"There is insufficient evidence to meet the high burden of proof"
By LOUIS FLORES
U.S. Attorney Preet Bharara announced on Tuesday that he was closing his office’s civil rights investigation into the 2012 New York Police Department officer-involved shooting that led the death of an unarmed youth, Ramarley Graham.
“After conducting a thorough and independent investigation, the U.S. Attorney’s Office has determined that there is insufficient evidence to meet the high burden of proof required for a federal criminal civil rights prosecution,” stated the findings of the U.S. Attorney’s Office, in a statement made publicly available over the Internet, adding that, “To prove a violation of the federal criminal civil rights statute, prosecutors must establish, beyond a reasonable doubt, that a law enforcement officer willfully deprived an individual of a constitutional right, meaning that the officer acted with the deliberate and specific intent to do something the law forbids. This is the highest standard of intent imposed by law, and is different from and higher than the intent standard under the relevant state statutes. Neither accident, mistake, fear, negligence nor bad judgment is sufficient to establish a federal criminal civil rights violation.”
In the brief analysis made public by the office of the nation’s top Federal prosecutor for New York’s southern district, the decision hinged on statements made by NYPD officer Richard Haste, who shot the young Mr. Graham, 18, on February 2, 2012. During the Federal civil rights investigation, it was implied that Officer Haste claimed that he believed that the young Mr. Graham was in possession of a firearm at the time that police swarmed the Bronx home of the young Mr. Graham’s grandmother. Indeed, just before the shooting, Officer Haste had claimed that the young Mr. Graham had reached to seemingly pull what was wrongly presumed to be a firearm from his pants. The point-blank shot fired by Officer Haste struck the young Mr. Graham in the chest out of view of any witnesses when Officer Haste cornered the young Mr. Graham in a bathroom.
The deadly raid took place after police had reportedly been monitoring the young Mr. Graham once police reached a conclusion that the reason the Black Bronx youth had been tugging on his belt and on the waistband of his pants was because the teen had been packing a gun.
This conclusion and Officer Haste’s belief turned out to be wrong. The young Mr. Graham was not carrying any firearm.
The public statement issued by the U.S. Attorney’s Office coincided with a reported 90-minute meeting between U.S. Attorney Bharara and the Graham family. After U.S. Attorney Bharara reported the findings of his office, the family exited the Federal prosecutors’ office and held a press conference outside at which Franclot Graham, the younger Mr. Graham’s father, expressed disappointment, saying of U.S. Attorney Bharara’s attitude, “Black lives don’t matter,” referring to the nation-wide social justice movement to end racism in policing and to improve accountability at police departments for brutality and misconduct.
On Tuesday evening, Constance Malcolm, the young Mr. Graham’s mother, was interviewed by the NY1 cable news TV talk show host, John Schiumo. During that interview, Ms. Malcolm noted that U.S. Attorney Bharara had at least once spoke in a very blunt manner and was lacking in tact during the family’s meeting with the Federal prosecutor. In his public speeches, U.S. Attorney Bharara has in the past exhibited an affected mannerism that was probably shaped by having been resocialised as a young adult at the Ivy League universities of Harvard and Columbia, where he received his education.
Ms. Malcolm also questioned the thoroughness of the civil rights investigation by the U.S. Attorney’s Office, saying that Federal prosecutors probably based their civil rights investigation on the failed Bronx District Attorney’s case and that questions existed for which she has not received answers. Ms. Malcolm noted that despite police officers not knowing the layout of the Graham family home or how many people were inside at the time, it was not clear why police officers decided to break into the house in the course of their pursuit. “Any good investigation should have asked those questions,” Ms. Malcolm said, adding that she felt concerned that Officer Haste continued to serve as a police officer with the possibility that he could again be reckless with his gun.
Ms. Malcolm questioned how the NYPD could be partial in its own disciplinary proceedings against Officer Haste, now set to begin after Federal prosecutors had concluded their investigation, when the NYPD awarded Officer Haste a $25,000 raise in spite of the shooting death of the young Mr. Graham.
In announcing that it was closing the civil rights investigation into the young Mr. Graham’s death, the U.S. Attorney’s Office noted that the issue of Officer Haste having probable cause to confront the young Mr. Graham was a determining factor in deciding to commence a civil rights prosecution against the NYPD officer, noting that, “In the context of this case, to establish a violation of federal law, the Department of Justice would have to establish beyond a reasonable doubt that, at the time of the shooting, Officer Haste lacked probable cause to believe that Mr. Graham posed a significant threat of death or serious physical injury to the officer or to others, and that he willfully deprived Mr. Graham of his right to be free from excessive force. The weight of the evidence indicates that, at the time the shooting took place, Officer Haste believed Mr. Graham to be in possession of a firearm that was tucked into the waistband of his pants, for which Officer Haste believed Mr. Graham was reaching. Although Officer Haste ultimately was proven to be mistaken in his belief, the determination as to the willfulness of his actions must be assessed in light of his knowledge at the time of the shooting.”
In finding that Officer Haste had probable cause to create the conditions that led the deadly shooting, U.S. Attonrey Bharara’s conclusion depended on the conjecture that the young Mr. Graham was carrying a firearm, an assumption that turned out to be false. That cramped analysis of the fact pattern intentionally overlooked the broader pattern and practise by the NYPD that violated New Yorker’s rights against unreasonable searches and seizures. At the time when the young Mr. Graham was shot and killed by Officer Haste, the NYPD’s unconstitutional stop-and-frisk procedures had just peaked, according to data compiled by the New York Civil Liberties Union. The U.S. Attorney’s Office would not explain why it did not consider the pattern and practise of constitutional rights violations by the NYPD that might have seemingly applied in the case of the young Mr. Graham. A spokesperson for the U.S. Attorney’s Office declined to answer several questions submitted by Progress Queens for this report.
Whereas the public statement released by the U.S. Attorney’s Office noted the existence of video evidence of the young Mr. Graham adjusting his pants and of police swarming around and into the Graham family house, none of that video was released by the U.S. Attorney’s Office. Some of it, though, had already been published by the news media.
Reaction on social media ranged from growing suspicion that U.S. Attorney Bharara was not committed to confronting police brutality and misconduct at the NYPD to outright anger. Critics of the U.S. Attorney’s Office complained that the legal reasoning offered in Tuesday’s statement created a scenario that provides police officers with a blanket excuse, namely, claiming even when untrue that the perpetrator had a gun, that would allow police officers to escape accountability for officer-involved fatalities. Advocates for greater police reform claim that that blanket excuse is used to justify the race-based policing that unfairly targets minorities. As reported by Progress Queens, Federal prosecutors rely on local police departments for so much policing support, even with respect to investigations on a Federal level. That close working relationship means that the success of the work of the U.S. Attorney’s Office depends on the active coöperation by NYPD officers, a reliance that could be called into question if Federal prosecutors were to find a faulty pattern and practise with such a collaborating law enforcement agency.
This was not the first time that U.S. Attorney Bharara has rejected calls to probe the NYPD. As reported by Progress Queens, U.S. Attorney Bharara nixed a suggestion made at a January 2015 speech at New York Law School that his office empanel a committee of prosecutors to review the lack of accountability for police brutality and misconduct at the NYPD. U.S. Attorney Bharara said at that time then that he believed there was sufficient oversight above the NYPD, noting, however, that if he believed a time came when additional supervision was needed, he would revisit the matter, a condition that held promise for many, until his office’s decision on the civil rights investigation into the shooting death of the young Mr. Graham.
Perpetuating a culture of unaccountability
As noted in a public service investigation published by The New York Daily News, on-duty NYPD officers were involved in 179 homicides over the span of 15 years. Only three officers ever faced indictment for those homicides, and only one officer, Bryan Conroy, was ever convicted of crimes in connection with homicide.
In recent months, activists have increasingly demonstrated outside the office of U.S. Attorney Bharara, demanding that his reluctant office probe the civil rights violations committed by NYPD officers. The protests against U.S. Attorney Bharara represent a set-back to his carefully-crafted public image as a corruption-busting Federal prosecutor.
Predictably, the Rev. Al Sharpton released a statement that called for the NYPD to hold Officer Haste and other NYPD officers involved in the deadly raid accountable for the young Mr. Graham’s murder, stating, in part, “I join the family in calling for the immediate termination of these officers from the force ; they are a clear and present danger to all citizens.” Since the Rev. Sharpton is an advisor to Mayor de Blasio, the Rev. Sharpton would never endanger his political alliance with the mayor by initiating an unrelenting pressure politics campaign against the mayor until the city fired the officers involved in the deadly raid. Likewise, the Rev. Sharpton is too close to the Obama administration to pressure U.S. Department of Justice officials inside the Beltway on national police reform. Furthermore, as reported by Progress Queens, police reform efforts in New York have not resulted in successes, much less political accountability, as efforts in other cities, such as Chicago, and this is due to Mayor de Blasio’s power to supress neoliberal leaders and groups that are in a position to exert great influence over police reform issues. For the first year of the de Blasio administration, for example, police reform efforts were hobbled due to the largest police reform umbrella group, Communities United for Police Reform, being a client to the unregistered lobbying firm, BerlinRosen, which is closely allied to Mayor de Blasio. As reported by Progress Queens, BerlinRosen was not in a position to aggressively press Mayor de Blasio for police reforms, because such a stance would have frayed BerlinRosen’s profitable relationship with the mayor. Later attempts to press Mayor de Blasio to reform police accountability ran aground after Mayor de Blasio shifted his loyalty for political reasons to the troubled police force instead of to the police reform movement after a controversial work slowdown by rank and file police officers threatened to undermine his public opinion poll ratings.
The brief statement released on Tuesday by the U.S. Attorney Office concluded with U.S. Attorney Bharara expressing his deep sympathies to the Graham family, but the statement contrasted sharply with the detailed 86-page report issued almost exactly one year ago by the U.S. Department of Justice, which, likewise, found no reason to file civil rights charges against Ferguson, Missouri, police officer Darren Wilson in the shooting death of another unarmed youth, Michael Brown. However, in the case of Ferguson Police Department, the Civil Rights Division of the U.S. Department of Justice found race-based constitutional and civil rights violations in that city’s police department and court systems. After the Ferguson City Council voted to reject a settlement agreement over reforms, the U.S. Government filed a Federal civil lawsuit to impose court supervision in an effort to end racial discrimination by the troubled Midwest municipality.
- 2016-03-08 Ramarley Graham - U.S. Attorney's Office (Statement) [Scribd]
- 2016-02-10 USA v City of Ferguson - Complaint (Eastern District of Missouri) (16-CV-0180) [Scribd]
- 2015-03-04 DOJ Report on Shooting of Michael Brown [Scribd]
- 2013-08-12 Floyd et al. v. City of New York - Opinion and Order (08-CV-1034) [Scribd]