Symbolism Matters in Declining to Prosecute an NYPD Officer

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(Bloomberg Opinion) -- The news on Tuesday that the U.S. Department of Justice will not seek civil rights charges against a New York police officer in the death of Eric Garner sounds like grounds for a straightforward controversy.

On the one hand, civil rights advocates and Black Lives Matter activists will say that the Justice Department failed to follow the evidence that Officer Daniel Pantaleo used excessive force and an illegal chokehold when he attempted to arrest Garner on July 17, 2014. On the other hand, defenders of the officer and members of President Donald Trump’s administration will point out that no charges had been brought against Pantaleo by city or state prosecutors  — presumably because they did not believe the evidence was strong enough to overcome the officer’s insistence that he did not in fact use an illegal restraint.

As in other disputes, the video of the incident can be interpreted different ways, depending on who you are and how you see it.

Yet there is a less obvious problem lurking in the background here: What should the Department of Justice do about a possible civil rights violation in a close case that also has enormous symbolic importance? Garner’s final words, “I can’t breathe,” became part of Black Lives Matter protests of excessive police force throughout the country. Possibly no more complex, or indeed tragic, problem faces a well-meaning attorney general.

When I say that Garner’s death created a close case, I don’t mean to be taking a side on the ultimate question of whether to prosecute. The Department of Justice under President Barack Obama struggled mightily with the issue.

At first, prosecutors in the Eastern District of New York, then under the direction of U.S. Attorney Loretta Lynch, recommended against bringing charges. Attorney General Eric Holder disagreed, publicly saying that he thought charges were warranted. Then, after Lynch herself had replaced Holder as attorney general, the civil rights division of the Department of Justice recommended charges. Lynch, at the end of her time in office, apparently reversed the view she had held when she was U.S. attorney.

Still, no charges were brought under the Obama administration. The civil rights division once again recommended prosecution to U.S. Deputy Attorney General Rod Rosenstein after Trump had taken office, but as we now know, the Department of Justice ultimately decided not to move forward.

All of this can’t be put down too easily to politics. Surely there must have been reasoned viewpoints on either side.

The argument in favor of prosecuting a high-profile close case begins with the principle that justice not only must be done, but also must be seen to be done. Sure, the main purpose of any criminal prosecution is to enforce the law. But when it comes to civil rights prosecutions in particular, the world should see that the laws are enforced in favor of everyone in the society, including those with less power. From this perspective, prosecuting Pantaleo could have sent a notable message that black lives matter, or if you prefer, that all lives matter, including those most marginalized by society and most in danger of abuses of power by the police.

Conversely, deciding not to prosecute anyone in Garner’s death could be construed as a message that the justice system doesn’t actually protect people like Garner — and even that the system doesn’t want to do so. Choosing not to prosecute a close but high profile case could arguably lead to future civil rights violations.

There are two main arguments in support of not prosecuting close cases. The first is that defendants also have rights. If prosecutors bring a case when they have relatively little chance of a conviction, the effect on the defendant deserves consideration. The experience of being charged with a crime and being prosecuted is an enormous burden. According to this argument, an individual who has not committed a crime should not be subjected to the burden of prosecution in order to serve the public interest in discouraging other crimes.

The second concern in a close case is the potential social consequences of a high-profile acquittal. The Rodney King case — which I’m not saying was a close case — provides the most worrisome example. The acquittal of four police officers in the brutal beating of King sparked several days of riots in which more than 60 people died. If Pantaleo had been prosecuted, the trial would receive significant media attention. If a jury acquitted him after the world had rewatched the video of Garner’s death countless more times, it is not impossible that there could have been protests that turned dangerous.

Ordinarily, prosecutors should and do steer away from such broader public considerations. But if prosecutors were to decide to bring a case with a very high chance of defeat primarily in order to send a message, they would be remiss if they did not consider all public consequences of an acquittal. It’s also possible a salient acquittal would do even more to encourage future civil rights violations than a slightly lower-profile decision not to prosecute at all.

My point here is not to applaud or disparage the ultimate decision in the Garner case. Garner’s death was horrifying, and it has stood as a completely understandable symbol of the broader concerns raised by the Black Lives Matter movement about the vulnerability of African Americans to police brutality.

But it would be unfortunate if the controversial nature of this or any case make it impossible to discuss the difficulties in resolving high-profile close cases. The Department of Justice under both Obama and Trump had the opportunity to prosecute Officer Pantaleo. The ultimate reasons for their decisions may have differed, but the underlying tension over prosecution exists outside of parties and politics.

The New York Police Department held a disciplinary trial in June to determine if Pantaleo should face punishment for his actions. There is no verdict yet.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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