No Charges in Federal Probe of ‘I Can’t Breathe’ Death

BROOKLYN (CN) – The Staten Island police officer who killed Eric Garner will not face federal charges, the government announced Tuesday, one day ahead of the five-year anniversary of the shocking chokehold death.

Eric Garner, right, poses with his children during a family outing. Federal prosecutors won’t bring civil rights charges against New York City police officer Daniel Pantaleo in Garner’s 2014 chokehold death. The decision not to bring charges against Pantaleo comes a day before the statute of limitations was set to expire, on the fifth anniversary of the encounter that led to Garner’s death. (Family photo via National Action Network)

At a courthouse press conference this morning, U.S. Attorney Richard Donoghue said the probe did not collect enough admissible evidence to bring any charges against any of officers involved in the fatal arrest from July 17, 2014, where Garner’s dying words, “I can’t breathe,” set off a rallying cry across the country. Prosecutors faced a five-year statute of limitations that expires Wednesday to bring federal civil rights charges.

Though he noted that the decision not to bring charges is usually made without comment, Donoghue conceded Tuesday that “today’s announcement is long overdue.”

“This should never have taken as long as it did,” Donoghue told reporters, counting five attorneys general in charge of the Department of Justice over the course of its investigation.

Donoghue explained that the government need to prove four elements beyond a reasonable doubt to bring federal civil rights charges: that the officer acted under the color of law, that he used objectively unreasonable force, that the officer violated the law willfully, and that the wrongful conduct caused bodily injuries to the victim.

“The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with 20/20 vision or hindsight,” Donoghue said.

Donoghue noted that the video footage of the Staten Island arrest showed officer Daniel Pantaleo using a hold called an “arm bar” to take down Garner. He blamed the deterioration of the altercation on a disparity of size and weight: at the time of his death, Garner, 43, weighed nearly 400 pounds and was more than 6 feet tall.

Although the New York City medical examiner ruled Garner’s death a homicide, a Staten Island grand jury declined to indict Pantaleo on criminal charges, triggering massive protests over the trend of police officers facing scant consequences for causing the deaths of unarmed suspects. 

When Garner was killed on July 17, 2014, police had been trying to arrest him for selling loose cigarettes outside the Staten Island ferry. A bystander’s video of the altercation went viral with the footage showing the 43-year-old Garner gasping “I can’t breathe” 11 times after Pantaleo tackled him onto the pavement and kept him subdued with an arm around his windpipe.

The New York City Police Department prohibits officers from using chokeholds, but Donoghue emphasized to reporters Tuesday neither Pantaleo nor any other NYPD officer applied such a maneuver on Garner after he began to repeat “I can’t breathe” 11 times.

Mayor Bill de Blasio released a statement criticizing the government’s inaction.

“Years ago, we put our faith in the federal government to act,” said de Blasio, who is vying for the Democratic presidential nomination in 2020. “We won’t make that mistake again.”

De Blasio added: “Moving forward, we will not wait for the federal government to commence our own disciplinary proceedings.”

But Garner’s mother, Gwen Carr, had tough words for the mayor this afternoon at rally on the steps of City Hall where dozens of supporters from groups including Black Lives Matter and the National Action Network gathered in the sweltering July heat.

Demanding that he “come forward and do your job,” Gwen Carr said Mayor de Blasio must “do the right thing” and fire the officers involved in Garner’s death.

“If this was one of their loved ones, it wouldn’t have never went this far,” Carr said, surrounded by dozens of supporters from groups including Black Lives Matter and the National Action Network. “We would’ve had an indictment, conviction and probably an execution before now.”

New York City Public Advocate Jumaane Williams similarly urged de Blasio “to do something or never mention Eric Garner’s name ever again.” On Wednesday, another rally will be held in Foley Square to mark the anniversary of Garner’s death.

The NYPD assigned Pantaleo to desk duty in the Staten Island borough command shortly after the killing. Despite being stripped of his gun and badge, Pantaleo continues to collect raises and pension benefits, reportedly earning to $120,000 a year.

That income could disappear, however, following the outcome of Pantaleo’s proceedings before the NYPD’s Civilian Complaint Review Board. Separate from the federal civil rights probe, the officer went on trial before the CCRB in May.

The Police Benevolent Association of the City of New York, the police union bankrolling Pantaleo’s defense in those proceedings, branded the Department of Justice’s decision Tuesday as a full exoneration.

“It is no coincidence that a grand jury in NYC and now DOJ, both of which had full access to all of the facts of this case, found no criminality in Police Officer Pantaleo’s actions,” PBA president Patrick Lynch said in a statement. “Scapegoating a good and honorable officer, who was doing his job in the manner he was taught, will not heal the wounds this case has caused for our entire city,” Lynch added.

Joined by the Rev. Al Sharpton and other community advisers, Garner’s family members spoke in Brooklyn as well minutes before the Justice Department’s press conference.

“Pantaleo needs to be fired,” Garner’s daughter Emerald Garner thundered.

“Five years later and there’s no justice so, no, there won’t be no calm, no, there won’t be any peace,” she said. “No justice, no peace.”

Garner’s mother, Gwen Carr, was not swayed by the U.S. attorney’s condolences to her family.

“As I know the law book, there is no statute of limitations for murder – and that was murder that they did to my son,” Carr said.

Sharpton meanwhile called the decision not to bring charges “a moral disgrace” and “judicial malpractice.”

Pantaleo’s attorney Stuart London argued in the CCRB trial that Garner was killed by his own poor health and refusal to cooperate with the officers arresting him.

Assistant U.S. Attorney Elizabeth Geddes, head of the civil rights division of the federal prosecutors’ office in Brooklyn, attended one day of the CCRB trial, but left after Pantaleo’s lawyer said that the officer would not be taking the stand, prompting speculation that the Department of Justice still had an interest in Garner’s death.

Although the CCRB trial concluded over a month ago, the findings of the the Board’s Deputy Commissioner of Trials, Rosemarie Maldonado, have not been made public.

Following the three-week trial held at NYPD headquarters in lower Manhattan, Maldonado submitted her findings on Pantaleo’s alleged misconduct and her recommendations for punishment to New York Police Commissioner James O’Neill.

NYPD officer Daniel Pantaleo leaves his house before showing up to court during his trial for Eric Garner dead on May 13, 2019 in Staten Island, New York. (AP Photo/Eduardo Munoz Alvarez)

The commissioner is free to overrule those recommendations and make his own decisions on Pantaleo’s guilt and punishment.

Under Section 50-a of New York state Civil Rights Law, the board’s findings of misconduct could have been blocked from public disclosure. The law says all “personnel records used to evaluate performance towards continued employment or promotion” for police officers, firefighters and correction officers are “confidential and not subject to inspection or review” except by court order.

A remembrance rally for Garner is scheduled to take place Wednesday, the fifth anniversary of his death, at Foley Square in lower Manhattan, outside of Manhattan Supreme Court and just blocks away from the NYPD headquarters where Pantaleo’s administrative trial took place.

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