Attorney General Loretta Lynch will step down without the Justice Department having charged or cleared police officers in the death of Eric Garner, whose videotaped takedown by New York City officers sparked national outrage, people familiar with the matter said.
Lynch authorized the department to move forward with the case, but made that decision so late in her tenure that lawyers and investigators could not take all the necessary steps to procure an indictment. That would entail assembling the evidence in the case and presenting it to a grand jury in order to convince the panel to return criminal charges.
The controversial case will now pass to the administration of Donald Trump and likely leave expected future attorney general Jeff Sessions with ultimate decision making authority. Sessions has said publicly he is wary of police being judged unfairly, and he is viewed as less likely to press for charges against officers involved in Garner’s death.
A Justice Department spokesman declined to comment. The people familiar with the matter spoke on the condition of anonymity to discuss an ongoing criminal case.
Garner died in 2014 after he was taken to the ground by New York City police officers and put in what appeared to be a chokehold. The incident, which was caught on tape, ignited protests across the country, and Garner’s gasping “I can’t breathe” became a rallying cry for those angered by the treatment of African Americans by police.
Exactly why the nearly two-and-a-half year old case could not be resolved before Lynch will leave remains unclear. The matter was initially left to state authorities — with the Justice Department watching behind them — but in late 2014, a Staten Island grand jury declined to bring charges.
Early in 2016, federal authorities began presenting the case to a grand jury, but the matter soon languished in part because of a dispute inside the Justice Department. It is possible that grand jury has now expired, and a new one would have needed to be empaneled. At least some prosecutors in the U.S. Attorney’s Office in the Eastern District of New York felt that civil rights charges were not appropriate, while attorneys in the Civil Rights Division at the Justice Department in D.C. thought they were, according to people familiar with the case.
The Justice Department then removed New York FBI agents from the team of investigators, though others pressed forward, people familiar with the matter said.
Lynch made police reform a centerpiece of her tenure, and in the waning days of her administration, she seemed to push to cement her legacy. On Thursday, she traveled to Baltimore to announce a court-enforceable agreement that would mandate broad changes at the police department in that city, where the 2015 death of another black man sparked riots. The next day, she flew to Chicago, making public a scathing report about the police department’s pattern or practice of using excessive force on suspects and revealing that city leaders had agreed in principle to a set of improvements.
The lack of a resolution in the Garner case, though, is a glaring omission, particularly given the time Lynch had to resolve it.
Garner initially drew the attention of police for selling loose cigarettes, and the city of New York reached a civil settlement with his family last year for $5.9 million. Though the matter was caught on videotape, convicting officers on federal charges in the matter would not necessarily be easy. Substantiating civil rights charges requires prosecutors to meet a heavy burden of proof and present evidence that might speak to an officer’s intent at the time of the incident.
In the high-profile case of Darren Wilson, the white police officer who shot and killed 18-year-old Michael Brown in Ferguson, Mo., in 2014, the Justice Department found there was “no evidence upon which prosecutors can rely to disprove Wilson’s stated subjective belief that he feared for his safety.” Prosecutors came to a similar conclusion in the 2015 shooting of Jamar Clark in Minneapolis, describing in a lengthy news release the exacting standard they would have had to meet.
“It is not enough to show that the officer made a mistake, acted negligently, acted by accident or mistake or even exercised bad judgment,” the Justice Department wrote in the release. “Although Clark’s death is undeniably tragic, the evidence is insufficient to meet these substantial evidentiary requirements.”
Sessions is a former U.S. Attorney who at his confirmation hearing this week insisted he will follow the law, and his political views will have no impact on his decision making. But he also presented himself a friend to local police, wary of actions that paint them unfairly with a broad brush.
“In the last several years, law enforcement as a whole has been unfairly maligned and blamed for the unacceptable actions of a few of their bad actors,” he said. “They believe the political leadership of this country abandoned them.”
Lawyer Jonathan C. Moore, who represents Garner’s family, said in an interview earlier Friday that he had sent an email to Vanita Gupta, the head of the Civil Rights Division at the Justice Department, on Jan. 6, asking for a status update in the case, and she had not responded. He said his last conversation with Justice Department officials came in early December, and they told him they were still investigating.
“Our position is that whether it’s now, next week, two weeks, or four months from now, that there should be an indictment,” he said. “When that happens, obviously the sooner the better.”
Stuart London, who is representing the officer who on the video seems to be putting Garner in a chokehold, said he, too, had not heard anything from the Justice Department.
“I’ve always said from the beginning that the standard needed to indict my client under a federal statute is even greater than under a state statute, and he was exonerated by a state grand jury,” London said.
London said his client, Officer Daniel Pantaleo, remains a police officer on desk duty.