The public rebellion against police brutality in New York is raising questions about whether Federal prosecutors in New York City consider Federal civil rights discretionary in their application. Source : Public Domain by BlaueBlüte (CC0 1.0 Universal) ; photograph was cropped from original.

As DOJ ignores racism and police brutality at NYPD, unanswered questions about whether Federal civil rights are subject to discretionary enforcement

Simmering resentment at unchecked racism and police brutality have escalated into a public rebellion in cities across America, including in New York.

By Progress New York Staff

The offices of Brooklyn U.S. Attorney Richard Donoghue and Manhattan U.S. Attorney Geoffrey Berman are turning a blind eye to the patterns or practises of racism and police brutality at the New York Police Department, some say. The Nation has erupted in a mass public rebellion in response to George Floyd‘s death from asphyxiation after Minneapolis police officer Derek Chauvin pressed his knee into Mr. Floyd’s neck. Despite the popular outcry for accountability for allegations of racism and brutality by police forces, the top Federal prosecutors in New York City have kept mum about recent cases of excessive use of force by NYPD officers, most recently on May 2, when NYPD officer Fernando Garcia punched an innocent bystander, Donni Wright, before kneeling on his head once Mr. Wright was on the ground, according to a report published by Gothamist.

The offices of U.S. Attorneys Donoghue and Berman did not answer interview requests or questions submitted in advance for this report.

Critics of the U.S. Attorneys’ countenancing of allegations of racism and police brutality by the NYPD noted the contradiction in how the office of U.S. Attorney Donoghue, in particular, has treated violent interactions between the public and the police. In 2019, U.S. Attorney Donoghue announced that the Federal Government would not be seeking civil rights violations charges against NYPD officer Daniel Pantaleo for the unlawful use of a chokehold in the homicide of Staten Island resident Eric Garner. The disposition of that investigation took many years to conclude, without the application of any justice for the Garner family. Yet, during the current public rebellion against police brutality, inspired by Mr. Floyd’s death in Minneapolis, U.S. Attorney Donoghue moved on the same day to press Federal criminal charges against three individuals for allegedly attempting to throw improvised incendiary devices into police vehicles, in one instance when a vehicle was occupied by police officers, according to a public statement by the U.S. Attorney’s Office in Brooklyn.

Within the U.S. Department of Justice, the offices of the Brooklyn and Manhattan U.S. Attorneys are regarded with high esteem. The Federal prosecutors’ offices based in New York routinely handle complicated civil and criminal cases involving high commercial value, cases involving foreign jurisdictions, and prosecutions that have sensitive foreign relations implications. Attorneys are lured to work in the U.S. Attorneys’ Offices for the self-proclaimed reputation for higher standards of integrity and independence that the offices publicly attempt to cultivate.

There is no check on racism and police brutality alleged to exist within the culture of the NYPD.

But behind the façade of the virtue-signaling from the Federal prosecutors’ offices, there rests a quiet reality that the U.S. Attorneys’ Office have not been in integrity with the law, nor have they been independent from political pressure. Besides U.S. Attorney Donoghue’s duplicity on the prosecution of police-involved violence, U.S. Attorney Berman was a former law partner to Rudolph Giuliani, the former mayor and current counsel to President Donald Trump. Both U.S. Attorneys were appointed by President Trump and both must still consult with the Civil Division and the Criminal Division of the DOJ in Washington, D.C., which answer to President Trump’s attorney general, William Barr, further limiting the prosecutors’ public claims of independence from political interference. Progress New York has also experienced a lack of compliance by the DOJ with Federal open records laws, violations that are believed to be rooted in political motivations.

In response to the public uprising against systemic racism and police brutality alleged to run rampant through the NYPD, a nervous Mayor Bill de Blasio (D-New York City) has promised to conduct an investigation of NYPD civil rights abuses during the George Floyd protests to be jointly managed by two of his political appointees, including his commissioner for the New York City Department of Investigation, which is headed by Margaret Garnett, a former assistant Federal prosecutor in Manhattan. Critics of the mayor immediately questioned the independence of the investigation, given that Ms. Garnett’s Agency had failed to uncover the extent of Mayor de Blasio’s alleged involvement in political horse trading to stall a separate investigation into what was described as poorly-run yeshivas, according to a report published by the New York Post. Ms. Garnett became the DOI commissioner after her predecessor, Mark Peters, was dismissed after reportedly challenging the mayor’s interference with the investigation into the yeshivas. As a result, there is no independent review being undertaken of the NYPD that is not connected to a Government Agency that relies on NYPD coöperation.

Against this backdrop, U.S. Attorneys Donoghue and Berman have refused to acknowledge calls to appoint a public commission to hold public hearings and take public testimony about allegations of patterns or practises of civil rights violations by the NYPD. The demand for the appointment of a public commission was made by the public housing preservation group, Fight For NYCHA, which receives some support from Progress New York.

In the face of criticism over the excessive use of force by NYPD, as documented on videos and shared widely on social media, including of video of two NYPD vehicles recklessly surging into throngs of protesters and violently shoving a young lady onto the pavement of a street, some police officers have begun to hide their badge numbers on the shields that they wear on their uniforms, reportedly in a desperate effort to avoid being identified in complaints of misconduct. Posts shared on the Twitter social media platform described the coverings that hide the badge numbers as surgical tape.

The lack of any accountability at the NYPD for patterns or practises of corruption, racism, and police brutality violate the higher standards of professionalism claimed by the Brooklyn and Manhattan U.S. Attorneys, particularly since it has been shown that the NYPD is incapable of policing itself. Given the repeated past failures by New York City or New York State to hold police accountable, it’s unknown how the U.S. Attorneys now expect that City and State officials to deliver justice to victims of police brutality. The Federal civil rights laws that were enacted in the 1960’s, and subsequently amended, were passed to provide protections from discrimination and state-sponsored unequal treatment under the laws based, in part, on race. When the Federal authorities choose to decline to enforce those laws, it appears that the Civil Rights Act is discretionary in its application, a charge that the silence by the U.S. Attorneys denies us any assurance of equal treatment under the law.

The dysfunction in Government has led to a loss in confidence in both the DOJ and the de Blasio administration. Earlier this year, over 2,000 former DOJ officials asked that Attorney General Barr, the top attorney at the DOJ, step down. In the wake of recent public rebellion in New York City, Councilmember Antonio Reynoso (D-District 34) issued a statement on Monday, noting, in relevant part, that, “The Mayor has lost control of the NYPD and he has lost the trust and faith of the people.”