Robert L. Herbst, Contributor
civil rights lawyer and contributing opinion writier
NYPD Assaults 11-Year-Old in the Bronx -- On Video
07/22/2015 11:08 am ET Updated Jul 22, 2016
Now that the City of New York has settled the Eric Garner case for almost $6 million, we owe a debt of thanks to Mayor Bill de Blasio and Comptroller Scott Stringer for taking responsibility for the racially-disparate police misconduct which has plagued our communities of color for so long. By settling this high-profile case quickly and for a lot of money, they are acknowledging the enormous damage that this misconduct imposes, not just on the victims and their families, but on the fabric of these communities. This is a welcome departure from the practice of previous administrations, which fought meritorious police misconduct lawsuits long and hard.
Eric Garner was grabbed around the neck and wrestled to the ground on suspicion of the minor offense of selling untaxed cigarettes, and for objecting to being touched by the police in an aggressive way that affronted his dignity as a human being. He felt disrespected by the white police officers surrounding him, and he was disrespected, like thousands of men and women, girls and boys, in communities of color throughout this City and country. Because Garner was obese, asthmatic and cardiac-compromised, the indignity and assault he suffered at the hands of the police cost him his life. But in the usual case, where the victim of color is healthy, the injury is not primarily to the body, but to the psyche, the mind, the heart and the human spirit. We should not underestimate that injury in such cases.
Take a look at this video, in which a white male New York City police lieutenant grabbed a 6th grade elementary school student of color -- big for her age but only 11 years old -- around the neck and threw her to the pavement on a Bronx street corner, six months after Eric Garner was wrestled down on a Staten Island pavement. (The video is grainy because it was copied from a surveillance camera onto a phone before the family came to me seeking legal representation; the original surveillance videotape was automatically taped over).
Here's the background. This past February, after school was out for the day, some boys from the school were throwing snowballs at a passing car. When the driver got out to yell at them -- and put one of the boys in a headlock -- his smartphone fell out of his pocket and another boy picked it up. Upon realizing his phone was gone, the driver chased down one of the boys and threatened to call the police if the phone was not returned, and when it was not forthcoming, he did, apparently using someone else's phone.
This 6th grader -- let's call her Angie -- and a classmate were walking from school to the bus stop when they saw some of this. They were bystanders who had nothing to do with either the snowballs or the phone. But as the police arrived, the girls exchanged words as to whether they should stay to watch, or go, and then took off running for a block before stopping.
The driver -- the man in the white jacket with the knapsack in the video -- seeing Angie running, suspected -- wrongly -- that she was part of the group and had his phone. He approached Angie and asked for his phone. She told him she didn't have his phone.
Shortly thereafter, as the video starts, this police lieutenant crossed the street, motioning for Angie to come toward him, which she did. But instead of engaging her verbally and asking her anything, like her name, or about the phone, he grabbed her by the arm and pulled her roughly toward him. Shocked, and scared, we can see her trying to protest, but he does not let go; instead, he escalates the situation, pushing her toward the camera, frightening her even more, and then grabs her around the neck and throws her to the ground, where he rolls her over and rear cuffs her. It was totally unnecessary and gratuitous police violence, borne out of the same disrespect which animated the violence visited upon Mr. Garner. If Angie were white on the Upper East Side rather than Hispanic in the Bronx, would it have happened?
After Angie's arrest (and that of one of the boys), the police quickly determined that she did not have the phone. She was released to her parents. The shopkeeper in front of whose premises Angie was assaulted let her mother copy the video onto her phone.
The arrest was referred to the Family Court's probation department, which supervises an adjustment process that requires the child to attend programs based on an assumption of guilt. Properly thinking that such punishment was not good for a child innocent of any wrongdoing, Angie's parents declined the adjustment process. Thereafter, for months, the case lay dormant without charges, leading them to think that the prosecutor, from the office of the Corporation Counsel of the City of New York, had decided not to prosecute.
Almost three months after the incident, Angie's parents served formal notice on the City that they were going to pursue claims on Angie's behalf of police assault and battery and the use of excessive force, among others. Such claims are defended by the same Corporation Counsel of the City of New York that prosecutes Family Court proceedings after arrests like Angie's. A month after the City acknowledged receipt of such claim, the Corporation Counsel commenced a juvenile delinquency proceeding against Angie, in which this police lieutenant swore under oath that, during a "struggle" with Angie, she "and I both slipped and fell to the ground. On the ground [Angie] continued to flail her arms and thrash her body, preventing me from placing handcuffs on her. We continued to struggle until I was eventually able to place handcuffs on" Angie.
As is obvious from the video, neither he nor Angie slipped on ice -- he grabbed her around the neck and threw her to the floor. Nor did she flail her arms and thrash her body. All she did was take one arm away briefly to wipe the tears from her eye and then put her arm right back again behind her back. This police supervisor's sworn statement appears to be a false statement in official records designed to cover his abusive conduct and defend himself and the City from Angie's claim.
The juvenile delinquency case will be dismissed in six months. But the impact of all this on Angie will endure far longer. Her parents report that she now talks and cries in her sleep, and sometimes sleep walks. She is scared of and avoids the police. She does not want to think about or talk about what happened to her. She stays home more, does not like to go outside, and her relationships with friends have changed as she has become more withdrawn.
This is the kind of psychic injury, of damage to the human spirit, that many adults as well as children suffer when they are the victims of police misconduct like this. Will the mayor and the comptroller step up and acknowledge responsibility for this kind of police misconduct not resulting in death when, as in this case, it is clearly established?
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