'Today we can't breathe.' DOJ will not bring civil rights charge against NYPD officer in death of Eric Garner

Kevin Johnson and William Cummings

WASHINGTON – The Justice Department will not bring federal charges against a New York City police officer over the death of Eric Garner during a chaotic arrest that ignited nationwide protests five years ago.

The decision, announced Tuesday by Brooklyn U.S. Attorney Richard Donoghue, marks the end of a civil rights investigation into an episode – much of it captured on video – that helped turn a national spotlight on how police officers use force.

“Like many of you, I have watched that video many times, and each time I’ve watched it, I’m left with the same reaction: that the death of Eric Garner was a tragedy," Donoghue said. "The job of a federal prosecutor, however, is not to let our emotions dictate our decisions. Our job is to review the evidence gathered during the investigation, like the video, to assess whether we can prove that a federal crime was committed."

Authorities spent years investigating Garner's death in an examination that proved contentious both inside and outside the Justice Department. Attorneys in the department's Civil Rights Division long advocated for bringing a criminal charge, while prosecutors in Brooklyn recommended against it. 

 Donoghue said Attorney General William Barr broke the logjam, deciding in recent days that Justice would not bring a federal civil rights prosecution against officer Daniel Pantaleo.

"The video and the other evidence gathered in the investigation does not establish beyond a reasonable doubt that officer Pantaleo acted willfully in violation of federal law,” Donoghue said.

Garner, 43, a black man, was accused of selling single cigarettes outside a store on Staten Island when Pantaleo attempted to arrest him. Garner gasped, "I can't breathe" after Pantaleo and other officers knocked him to the ground as Pantaleo held him around the head and neck. The video of the encounter became a social media phenomenon.   

Garner died soon after. His last words became a rallying cry for the Black Lives Matter movement, whose members staged demonstrations  across the county against what they call excessive force by police. Professional athletes and Hollywood's elite took up the cause, some donning T-shirts emblazoned with Garner's last words.  

“We’re here with heavy hearts because the DOJ has failed us, although we looked for better from them," Garner's mother, Gwen Carr, said Tuesday. "Five years ago, my son said, ‘I can’t breathe’ 11 times, and today, we can’t breathe because they have let us down.”

The city medical examiner listed Garner's cause of death as "compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police." The officer's lawyer, Stuart London, and the police union denied that Pantaleo used a chokehold maneuver banned by the NYPD.

The city paid a $5.9 million civil settlement to Garner's family. Pantaleo has been assigned to administrative duty since Garner's death.

In 2017, the city's Civilian Complaints Review Board determined that Pantaleo used excessive force. Pantaleo awaits a verdict in an NYPD disciplinary proceeding.  

Wednesday is the five-year anniversary of Garner's death, and the date would have marked the Justice Department's last opportunity to bring civil rights charges before the statute of limitations expires.  

More: Lawyer: NYPD officer Daniel Pantaleo a 'scapegoat' in Eric Garner's death

More: Eric Garner grand jury decision fuels protesters' fury

Gwen Carr, mother of chokehold victim Eric Garner, left, speaks outside the U.S. Attorney's office as Garner's widow Esaw Snipes listens at right on July 16, 2019. Federal prosecutors won't bring civil rights charges against New York City police officer Daniel Pantaleo, in the 2014 chokehold death of Garner, a decision made by Attorney General William Barr and announced one day before the five-year anniversary of his death, officials said.

Months after the arrest, a Staten Island jury declined to indict Pantaleo, a decision that set off angry demonstrations. Pantaleo denied any wrongdoing.

Garner's mother vowed that the Justice Department's decision would not go unchallenged and that the family would seek Pantaleo's removal from the police force.

"We are asking the (police) commissioner to make the right decision," Carr said. "Officer Pantaleo and all the officers who were involved in my son’s death that day need to be off the force. The streets of New York City are not safe with them walking around. Five years ago, it was my family. Today or tomorrow, it could be your family.”

Civil rights advocates joined the family in expressing outrage over the department's decision.

"This is a major miscarriage of justice," said Carmen Perez, executive director of the Gathering for Justice, which helped thrust Garner's death into the national spotlight. "For the Department of Justice to announce this one day before the fifth anniversary of Eric Garner's death sends a disrespectful message that black bodies are dispensable to the NYPD and all who’ve had the power to act over the past five years."

Crowds chant

New York Attorney General Letitia James, an elected Democrat, said the Justice Department fell short of its mandate.

"The entire world saw the same devastating video five years ago, and our eyes did not lie," James said. "Today’s inaction reflects a DOJ that has turned its back on its fundamental mission – to seek and serve justice."

Donoghue defended the decision, suggesting that the chaotic nature of the struggle involving the officer and Garner resulted in Pantaleo inadvertently grabbing Garner by the neck.

He said Pantaleo tried to employ two approved NYPD tactics to arrest Garner: an armbar, which is used to place handcuffs on a subject, and a “rear takedown” or “seatbelt,” which is used to knock suspects off balance and bring them to the ground. 

Donoghue said nothing in the video suggested Pantaleo intentionally placed Garner in a chokehold. He cited the size difference between Pantaleo and Garner as a reason the police officer had trouble subduing Garner.

The prosecutor claimed Garner complained of being unable to breathe after Pantaleo no longer had him by the neck.  

Medical experts did not agree on the cause of Garner’s fatal cardiac arrest, Donoghue said. Though the medical examiner who conducted the autopsy ruled his death a homicide, other experts said it could have been due to the chokehold or other factors, including Garner’s “serious underlying medical conditions.”

“Today’s announcement is long overdue,” Donoghue said. “The department owed it to Mr. Garner’s family and the community to complete the investigation and announce our decision earlier.”

This article originally appeared on USA TODAY: Eric Garner: Justice Department will not bring charges in his death