one disciplinary proceeding: Daniel Pantaleo, the officer whose chokehold led to Mr. Garner's death, had a semi-public administrative hearing that failed to address several unanswered questions and, indeed, raised even more questions.”
Leading the fight to reopen the Garner case is his mother, Gwen Carr, who has sought justice tirelessly amid setbacks, resistance and bureaucratic hurdles. She said found the city’s legal position today insulting.
“It was like a slap in the face,” Carr said in a press conference, asked to react to today’s proceedings by Courthouse News. “What was he talking about? It really floored me for him to say that.”
Ellisha Flagg Garner, the sister of the late Staten Islander, was also troubled by the remark.
“It was disturbing for them to hear that this is how they think about things,” she said.
Though the NYPD has defended Garner’s arrest on the basis that he was suspected of selling loose cigarettes, evidence emerged at Pantaleo’s disciplinary trial that officers had falsely charging Garner with a statute reserved for selling more than 10,000 untaxed cigarettes.
The city claims that another probe would only result in “unnecessary and redundant publicity” of a case that already received national media attention and investigations at every level of U.S. law enforcement.
“It has already been very well-publicized,” Kitzinger noted, arguing that the city’s charter does not require any action or result.
“It's their own prerogative,” he added, referring to the police brass overseeing discipline.
The family’s petition does not seek the judge to issue a ruling as to whether Garner’s stop in the shadow of the Staten Island ferry had probable cause.
“What we are seeking are the underlying facts from which a conclusion could be drawn,” their attorney Alvin Bragg said.
Bragg argued that the press has had more access to Garner’s medical records than his family, with newspapers reporting selective leaks from the NYPD blaming his health issues rather than the chokehold for his death.
“The Garner family has not been provided with a copy of the autopsy,” Bragg said. “The press was able to report on it."
Describing this as a pattern in police-misconduct cases, Bragg added: “What we learn about in the public domain is information about the decedent and little information about the conduct of the officers.”
The mother of the late Ramarley Graham, a teenager shot to death by police in his apartment at the age of 18, joined Garner's family in the suit, as did nearly a half dozen other criminal-justice reform advocates. One of their attorneys, Gideon Oliver, noted that the inquiry goes farther than Freedom of Information Law requests. He revealed today that new laws meant to increase police transparency have yielded precious few records for the family, other than a few heavily redacted records.
“Even the best FOIL request filed under ideal circumstances only results in access to some records,” Oliver said.
After a little more than an hour of arguments, Justice Madden ended the proceedings without a ruling. She noted before the hearing ended that New York's suite of pro-transparency laws have faced stiff resistance from police unions, which are in the Second Circuit appeals process over the new legislation.
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