Schenectady

DA Report: Schenectady officer didn’t violate criminal laws in controversial arrest

Erica Miller and Peter Barber/Staff PhotographersYugeshwar Gaindarpersaud is pictured previously in left photo; Officer Brian Pommer is  pictured in 2018 in right photo. Center bottom is Schenectady County District Attorney Robert Carney Wednesday.

Erica Miller and Peter Barber/Staff Photographers

Yugeshwar Gaindarpersaud is pictured previously in left photo; Officer Brian Pommer is  pictured in 2018 in right photo. Center bottom is Schenectady County District Attorney Robert Carney Wednesday.

Categories: News, Schenectady County

SCHENECTADY — City Police Officer Brian Pommer did not violate any criminal laws when he arrested Yugeshwar Gaindarpersaud this past summer, an altercation that immediately reignited a debate over police brutality amid a summer of a national reckoning on systemic racism and cast the Schenectady Police Department under intense scrutiny.

So says a report issued Wednesday by District Attorney Robert M. Carney.

The report also concluded that Pommer didn’t use excessive force or engage in official misconduct when restraining Gaindarpersaud after he fled when questioned about slashing his neighbor’s tires.

However, Pommer should have engaged in a more thorough investigation, according to the report, before attempting to take the suspect into custody.

Both Gaindarpersaud’s attorney and the county District Attorney’s Office acknowledged Wednesday that “unhelpful assumptions and mistakes” made by both men contributed to a “chaotic situation” that endangered their safety and that of nearby citizens.

Carney issued his extensive 57-page report on the incident Wednesday morning, after the one charge against Gaindarpersaud was dismissed, and the other charge is expected to be dismissed if he stays out of trouble for six months.

Read: Schenectady County DA’s report on the arrest of Yugeshwar Gaindarpersaud

Black Lives Matter activists immediately highlighted the July 6 encounter as the latest example of police brutality and excessive force, and the report also outlined numerous examples of how the altercation in Schenectady differed from the death of George Floyd at the hands of a Minneapolis police officer six weeks earlier.

A resolution agreement signed by the county District Attorney’s Office, Gaindarpersaud and his attorney, Derek S. Andrews, agreed upon a list of 13 baseline concepts that they hoped would “promote better understanding and cooperation between our citizens and the police officers assigned to serve and protect them.”

While the report contains streaks of reconciliation — District Attorney Carney said the nature of the deal was unusual — he stressed there is no equivalence between Pommer’s actions and Gaindarpersaud’s attempts to resist arrest.

“Citizens can’t decide for themselves whether they’ll submit to an arrest,” Carney said.

Gaindarpersaud declined comment after court on Wednesday.

“The net effect of both of those actions is that Mr. Gaindarpersaud will be restored to the status of never having been arrested for these charges in the first place,” said Andrews, his lawyer.

The report does not completely absolve Pommer, who still faces possible disciplinary action from the city Police Department.

“Whether any actions or statements by the officer amount to violations of department policy will be up to the Schenectady Police Department, not this office,” read the report.

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NO EXCESSIVE FORCE

The DA’s investigation and report on the arrest — put together by Carney’s longtime colleague and former top assistant, Philip Mueller — provides a blow-by-blow account from the time Pommer rolled up to 332 North Brandywine Ave. for a report of slashed tires, often in cinematic detail and studded with legal precedents and case law.

Much of the narrative about what happened on July 6 by now is well known.

The neighbor, who is identified in the report as Nathan Chow-Chick, contended Gaindarpersaud slashed his tires, claiming surveillance cameras captured the encounter.

Upon being questioned, Gaindarpersaud demanded to see the footage. Pommer said the neighbor didn’t want to press charges, and simply wanted restitution. When told to put his hands behind his back, Gaindarpersaud fled into his backyard, which resulted in Pommer tackling him and kneeling on his head in an attempt to restrain the squirming suspect.

The officer also delivered six “submission punches” and told Gaindarpersaud to put his hands behind his back 19 times before three officers arrived and took him into custody.

Body camera footage released in the aftermath revealed Gaindarpersaud lolling around in the backseat while being transported to police headquarters.

The report definitively clears up an area of lingering ambiguity:

Pommer’s knee was on Gaindarpersaud’s head for all but one second of the 2 minute and 37 second encounter.

“However, this accidental slippage lasted for only one second and Officer Pommer quickly moved his knee higher up on the side of Mr. Gaindarpersaud’s head,” read the report of the investigation, which was led by retired Chief Assistant District Attorney Philip Mueller.

Gaindarpersaud’s breathing was never restricted despite his claims to the contrary — including at a protest outside of police headquarters following the altercation — nor was there evidence Pommer attempted to do so, according to the report.

“From the point the resisting starts, I can’t critique anything he did,” Carney said.

The report concluded there is no evidence that Pommer used excessive force, nor was Gaindarpersaud seriously injured (although he did suffer minor abrasions).

“Indeed the force he used was insufficient to overcome Mr. Gaindarpersaud’s persistent resistance to handcuffing,” the report read.

FOOTAGE INCONCLUSIVE

The report contains several new details that fleshed out the dynamics behind the encounter, painting a portrait of a rushed officer working with unclear evidence as he attempted to quickly sift through an ongoing feud in which Gaindarpersaud himself falsely claimed Chow-Chick previously slashed his own tires.

Pommer, who was working solo, had just responded to another call of slashed tires nearby (it remains inconclusive if that incident was related, Carney said), and had another “trouble call” pending.

Read: Schenectady County DA’s report on the arrest of Yugeshwar Gaindarpersaud

While Chow-Chick told him the surveillance camera footage showed “everything,” he “grossly overstated” its strength and clarity, and that dim shadow emerging from Gaindarpersaud’s backyard was ultimately inconclusive.

Yet Pommer didn’t watch the video before questioning Gaindarpersaud, and the report acknowledged Pommer acted in a way that contributed to the deterioration of a routine encounter into physical struggle.

Pommer, for instance, could have asked Chow-Chick more probing questions to determine the strength of the evidence; he could have asked to view the footage beforehand, and also could have spoken in a more neutral and “less accusatory way.”

“The fact remains, however, had Officer Pommer viewed the video himself, he probably would have not approached Mr. Gaindarpersaud in the same way and would have not sought to forcibly detain him.”

Pommer later told investigators he only aimed on restraining Gaindarpersaud temporarily so that he could review the footage.

Yet despite the shortcomings, the report determined it wasn’t “unreasonable” for him to rely on Chow-Chick’s narrative and “patrol officers do not have the training or experience to be seasoned detectives.”

The report also conceded flaws were exacerbated by Pommer working by himself — a partner could have reviewed the footage while Pommer was questioning Gaindarpersaud, for instance.

Carney said some of these suggestions could be used as training opportunities, and pointed at reforms already undertaken by the city Police Department, including banning knee-to-neck holds and boosting de-escalation training.

Warrentless arrests must also now be overseen by patrol supervisors on scene, a measure that would have allowed someone to review the video while Pommer interviewed Gaindarpersaud (or vice-versa).

As part of the resolution, Gaindarpersaud acknowledged he “should have complied with the officer’s orders to submit to being detained and handcuffed, should not have run and should not have continued to resist handcuffing once the officer caught him.”

And suspects aren’t entitled to see evidence against them before consenting to detention or arrest.

Carney said those are key elements for the public to understand.

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“If that’s lost in this, it would squander an opportunity to realize a point that all citizens should agree on,” Carney said in an interview.

Andrews said he agreed with the finding that Pommer made a poor attempt at investigating the property damage allegation.

“It spiraled out of control when all he needed to do was come back another time with more information in hand,” Andrews said. “He didn’t need to approach my client in the manner he did nor did he need to chase my client, tackle him and restrain him like he did.”

The misdemeanor fourth-degree criminal mischief charge was dropped Wednesday in Schenectady City Court because of a lack of evidence.

Yet the report determined there was sufficient evidence to support a charge of resisting arrest and Pommer had probable cause to do so.

Pommer had reasonable suspicion to detain Gaindarpersaud, according to the report.

Andrews disagrees that Pommer acted reasonably.

“While the District Attorney’s Office and I agree on the law surrounding reasonable suspicion to detain or probable cause to arrest, what should be included in that analysis is whether Pommer’s actions were reasonable,” Andrews said. “After all, the Fourth Amendment protects us from unreasonable searches and seizures. Pommer’s actions were not reasonable. We obviously disagree on the legal conclusions, but that did not stop us from resolving these charges in a just way for Mr. Gaindarpersaud.”

The report also stated that while the prosecution believes evidence would have supported a conviction on the resisting arrest change, the agreement would be less harsh on Gaindarpersaud, who is under supervision for an unspecified felony conviction in New York City.

NEXT STEPS

The arrest drew widespread attention this summer after Gaindarpersaud’s father filmed a portion of the arrest and posted the footage online, clips that ignited immediate demonstrations in the city by those comparing the encounter to Floyd’s death at the hands of police.

The county District Attorney’s Office included a lengthy list in the report outlining why those comparisons are false.

Read: Schenectady County DA’s report on the arrest of Yugeshwar Gaindarpersaud

Among them: Unlike Floyd, Gaindarpersaud was not handcuffed; Unlike Officer Derek Chauvin, Pommer was in danger; Gaindarpersaud never complained he couldn’t breathe; Gaindarpersaud never lost consciousness, and of course, the encounter did not prove to be fatal.

Carney also said Gaindarpersaud made a number of inaccurate statements at a press conference and rally following his arrest that fanned outrage, including the assertion that he told officers he couldn’t breathe.

“The video and comments he made afterwards blew this thing up in a way it shouldn’t have been,” Carney said.

While the release of the report and the dropped charges close one chapter of the altercation, other strands remain.

The city Police Department has completed their own report and have started discipline proceedings.

“I anticipate releasing the full, redacted report soon when the discipline is resolved,” said Police Chief Eric Clifford on Wednesday. “I cannot set a timeline for that but will release everything immediately upon the resolution.”

A lawsuit by the union representing city police officers has also led to a temporary court injunction barring the release of Pommer’s full disciplinary records.

The New York Civil Liberties Union joined the lawsuit on Tuesday, calling it potentially precedent-setting.

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3 Comments

William Marincic

Carney said, However, Pommer should have engaged in a more thorough investigation, according to the report, before attempting to take the suspect into custody.
My question is how is Officer Pommer going to engage in a more thorough investigation when the suspect takes off running? Wow.

Mark Mahoney

Before he went to arrest him, he should have done more to determine if he actually had enough evidence. Read the entire report. We posted it. It’s not that long.

William Marincic

Mark I read the report, I also spoke to multiple police officers including one in the professional standards office that said had he been doing this investigation there would be no internal charges being brought against Pommer. He is being charged internally because he cursed, because he used the F word, not for nothing he had multiple civilians who were family members of the person who was on the ground. He was concerned for his safety and he used the F word, big deal.

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