At Inquiry Into NYPD Killing of Eric Garner, Judge Lets Bill de Blasio Off the Hook

Gwen Carr remembers the promises made by New York City Mayor Bill de Blasio in the days after her son, Eric Garner, was killed on Staten Island by a New York City police officer on July 17, 2014. She remembers de Blasio’s repeated pledges, publicly and to Garner’s family, of a “full and thorough investigation,” an investigation that he promised them would be “expeditious.” She remembers waiting for years afterward for any indication that any kind of full and thorough investigation was taking place.

Now, more than seven years after Garner’s death, his mother’s last, long-shot hope of wringing some form of accountability from the system that killed her son was dealt a serious blow. A judge ruled that the mayor and his top New York Police Department leadership cannot be compelled to testify about Garner’s death and what they did about it. The decision leaves in place a status quo in which, for those few cases where there is any official accountability — or even transparency — around police violence, it is limited to the individual actions of low-level police officers. De Blasio and other top officials will not be so much as made to explain their promises, let alone how they failed to meet them.

“This is the wrong decision,” said Joo-Hyun Kang, who brought the petition for the inquiry along with Carr and others. “The reason we were granted this inquiry in the first place was because of corruption and official misconduct. It isn’t just the killing of Eric Garner; it is the seven years of lies and obstruction from top officials.” In one of the most well-known police killings in the country, Kang added, “there’s still so much we don’t know about what happened. That matters not just for Eric Garner and his family, but because what happened to him is not an isolated incident.”

The ruling came as part of a historic judicial inquiry that was — amid a near-total failure to obtain justice some seven years after the killing — a last-ditch effort by Garner’s family. Despite a well-established litany of misconduct, the criminal legal system, the NYPD’s internal mechanisms, and a pair of federal investigations yielded little more than the firing of a single beat cop and mild disciplinary action against one other local police officers.

In 2019, Carr and other police accountability activists decided to pursue the inquiry as a final attempt at justice, knowing the odds were slim. Invoking an obscure and virtually never-used 19th-century provision of the New York City Charter which allows citizens to petition for a judicial inquiry into suspected violation or neglect of official duty, Carr and the other petitioners asked a New York judge to convene an inquiry into official violation or neglect of duties surrounding the death of Eric Garner and the investigations and discipline that did — and didn’t — take place afterward.

There would be no final ruling in such an inquiry, no civil or criminal penalties, but officials would be called to testify, under penalty of perjury, and a public record would be made. Perhaps at last some of Carr’s questions might be answered: Did the police even have probable cause to make the arrest in which they killed her son? Why didn’t officers do more to try to help him as he lay dying on the sidewalk? Why did the arrest paperwork filed after Garner’s death claim no force was used and falsely charge him with a felony? Who in the department had broken the law to leak Garner’s sealed arrest record to the media? And why was there no evidence that the NYPD had ever thoroughly investigated any of these questions?

With the judge’s ruling on Friday, Carr was left to try to eke out what shreds of transparency she can, as de Blasio won another victory in his increasingly successful war of attrition to defang even this last, consequence-free effort to simply find out what happened.

From the beginning, the de Blasio administration has done everything it could to prevent a judicial inquiry from taking place. Stephen Kitzinger, a lawyer working for the city, argued in court the inquiry was unconstitutional and, in any case, there were no official duties to be neglected or violated: “Being a chief executive is not a duty, it’s a power,” he told Judge Joan Madden. The judge asked if the mayor and police commissioner had a duty to impose discipline for police misconduct. “They have the power to do so,” Kitzinger said. “The duty is discretionary.”

Madden ruled that a judicial inquiry was indeed appropriate, that de Blasio is indeed responsible for the integrity of government operations, and that “certainly, the death of an unarmed man during a police arrest raises questions of both the effectiveness and integrity of city government with regard to which the mayor has responsibilities.” The leak of the sealed arrest records, she said, demanded accountability.

Once it became clear that there would be an inquiry, the de Blasio administration, through the City Law Department, shifted tack and tried to hobble any proceedings that might take place. The lawyers, drawing on a playbook long perfected in defending civil rights suits against the NYPD, dragged their feet in discovery, missed deadlines, claimed to have answered questions in other forums but not specifying where, and argued that the city needn’t turn over any written discovery materials at all in advance of the inquiry.

Perhaps the biggest victory the de Blasio administration scored in hampering the inquiry came in July when Judge Erika Edwards, who had taken over the proceedings from Madden, ruled that de Blasio, successive police commissioners, and a deputy police commissioner in charge of discipline would not be allowed on the witness list. Garner’s family would have to content themselves with a dozen witnesses, most of them precinct cops who were on the beat in Staten Island that day.

When the historic inquiry began on October 25, testimony from officers of the 120th Precinct in Staten Island highlighted anew the outrages and dubious assertions surrounding Garner’s death. Officer Justin D’Amico claimed he could see the color of the dollar bill passed in a cigarette sale he said he witnessed from more than a football field away. The purported transaction would provide the legal justification for the attempted arrest for the sale of untaxed tobacco. D’Amico gave conflicting testimony about whether and where he observed a second sale. Back at the precinct, D’Amico filled out arrest paperwork for Garner, who he had learned at the hospital was dead. On the forms, D’Amico recorded that no force was used and wrote Garner up — accidentally, the officer now said — for a felony tax avoidance charge that requires the presence of exponentially more tobacco than was at the scene. D’Amico suffered no discipline for any of this, he testified.

A sergeant from the 120th Precinct testified that when he called for an ambulance for Garner, he told a dispatcher that Garner was “just having some trouble breathing” — a description he felt conveyed the urgency of the situation. The request was coded as low priority, a city official would later tell the New York Times. Another officer testified that he ran up to the ambulance when it finally arrived to tell the paramedics that he suspected that Garner’s medical distress was feigned and he was merely “playing possum.” Neither officer was disciplined.

Buried amid all the ground-level detail were glimmers of insight into the ways that Garner’s death was enmeshed in the execution of long-standing top-level policy. Lieutenant Christopher Bannon testified that he ordered police dispatched to the stretch of Bay Street where Garner was on the day of his death because, at a meeting with officials at NYPD headquarters, the location had been flagged for him as a “quality-of-life” problem area.

Deputy Commissioner Joseph Reznick, who heads the NYPD’s Internal Affairs Bureau, the most senior official to testify, explained that after an investigation, his unit recommended disciplinary charges against Pantaleo. The NYPD decided to make a deal with the Justice Department, however, agreeing to hold off on the charges until the federal investigation was completed; by the time it concluded without any action, the statute of limitations for Pantaleo’s trial had expired.

Internal Affairs hadn’t recommended discipline against anyone other than Pantaleo, who used a banned chokehold, and a sergeant who was docked 20 vacation days for “failure to supervise” when she arrived at the scene afterward, because they didn’t see any other offenses, Reznick said. And there had been no investigation at all into the illegal leak of Garner’s sealed arrest records after his death, right? Reznick was asked. “That’s correct,” he answered.

On the night after the third day of testimony, Carr and the other petitioners filed new court papers asking Edwards, the judge, to reconsider her decision to exclude the mayor, police commissioner, and other top police officials from their witness list. Reznick’s testimony had shown clearly that the decision to prosecute disciplinary cases lies with the NYPD Department Advocate’s Office, yet the judge was barring them from putting the head of that office on the stand.

Backing up this request, the petitioners submitted sworn statements from Maya Wiley, who before her unsuccessful run for New York City mayor this year ran the city’s Civilian Complaint Review Board, and from Queens Borough President Donovan Richards, who until recently served as the chair of the New York City Council’s Public Safety Committee.

Wiley wrote that in her experience, when it comes to investigations and discipline, the buck hardly stops with the Internal Affairs Bureau: Senior police officials tell Internal Affairs to broaden or narrow its inquiries, and “in all matters, the Police Commissioner retains disciplinary authority, including the ability to require or block administrative charges being brought on an officer.” Richards wrote that in his conversations with the mayor, police commissioners, and other top NYPD brass, “they indicated knowledge of and input into the disciplinary process” of police involved in Garner’s death.

The de Blasio administration’s lawyers vehemently opposed the motion. Kitzinger argued the sworn statements contain nothing new and that Reznick’s testimony didn’t open any new doors. What the Department Advocate’s Office does with the Internal Affairs Bureau’s charges isn’t relevant in this case, he argued, because the petitioners’ problem is with Internal Affairs, which investigated Garner’s death and chose not to bring the charges petitioners would have liked to see.

On Friday, Edwards made her ruling. The petitioners hadn’t presented anything new in their motion, she said. “There’s nothing in there that would persuade me that the testimony of additional witnesses who I precluded would be appropriate at this time.” De Blasio and the police commissioners tasked with running the NYPD would not have to take the stand. Moreover, Edwards said, the sworn statements by Wiley and Donovan — the former top police oversight officials who had spoken to the ways NYPD disciplinary decisions extend far beyond the level at which she was restricting the inquiry — would not be allowed into the official record. The inquiry will continue November 3, with its original, limited witness list.

Carr, for her part, was left with another disappointment in her pursuit of justice for Garner’s death.

“Here I am,” she said, “still fighting for accountability, seven-plus years later.”