A New York Supreme Court judge ruled Thursday that a judicial inquiry into whether the New York Police Department failed to properly investigate the police officers involved in the death of Eric Garner in 2014 can go forward. The ruling potentially clears the way for Mayor Bill de Blasio and former NYPD Commissioner James O’Neill, to be compelled to testify under oath about how they handled the aftermath of Garner’s death.
The petition relies on a seldom-invoked provision of the New York City Charter, Section 1109, which provides for any five citizens to petition a Supreme Court judge to conduct a summary inquiry into government officials' violation or neglect of their official duty. It empowers the judge to compel public officials who may have knowledge of a violation or neglect of duty to testify under oath. That testimony is then made available to the public.
The petition for the inquiry is being brought by Garner’s mother, Gwen Carr, and sister, Ellisha Flagg Garner, as well as Constance Malcolm, whose son Ramarley Graham was killed by police in his home in 2012. Representatives of the advocacy groups Communities United for Police Reform, MomsRising.org, Make The Road NY, and the Brooklyn Movement Center are also signatories.
For the Garners and police-accountability advocates, the inquiry represents one of the last avenues to force any kind of consequences for Eric Garner’s death after being put in a choke-hold on a Staten Island sidewalk by Officer Daniel Pantaleo during an arrest on suspicion of selling untaxed cigarettes. There will be no criminal accountability for Garner’s death; then-Staten Island District Attorney Dan Donovan did not secure indictments in the case, and a years-long US Justice Department inquiry fizzled without charges. The NYPD fought calls for internal accountability, sitting on its own Internal Affairs Bureau’s recommended charges, and only brought an administrative discipline case against Pantaleo after the Civilian Complaint Review Board forced its hand.
The NYPD ultimately fired Pantaleo, and last fall cut a deal with his supervisor that day, Sergeant Kizzy Adonis, in which Adonis avoided an administrative trial but lost 20 vacation days for her role on the scene. The Garner family’s efforts to learn more about the circumstances of Eric’s death and the NYPD response through Freedom of Information Law (FOIL) requests have been obstructed and delayed by the police department.
“All of the traditional legal avenues to justice within the legal system, both criminal and civil, have been exhausted in this case,” said Gideon Oliver, one of the lawyers representing the Garner family and their supporters. (Oliver has also represented Gothamist/WNYC in FOIL litigation.) “So all you have left are these basic democratic checks and balances that don’t function as they’re supposed to in this city, because the mayor and the commissioner are involved in spreading misinformation and engaging in dishonest delay tactics that lack transparency. This mechanism of Section 1109 creates an opportunity, the possibility, the conditions for those things to happen, which otherwise don’t exist.”
In a hearing earlier this summer, lawyers for the de Blasio administration had sought to have the motion dismissed, arguing that the City and its police did properly discharge their duty to conduct a thorough investigation of Garner's death. Section 1109 of the City Charter is in fact unconstitutional, they argued, or at the very least it was intended to be limited to inquiries into corruption and the misappropriation of public money. The NYPD in fact did discharge its duty to conduct a thorough investigation into the circumstances of Garner’s death, they said, Garner’s family and their supporters just don’t like the conclusions that investigation reached.
If the Garner family wants more information about the investigation, they should pursue it through a request under the Freedom of Information Law, as indeed they are already doing. Besides, the city's lawyers argued, Garner’s mother already sued the city over her son’s death, reaching a $5.9 million settlement.
Remarkably, city lawyers also seemed to contend that the NYPD commissioner doesn’t actually have any legal obligation to make sure his police officers follow the law. They argued that when the City Charter declares, under the heading “Commissioner, powers and duties,” that “the commissioner shall have cognizance and control of the government, administration, disposition and discipline of the department,” and that he is “responsible for the execution of all laws and the rules and regulations of the department,” those aren’t duties the police commissioner is obliged to fulfill, but rather powers he is entitled to wield at his discretion, and that if he chooses not to exercise those powers, taxpayers can’t use Section 1109 to try to find out why.
“The very fact that they would get up in court and say that with a straight face, and put it in their papers, arguing that there’s no obligation to make sure that the city employees empowered to carry guns and use deadly force actually follow the law, says so much about this administrations disregard for black life,” said Joo-Hyun Kang, the director of Communities United for Police Reform and one of the petitioners. “It’s ludicrous.”
Judge Joan Madden disagreed with virtually all of the city’s arguments. Section 1109 is constitutional, as many courts have already ruled, she wrote yesterday, and it is not limited to the embezzlement of public funds. The existence of FOIL doesn’t limit New Yorker’s rights under Section 1109, she wrote, and in any case, FOIL contains exemptions that mean information they might receive under Section 1109 is different. FOIL exempts most interagency communications, for example, and only requires the disclosure of existing records, rather than compelling the creation of new records, whereas Section 1109 provides for officials to give new testimony.
“At a minimum, the Commissioner had a duty to investigate whether the arrest of Mr. Garner and the force used by the police officers, other than Officer Pantaleo, constituted violations of the United States and New York constitutions and laws as well as the NYPD patrol Guide, and depending on his findings, to take appropriate action,” Judge Madden wrote in Thursday’s ruling. “A failure to conduct such an investigation of the other officers and their conduct would constitute a neglect of duty.”
The fact that Garner’s mother received a financial settlement from the city is irrelevant, the judge ruled. “Financial compensation to the family of someone whose life was wrongfully ended as a result of police misconduct, standing alone, is unlikely to result in a change in such conduct,” Madden wrote. Section 1109 provides citizens “a mechanism by which to shed light on misconduct of our public servants so that once brought to light, any such misconduct can be addressed. The court concludes that it is appropriate to utilize that mechanism here.”
The scope of the inquiry approved by the judge is broad. It includes the actions of officers on the ground, concerning whether there was even cause for Garner’s arrest or the use of force against him and the arrest paperwork filed after his death, the lack of medical care provided by police on the scene, and the subsequent leak to the news media of Garner’s arrest record and his health history. But it also reaches up to the highest ranks of NYPD leadership and city government, asking whether that leadership properly exercised its duty to investigate those actions, or whether, as the petitioners allege, they tried to bury it and cover it up.
“There is no indication that the respondent former Police Commissioner or anyone under his command undertook any investigation of whether there was probable cause for the arrest of Mr. Garner,” Judge Madden wrote, “or whether the extent of force used by the officers assisting Officer Pantaleo was justified given the nature of the alleged offense, which only carried the potential top charge of a misdemeanor for the sale of untaxed cigarettes.”
Judge Madden dismissed other parts of the request for an inquiry, including the NYPD’s training of its officers on chokeholds in the wake of Garner’s death, as well as the conduct of emergency medical technicians called to the scene to treat Garner.
Nick Paolucci, a Law Department spokesman, said in a statement that the city is appealing. “Eric Garner’s death was tragic and officers were held accountable," Paolucci said. "So much information about the incident has been made available through the various investigations. There is no evidence that the Mayor or any other agency head or official neglected their duties or otherwise violated the law. There is no legal basis for a judicial inquiry to second guess the decisions that the law vests in the Mayor and Police Commissioner."
The NYPD said they were reviewing the judge's decision.
For now, the parties will meet on October 6 to discuss the scheduling of the inquiry.
“Our first objective here is to get some answers about what happened in this specific case, but the bigger purpose here is to put city officials on notice that when they fail to fulfill their duties, citizens are going to hold them accountable,” said Alvin Bragg, the co-director of the Racial Justice Project at NYU and a candidate for Manhattan District attorney, who is also representing the petitioners. “The hope is that ultimately, that will make public officials behave more accountably and transparently from the start.”
This story has been updated with statements from the Law Department and the NYPD.