The Daily - A Decision in the Eric Garner Case

Episode Date: July 17, 2019

One day before the fifth anniversary of Eric Garner’s death at the hands of police officers in New York, the Justice Department said it would not bring federal civil rights charges against an officer involved. We look at that decision. Guest: Ashley Southall, who covers New York for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: Attorney General William P. Barr made the call not to seek a civil rights indictment against Officer Daniel Pantaleo.“The D.O.J. has failed us,” Mr. Garner’s mother, Gwen Carr, said. “Five years ago, my son said ‘I can’t breathe’ 11 times. Today, we can’t breathe. Because they have let us down.”

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the Justice Department will not bring federal charges against the officer involved in the death of Eric Garner. Ashley Southall on why that decision was reached five years after I Can't Breathe became a national rallying cry. It's Wednesday, July 17th. Ashley, tell me what happened on Tuesday.

Good morning. Thank you for coming today. So the United States Attorney for the Eastern District of New York, Richard Donahue, whose office is based in Brooklyn but also oversees Staten Island, came out and said, Before I continue, let me say as clearly and unequivocally as I can that Mr. Garner's death was a tragedy. For anyone to die under circumstances like these is a tremendous loss. They've done an exhaustive review. They've looked at every piece of evidence, but. But these unassailable facts are separate and distinct from whether a federal crime has been committed. And the evidence here does not support charging police officer Daniel Pantaleo or any other officer with a federal criminal civil rights violation.

That they would not bring charges against any of the officers involved in Eric Garner's death on July 17, 2014. We know and understand that some will be disappointed by this decision, but it is the conclusion that is compelled by the evidence and the law. He's making this announcement one day before the fifth anniversary of Eric Garner's death, which is important because for the charge that they thought was appropriate in this case, they only had five years to decide whether to bring it. So this is basically the last possible moment to bring this charge. Exactly. And at the end of the day, the prevailing consensus was that they could not do that in this case.

Consequently, the investigation into this incident has been closed. And remind us of the details of this case, of what happened to Eric Garner, where this case begins. The case starts on July 17, 2014, on a hot summer day in Staten Island. hot summer day in Staten Island, the police say that a man by the name of Eric Garner has died during an attempt to arrest him. There's no mention of any kind of use of force, no mention of a chokehold. And then the next morning, the police and the public wake up to this video. You're on your way from what? Every time you see me, you're the best for me. I'm tired of it. It's time to stay. This guy right here is forcibly trying to lock somebody up

for breaking up a fight. It shows two officers, Justin D'Amico and Daniel Pantaleo, approach Eric Garner on a street in Tompkinsville, and they accuse him of selling cigarettes. And he says, no, man, I'm not selling anything. I'm just minding my business. Leave me alone. Everybody standing here, they told you I didn't do nothing. I did not sell nothing.

This goes on for about 10 minutes. You want to harass me? You want to stop me? Officer D'Amico moves in to try to handcuff Eric Garner, and he flails his hands away. Then you have Officer Pantaleo attempt a takedown. They fall back into plate glass. Mr. Garner is 400 pounds. Officer Pantaleo is probably another 190, 200.

The glass is going to buckle. So then they fall forward onto the sidewalk, and that's where they get Mr. Garner prone and handcuff him. And other officers have arrived at the scene by then. They're about seven seconds when you see Officer Pantaleo's arm around Eric Garner's neck. At some point, he releases, and Mr. Garner is saying, I can't breathe.

I can't breathe. I can't breathe. I can't breathe. I can't breathe. He ultimately says it 11 times. Once again, police beating up on people. EMS eventually arrives. They don't have any oxygen. Look, now, man, they gave this man a seizure.

Y'all move out the way. It's my brother. Everybody back up. And he was later pronounced dead at the hospital. What happens in the aftermath of this video being released? So pretty much right away, there are calls for Officer Pantaleo to be fired and for him and other officers to be criminally charged, both for Eric Garner's death, but also for the omissions of the use of force from official reports. Because until this video is released, the officers involved in the encounter, they haven't mentioned any of the tactics that they've used. Correct. And then three things happen simultaneously.

The Police Internal Affairs Bureau begins looking into the incident to see if any protocols were violated. At the same time, the Staten Island District Attorney is looking at whether a crime was committed and then begins to present evidence to a grand jury. And at the same time, the feds are also looking in on these investigations, trying to see what evidence there is. But at that moment, they're not yet investigating because there's a local process that has to play out. And when you say the feds, you mean the Department of Justice? The Department of Justice. So my sense is that this is all moving as would be expected in a case like this. But what's different is that a month after this happens,

Michael Brown is shot in Ferguson. And the issue of how police treat unarmed Black Americans becomes a major national issue. Correct. But it's an issue that's been bubbling up for some time. If you will reverse back to 2012, when Ramarley Graham was shot and killed by a New York City police officer, he was unarmed. Officer Richard Haste was indicted for manslaughter, but a judge reluctantly threw out the indictment in May on procedural grounds. Then a few weeks later, you have Trayvon Martin, who was killed by a vigilante in Florida. We have just learned that the jury has determined that Zimmerman is not guilty of any crime.

And then you have Eric Garner in July 2014, followed by Michael Brown that August. The conclusion that police officer Darren Wilson was not guilty of a crime when he shot Michael Brown to death on August 9th. And then you have Akai Gurley and Tamir Rice within days of each other. A grand jury decided not to indict Timothy Lohman, who shot and killed 12-year-old Tamir Rice. So people are seeing this pattern of unarmed Black men and boys and even some women being killed by the police and no one being held responsible or

accountable for their deaths. And that is the backdrop for the decision by the grand jury in Staten Island in December 2014 that there isn't enough evidence to prove that Officer Pantaleo committed a crime. So like the DOJ this week, the investigation by the Staten Island district attorney all the way back in 2014 finds that there's not sufficient evidence. has learned that the medical examiner, who is a pathologist, deemed this a homicide. And they also learned that for at least 20 years, chokeholds have been explicitly banned by the police department. And what people saw on that video was an officer using a banned chokehold and Mr. Garner dying. Mr. Garner dying. We'll be right back. And what do we know about how this grand jury decided not to press charges in what seemed to so many from the video like a clear cut case?

One thing that the grand jury also heard that the public did not was testimony from Officer Pantaleo about what he intended to do. And he got up there in front of them and said that it was not his intent to use a chokehold. It was not his intent to harm Mr. Garner or to kill him. It was his intent to bring him down and effect an arrest as he had been ordered to do. And that testimony, it sounds like, becomes important, the question of intent. Yes, because the standard of proof in a criminal case is that the prosecutor needs to prove beyond a reasonable doubt that the officer willfully acted in violation of the law, that it was an officer's intent and his will to violate the law. And for that grand jury, the decision not to press charges indicates that the evidence didn't meet that standard. And what about the fact that the use of a chokehold had been banned by police, regardless of intent? Didn't he use an illegal practice? and wasn't that weighed by the grand jury?

What Officer Pantaleo told the Internal Affairs Bureau and later the grand jury was that he wasn't intending to use a chokehold. He said he was trying to use a seatbelt technique, which is a tactic approved by the NYPD and taught at the police academy. It's another kind of restraint. Yes. And what his lawyers have also pointed out is that whether it was a seatbelt or a chokehold, once they're on the ground and Mr. Garner begins to grunt and say,

I can't breathe, he releases him. So after the district attorney decides not to press charges, what happens to the case of Eric Garner? So you'll remember that this whole time, the Department of Justice has been watching the investigation play out. And once the local investigation is done, it's now in their territory. Good evening. I want to provide an update regarding the case involving Eric Garner.

And when the Department of Justice steps in, Ashley, what are they looking at? Is it a new question or are they basically investigating the same things as the city? So what the grand jury in Staten Island was looking at was whether Officer Pantaleo committed a crime. Now that the local investigation has concluded, I'm here to announce that the Justice Department will proceed with a federal civil rights investigation into Mr. Garner's death. Here, the federal government is looking at whether his crime was violating Eric Garner's civil rights. This afternoon, I spoke with the widow of Eric Garner to inform her and her family of our decision to investigate potential federal civil rights violations. of our decision to investigate potential federal civil rights violations. And in this case, there were two key things that they wanted to establish or that they felt they needed to establish.

One, that the force Officer Pantaleo used to subdue Mr. Garner was objectively unreasonable. That a police officer acting in those circumstances could recognize what he did as just too much. And then the second thing that they wanted to establish was that his conduct was a willful violation of the law, that he knew the law and that he acted in a way that disregarded it. And by those measures, did the Department of Justice feel that it had a strong case to bring against this officer? So this is the question that they were asking themselves over the more than four years that they were investigating this incident. And there was a lot of disagreement between mostly civil rights prosecutors in Washington who thought that they should bring charges and thought there was enough evidence there.

And then the prosecutors in Brooklyn who were going to be the ones who had to prosecute the case, who thought that it was not winnable. And what's your understanding of why those two sides disagreed? What was Washington thinking and what was New York thinking? From what we know, it really came down to the willfulness. On the video, some prosecutors thought that the fact that Officer Pantaleo kept his arm around Eric Garner's neck even after they were on the ground showed that he willfully disregarded the law. In Brooklyn, they were not so sure. And part of that, you can imagine, is from Officer Pantaleo's testimony that his intent was not to hurt him. His intent was to arrest him. So all the while that prosecutors are conducting their investigation

and dealing with these questions about whether they have a case and whether they can win it, the White House changes hands from President Obama to President Trump. We go through a series of attorneys general, Eric Holder, Loretta Lynch, Jeff Sessions, who are all overseeing this case from Washington. And then you end up with Bill Barr, our current attorney general. And the decision ultimately... Who ultimately makes the decision himself.

In order for a federal criminal civil rights charge to be brought, the government must prove beyond a reasonable doubt that an officer willfully used more force than he reasonably could have believed was necessary under the circumstances. And the law recognizes that police are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. So one of the main questions of this case is whether or not Officer Pantaleo actually used a chokehold. As Mr. Garner and Officer Pantaleo struggled, Officer Pantaleo held on to Mr. Garner,

and both men fell backward. In the process, Officer Pantaleo's body slammed against a store window, causing the window to buckle. And in this explanation, Mr. Donahue said, yes, he did. It appears that in response to that collision and to maintain a hold on Mr. Gardner, Officer Pantaleo wrapped his left arm around Mr. Gardner's neck, resulting in what was, in effect, a chokehold. But here's how prosecutors dealt with that question. Like many of you, I've watched that video many times. And each time I've watched it, I'm left with the same reaction. There's an emotional side that looks at that tape and says that the death of Eric Gardner was a tragedy. That's a tragedy. The job of a federal prosecutor, however, but then 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. At the end of the day, however, 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. What you see on video is very clearly an escalation by the officers to make this arrest for this very minor offense. And it ends with Mr. Garner dying. And so the net effect is that Mr. Garner's punishment for allegedly selling cigarettes that day is death. That, in many people's eyes, is too much.

But in the eyes of the law, the prosecutors here, based not just on the video, but on the testimony of witnesses and the testimony of the officers, thought there just wasn't enough. So, Ashley, it's been five years to the day that Eric Garner died during this interaction with the NYPD. And it now seems like prosecutors seem to have closed the book on this case.

What if anything happens now? Is this case over? Throughout these five years, Officer Pantaleo has been in a desk job without his gun or his badge. He hasn't been out on patrol. And he remains on the force. Yes. There's this process underway in the NYPD that will ultimately end with the police commissioner, James O'Neill,

deciding whether or not he gets to stay on the force as a police officer or if he has to leave. And he could allow him to resign, he could fire him, or he could just dock him some vacation days. That decision could take weeks, it could take months, or it could happen tomorrow. We don't know. But it's not over for him. So what happens to him may end up being the accountability. It's not going to happen in a courtroom, it seems. It's not going to happen at the federal court level or at the district attorney level, but it might happen inside the NYPD. The Garner family has demanded for the last five years that Officer Pantaleo be fired. They have also asked for the other

officers who were involved in his death and those who filed official reports that didn't mention the Cholcol, that didn't mention any uses of force, should also be fired and held accountable. I'm going to stand outside and I'm going to scream it. Pantaleo needs to be fired. He needs to be fired. Don't apologize to me. Fire the officer. Don't give me your condolences. I heard that five years ago.

We want justice and we want it today. If that's what the family wants, they have quite the mountain to climb. Officer Pantaleo is still in the force. Half of the officers' names the family doesn't know because the city has withheld them. But the message from the family of Eric Garner today was loud and clear. This is what we have to live every day. And you know what? We're not going to take this sitting down. This is not going down like this, because if it was one of their loved ones, it would have never went this far. So my son's death is not going in vain.

We're going to fight this to the last straw if I'm the only one out on the street. Ashley, thank you very much. Thanks for having me on. We'll be right back. On Tuesday, top Republicans in Congress rallied to the defense of President Trump, denying that his tweet calling on four Democratic congresswomen to return to the countries from which they came were bigoted and racist. Mr. Leader, were the president's tweets that said go back racist? No. On Twitter, the president himself confronted the allegation,

writing that, quote, I don't have a racist bone in my body. Every single member of this institution, Democratic and Republican, should join us in condemning the president's racist tweets. Hours later, on the House floor, Speaker Nancy Pelosi introduced a resolution condemning Trump's attacks on Representatives Ayanna Pressley, Rashida Tlaib, Ilhan Omar, and Alexandria Ocasio-Cortez. To do anything less would be a shocking rejection of our values and a shameful abdication of our oath of office to protect the American people.

I urge... As Pelosi spoke, House Republicans demanded that she retract her description of the president's comments as racist. I was just going to give the general speaker of the House if she would like to rephrase that comment. I have cleared my remarks as a parliamentarian before I read them. Can I ask the words be taken down. I make a point of order that gentlewoman's words are unparliamentary and are ready to be taken down. House Democrats went on to pass the resolution with the support of just four House Republicans. that's it for the daily i'm michael babar see you tomorrow