Experts: Difficult to prosecute cops on federal civil rights charges

Prosecuting NYPD Officer Daniel Pantaleo in federal court for the death of Eric Garner won't be easy, experts say, because important legal hurdles must be cleared.

Hours after a Staten Island grand jury decided not to indict Pantaleo under state law, U.S. Attorney General Eric Holder and Brooklyn U.S. Attorney Loretta Lynch announced that a federal investigation is being launched to determine whether Garner's civil rights were violated.

Garner, 43, died on July 17 after being placed in an apparent chokehold by Pantaleo, 29, during an altercation with officers in the Tompkinsville section.

While federal authorities sometimes review cases involving police violence, charges are seldom brought.

In New York City, there have been a few notable federal prosecutions: in 1998 of Officer Francis Livoti in the chokehold death of Anthony Baez; and starting in 1999 of officers involved in a 1997 attack on Haitian immigrant Abner Louima inside a Brooklyn police station.

Those prosecutions led to some convictions in federal court, but most allegations of police brutality or civil rights violations don't get that far, according to legal experts and federal statistics.

A review of U.S. Justice Department data provided by the nonprofit Transactional Records Access Clearinghouse, which compiles referrals and results of federal prosecutions, showed how infrequently criminal civil rights cases are brought in this region.

Over the last five fiscal years, prosecutors in Lynch's office, which handles cases from Staten Island, as well as Brooklyn, Queens and Long Island, declined to bring cases when police were accused of criminal violations of federal civil rights 14 out of 16 times, according to the data.

"Generally, my experience in 25 years is the feds usually don't take them [prosecutions]," noted civil rights attorney Norman Siegel said.

In civil rights cases, federal prosecutors have major hurdles to clear, he said: "They need three things: intent, willfulness and deprivation [of civil rights]."

Attorney Stuart London, who represents Pantaleo, agreed that the conduct has to be a willful violation, "which is really a high bar."

In the Livoti case, there was evidence he acted in anger in December 1994 when a football Baez, 29, was playing with on the street in the Bronx hit the officer's squad car, Siegel said.

At the time, Livoti wasn't making an arrest and Baez was on the street lawfully, the attorney said.

The Garner case is different, particularly since Pantaleo was in the act of making an arrest and maintains he didn't mean to hurt Garner, according to Siegel.

Defense attorney Richard Asche, who defended one of the cops in the Louima case, said a negligent act, such as may have occurred in the Garner incident, doesn't necessarily support a federal prosecution.

The federal standard for a civil rights prosecution is higher than under state law, said former Brooklyn U.S. Attorney Alan Vinegrad, who prosecuted the Louima case.

"Did he [Pantaleo] willfully intend to deprive him of his civil rights? That is a tougher scenario," said attorney Joseph Tacopina, who successfully defended one of the officers in the Louima case.

But Iris Baez, 69, of the Bronx, Anthony Baez's mother, predicts federal officials will decide to prosecute Pantaleo.

"He didn't stop when Garner was saying, 'I can't breathe,'" Baez said. "He should have stopped." With Nicole Fuller

By Anthony M. DeStefano

tony.destefano@newsday.comtonynewsday

Anthony M. DeStefano has been a reporter for Newsday since 1986 and covers law enforcement, criminal justice and legal affairs from its New York City offices.