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William Barr steps in to make sure the NYPD cop who killed Eric Garner won’t be prosecuted

Attorney General Barr – who came out of retirement just a few months ago – reportedly overrode specialized civil rights prosecutors who'd worked the case for years.

NYPD Officer Daniel Pantaleo holds Eric Garner in a fatal chokehold. CREDIT: YouTube/New York Daily News
NYPD Officer Daniel Pantaleo holds Eric Garner in a fatal chokehold. CREDIT: YouTube/New York Daily News

New York Police Department officer Daniel Pantaleo will face no criminal charges for killing Eric Garner in 2014, federal prosecutors will announce Tuesday.

The decision ends nearly five years of roiling internal dispute within the Justice Department over whether or not Pantaleo’s fatal use of physical force on Garner – who was specifically targeted by NYPD supervisors aiming to crack down on street sales of loose cigarettes – constituted a crime.

Attorney General William Barr made the final decision not to charge Pantaleo personally, a DOJ spokesperson told ThinkProgress “after being briefed by [Eastern District of New York staff] and the Civil Rights Division.” He sided with the office that routinely works with NYPD over the civil rights specialists in his own department who have steadily insisted that Pantaleo’s conduct was criminal for years. The spokesperson referred further queries about the nature of Barr’s thinking to the office that has opposed the charges, which the Washington Post reports won the argument in part by noting Pantaleo’s chokehold of Garner only lasted seven seconds.

Pantaleo had already escaped criminal charges in New York. The DOJ decision means the only body from which Pantaleo might yet face punishment is the NYPD itself. A secretive and highly technical internal administrative trial over his conduct toward Garner concluded earlier this summer, but a verdict hasn’t yet been reached.

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Even if that administrative judge decides Pantaleo used an illegal chokehold on Garner – and not the permissible “seatbelt maneuver” his defense team and supporters argued is shown in bystander video – the final decision on disciplining Pantaleo will rest with NYPD Commissioner James O’Neill.

The feds’ decision to let Pantaleo walk was first reported by the New York Times, which cited three unnamed sources briefed on the decision, and said the U.S. Attorney for the Eastern District of New York was expected to formally announce the decision later Tuesday morning. The U.S. Attorney’s press office did not immediately return requests for comment.

New York’s state records law and the law enforcement community’s interpretation of it are broader and more aggressive than almost anywhere in the country. Even the non-criminal internal adjudication of Pantaleo’s actions will therefore likely never become public, unless O’Neill decides to pick a transparency fight with his officers’ union.

Dr. Floriana Persechino’s autopsy report on Garner lists the cause of his death as “compression of the neck, chokehold.” The case was the first in her career where she could consult video as well as a decedent’s physical remains to draw her conclusions, she reportedly testified at Pantaleo’s internal police-board trial.

Pantaleo is seen initiating the legal “seatbelt maneuver” takedown on Garner in the video. But as the officer wrestles with the much larger man, his arms shift position until they are clamped around Garner’s neck.

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Pantaleo’s history of on-the-job conduct and alleged violations of department rules – captured in records first obtained and published by ThinkProgress in 2017 – was lengthy compared to most of his department. He’s been subject to more civilian complaints – seven at the time his killing of Garner gave rise to an eighth – than 95 percent of all NYPD officers. And though the city’s Civilian Complaints Review Board only rarely substantiates allegations against officers, the board had upheld two of the cases against him and recommended disciplinary action prior to his encounter with Garner.

But Pantaleo’s disciplinary jacket is largely irrelevant to the decision federal prosecutors faced here. That determination hinged entirely on what the video of Garner’s death shows. Much like a group of strangers arguing in a barbershop, it seems different groups of prosecutors managed to come away with radically different sets of facts from reviewing the video.

Previous iterations of the DOJ team scrutinizing Pantaleo’s killing of Garner have been convinced there was a strong case to be brought against him. But the high-profile and politically sensitive nature of the case have reportedly fostered an internal tug-of-war dating back to Eric Holder’s time as Attorney General, as the Times report details.

Federal law affords DOJ prosecutors additional tools to pursue police crimes of violence beyond those state and local law enforcement can employ. Where those lower authorities opt not to bring criminal charges in high-profile police violence cases, the feds can move in to charge an officer with “deprivation of rights under color of law,” a sweeping charge used to punish unconstitutional law enforcement activity.

Civil Rights Division attorneys under Holder believed Pantaleo had clearly applied a chokehold to Garner — clamping the arteries and airways of his neck with his arms as the two went to the ground, triggering the asthma attack and cardiac event that killed him – and hoped to bring charges.

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But then-U.S. Attorney Loretta Lynch’s team in the Eastern District of New York disagreed, illustrating how the widespread popular phenomenon of different people taking different factual conclusions from the same evidence in police killings can crop up inside the law enforcement business too.

It would be almost two years before Lynch – who had by then replaced Holder as the nation’s “top cop” – could be convinced to let Civil Rights Division staff take up the investigation again. Before the work was finished, though, Donald Trump defeated Hillary Clinton in the 2016 election and the DOJ’s politically-appointed leadership staff swerved back toward the cohort of Americans who see Pantaleo’s actions as defensible.

During Pantaleo’s administrative trial in May, police and civilian witnesses sketched out events in the hour or so before the officer’s arm wound up clamped around Garner’s neck as both men lay on the sidewalk. A supervisor had directed one of Pantaleo’s peers to “go and arrest the cigarette guy,” and Pantaleo was encouraged to come along for the ride.

Officer Justin D’Amico, who had previously had a verbal run-in with Garner over loose cigarette sales in the same area and let him off with a warning, was the precinct’s designated lead officer on such minor “quality of life” infractions. The city force has heavily prioritized enforcement of such statutes for decades under the dubious and law enforcement logic known as “Broken Windows policing.” Ordered to “go and arrest the cigarette guy,” D’Amico stood face-to-face with Garner as the latter man protested he hadn’t sold any loosies that day. From behind, Pantaleo leapt onto Garner’s back in the maneuver that different viewers now interpret in radically different ways.

Moments later, Garner was dead. When the supervisor who’d sent officers to go get “the cigarette guy” was told that decision left Garner dead, he replied “not a big deal.”

At his administrative trial, Pantaleo’s lawyer said Garner himself was more to blame for his choking death – that “had he just accepted a summons for selling untaxed cigarettes, none of this would have happened” — than the man who is on video choking him.

Though Pantaleo has faced no criminal consequences, the bystander who filmed Garner’s dying protestations that “I can’t breathe!” was later targeted by police and prosecutors for retaliation.

This piece has been updated to include comment from a DOJ spokesperson.