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OpinionColumnistsLeonard Levitt

What-next question looms in NYPD-Eric Garner case

People stand around outside the beauty salon where

People stand around outside the beauty salon where Eric Garner was killed on July 17, 2014, by a police officer who put him in an apparent chokehold. Photo Credit: Getty Images / Andrew Burton

‘Justice Dept. Is Seen as Divided on Rights Case in Garner Killing,” a New York Times headline said this past weekend. In fact, the Justice Department has been divided over Eric Garner’s death for years.

Mayor Bill de Blasio got it right when, responding to the Times’ story, he said, “The family and loved ones of Eric Garner have waited long enough . . . We once again urge the Department of Justice to show some level of decency to the Garner family and make its decision.”

Maybe section 242 of the Civil Rights Act of 1866 — under which the feds seem unable to decide whether NYPD cop Daniel Pantaleo willfully violated Garner’s constitutional rights through excessive force — should be rethought, if not abandoned. In Garner’s case, it has only created false expectations.

Abandoning it, says Chris Dunn, associate legal director to the NYCLU, “would send a terrible message. The problem is not with the law, but with those responsible for enforcing it.”

It’s hard to convict a cop for anything he or she does while on duty. It’s particularly difficult to convict a cop of civil rights violations. In the past 20 years, only two NYPD cops were so convicted: Craig Yokemick, who in 1998 threw a radio at a fleeing drug suspect, killing him; and Francis X. Livoti, who caused the death of Anthony Baez in 1994 after placing him in a chokehold.

Garner died on July 17, 2014, in Staten Island. Pantaleo had responded to calls that Garner was illegally selling untaxed cigarettes. When Garner resisted arrest, Pantaleo used what appeared to be an NYPD-banned chokehold to subdue him. Unfortunately, the case has been draped in politics. Garner’s last agonizing words — “I can’t breathe” — became a mantra for anti-police activists.

After a Staten Island grand jury declined to indict Pantaleo, the feds took over. For a year and a half, the office led by U.S. Attorney Loretta Lynch in Brooklyn resisted indicting Pantaleo. But after Lynch’s appointment as U.S. attorney general in 2015, she assigned the case to the department’s civil rights division.

There it sat until Friday, when news got out that division prosecutors had recommended criminal charges. the Times and other media reported that it appeared unlikely that Deputy Attorney General Rod Rosenstein would approve them.

But if three law enforcement agencies, plus the FBI, can’t decide after four years whether to bring charges against Pantaleo, what can anyone expect of a jury?

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