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‘I can’t breathe’: Five years after Eric Garner died in struggle with New York police, resolution still elusive

NEW YORK — Gwen Carr was on break at her job as an MTA train operator that Thursday afternoon when her phone suddenly lit up with text messages about the police, untaxed cigarettes, and her son unconscious on the ground. She was still on her way to the hospital when she got the call that her firstborn, Eric Garner, 43, was dead.

By the next morning, Carr — and everyone else — had seen the video: Officer Daniel Pantaleo’s white arm wrapped around Garner’s black neck. The two men crashing into a storefront window and tumbling to the Staten Island sidewalk. Garner’s arms flailing as he gasped and wailed, 11 times, “I can’t breathe.”

Garner’s death, on July 17, 2014, prompted massive protests in New York, and — as a succession of police-involved killings sparked furor across the nation — his final words soon echoed on the streets in dozens of American cities.

While outrage came quickly, the bureaucracy of justice has moved at a glacial pace. Nearly half a decade later, Garner’s killing has yet to be fully adjudicated.

Local prosecutors opted not to charge Pantaleo with a crime. A federal investigation stalled after attorneys in Washington, who wanted to charge the officer with civil rights violations, met resistance from FBI investigators and federal prosecutors in New York, who did not.

The closest Garner’s family will come to some sort of resolution played out in recent weeks in a room on the fourth floor of New York police headquarters, where an internal administrative process will determine whether Pantaleo should be fired for using a chokehold, a maneuver the department has long banned. Aside from a small cadre of journalists scribbling on pads, the reckoning of Garner’s very public death has happened in private: No cameras or audio recording were allowed in the 50-seat room, and all exhibits, documents and testimony are sealed. In the coming weeks, a deputy police commissioner will make a private recommendation to her boss, Commissioner James P. O’Neill, who is expected to announce a decision before the fifth anniversary of Garner’s death.

The more than 20 hours of trial testimony — together with previous public accounts of the incident — permit a comprehensive and detailed examination of Garner’s death, one of the most consequential events in the 174-year history of the NYPD and a pivotal flash point in what would become the Black Lives Matter movement.

That examination reveals how a mundane interaction between a black man and white police officers can quickly devolve, and how split-second decisions can alter the outcomes of such encounters. Five years later, it also sheds light on the extraordinary difficulty of holding police to account for deadly violence — even when the death is captured on camera and witnessed by the world.

In the end, a case that sparked a national reckoning over race and justice will reach its conclusion in a largely semantic inquiry about police takedown tactics.

On the first day of the hearings in May, Carr stood beneath a canopy of umbrellas offered by supporters and took note of the cold raindrops leaving dark circles among the pink and orange petals of her floral dress.

“Eric is crying from heaven,” she said, “because he sees his mother and his family out here still trying to fight for justice for him.”

'I . . . hope I have the strength'

It had already been a hectic few hours by the time Jonathan Fogel, a prosecutor with the Civilian Complaint Review Board, stepped up to make his opening statement the morning after Mother’s Day. Protesters calling for police reform had blocked the expressway during the morning rush hour, and a crush of local activists had descended on police headquarters. Dozens stood in the rain, unable to get into a hearing that already was over capacity.

“Mr. Garner is dead because Daniel Pantaleo used a strictly prohibited chokehold,” Fogel began. “There were three other officers there that didn’t use a chokehold. This officer didn’t let go even after Mr. Garner fell to the ground.”

In a typical administrative hearing, prosecutors would need only to prove that Pantaleo had violated department policy to get him disciplined or fired. But in this case, the years-long delay had worked in the officer’s favor. Because so much time had passed, NYPD rules required prosecutors to prove both that Pantaleo had used a banned chokehold and that doing so rose to the level of criminal conduct.

Stuart London, the longtime police union attorney who led Pantaleo’s defense team, argued that the outcome of the trial should be clear — because the officer had not used a chokehold. Instead, London said, Pantaleo employed what is known as a “seat belt” hold and takedown, which is taught at the police academy. Any contact with Garner’s neck was incidental, London said. The 395-pound Garner’s choice to resist arrest, he said, combined with his fraught medical history, led to his death.

“He died from being morbidly obese,” London declared, prompting shocked snickers and disgusted head shakes in the courtroom. Pantaleo, sitting with his attorneys, remained silent. “He was a ticking time bomb that resisted arrest. If he was put in a bear hug, it would have been the same outcome.”

Originally scheduled to last two weeks, it took nearly a month for lawyers to present seven days of sworn testimony. The following account is drawn from those proceedings.

Every day, supporters of Garner and Pantaleo filled the courtroom’s brown-cushioned seats in the same way: To the right, behind the prosecutors, Carr and her family sat in the front row, with a rotating series of black politicians and activists behind them, along with a smattering of racially diverse supporters. To the left, behind the defense team, sat Pantaleo’s family and several rows of police union officials — almost all of them white.

Among the 14 witnesses who testified under oath were the NYPD’s top training commander, multiple medical examiners and the people present that day on Staten Island — including Ramsey Orta, who shot the cellphone video that, after he sold it to the New York Daily News for $2,000, became the most widely seen footage of Garner’s final moments.

Carr has never watched that video, the video, in full. When it was shown on the trial’s opening day, she left the room in tears, escorted by the Rev. Al Sharpton. Over the course of the proceedings, the video was played nearly a dozen times. Carr typically put in earplugs, tucked her head low and cast her eyes down.

Each morning, it took Carr about an hour to commute to police headquarters, make her way through security and take the elevators up to the courtroom. Each day at lunch, she walked back outside to the brick concourse, where she addressed supporters and the gathered press.

On that first rainy day, Carr made brief remarks before a bouquet of microphones. She took no questions. But the short news conference had taken up all of the allotted lunch break, so as Carr made her way back into the building, a supporter handed her a leftover tuna sandwich.

“I just hope I have the strength,” she said as she set her sandwich on the security X-ray machine at the building’s entrance.

Back outside, the throng of activists sang a chorus now common at police protests: “I still hear my brother crying: ‘I can’t breathe.’ ”

Untaxed cigarettes

The order to crack down on the sale of untaxed cigarettes had come from department brass.

“Loosie” sales are a profitable hustle in New York City, where sin taxes have driven the price of Newports up to $13 a pack. Street entrepreneurs smuggle cigarettes in by the case from low-tax states such as Virginia and dispense them to teams of off-the-books vendors, who sell two smokes for $1.

In March 2014, a deputy chief had ordered a group of police lieutenants to crack down on loosie sales, and officers soon made seven arrests at the corner of Bay and Victory near Tompkinsville Park. NYPD Lt. Christopher Bannon told the court that he was driving to an afternoon meeting on Staten Island on July 14 when he spotted a group of men at that intersection.

Bannon phoned the precinct sergeant and told him to send a pair of officers to see whether they needed to make an eighth arrest. “Go and arrest the cigarette guy,” he ordered, according to prosecutors. The sergeant dispatched Officer Justin D’Amico, the precinct’s “quality of life” coordinator. Pantaleo was still eating lunch, but the sergeant told him to finish his food and tag along.

About 3 p.m., according to testimony, Sheldon “Michael” Lewis had just popped into M & K, a Spanish food spot across from the park. After placing an order, Lewis, 51, headed toward a nearby hair supply shop — and spotted two men fighting on the sidewalk. A third man was trying to intervene.

Lewis, who has lived in Tompkinsville for 40 years, recognized the third man as Garner, a neighborhood regular. When Lewis doubled back a few minutes later to pick up his food, the brawling men were gone and Garner stood flanked by plainclothes police.

D’Amico and Pantaleo had parked their patrol car about 300 feet from the corner. D’Amico testified that he did not see a fight; he only saw Garner make a loosie sale. Two weeks earlier, D’Amico had busted Garner for selling cigarettes at the same location but, after an intense exchange, let him off with a warning. This time, D’Amico testified, he planned to arrest him.

Lewis quickly objected. “I told the officers that Mr. Garner wasn’t doing anything. He was just breaking up a fight,” Lewis testified, the harsh fluorescent lights of the courtroom buzzing intermittently above him.

For about five minutes, the officers argued with Garner, with D’Amico facing him and Pantaleo behind him. D’Amico reached for Garner, who slapped the officer’s hand away, according to the officer. By that time, bystanders had gathered, and at least three of them were recording.

In scenes captured on video, Garner addressed the officers. “I did nothing!” he exclaimed. “People out here fighting and you grabbing me? For what?”

“Selling cigarettes,” D’Amico replied.

“To who?” Garner replied, now yelling. “To who?! To who?!”

The argument went on like that for a few minutes. Pantaleo radioed for backup, and the officers moved in. Garner jerked his arms away from them and put his hands in the air.

“Please don’t touch me,” he pleaded. “Don’t touch me, please.”

Within seconds, Pantaleo’s arms were wrapped around Garner from behind. The two men struggled and fell to the ground as other officers moved in with handcuffs. Soon, Garner was barely breathing.

Precinct Sgt. Dhanan Saminath, who had dispatched Pantaleo and D’Amico, arrived at the scene about five minutes after Pantaleo’s “85” call — officer in need of assistance.

“What’s going on?” he asked Pantaleo. “How did this


Seeing Garner motionless on the ground, Saminath asked whether an ambulance had been called and made sure one was on the way. As it arrived, Saminath instructed D’Amico to search Garner. From the left cargo pocket of Garner’s shorts, the officer pulled four packs of Newports, each with Virginia tax stamps on the bottom.

Saminath told the officers to escort the ambulance to Richmond University Medical Center and then went back to the precinct to alert internal affairs.

At 4:11 p.m., he texted Bannon: “Danny and Justin went to collar Eric Garner and he resisted. When they took him down he went into cardiac arrest and is unconscious. Might be DOA.”

“For the smokes?” Bannon asked in reply.

“Yeah they observed him selling,” Saminath answered, telling his superior that an ambulance had been called. “Danny tried to grab him and they both fell down. He’s most likely DOA. . . . He has no pulse.”

The lieutenant replied, “Not a big deal.”

In court, Bannon testified that his response was not meant to minimize Garner’s death. He said he was trying to keep his officers calm after an emotional confrontation, noting that they had been “effecting a lawful arrest.”

Not long after that text, Pantaleo called from the hospital: Garner had been pronounced dead. D’Amico made his way back to the precinct to process the arrest of the dead man, ensuring it was included in his unit’s statistics.

Though Garner had fewer than 100 cigarettes on him when he was killed, D’Amico filed a felony tax charge alleging that Garner had sold 10,000 untaxed cigarettes, among other infractions.


On the second day of the trial, prosecutors called NYPD Inspector Richard Dee to the stand. With three decades of experience, Dee was at the time of Garner’s death the second-highest-ranking official in the department’s recruit training section. Today, he is its commander.

Dee testified that he had no doubt about what he saw in the video — a chokehold.

Providing frame-by-frame commentary, Dee said much of the officers’ behavior was admirable: Both officers kept their distance even as Garner grew increasingly upset. And it was not unreasonable for the officers to grab Garner after three minutes of arguing, though Dee said he would have waited until backup arrived.

It also made sense, Dee said, for Pantaleo to approach Garner from behind and attempt to wrap his arms around Garner’s chest. But when that didn’t work and Pantaleo’s arm slid around Garner’s neck, Dee testified, the tactic became deadly.

“It meets the definition of a chokehold,” Dee testified, echoing the conclusion reached by internal-affairs investigators. “I’m not saying he intentionally did that. But that’s where his arms are.”

NYPD’s use-of-force policy defines a chokehold as any obstruction or pressure applied to someone’s throat or windpipe that prevents or hinders breathing. At the time of Garner’s death, chokeholds were among just a few maneuvers the NYPD prohibited unequivocally. By the time he encountered Garner, police training records show, Pantaleo should have been given at least three training documents explicitly stating that chokeholds were forbidden.

The NYPD training guide for patrol officers from 2006, the year Pantaleo attended the academy, cautions against the use of chokeholds. “Around the country, in places that permit them, the police officers who have used them have not done so intending to kill or to cause serious injury,” it reads. “But they are deadly.”

Major police departments began to ban chokeholds in the 1980s, after Adolph Lyons, a black motorist stopped for a broken taillight, successfully sued the Los Angeles Police Department after officers choked him to unconsciousness and left him on the side of the road with soiled pants and a traffic citation.

The Los Angeles department banned chokeholds in 1982. New York followed in 1985, limiting chokeholds to life-or-death situations. In 1993, New York banned them outright.

But chokeholds didn’t disappear. From 1998 to mid-2014, the Civilian Complaint Review Board received hundreds of reports of officers using chokeholds, substantiating at least 32, according to a review commissioned after Garner’s death.

The department has not fired anyone for using a chokehold since 1994, when it dismissed Officer Francis Livoti. Furious that a football had accidentally struck his patrol car, Livoti put 29-year-old Anthony Baez Jr. in a chokehold that killed him.

Baez’s mother, Inez, attended the Garner hearing, sitting next to Garner’s mother each day with the same worn burgundy Bible she had taken to Livoti’s trial clutched in her lap. The two women met on the first Mother’s Day after Garner’s death, part of a tightknit network of families with loved ones who died as a result of NYPD actions.

Baez, 70, had followed the Garner case from her home in Orlando. One day, she was reading a news report about the case when a name leaped off the screen: Stuart London, Pantaleo’s lead attorney, the same union lawyer who had defended the officer who killed her son. She booked her flight the same day.

“It feels like the city hasn’t moved forward, like it’s stuck,” she said.

The key to Pantaleo’s defense was the argument that he had not, in fact, placed Garner in a chokehold. Rather, London argued, Pantaleo had attempted a “seat-belt maneuver,” which is allowed by the department.

Pantaleo’s goal, his lawyers said, was to wrap one arm across Garner’s chest and the other over his shoulder, locking Garner in a “seat belt” and enabling Pantaleo to bring him to the ground. Lawyers argued that because Garner was so much larger than the officer and forcefully resisting, Pantaleo lost control. As he was slammed against a storefront window, his arm wound up around Garner’s neck.

Dee testified that training records show Pantaleo was never taught the seat-belt maneuver. Defense lawyers brought in Russell Jung, a retired NYPD sergeant who was the police academy supervisor when Pantaleo was trained. Jung testified that the video showed a seat-belt hold, not a chokehold. “That’s the first thing I said when I saw the video,” he said.

During the hearing, Jung enlisted a business partner to demonstrate various holds and takedowns. His testimony at times turned testy. The judge twice chided Jung for arguing with prosecutors and refusing to directly answer their yes-or-no questions.

Asked whether the seat-belt technique would be an effective takedown, Jung replied: “It’s about physics. The size of somebody matters. . . . If I taught a 3-year-old how to punch you, she could punch you in the face all day long and it’s not going to do anything. Size and strength matters.”

Under cross-examination, Jung rejected the prosecutor’s suggestion that it would have been improper for Pantaleo to use the seat-belt maneuver without having been trained to do it.

“There’s a million maneuvers that we do in the streets that we’re not trained to do,” Jung said with a smirk — eliciting jeers from the audience and prompting the judge to threaten to clear the courtroom.

'Hungry for air'

Speaking slowly and deliberately, Floriana Persechino used a green laser pointer to walk the court through Garner’s autopsy, photo by graphic photo. Though questions were coming from friendly prosecutors and a prickly defense team, the senior medical examiner addressed her answers directly to the judge.

In more than 20 years at the medical examiner’s office, Persechino had conducted between 3,000 and 4,000 autopsies. Countless exams had resulted in “strangulation” or “neck compression” as the official cause of death. But when it came time to conduct Garner’s autopsy, for the first time in her career Persechino had a video showing the dead person’s final moments. She watched it.

For Garner’s cause of death, Persechino wrote “compression of the neck, chokehold,” listing chest compression, asthma and hypertension as contributing factors.

Where the video showed Garner flailing on the ground, Persechino saw “air hunger” — Garner’s body reacting to the desperate need for oxygen. That began a “lethal cascade,” she said, triggering an asthma attack that, in turn, led to cardiac arrest.

“In my opinion, that’s a chokehold,” Persechino testified.

Pantaleo’s defense emphasized the details of Garner’s perilous health — his obesity, chronic asthma, and hypertension evidenced by a heart twice its normal size — while simultaneously trying to discredit Persechino’s finding. During his opening statement, London theatrically tore a copy of the autopsy report to pieces. Later, he would decry it as a “political document.”

The union attorneys tried to rile Persechino. London noted that Persechino had never before listed “chokehold” as a cause of death. He questioned her about a report, issued by the NYPD’s top surgeon, blaming Garner’s death on resisting arrest. He asked Persechino — who holds two medical board certifications — about a failed attempt, years ago, to be certified in a third area of medicine.

“Did you study for it?” London asked. “The time you failed?”

The defense called Michael Graham, a medical examiner flown in from St. Louis. While he complimented Persechino’s autopsy, Graham said that because Garner did not lose consciousness until after Pantaleo’s arm was removed from his neck, the officer’s tactics were not responsible for Garner’s death.

Garner “probably felt that he couldn’t breathe, but the fact of the matter is he could breathe,” Graham said.

London seized on Persechino’s finding that Garner had no external markings on his neck and suggested that internal damage might have been caused by efforts to resuscitate him — a point Persechino conceded. He mocked her analysis that Garner had been “hungry for air.” When prosecutors objected to him cutting off one of her answers, he curtly replied that “she’ll go on forever.”

After both legal teams had questioned Persechino twice, London announced he had one last question: “It would also be a fair comment that had [Garner] just accepted a summons for selling untaxed cigarettes, none of this would have happened?”

“Objection!” prosecuting attorney Suzanne O’Hare bellowed, jumping from her chair.

“No further questions,” London said, returning to his seat.

'Trying to bring him down'

Though he was seated next to his attorneys for all seven days of trial, Pantaleo’s voice was absent from the hearing.

The officer, who remains on desk duty, has never spoken publicly about what happened the afternoon of Garner’s death. For weeks, his attorneys said they would make a game-time decision about his testimony. He did not take the stand.

Instead, over prosecutor’s objections, the defense team entered a 75-page transcript of Pantaleo’s interview with internal-affairs investigators. The transcript was not released publicly.

After five years, Garner’s family would not hear from the man most directly implicated in his death. His testimony had been delivered in secret.

“It’s disgraceful that we’re not going to hear from him,” Carr said after court that afternoon. “That is not right.”

The next morning, both legal teams read small sections of Pantaleo’s internal-affairs interview into the record.

“I put my right arm under his right armpit,” Pantaleo said, according to the transcript. “. . . I took my left arm and put it around his shoulder and tried to bring it across his chest.”

“What were you trying to achieve?” an investigator asked.

“Just trying to bring him down to the ground,” Pantaleo replied.

That testimony, London argued, proved Pantaleo never intended to restrict Garner’s breathing. This was an attempted takedown that turned tragic.

“The true facts of the Eric Garner case have finally come to light,” London said, declaring that the hearing had disproved a “basket of lies” surrounding the case: that Pantaleo’s arm was still around Garner’s neck when he said “I can’t breathe,” that the tactic was a chokehold and that the chokehold is what killed him.

Even if Pantaleo did use a chokehold, London argued, his actions fell well within the bounds of reasonable police behavior.

“If all they prove is a chokehold,” London said of the prosecution, “they lose.”

O’Hare argued that prosecutors had proved not only that Pantaleo put Garner in a chokehold but that his behavior had been reckless to the point of criminality. The officer knew his arm had slipped around Garner’s neck, she said, effectively forming a chokehold that restricted his breathing. “Officer Pantaleo knew it was prohibited,” she said. “He used it anyway.”

O’Hare went further. Garner, she argued, had not even resisted arrest. He was knocked off balance when Pantaleo jumped on his back. His flailing was not an attempt to get away, she said — just a desperate gasp for air.

“He couldn’t breathe,” she said, her voice cracking. “God help us. He couldn’t breathe.”