The U.S. Department of Justice will not file charges against the NYPD officer accused of using a deadly chokehold on Eric Garner, whose final words, "I can't breathe," became a rallying cry for the national Black Lives Matter movement, federal prosecutors announced Tuesday.
U.S. Attorney General William Barr made the final decision, a senior official said, adopting the recommendation of prosecutors in Brooklyn. Lawyers in the Department of Justice's Civil Rights Division, however, had a different view of the case and believed charges could have been pursued, according to two officials.
"Everyone agrees the incident should not have ended with Garner's death," the senior official said, but added that relevant law requires proof that the officer acted "willfully," which requires an analysis of the cop's state of mind.
Under Supreme Court cases, that means it has to be more than a mistake or a momentary lapse of judgement -- and after watching Garner's dying video "countless times," the senior official says, "We concluded that the evidence was not convincing that the officer acted willfully."
“We prosecute people for what they do on purpose. We would have to prove that in that struggle, a dynamic situation, that the officer decided he was then going to apply that hold, that it was wasn’t just a mistake,” the official said.
In formally announcing the decision later Tuesday, federal prosecutors said there was insufficient evidence to determine the officer acted in violation of the federal criminal civil rights act and declared the longstanding investigation closed.
The decision, which came nearly five years to the day that Garner died on a Staten Island street corner after being stopped for selling loose, untaxed cigarettes, left his family reeling.
"Today we can't breathe because they have let us down," Gwen Carr, Eric Garner's mother, said at a press conference after the decision was made public. "We have been on the forefront. We have followed it up. We had to go. We had to fight. This is not a easy fight but we kept on pushing."
"And make no mistake about we're going to still push," she added. "You could push back but we're pushing forward because this is not the end."
Garner's daughter, Emerald Snipes Garner, said, "The federal government does not want to prosecute Pantaleo for killing Eric Garner! If you're not standing for firing Pantaleo you are standing for nothing!"
It was on July 17, 2014 that NYPD officer Daniel Pantaleo, who is white, was seen in widely watched cellphone video putting Garner, an unarmed, black 43-year-old father, in an apparent chokehold move banned by the department.
The video showed Garner gasping for air, repeatedly saying "I can't breathe." The medical examiner's office ruled the cop's move contributed to Garner's death by asphyxiation, but citing Garner's health -- obesity, high blood pressure and other issues -- as a contributing factor. Ultimately, his death was ruled a homicide. A Staten Island grand jury declined to indict Pantaleo on any state criminal charges four months after Garner's death, but then-U.S. Attorney General Eric Holder announced a federal civil rights investigation the same day, promising it would be "independent, thorough, fair and expeditious."
The senior official said federal investigators weighed multiple factors in determining there wasn't enough evidence Pantaleo acted willfully in Garner's death, including that cops tried other techniques to try to subdue him.
"It’s constant motion involving several bodies, adjusting to each other’s movements," the senior official said. "We couldn’t establish that the officer had the clarity of mind necessary to prove willfulness, as the law allows."
Pantaleo, meanwhile, remains a New York City police officer. He awaits a judge's verdict in his NYPD disciplinary trial, which wrapped up last month. Ultimately, though, it'll be up to NYPD Commissioner James O'Neill to determine whether to fire Pantaleo or allow him to keep his job on the force.
The NYPD addressed the DOJ decision with a simple tweet, saying its disciplinary case was ongoing and "a determination has NOT yet been made. Today's announcement by the US Department of Justice does not affect this process."
A city spokesperson said that decision is expected by the end of August.
The Police Benevolent Association, meanwhile, lauded the federal decision Tuesday and said that if the NYPD disciplinary case is decided "on the facts, free of improper political influence," that Pantaleo would be fully exonerated.
"Although Mr. Garner’s death was an undeniable tragedy, Police Officer Pantaleo did not cause it," 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."
But New York City is not the same city it was five years ago, Mayor de Blasio said in a scathing statement blasting the DOJ decision.
"We are a different city, and we must act like a different city. Years ago, we put our faith in the federal government to act. We won't make that mistake again," the mayor said. "Moving forward, we will not wait for the federal government to commence our own disciplinary proceedings. This further reform will make sure no family ever waits years for the answers they deserve."
In any future cases where an unarmed civilian dies in a case involving a police officer, the NYPD or the Civilian Complaint Review Board will begin disciplinary processes immediately, unless the victim's family requests that the police commissioner let the criminal case proceed first or a judge compels the city otherwise.
"The city will call for congressional action or executive rulemaking that compels the Justice Department to notify families within one year of whether it intends to proceed with a case of death of an unarmed civilian involving a police officer, and immediately notify the family if the DOJ subsequently closes or reopens the investigation," the new policy reads. "If new facts arise after the one-year deadline, the federal government should be able to re-open the investigation and move forward with litigation within the statute of limitations."
The U.S. Justice Department had faced a deadline Wednesday, the fifth anniversary of Garner's death, to decide whether to file civil rights charges against Pantaleo or others involved in the fatal arrest on a Staten Island sidewalk. The statute of limitations on most federal charges is five years.