New York Police car NYPD logo. Photo Credit: flickrM

The ideal expressed in the legal maxim “Justice delayed is justice denied” is deeply ingrained in our jurisprudence and comes to us from the Old Testament. The book of Exodus recounts how Moses was advised to appoint the most able Israelites that they might “judge the people in all seasons” lest litigants suffer injustices owing to delay because no judges were available to hear their cases. Notwithstanding the expression of this noble sentiment from biblical days to our own, we have come to accept delay in our current justice system as routine. But delay in one “recent” case stands out from all the rest, is anything but routine, and, at this point, is simply beyond the pale: the case of Eric Garner, the African-American man who died in police custody while being arrested for a petty offense.

The basic facts of the Garner case are by now well known: On July 17, 2014, New York City Police Officers on Staten Island attempted to arrest Garner because they suspected him of selling single cigarettes from packs without tax stamps. When Garner resisted, the officers used force to subdue him. One of the officers, Daniel Pantaleo, placed Garner in a headlock or chokehold for at least 15 seconds. Garner, restrained by the police and lying face down on the ground, ultimately lost consciousness, was taken to a hospital by ambulance, and was pronounced dead about an hour later. It soon surfaced that the fatal encounter between Garner and the police was captured on video by a bystander who made his recording available to the authorities. An autopsy performed by the New York City Medical Examiner's Office revealed that the cause of death was “[c]ompression of neck (choke hold), compression of chest and prone positioning during physical restraint by police.” The Medical Examiner's Office also concluded that “[a]cute and chronic bronchial asthma; [o]besity; [and h]ypertensive cardiovascular disease” were “[c]ontributing conditions” in Garner's death.

Although the facts surrounding Garner's arrest are relatively straightforward, the investigation into his death has been anything but, having taken myriad twists and turns. As was customary at the time in cases of deaths of suspects in police custody in New York, the local District Attorney's Office investigated the Garner case in the first instance and presented evidence of what had occurred to a grand jury. On Dec. 3, 2014, the Staten Island grand jury that heard this evidence opted not to charge Officer Pantaleo. That same day, the U.S. Department of Justice announced that it would conduct an independent investigation to determine whether any of the officers involved in Garner's arrest had violated his civil rights so as to render them criminally liable under federal law. But, as set forth below, that investigation has gone nowhere.

The federal investigation into Garner's death was initially conducted by the U.S. Attorney's Office for the Eastern District of New York under the leadership of Loretta Lynch. Lynch left her position as U.S. Attorney on April 27, 2015—without resolving the Garner case—to become the Attorney General of the United States. As Attorney General, though, she had ultimate authority over the investigation. It reportedly stalled as a result of an apparent disagreement between the Eastern District prosecutors (who expressed reservations about going forward with charges against Officer Pantaleo) and officials in the Civil Rights Division of the Justice Department (who were pressing for an indictment). As reported in the Washington Post, Lynch ultimately “authorized the department to move forward with the case, but made that decision so late in her tenure that lawyers and investigators could not take all the necessary steps to procure an indictment [before she resigned on Jan. 20, 2017, the day Donald Trump was sworn in as President].”

Loretta Lynch's successor as Attorney General, Jeff Sessions, was sworn in on Feb. 9, 2017. Notwithstanding Lynch's reported decision to go forward, over a year later the Justice Department has still not decided whether to charge Officer Pantaleo or any of the other officers involved in Eric Garner's arrest, and the case has devolved into something of a political football. Sessions, not exactly a civil rights avatar in any event, is perhaps under the sway of Donald Trump, the man who appointed him, who has very definite—and abhorrent—views about how police should treat suspects. Trump aired those views in a July 18, 2018 speech on Long Island where he told an assembly of police officers: “[P]lease don't be too nice. Like when you guys put somebody in the car and you're protecting their head, you know, the way you put their hand over, like, don't hit their head and they've just killed somebody. Don't hit their head. I said, you can take the hand away, okay?”

In July 2017, Garner's family received a $5.9 million settlement from the New York Police. But the matter cannot rest there. A civil settlement is compensatory, and when as large as this, perhaps punitive as well. But it punishes the City of New York—which may bear some responsibility for the way it trains its police officers—not the officers involved in the arrest. The Garner family and the public have a right to know whether Officer Pantaleo is to be criminally charged, and if he is charged, to see him punished if found guilty. If Pantaleo is guilty of violating Garner's civil rights and causing his death in the process, criminal punishment—to wit, a jail sentence—is the only sanction that will have real meaning for the Garner family and the public, especially the African-American public, which has seen case after case where a young black man has died in police custody, but the officers go free. And a jail sentence is also the only sanction that will sufficiently deter other police officers from engaging in restraints sufficient to cause a suspect's death. For their part, Officer Pantaleo and his fellow officers have a right to know whether any of them is to be criminally charged. And, if charged, to have their day in court. They should not have to live in the Kafkaesque purgatory of being under investigation seemingly without end.

There is a video of Garner's arrest. There is a coroner's report. Nearly four years have elapsed since the day that Eric Garner breathed his last breath, more than enough time for any competent prosecutor, free of any and all political considerations, to investigate and make a charging decision one way or the other. Once again, the Old Testament is instructive. The book of Deuteronomy commands: “You shall not wrest justice … . Justice, justice shall you pursue … .” The meaning of these words is clear. Justice is not self-executing; it does not come about as the result of a wish or a prayer; it must be vigorously pursued if it is to be achieved. Whither the vigorous pursuit of justice in the Garner case? At some point—and perhaps we are past it already—justice delayed is justice denied.

Elliott B. Jacobson was an Assistant District Attorney in New York County from 1980 to 1985 and an Assistant U.S. Attorney for the Southern District of New York from 1985 to March 2017. He investigated the deaths of civilians in the custody of law enforcement officers in both positions.