At a news conference Tuesday, Garner’s mother, Gwen Carr, said the Justice Department had “failed us,” and called on the New York City police commissioner to fire Daniel Pantaleo, the officer shown on video wrapping his arm around Garner’s neck.
“Five years ago, my son said, ‘I can’t breathe,’ 11 times, and today we can’t breathe, because they have let us down,” Carr said.
Prosecutors, including Richard P. Donoghue, the U.S. attorney for the Eastern District of New York, delivered the news to Garner’s family at a tense meeting Tuesday morning, then held a news conference to explain their decision.
Donoghue said that after years of debate, Attorney General William P. Barr ultimately decided that prosecutors had insufficient evidence to demonstrate that Pantaleo used “objectively unreasonable” force and “willfully” used more force than he thought was necessary — two elements necessary to win a conviction on federal civil rights charges. He called Garner’s death a “tragedy,” but said prosecutors could not prove it was a federal crime.
“We know and understand that some will be disappointed by this decision, but it is the conclusion that is compelled by the evidence and the law,” Donoghue said.
Stuart London, an attorney for Pantaleo, said: “It is always a tragedy when there is a loss of life. Officer Pantaleo utilized NYPD-approved techniques to make the arrest in this case. Officer Pantaleo is gratified that the Justice Department took the time to carefully review the actual evidence in this case rather than the lies and inaccuracies which have followed this case from its inception.”
The case followed a tortuous path through the Justice Department, remaining open as three attorneys general — Eric H. Holder Jr., Loretta E. Lynch and Jeff Sessions — finished their terms without bringing it to a conclusion. The decision came just a day before the fifth anniversary of Garner’s death, after which the statute of limitations would have prevented prosecutors from bringing certain charges.
“Five years ago, Eric Garner was choked to death,” said the Rev. Al Sharpton, who appeared with Garner’s family at the news conference. “Today, the federal government choked lady justice.”
While defending the Justice Department’s decision, Donoghue apologized for the delay of the case, calling it “regrettable and inappropriate.”
“This should never have taken as long as it did,” he said.
From the outset, the department’s Civil Rights Division said that charges were warranted, and they seemed to have Holder’s support. But the FBI and federal prosecutors in New York were wary of bringing a case, and their skepticism was documented in internal records, potentially complicating a future trial, current and former law enforcement officials said.
The tension became so severe that the Justice Department removed New York FBI agents from the team of investigators. Late in Lynch’s term as attorney general, Vanita Gupta, who was head of the Civil Rights Division, pushed for her prosecutors to take the lead on the case, and Lynch authorized them to move forward, current and former officials said. But they found some of the previous investigation lacking and knew their work would have to continue after Lynch left, the officials said.
The tension continued into the Trump administration, with civil rights prosecutors in D.C. recommending charges and federal prosecutors in Brooklyn recommending the opposite, said a senior Justice Department official who spoke on the condition of anonymity to discuss internal deliberations. Donoghue said officials parsed the video of Garner’s encounter with police to help inform their decision.
In large measure because of the video, Garner’s case became a catalyst for changes in policing policy. The painful images of him saying, 11 times, “I can’t breathe,” rocketed around the Internet and became a rallying cry for those arguing that police should implement systemic changes in the way their officers deal with minorities.
New York officials and advocates for change at police departments reacted with dismay Tuesday after the Justice Department announced its decision.
“The entire world saw the same devastating video five years ago, and our eyes did not lie,” said New York Attorney General Letitia James. “Today’s inaction reflects a DOJ that has turned its back on its fundamental mission — to seek and serve justice.”
In the Justice Department’s view, Donoghue said, Pantaleo followed established police procedures in his initial interactions with Garner. The officer had been ordered to address complaints about the sales of untaxed cigarettes, Donoghue said, and because Garner “resisted arrest, both verbally and physically,” Pantaleo was allowed to use force.
Donoghue said Pantaleo first attempted two maneuvers to subdue Garner that are authorized under New York City police policies: an arm bar and a rear takedown. He noted that Garner, at 6-foot-2 and weighing nearly 400 pounds, was significantly larger than Pantaleo, and said that complicated Pantaleo’s ability to control the situation. The two men, Donoghue said, fell backward into a window, and “the situation rapidly deteriorated.”
Donoghue said Pantaleo wrapped his arm around Garner’s neck, “resulting in what was, in effect, a chokehold.” Pantaleo maintained that hold for seven seconds, Donoghue said. The senior Justice Department official said that was not enough time, in the minds of some prosecutors, to establish that the officers struggling with Garner intended to cause him harm.
Donoghue said, too, that some prosecutors found it significant that Pantaleo did not have Garner in a chokehold when he could not breathe, and he noted that some medical experts disagreed about whether the chokehold itself caused Garner’s death.
Jonathan Moore, an attorney for the Garner family, said the chokehold “resulted in his death.”
“This is not a difficult law school exam, you know?” Moore said. “They directly caused his death, and he said, 11 times, ‘I can’t breathe.’ ”
The Justice Department official compared the case to that of former NYPD officer Francis Livoti, who was convicted of federal charges for choking to death Anthony Baez in 1994. Witnesses said Livoti choked Baez for about a minute, stronger evidence of willful conduct, the senior official said.
A grand jury in Staten Island also declined to bring charges in Garner’s case — meaning the state cannot now pick up where federal prosecutors left off. Pantaleo was put on desk duty and this summer went through an administrative process to determine what discipline he should face. Commissioner James P. O’Neill is expected to make a decision soon about his future with the department.
At the news conference, Garner’s family called on New York Mayor Bill de Blasio, a Democratic presidential candidate, to terminate Pantaleo’s employment.
“De Blasio. What’s up?” said Emerald Garner, one of Eric Garner’s daughters. “When are you going to fire this officer?”
In a statement, the mayor did not directly address Pantaleo’s employment. He criticized federal authorities and announced a policy change that would have the police department immediately begin its disciplinary process for officers involved in the death of unarmed civilians, unless the family requests a delay for the criminal investigation to finish or a judge otherwise prevents the city from moving forward.
New York had long put on hold the disciplinary process for Pantaleo with the Justice Department investigation ongoing.
“Years ago, we put our faith in the federal government to act,” de Blasio said. “We won’t make that mistake again.”
Moore said the Garner family is “calling on the Democratic candidates to take a position on this and to commit to reopen the investigation,” and noted that the statute of limitations had not expired to charge Pantaleo with a civil rights violation resulting in a death.
Sen. Kirsten Gillibrand (N.Y.), one such candidate, called the Justice Department’s decision “an outrage,” and said the federal justice system had failed Garner’s family. “The NYPD must make their departmental findings fully transparent to the public and take immediate actions to ensure this officer is no longer on the force,” she said.
The city of New York reached a civil settlement with Garner’s family in 2015 for $5.9 million.