The decision of a Staten Island grand jury on December 3 not to indict New York Police Department officer Daniel Pantaleo for his part in the death of Eric Garner has thrust the city into the center of a rapidly intensifying national debate about policing and racial injustice. On Saturday, December 13, ten days of smaller, often spontaneous demonstrations reached a climax with a protest march of about 30,000 people from Washington Square Park up Fifth Avenue and then to NYPD headquarters at 1 Police Plaza; there are signs the movement will continue. Despite a progressive, reform-minded mayor and a police commissioner who had already declared the “need for a fundamental shift in the culture of the department,” New York City appears to have a criminal justice system that, when it comes to the prosecution of violent police misconduct, is as unfair as that of St. Louis County in Missouri or anywhere else in America, for that matter.
The video footage of Garner’s death, from Pantaleo’s arm going around Garner’s throat to his final unheeded words—“I can’t breathe”—repeated eleven times while he lay prone on the sidewalk under the weight of at least three policemen, was viewed with disbelief by millions of people around the world. Even political conservatives, who had defended the shooting of Michael Brown in Ferguson, were openly disturbed by what they saw. Bill O’Reilly, the Fox News host, said that he was “extremely troubled [by the video]. I would have loosened my grip [if I was the cop]. He did not deserve what happened to him.” Former President George W. Bush said that “the verdict was hard to understand.” Within hours of the grand jury decision, US Attorney General Eric Holder announced that the Department of Justice would investigate whether the case can be prosecuted as a possible civil rights violation. Public outrage was almost universal.
For many New Yorkers the grand jury’s decision was like a punch in the gut. Most of the city’s congressmen appeared at a press conference to denounce it; several seemed to be in a state of shock. On the NY1 show Inside City Hall, City Councilman Jumaane Williams, a leading critic of stop and frisk before it was deemed unconstitutional, was so distraught that he said he was unable to speak or fully gather his thoughts. A minute or two later he was gone from the set. And with unconcealed scorn, City Council president Melissa Mark-Viverito said that the criminal justice system “predictably buckles when a shield is involved.” Later, she led about half of the council members onto Broadway near City Hall to block traffic in a symbolic act of civil disobedience. When they headed back into City Hall, they bumped into seventy-five New York clergymen and women who were staging their own protest in the rotunda.
Public and private schools across the city interrupted classes to hold special meetings with students. I attended such a meeting at a high school in Brooklyn. Black students spoke of their life-long fear of police, how as a matter of survival they had been taught by their parents to keep their hands out of their pockets when a cop approached them, to say “Yes sir,” and “No sir,” to avoid making an abrupt movement at any cost. A tenth-grade boy described his astonishment when a patrolman let him into the subway after observing that he had used up the rides on his student pass for the day and had no means to buy a fare. “It felt so good. A cop was nice to me. That had never happened before. I hate walking around afraid.” Students wondered whether there was any legal constraint on police at all.
The organizers of the December 13 protest, known as The Millions March NYC, sent out 429,000 invitations on Facebook and more than 50,000 responded that they would “attend.” The invitation took pains to assure potential participants that they were “attempting to work with City officials to make this march as accessible and safe as possible.” This seemed crucial to the staging of a large-scale demonstration.
Referring to the more impromptu protests that had been taking place all week, a woman in Crown Heights, who has two sons and despairs over their vulnerability to police, told me, “I won’t step foot in that mess, with cops and all kinds of people running around in the dark. I can’t afford to.” Instead, she went to a gathering organized by a community group near her home at restoration plaza on Fulton Street. On Saturday, she marched up Fifth Avenue from Washington Square in the daylight, “because it felt okay.” At the very front of the march were the relatives of Sean Bell and other police shooting victims, “keeping the focus,” as a demonstrator later said to me. “No one was going to co-opt our message.”
The Millions March described itself as “a coalition of young, multi-racial activists led by Black organizers in New York.” Synead Nichols, a leading organizer, is twenty-three, and an artist. Umaara Elliott, a dancer, is nineteen. “We are continuing where the freedom fighters of the civil rights movement left off,” said Nichols, in a statement. “[We’re] willing to take up the torch and we’re not going to stand for this anymore.” They subtitled the Millions March “a day of anger,” for people “to grieve, express pain and outrage.” Among their demands are “the indictment of Daniel Pantaleo,” and “the creation of an independent prosecutor’s office to handle cases of police misconduct and use of excessive force.” But their larger concern is racial injustice.
Since the shooting of Amadou Diallo in 1999, a number of groups fighting against police violence have sprung up in New York; Communities United for Police Reform (CPR) has over sixty affiliated organizations, including the NYCLU and Voices of Community Activists and Leaders (VOCAL-NY). For members of these groups it is extraordinary to have the national spotlight on an issue they have been toiling over in obscurity for years. “We were ready for this,” Monifa Bandele, who is on the board of CPR, told me. “New York was ready.”
But the crowd in Washington Square Park consisted largely of first-time activists, including tens of thousands of unaffiliated people from every strata of the city. A substantial number of protesters were young white people who have absorbed somehow the meaning of a condition that they might not have thought much about in the past.
Throughout the days leading up to the march, there really was the sense among protesters that they were participating in a new phase of America’s ongoing Civil Rights movement. “We have to keep it up, keep it going,” a young man told me on the night of the grand jury’s decision. He was preparing to take part in a “die-in” with about seventy-five others at Grand Central Station. On cue, the protesters lay down on the marble floor of the grand concourse. They made a startling sight, pretending to be lifeless under the station’s constellated dome. Commuters, diners, and shoppers stopped what they doing to look on, mostly with appreciation and in some cases with a touch of awe. After fifteen or twenty minutes, the protesters moved on, some to stage die-ins at Macy’s, others to an Apple store or to Toys “R” Us or Times Square.
Flash mobs seemed to materialize out of thin air, chased by police and monitored by helicopters with search lights; to find out where protesters were concentrated at a given moment you needed only to look up at the sky. The day after the decision, about a thousand protesters were standing in Foley Square, unsure how to proceed, when in an upsurge of energy, hundreds more came bursting through the square, chanting at the top of their voices Garner’s words, “We can’t breathe!” words that have come to express the feeling among young black men of being psychologically suffocated by siege-mentality policing. The crowd then fanned out in different directions through the city.
Some of the actions bear the marks of the Occupy Wall Street protests of 2011. There have been no visible leaders, no speakers, but the demonstrators are more nimble than their counterparts in 2011, striving not for a permanent place of encampment to make their point but rather a ubiquity of obstruction through acts of civil disobedience.
Lost in the outrage is the extent to which the NYPD has changed since 2011—a year of 685,724 stop and frisk incidents, the most on record, the mass arrests of peaceful protesters on Brooklyn Bridge, and the liberal employment by police of pepper spray and the truncheon. (By comparison, there were 38,456 stop and frisk incidents during the first nine months of this year.)
At protests over the past week, including the big one on Saturday, police have been determinedly non-aggressive, clearly following orders to behave with restraint. There have been hundreds of arrests, the vast majority for standing in front of traffic or lying down on a highway, but, to my knowledge, no credible allegations of police abuse.
The protests have been overwhelmingly peaceful. (The three or four people who physically attacked two lieutenants on the Brooklyn Bridge on Saturday, after the larger march had dispersed, were an aberration.) Yet it hasn’t been rare to catch sight of a protester inches from a cop’s face, likening him to a Ku Klux Klansman or worse, a relentless barrage, emboldened perhaps by the officers’ reluctance to lose their cool. The cops I saw took the insults with stone faces or, in one instance, uneasy laughter. “Be careful, don’t hurt yourself,” said the officer bitterly, a reference, perhaps, to the official NYPD aim “to keep everyone safe,” including the protesters. “We’re not having a Ferguson here,” police commissioner William Bratton told an interviewer who seemed to be criticizing him for allowing protesters to disrupt traffic on the West Side Highway. “We’re not going to engage in mass arrests.” One hopes that the violent incident on Saturday will not supply the NYPD with a rationale for breaking away from de Blasio’s non-aggression order during future protests.
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The baffling question was, how had the Staten Island jurors voted not to indict? Pantaleo almost certainly did not intend to kill Eric Garner and this made indictment on the top charges—murder and first degree manslaughter—unlikely. But jurors also declined to indict on the lesser charge, criminally negligent homicide, a class E felony that does not infer intent to kill but rather “reckless, inattentive, negligent or careless actions or inaction” that causes death. Based on the video, the grand jury’s failure to allow the lesser charge to be taken up in open court is difficult to comprehend. (Criminally negligent homicide is punishable by up to four years in prison.) Unnamed law enforcement officials, who presumably have some knowledge of the proceedings, told the reporter Murray Weiss of DNAinfo that prosecutors and Pantaleo himself were “stunned” by the decision.
A contributing factor may be that the Staten Island district attorney, Daniel Donovan, granted immunity to the other cops involved in Garner’s arrest in exchange for testimony. It seems reasonable to suspect that their testimony, given with no cloud of criminal wrongdoing hanging over it, was shaped to convince the jurors that Pantaleo had acted in the standard way that he had been trained at the Police Academy. Aside from the apparent chokehold (which Bratton and others have cast doubt upon during the past week, employing the logic that if it had been a true chokehold Garner’s trachea would have been blocked and he would not have been able to speak), Pantaleo probably did behave in the accepted NYPD manner. This is a fundamental part of the problem. The “broken windows” policy of policing encourages aggressive action when dealing with the most minor infractions, even when police know that the rule-breaker is non-violent and unarmed, as was Garner. Blacks, by overwhelming numbers, have been the victims of this kind of policing. Mayor de Blasio and Commissioner Bratton say they intend to retrain every officer in how to approach suspects in a more humane manner. We can only hope that the retraining will make another Garner tragedy less likely. But lasting reform will take more than just a few days of classes on how to proceed with an arrest.
The sad joke among some street protesters I talked to after the decision was announced was that the only person indicted was Ramsey Orta, the man who shot the famous video of Garner’s confrontation with the police on his cell phone. Fifteen days after Garner’s death, Orta was arrested and charged with possession of a weapon. He was one of fifty witnesses called to testify at the grand jury. According to Orta, his testimony, in September, lasted ten minutes, during which time “people were on their phones, people were talking, nobody in the grand jury was even paying attention to what I had to say.” He said that the questions the prosecutors and a few jurors asked him had to do with Garner—“What was Eric doing there? Why was Eric there?”—and that he was asked “nothing pertaining to the cop choking him.”
This is Orta’s version of what happened, and I see no compelling reason to doubt it. In New York, grand jury proceedings are kept secret by law. Donovan has floated the idea of making a special request to release part of the transcript to the public; if the request is granted we will get a fuller picture of what went on.
It is heartening, at least, after the decisions in Ferguson and Staten Island, to see the grand jury system under public scrutiny. For decades defense attorneys have complained about its inherent unfairness in cases of violent police misconduct. From start to finish, a grand jury is the district attorney’s domain. Its job is to decide whether there is sufficient evidence for a defendant to be indicted and for his case to go to trial. There is no adversarial counsel, no cross-examination, no judge to ensure that accepted legal procedure is followed. It is the prosecutor who instructs jurors, presents evidence, calls witnesses and, in questioning them, can determine the direction of their testimony.
When this involves assessing possible police abuse, the conflict of interest can be glaring. Prosecutors depend upon the police, who often serve as their most important witnesses in court and who are the main feeder of criminal cases to their office. Norman Siegel, the former head of the New York Civil Liberties Union, believes that felony charges in general, not just those brought against police officers, should “require a preliminary hearing to decide whether there’s enough evidence to justify a trial.” The hearings would occur before a judge, with lawyers on both sides, and be a part of the public record as a matter of course.
Other legal experts have suggested that cities appoint a special prosecutor to deal with cases of police violence, which might ensure more impartial investigations. On December 8, New York State Attorney General Eric Schneiderman asked Governor Andrew Cuomo to give his office the power to prosecute all future police killings of unarmed civilians. But Cuomo—who failed to appoint a special prosecutor in the Garner case when he had the chance—seems unenthusiastic.
Brooklyn’s district attorney, Kenneth P. Thompson, said that he is “adamantly opposed” to giving up his power to prosecute police violence. Thompson seems eager to secure indictments for police misconduct, and his office has already presided over a grand jury indictment of two officers who were caught on a surveillance camera punching and pistol-whipping a young black man in Bedford-Stuyvesant after he ditched a bag of marijuana and ran away from them.
Thompson is also impaneling a grand jury to consider charges against the rookie police officer who, on November 20, killed Akai Gurley in an unlit stairwell while patrolling a public housing project in East New York, Brooklyn. Bratton described the killing as “an unfortunate accident,” and it does appear that the gun, in the hands of an inexperienced officer, discharged by mistake. Thompson’s aim may be to question the practice of police on patrol with their guns drawn even in the absence of a discernible threat. In some jurisdictions, New Jersey for instance, police need to have probable cause before they unholster their weapons. In New York City it’s up to the discretion of the individual cop. But in asking for the power to prosecute police recklessness, Schneiderman has a larger argument on his side: Thompson may not be inclined to give the police an easy pass, but other district attorneys have different inclinations.
I wasn’t the only New Yorker to initially explain the failure to indict Pantaleo as an aberration of Staten Island. When he was running for mayor, de Blasio spoke of the “two New Yorks”—the haves and have-nots, the rich and poor. But there is a third New York of conservative, traditional middle and lower-middle class whites—the civil servants, small business owners, and tradespeople who comprised much of Mayor Giuliani’s electoral base in the 1990s. Staten Island, 62 percent white, with three-thousand policemen and thousands of firemen among its residents, is a bastion of this third New York. Had Donovan presided over an indictment of Pantaleo, he probably would have destroyed his chances for re-election as the borough’s DA.
But New York City has a dismal record of prosecuting police in all its boroughs. The New York Times recently published a comparison of a dozen high-profile police killings of unarmed men of color in New York, from 1992 to the present. Only two resulted in convictions. In one case, that of Anthony Baez, who was killed by a chokehold in 1994, it took a federal indictment on civil rights charges to send the officer to jail, after he had been acquitted in state court. In the other case, the 2003 killing of Ousmane Zongo, an art restorer who was shot dead during a mistaken police raid in Chelsea, a New York State criminal court judge put the blame on the NYPD’s poor training and supervision and sentenced the convicted officer to probation.
Mayor de Blasio has not explicitly denounced the grand jury’s decision as other elected officials in New York have done; as mayor, he cannot publically put himself in opposition to a legal process without provoking an enormous —and politically damaging—furor. Instead, he has recounted conversations about the police that he and his wife have had with their son, Dante, who is black, conversations that are almost identical to those the high school students I spoke with had had with their parents. “Don’t move suddenly, don’t reach for your cell phone,” de Blasio told his son. On the television show This Week with George Stephanopoulos, de Blasio said, “There’s that fear that there could be that one moment of misunderstanding with a young man of color and that young man may never come back.” The mayor added, “It’s different for a white child. That’s just the reality in this country.” Many New Yorkers seem to be just becoming aware of the fact that a huge number of their fellow citizens live daily in a state of high alert, if not outright fear of the police and have been doing so for decades.
Darren Wilson’s testimony about Michael Brown that “it looked like a demon” bears out de Blasio’s point. “I felt like a five-year-old holding on to Hulk Hogan,” Wilson told the grand jury in Missouri, though Wilson is six feet four inches tall and was armed. He had transformed Brown into a kind of mythic, invincible Grendel, “very terrible to look upon,” in the words of the ancient poem.
The same perceptual distortion was at work in Cleveland on November 22, when a police officer killed twelve-year-old Tamir Rice who was playing with a toy gun. When the boy’s fourteen-year-old sister ran to him after he was shot, police tackled her, handcuffed her, and put her in the back seat of a patrol car.
Nationally, a shift of consciousness seems to have taken place, a budging of fixed ideas about African-Americans and law enforcement. Policing has become a civil rights issue. The Justice Department has shown a willingness to prosecute individual cases of abuse when states fail to do so and President Obama is reviewing the Department of Defense’s 1033 program that hands out grants to local police for the kind of armored military equipment that we saw facing down protesters in Ferguson. However, Obama has not indicated that he will significantly curtail the program, nor has he given any sign that the federal government will take an active role in the overall issue of police abuse, as it did with segregation in the 1960s.
One immediate government action might to be to withhold federal funding to police departments with a history of discrimination. Beyond that, it isn’t clear what form federal intervention would take. A national standard of sensitivity for police? A stronger federal enforcement of the Constitution’s equal protection clause? A stricter legal definition of what constitutes racial profiling? The creation of a special federal agency that would police the police? One can imagine the fierce opposition this would provoke from Congress and local governments, not to mention the legal challenges that would ensue. Lasting change, it seems, will have to come from municipalities and states that are willing to examine what the protection of their citizens really entails.