Today, Explained - Five years after Eric Garner

Episode Date: July 22, 2019

After five years, a decision on the death of Eric Garner, who was put in a chokehold by an NYPD officer, creates further questions. The Washington Post's Wesley Lowery tries to answer them. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Eric Garner was a black man who lived in Staten Island. Kind of one of those neighborhood fixtures, you know, for folks who've lived in any big city in New York. Certainly, you have the people who are just around, the guy who runs the bodega, the woman who sells, you know, beads in the park. And Eric Garner was just one of those people who was known around the neighborhood for selling cigarettes. So in New York City, there are very high sin taxes, right?

Cigarettes are very expensive. And so what this has done is it's created a black market for cigarettes. And so what people do is they drive down to states like Virginia, where the taxes are much lower, buy cartons and cases of cigarettes, then drive them back up to New York, where they sell them either one or two at a time, or buy a pack. It's a lucrative little market. And so all of this brings July 17th, 2014. Eric Gardner had a few run-ins with the police, where they had either arrested him

or talked to him about selling untaxed cigarettes. One of the commanding officers for the local police precinct is driving into the office, sees a group of people standing on a street corner. According to witnesses who were kind of supporting Eric Gardner and critical of the police account, there had been a fight that had broken out between two men. Eric Gardner had jumped in to try to stop it. As he stops the fight, the responding police officers arrive, and they immediately begin to attempt to arrest him,

saying that they saw him selling cigarettes. It's unclear if Eric Gardner was selling cigarettes that day. He did have cigarettes on him. They found them later when they searched his body. But either way, the police officers show up. They say they're going to arrest him. He says, arrest me for what? Who did I sell a cigarette to? Why are you guys harassing me? He was kind of very clearly trying to argue his way out of this citation when the

officers who'd respond to decide that they're going to move in. So an officer moves in from in front of him, another officer from behind him. And the officer who comes behind him, Daniel Pantaleo, ends up with his arm wrapped around Eric Gardner's neck. They fall to the ground. And as multiple people record, Eric Gardner says, you know, I can't breathe. He says it about, you know, a dozen times and ultimately loses consciousness and dies. I can't breathe! I can't breathe! I can't breathe! I can't breathe! I can't breathe! I can't breathe! I can't breathe! I can't breathe! So Eric Garner's death ends up sending shockwaves around the country. People forget that this was months before Ferguson and Michael Brown.

It was months before Tamir Rice in Cleveland. A year before, Freddie Gray in Baltimore. This was one of the first of these cases where people watched a police killing on bystander tape. No cops, no! No cops, no! They know better!

There were massive protests in New York City. There were calls for the officers to be charged and to be fired. Ultimately, there's no criminal charges brought by the local grand jury, but the federal government decides it's going to open an investigation. I'm here to announce that the Justice Department will proceed with a federal civil rights investigation into Mr. Garner's death. The NYPD is investigating the case to see if these officers have violated any policies. And meanwhile, I Can't Breathe, Eric Garner's final words,

become this rallying cry at police brutality and police reform protests. I can't breathe! I can't breathe! I can't breathe! The protests are growing larger and spreading across the country, including Boston and Chicago. Eric Garner! I am! Eric Garner! I am! We are no racist police! No justice, no peace!

No racist police! No justice, no peace! No racist police! There was a ton of scrutiny around the police tactics in this case. Chokeholds are banned by the NYPD, so there's this big debate over technically whether or not the officer used a chokehold. And the chokehold they define as any hold that might impede the neck or the airway. And so it's not a specific type of grab. Rather, it speaks to a whole genre of any type of hold that might cut off someone's breathing. And so there was this kind of massive controversy around whether or not these officers should be fired, should be charged with a crime, because it was clear from the video that for at least some amount of time, this officer's arm was around Eric

Gardner's neck. It later came out that they processed his arrest after he'd been killed. So they filed the arrest so they would get credit for it, even though he had died. It later came out that one of their superior officers sent text messages saying, well, it's no big deal. You guys were enacting a lawful arrest. And so there was a ton of scrutiny, not only of the incident itself, but of the officers and how they behaved afterwards. Since 2014, the federal government has been looking at this case, trying to decide if the officers involved had violated Eric Garner's civil rights.

And Wesley, you've been covering this story for the Washington Post, and it sort of came to a head last week, five years after Eric Garner died when the Justice Department issued a decision concerning their own civil rights investigation. bring some measure of closure to one of this city's more upsetting incidents involving the police and a member of our community. So, is there now any official word on whether this was a chokehold? There's still an open debate. When Internal Affairs NYPD investigated this case, they concluded there was enough evidence to believe the officer broke the chokehold policy.

But because of the way the internal processes work, in order for that officer to be punished for that, he gets to go to an internal trial. That trial was held earlier this year. And we're still waiting to hear what the results of that trial will be, whether or not this officer will face any internal discipline for violating the policy if he did violate the policy. And in the intervening years, there's also been a ton of scrutiny on Eric Gardner himself. How's he been portrayed by the NYPD and those who side with the cops here? You know, as you see very often, there is a rush to put out any information about previous criminal activity or previous arrest.

There was a ton of focus around Eric Gardner. If only he had been more compliant was the argument that was being made. The police union and the attorneys for Officer Pantaleo focused very heavily on Eric Gardner's health. Eric Gardner was a very large man, more than six feet tall, more than 350 pounds. At one point in court, the attorney for the officer says that a bear hug could have killed Eric Garner, right? And so what they tried to flip it around and argue was that it was Eric Garner's fault that he died. It wasn't because of the police tactics. So what exactly did the Department of Justice decide last week? The Department of Justice announced that there will be no federal charges

for Officer Pantalea or any of the other officers. We are here to announce that after an exhaustive investigation, the Department of Justice has reached the conclusion that insufficient evidence exists to prove beyond a reasonable doubt that the police officers who arrested Eric Gardner in Staten Island on July 17th of 2014 acted in violation of the Federal Criminal Civil Rights Act.

Consequently, the investigation into this incident has been closed. What this decision is about is about were Eric Garner's civil rights violated? It's not was there an assault or was there a local statue that was broken, but rather Eric Garner has federal civil rights, right? And so did these officers do something that deprived him of those rights? Now, this case was one where there was a lot of expectation that maybe there was a chance that charges would be brought because there was a video of Eric Garner saying he could not breathe and saying it over and over and over again. There was an argument to be made that if you're choking someone and they tell you they can't

breathe and you continue doing it, you're now knowingly choking them. You're knowingly keeping them from breathing. This was highly contentious within the Department of Justice. There were investigators in Washington, D.C. who really wanted to bring charges. There were investigators in New York who did not. And so this is something that's been being kicked around for years going going back to the Obama administration, about whether or not charges would be brought. Ultimately, they were coming up on a five-year statute of limitations. The Attorney General, William Barr, made the decision himself.

He said, you know what? We're not charging. Let's just wrap this up and move on. And so it's something that was really disappointing to a lot of supporters of the Gardner family and the Gardner family themselves and to a lot of the activists who wanted to see some level of accountability here. And this was one of the earlier incidents in recent memory where we saw a video of an officer involved killing of a black man. People watched this death transpire. Is the DOJ saying that evidence wasn't enough? So in a case like this, things that would come into account would be not just what we watched in the video, but what the officer's mindset was in that moment. Did the officer genuinely believe he was choking Eric Gardner?

Was he doing it purposely or was it inadvertent? Was the situation moving so quickly that he didn't have any opportunity to undo what he was doing. Beyond that, there are also a lot of, I think, good faith disagreements very often. When you talk to kind of folks who are more sympathetic to law enforcement, there are people who watch the Eric Garner video and they don't think that they see anything that is wrong, right? Do they wish it looked different or happened differently? Yes, but they would argue that he shouldn't be resisting. There is a complication if only because the law is very permissive of police officers. Police officers are allowed to use force. They're allowed to use deadly force. They are allowed to tackle or take down people who aren't complying with them. And so at what point does something that is just messy police work turn into something that's criminal?

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Your first set of refills comes for free. G-E-T-Q-U-I-P dot com slash explained. Wesley, this decision from the Department of Justice last week represents just one of many legal procedures related to this case. What else has happened since July 17th, 2014? So you have this most recent Department of Justice decision. You also have a local grand jury decision not to prosecute the officers involved. You have a NYPD internal trial,

which is to decide whether or not Officer Pantaleo violated the chokehold policy. The decision is still out on that, and it's up to the commissioner to make a call about whether or not the officer will be punished. We've seen movement at the state level in New York to involve special attorneys and special prosecutors in cases of police deaths, in part because there were real frustrations about whether or not the local district attorneys were unbiased enough to handle this case. And meanwhile, the Gardner family brought a lawsuit that ultimately was settled, and so they received a large payout.

New York City officials have agreed to pay Garner's family $5.9 million to resolve the claim over his death. Was that a moment of sort of relief? Was that a moment where the Garner family and the supporters of Eric Garner felt vindicated in some way and that there was sort of fault assessed in this case? I think very often those moments actually add additional frustration. This is not a victory. The victory will come when we get justice. Then we want to have a victory party. You've had the officer not face any legal consequence, and yet the city is admitting that they have millions of dollars of liability.

That you killed my loved one and you agree it was so egregious that you're willing to pay me all types of money. But the person who did it isn't going to face any consequence. Right? families certainly want that vindication and validation, often can be kind of bittersweet because often it's the only level of acknowledgement they're going to receive. And what these families want is they want the person who did the thing to be punished. And do we know how the family felt about this decision last week from the DOJ? Five years ago, my son said, I can't breathe 11 times. They were really upset.

And today we can't breathe. They thought this was a massive disappointment. When are you going to fire this officer? They were really upset. They thought this was a massive disappointment. They thought there was an abdication of the responsibility, that they thought it was clear. These officers were at fault, and they were really frustrated. Now, they pivoted a lot of that back to apply additional pressure to the police department, who still has to make a decision of whether or not it's going to punish the officers. And we're asking the commissioner to make the right decision. So there was a lot of discussion around that, but it was unquestionable. The family was very upset with this decision.

I'm going to stand outside and I'm going to scream it. Pantaleo needs to be fired. He needs to be fired. What's going on with Officer Pantaleo? What's his life been like since this incident about five years ago? He remains employed by the NYPD. He's been on desk duty for five years. In fact, he's working overtime shifts.

He's still, you know, being paid by the taxpayers to work for NYPD. But he's never really discussed this case. His attorneys have said that he wants to go back to being a police officer, that he is frustrated that he's lost so much time on the job. But it is really interesting. Very often, these officers themselves kind of disappear into the background. And he certainly has done that. I mean, he didn't pull out his gun and shoot Eric Garner. He put him in a chokehold. It is reasonable to think that he didn't pull out his gun and shoot Eric Garner. He put him in a chokehold. It is reasonable to think that he didn't have the intention of killing him that day. Has he ever expressed regret or remorse for what happened or for what he did?

A small portion of what he said to Internal Affairs was read during the trial. And he says that he wasn't trying to choke him, that his intention wasn't to touch Eric Gardner's neck at all. Rather, he was just trying to bring him down. But again, it gets to that crucial underlying question. When you're talking about the police and when the police have the ability to kill people and take people's freedom and take people's rights away, does the intention matter or do the results matter? What we know is that Eric Gardner is dead. And so I do think it's important to wrestle with what the officer intended to do. But I think there are also reasonable people who argue, well, who really cares what he was trying to do? We know what he did do. And are there consequences for what the outcome was no matter the intention?

The Black Lives Matter movement really rallied around Garner's family against Pantaleo. We don't really hear as much about that movement anymore, but there were demonstrations in New York last week. What does the DOJ decision mean for that group and its mission? I think in many ways the activists I talk to are more motivated by this, that very often they don't expect charges to be brought, right? They've been through this time and time again. They saw this in Ferguson. They saw this in Cleveland for Tamir Rice.

They saw this in Baltimore where there were some charges brought, but then ultimately all the legal cases fell apart, right? That again, the legal system itself is not necessarily a mechanism for justice when it involves the police because our laws are so permissive of police behavior. And so I think that for many of the activists, they don't tie up their perception of whether they're winning or losing solely in whether or not charges are brought or filed or if someone's convicted because they accept as a premise that very often these police officers

are going to be cleared in these cases. I think one of the primary takeaways from the last few years and the rise of the Black Lives Matter movement from all of these killings on video is the tension between the legal standard and the societal standard. That many things that the police officers do have involved actions and behaviors that people, when they view them themselves, are unhappy with, do not think they're things the police should be doing. Yet there's a gulf between what the society expects of its officers and what is illegal for officers to do. So many people watch the Eric Garner video and they say, this is unacceptable. This should not have

happened. But by the letter of the law, what happened to Eric Gardner was not illegal, right? And I think there's a tension there, right? And so it creates an additional pressure to either up the standards, up the expectations of officers, or to accept that we're going to continue to see these types of videos where the public is outraged and yet there's not actually much legal recourse. Wesley Lowry is a national reporter for The Washington Post.

I'm Sean Ramos for him. This is Today Explained.