The NYPD’s deputy commissioner for trials has spoken. Her recommendation is that Daniel Pantaleo, the police officer at the center of a five-year-long firestorm, should be fired. Rosemarie Maldonado handed her decision over to Police Commissioner James O’Neill for final determination. If he abides by her decision, Pantaleo’s firing would be a glaring miscarriage of justice.
Pantaleo, now 34, inadvertently became part of ground zero for the populist uprising of social justice activists during the summer of 2014. It was then that he was dispatched to a Staten Island street corner, directed to take a 43-year-old father of six, Eric Garner, into custody for selling single cigarettes from packs without a tax stamp, or “loosies,” outside a bodega.
As has been widely reported, the arrest went horribly awry. Garner can be heard on a cellphone videotape taken by a witness to the incident, repeatedly advising Pantaleo and fellow plainclothes police officers, “Do not touch me.” Garner then fails to comply with police commands. He vigorously resists arrest. That’s when the scrum ensues.
Garner’s death is a vicissitude that should sadden us all. But only one person is accountable here. It is the man who broke the law, obstinately advised police he wouldn’t be held to account for same, and then placed everyone involved in a dangerous intersection of sworn duties and no-way-out choices. Garner caused this horrible incident to occur. Pantaleo will presumably pay the price for that poor decision-making, as well.
Those inexplicable actions began a tragic confluence of events which resulted in his death. The cop at the center of this firestorm has been banished to desk assignments and remains on the receiving end of countless death threats. There are no winners here. But firing Pantaleo ignores the tough assignment cops have: policing in communities that distrust them and don’t want them there. Physical altercations with subjects police are charged with apprehending are messy, uncomfortable, and displeasing to the eye. If cops don’t handle it, who would you suggest?
Garner’s death occurred three weeks before an unarmed black teenager, Michael Brown, was shot to death in Ferguson, Missouri, while struggling with a white police officer. That shooting touched off days of protests in a number of cities, part of the galvanizing series of events behind creation of the Black Lives Matter Movement — eventually leading to assassinations of police officers in New York, Baton Rouge, and Dallas.
The haunting final words of Garner, “I can’t breathe,” have become a national rallying cry for protesters and celebrities alike. He stammered them 11 times while refusing to submit to an arrest, and under a pile of police officers during the encounter. The words most recently made an appearance during the second night of Democratic presidential debates in Detroit, on July 31, with protesters disrupting the proceedings and candidates grappling over the topic onstage.
In August 2014, Garner’s death was ruled a homicide by Floriana Persechino, a Brooklyn pathologist. Acting as a senior medical examiner for the City of New York, she augmented her forensic examination of the body with review of the videotape of the struggle. Her assessment: A “chokehold” applied to Garner by Pantaleo was a contributing factor in setting off a fatal cascade of events. Garner’s obesity (350 pounds), high blood pressure, and heart disease met with an asphyxiating restraint-hold, which triggered his chronic asthma and ultimately led to his death.
But another forensic pathologist hired by Pantaleo’s defense team, Michael Graham, chief medical examiner for the city of St. Louis, testified in the disciplinary trial that heart problems, and not Pantaleo’s chokehold, resulted in Garner’s death.
According to court documents, the chokehold applied by Pantaleo had been declared prohibited by the NYPD, with the department’s Internal Affairs Bureau recommending charges be brought against Pantaleo on January 15, 2015. But the tragic incident had already undergone scrutinization from outside investigators. First, a Staten Island grand jury failed to indict the officer. Then followed a Department of Justice investigation into Pantaleo’s actions to determine if Garner’s civil rights had been abridged. This investigation spanned both the Obama and Trump presidential administrations and was overseen by four separate attorneys general.
In July, federal authorities announced they would not bring charges. This decision roiled many who believe the policing profession is inherently racist and that minority communities are subjected to undue scrutiny and mistreatment at the hands of the police.
The department trial applied a much different standard than “beyond a reasonable doubt” required in criminal court: simply “preponderance of the evidence,” or “more likely than not.”
On the aforementioned CNN debate stage, after his opening statement was interrupted by protesters chanting, “Fire Pantaleo,” New York City Mayor Bill de Blasio, no stranger to opportunistic pandering, addressed the issue:
In an ominous act of foreshadowing, de Blasio teased the judge’s verdict in the Pantaleo case, and followed that up with an indictment of the enforcement system he presided over in the summer of 2014. The NYPD’s Sergeants Benevolent Association was only too quick to respond by tweet, retorting: “No one to blame but Bratton & O’Neill bad policy enforcing BS crime, Garner resisted.” This was an apparent reference to the Broken Windows-era crackdown on minor crimes, like selling “loosies,” which is still police policy under de Blasio.
Broken Windows has been under fire in the woke days of 2019. But let’s not pretend that its employment has not saved countless black and brown lives when perpetrators and victims of homicides in New York City are overwhelmingly black and brown.
We may debate whether or not the sale of untaxed cigarettes should be considered an arrest-worthy transgression. But cops don’t make laws. When we have laws on the books, law enforcement professionals swear an oath to uphold them. Do we want to confront exactly what “selective enforcement” would look like in a country that already suffers from the belief that certain communities are treated differently with respect to the law?
Lest you think I am blindly pro-cop in every instance, I have called for a cop to receive a life sentence. I have also commended a guilty ruling in a controversial police shooting in Chicago, and described an officer-involved-shooting in Phoenix as an “avoidable execution.” I’ve also acknowledged the historical complexities between police and communities of color.
None of that applies in this case.
Officer Pantaleo was simply dispatched to do his job that day. Part of an enforcement team ordered to police illegal sales of products without a tax stamp. These illegal street sales result in New York City losing untold amounts of tax dollars every year. His actions when confronted with a noncompliant subject were reasonable given the conditions. Do you know what it is like to attempt to handcuff someone who refuses to be arrested?
If fired, Daniel Pantaleo will serve as a sacrificial lamb offered up to appease the mob.
James A. Gagliano (@JamesAGagliano) worked in the FBI for 25 years. He is a law enforcement analyst for CNN and an adjunct assistant professor in homeland security and criminal justice at St. John’s University.
