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NYPD Can’t Skirt Inquiry on Police Killing of Eric Garner

A critical decision advancing the probe notes how, six years before George Floyd uttered the same last words, Eric Garner made "I can't breathe" a rallying cry against excessive force by police.

MANHATTAN (CN) — New York City must face a rare special inquiry into the circumstances that led a Staten Island police officer to largely duck accountability after killing Eric Garner in 2014, a New York appeals court affirmed Thursday.

“We find that this is the rare case in which allegations of significant violations of duty, coupled with a serious lack of substantial investigation and public explanation, warrant a summary inquiry to bring transparency to a matter of profound public importance: the death of an unarmed civilian during the course of an arrest,” Justice Anil C. Singh wrote in 22-page opinion on behalf of the four-judge panel. “Accordingly, we unanimously affirm the order granting the petition.”

Garner, 43, had been outside the Staten Island Ferry when a bystander filmed him being confronted by police officers over the alleged offense of selling loose cigarettes, a misdemeanor. In a bid to subdue Garner, who was over 6 feet tall and nearly 400 lbs., officer Daniel Pantaleo leapt into the air, wrapped his forearm around Garner's throat, and took him down. With several officers pinning him facedown on the sidewalk, the unarmed Garner gasped 11 times that he couldn't breathe through the 29-year-old Pantaleo's chokehold.

A medical examiner ruled Garner's death a homicide, but Staten Island's Republican district attorney opted not to press charges. It would be another five years, all of which Pantaleo spent on paid desk duty, before the NYPD’s oversight agency recommended his firing in August 2019.

Later that same month, Garner’s mother, Gwen Carr, and sister, Ellisha Flagg-Garner, filed a historic petition against various city officials including the mayor and the NYPD commissioner. The petition was brought under Section 1109 of the New York City Charter, a “sunlight” provision, seeking accountability for Garner’s death and transparency as to the department coverup that ensued.

Justice Joan A. Madden advanced much of the inquiry a year later, saying the city must account for any alleged violations and neglect of duty in connection with the stop, arrest and use of force against Garner; the filing of false official documents concerning  arrest; the subsequent leaking of Garner's alleged arrest history and medical condition in the autopsy report; and the alleged lack of medical care provided to Garner by police officers.

The four-judge panel of the Appellate Division's First Department was unanimous Thursday in affirming. Justice Singh was joined by Judges Dianne Renwick, Cynthia Kern and Peter Moulton.

“Garner’s death may have set the stage for a debate about the role of race in policing," Singh wrote for the court. "His repeated last words — ‘I can’t breathe’ — have become a rallying cry against excessive force by police. Viewed in this context, the issues raised in the arrest and death of Garner and its aftermath are of the greatest significance.”

Eric Garner, right, poses with his children during a family outing in this undated photo provided by the National Action Network. (Family photo via National Action Network)

Garner’s mother applauded the outcome. "Today's decision from the court affirms that I, other petitioners, and New Yorkers deserve answers about the neglect and violation of duties of the de Blasio administration related to the murder of my son, refusal to fire other officers responsible for misconduct, and the related cover-up," Carr said in a statement.

“The level of cover-up in the murder of my son goes all the way to the top and Mayor de Blasio and other top city officials need to be questioned on their failure and refusal to fire officers like Damico, Bannon, Adonis, and others,” she added.

A spokesman for the New York City Law Department said the office on Thursday the office is reviewing its options in response to the panel’s ruling.

“So much information about this incident has been made publicly available and there is no evidence that the Mayor or any other senior City official neglected their duties or violated the law,” the Office of Corporate Counsel wrote in a statement. “We argued that the summary inquiry that the petitioners sought was outside the scope of this very narrow and rarely used type of proceeding. The court acknowledged that summary inquiries should remain exceedingly rare, but concluded that this one is exceptional and should go forward.”

One of the attorneys representing Carr is Alvin Bragg, a former deputy attorney general who led a special unit to investigate police-involved killing and recently won the Democratic primary for Manhattan district attorney.

“We hope the decision shows Mayor de Blasio and city officials how critical it is for the inquiry to go forward as scheduled and that they must stop delaying and impeding the inquiry by refusing to produce critical document discovery and witness testimony,” Bragg said in a statement Thursday.

The judicial inquiry is scheduled to begin on Monday, Oct. 5, 2021.

The case now proceeds before Justice Erika Edwards, who was assigned the case following Justice Madden’s retirement from the bench. Edwards will hold a hearing in New York Supreme Court next week to discuss the appropriateness of testimony from certain witnesses as part of the judicial inquiry.

If the city were to appeal today’s ruling, the challenge would go to the state’s highest court, the Court of Appeals in Albany.

One day shy of the five-year anniversary of Garner’s death, U.S. Attorney Richard Donoghue announced that a federal probe did not collect enough admissible evidence to bring any charges against any of officers involved in Garner’s fatal arrest.

Pantaleo’s disciplinary trial was ostensibly open to the public, Carr, the mother of Garner, has said a section of state Civil Rights Law called 50a restricted access to any transcripts from the proceedings.

Section 50a said state agencies did not need to publicly divulge any personnel performance records concerning police officers, firefighters and correction officers without a court order.

New York Governor Andrew Cuomo repealed 50a last year only after George Floyd's murder last year by a Minnesota police offcer sparked civil rights protests across the globe. In the years prior, the New York City Police Department repeatedly invoked 50a to shield a review of disciplinary records involving Pantaleo and fellow officers from the scene of Garner’s arrest.

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