I first started hearing about federal agents in Staten Island about four years ago, roughly a year after the killing of Eric Garner. I was working on a book about the case called I Can’t Breathe. The streets were abuzz with rumors about G-Men showing up in the old Bay Street neighborhood where Garner had been choked to death, in July of 2014, by a New York City policeman.
The New York Times summarized what happened to Garner:
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Bystanders filmed the arrest on their cellphones, recording Mr. Garner as he gasped “I can’t breathe,” and his death was one of several fatal encounters between black people and the police that catalyzed the national Black Lives Matter movement.
Through the years, there has been at least some expectation the federal government might step in and pursue civil rights charges in this case. That the FBI was even in Staten Island for a time suggested at least someone thought it was serious enough to investigate. Friends and family members alternated between belief and unbelief that a prosecution was coming.
That all ended this week, when word came by way of the U.S. Attorney in Brooklyn, Richard Donoghue, that charges were not forthcoming. Donoghue made the announcement a day before the fifth anniversary of Garner’s death.
The sub-headline in the New York Times story this week reads, “Five years after… Attorney General William P. Barr ordered the case be dropped.”
This is technically true, but it would be a mistake to cast the news as a re-routing of history by the hated William Barr. The fate of this case was probably sealed when Jeff Sessions became the Attorney General, and maybe before that.
Sessions made changing policy on precisely this kind of federal civil rights investigation a priority from the moment he assumed office. The issue bookended his reign as the nation’s top law enforcement official.
Upon entering office in 2017, he ordered a review of such investigations, saying “it is not the responsibility of the federal government to manage non-federal law enforcement agencies.” Then, on his way out, he signed a memorandum limiting the Justice Department’s ability to enter into consent decrees with local jurisdictions with problem police departments, like Staten Island or Ferguson, Missouri.
Sessions gave senior Justice Department leadership – read, the political appointees – more control over civil rights prosecutions. The Sessions memo also requires that “a consent decree must include a sunset provision” that terminates when the defendant jurisdiction comes into “durable compliance.”
So not just the Garner case, but really all such cases are now, by design, likely to be reviewed even less frequently by the federal government (which already has not filed charges in a death-in-custody case since the Nineties).
In the time people around the case have spent waiting for a decision by the feds, the man who filmed Garner’s death, Ramsey Orta, has been arrested, jailed, allegedly poisoned at Rikers Island, released again, tried, then sentenced to four years, of which he’s served two and a half already (he’s due to be released in December).
Meanwhile Dan Donovan, the District Attorney who famously failed to make the case against police officer Daniel Pantaleo, has had time to run for Congress, win, be re-elected, announce a second re-election campaign, and lose that race to a Democrat.
Garner’s namesake grandson was conceived and born in the time federal agents have been contemplating charges. His daughter Erica tragically died at the age of 27 during that span as well, and a federal case was on her mind at the time of her death. That was two years ago.
My main takeaway from years spent on I Can’t Breathe is that this glacial slowness is built into the system at every level. It’s more powerful than anything written into law, including things like the Sessions memo. The agonizing pace is intentional in the sense that politicians of all stripes, Republican and Democrat, are heavily incentivized to keep kicking decisions into the future.
The closer you are to the day of a gruesome killing like Garner’s, the hotter the public, to the press, even the family gets for action. With each passing day, public outrage wanes, and energy from friends and family and lawyers to keep fighting the various bureaucracies dissipates. People get tired.
Next thing you know, years have passed, and a decision to sweep a case under a rug earns a little mention in page 17. The Internet, its denizens 10 million cat videos removed from the original viral upset, barely hiccups.
This is probably the biggest reason the police brutality issue goes perpetually unaddressed. Inaction is baked into the cake. A bad thing hits the headlines, the officers in question are lightly disciplined, years pass amid talk of federal charges, and finally nothing happens and the cycle repeats.
In 1999, New York police shot Guinean immigrant Amadou Diallo 41 times in a similarly repulsive and inexplicable incident. The unusual wrinkle here was police actually got indicted. They were acquitted of all charges. The federal government then took three years to decide not to sue and impose a consent decree. Outrage subsided until the next case, and the next, and so on.
The Garner case is the ultimate example of this phenomenon. Authorities have cycled through all the different stages of inaction. Even after five long years, the system still cannot decide if it can bring itself to fire an officer with a history of force complaints whose strategy for dealing with a sub-misdemeanor offense (which Garner was not guilty of that day, incidentally) is a chokehold.
If it takes that long to make that basic call, people know nothing will ever be done about more complex issues like poverty, job loss, collapsing schools, etc. And they stop demanding those changes. Which might be the point all along.
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