The recommendation to charge New York City Officer Daniel Pantaleo came in recent weeks and now must be weighed by Deputy Attorney General Rod J. Rosenstein and Attorney General Jeff Sessions, said the person, who spoke on the condition of anonymity because they were not authorized to publicly discuss an ongoing investigation.
Pantaleo was among those involved in the 2014 incident in which officers took Garner to the ground. Garner, whose gasps of “I can’t breathe” were caught on tape, later died and became a rallying cry for those angered by police treatment of African Americans.
While significant, the recommendation does not offer clarity on where the case might be headed. Career civil rights prosecutors had previously advocated for charges in the case, though they met fierce resistance from their colleagues in the U.S. Attorney’s Office for the Eastern District of New York.
Lawyer Jonathan C. Moore, who represents Garner’s family, said, “It’s long overdue for some prosecutorial action against these officers who killed Eric Garner.” Though he quickly added, “We don’t have any real confidence in the leadership of the DOJ that they’ll follow the recommendation of their line attorneys. We think they should, but we’re not hopeful.”
Stuart London, an attorney for Pantaleo, said: “Politics should never trump the rule of law. Officer Pantaleo has always been confident that he never violated Mr. Garner’s civil rights. This was, and continues to be, a simple street encounter, remembering that it is always a tragedy when there is a loss of life.”
The development was first reported by the New York Times. The Justice Department declined to comment.
The case of Garner, who initially drew the attention of police for selling loose cigarettes, has long presented a challenge for investigators. Substantiating civil rights charges requires prosecutors to meet a heavy burden of proof, and those at the Justice Department and the FBI sparred over whether that was possible. They would have to have evidence that speaks to Pantaleo’s state of mind at the time, and it is not enough to show he acted negligently or recklessly. Even when incidents are caught on camera — such as the shooting death of Alton Sterling by police in Baton Rouge — it does not mean federal charges will be brought.
In late 2014, a Staten Island grand jury declined to bring charges in Garner’s death, and at one point, the Justice Department removed New York FBI agents from the team of investigators and proceeded with a fresh group. The city of New York reached a civil settlement with Garner’s family in 2015 for $5.9 million.
The civil rights division in the Obama administration had advocated aggressively for charges in the case, and Attorney General Loretta E. Lynch authorized them to move forward with a grand jury — though her approval came so late in her tenure that the matter was essentially left to Sessions.
Sessions has markedly different views than his predecessor’s when it comes to police misconduct. While Lynch often pressed whole police departments to change through broad civil rights investigations and court-supervised agreements, Sessions has backed off and sought to cast himself as a more pro-police attorney general.
Sessions has, however, expressed a willingness to prosecute individual officers accused of wrongdoing. Asked last year about the Garner case, he said broadly of such matters, “it’s usually easier to prosecute in state court for these crimes, but we can absolutely use our investigative and prosecutorial power to prosecute cases that are worthy of prosecuting.”