‘I Can’t Breathe’: 

5 Years After Eric Garner Dies,

An Officer Faces Trial 

 Ashley Southall 5/13/19

From The New York Times

© Mark Kauzlarich/The New York Times Gwen Carr, the mother of Eric Garner, at a protest in 2015 outside the Manhattan office of Gov. Andrew M. Cuomo.

The last words Eric Garner, an unarmed black man, uttered on a New York City sidewalk in 2014 instantly became a national rallying cry against police brutality. “I can’t breathe,’’ Mr. Garner pleaded 11 times after a police officer in plain clothes placed his arm across his neck and pulled him to the ground while other officers handcuffed him.

The encounter was captured on a video that ricocheted around the world, set off protests and prompted calls for the officers to be fired and criminally charged.

Mr. Garner’s death was part of a succession of police killings across the country that became part of a wrenching conversation about how officers treat people in predominantly poor and minority communities.

Now, the officer who wrapped his arm around Mr. Garner’s neck, Daniel Pantaleo, 33, faces a public trial that could lead to his firing. Officer Pantaleo has denied wrongdoing and his lawyer argues that he did not apply a chokehold.

The trial, scheduled to start Monday at Police Department headquarters, has been long-awaited by the Garner family, whose campaign to hold the police accountable for what they say is an unjustified use of force took on greater significance after Mr. Garner’s daughter, Erica Garner, died in 2017.

The city paid $5.9 million to settle a lawsuit with the family after a grand jury declined to bring criminal charges.

But Mayor Bill de Blasio’s administration has fought and delayed the family’s efforts to have all the police officers involved in the encounter punished.

“It was at least a dozen more who just did nothing, or either they pounced on him, they choked him, they filed false reports,” Mr. Garner’s mother, Gwen Carr, said in an interview. “It’s about all of those officers who committed an injustice that day and they all need to stand accountable.”

Officer Pantaleo faces charges of reckless use of a chokehold and intentional restriction of breathing. His lawyer says that Officer Pantaleo did not use a chokehold, but a different technique that is taught to officers in training and is known as a seatbelt.

So the trial will have to settle two questions at the heart of the case: Was the maneuver Officer Pantaleo used a chokehold? And, if so, was the officer justified in using it to subdue an unarmed man during a low-level arrest?

On Thursday, the Police Department judge overseeing the trial said that prosecutors must prove that Officer Pantaleo’s actions went beyond a violation of departmental rules and constituted a crime — an unusually high bar.

Video of the fatal encounter was recorded by Ramsey Orta, a friend of Mr. Garner’s who is expected to testify at Officer Pantaleo’s trial. It captured Mr. Garner telling officers in street clothes to leave him alone after they approached him outside a beauty supply store on July 17, 2014, not far from the Staten Island Ferry Terminal.

Mr. Garner had repeated encounters with the police and believed that he was being harassed.

“This stops today,” he told the officers before they moved to arrest him over accusations that he was selling untaxed cigarettes. As one officer tried to grab Mr. Garner’s hand, he slipped free. Then Officer Pantaleo slid one arm around Mr. Garner’s neck and another under his left arm and dragged him to the ground. On the pavement, he begged for air.

The medical examiner ruled his death a homicide and said he died from a chokehold and the compression of his chest from lying prone. The findings are a crucial issue in the trial and Officer Pantaleo’s defense lawyer plans to dispute them.

Stuart London, the police union lawyer representing Officer Pantaleo, said the technique his client used was the seatbelt maneuver taught in the Police Academy, not a chokehold. He plans to argue that Mr. Garner, who was overweight and severely asthmatic, died because of poor health.

“Those who have been able to not come to a rushed judgment, but have looked at the video in explicit detail, see Pantaleo’s intent and objective was to take him down pursuant to how he was taught by NYPD, control him when they got on the ground, and then have him cuffed,” Mr. London said in an interview. “There was never any intent for him to exert pressure on his neck and choke him out the way the case has been portrayed.”

The Civilian Complaint Review Board, an independent city agency that investigates allegations of police misconduct, is prosecuting the case against Officer Pantaleo and is seeking his termination.

But the ruling on Thursday by the judge, Rosemarie Maldonado, the deputy police commissioner in charge of trials, denied Mr. London's motion to dismiss the case. But her ruling means that prosecutors need to prove that Officer Pantaleo’s actions rose to the crimes of assault and strangulation in order to avoid the state's prohibition on bringing misconduct charges more than 18 months after occurrence.

Colleen Roache, a spokeswoman for the review board, said prosecutors understood their obligation when they served Officer Pantaleo with the charges last July.

But critics have said the review board's failure to file charges sooner had made the prosecutors' case significantly harder to prove.

The Police Department banned chokeholds in 1993 amid concern about a rising number of civilian deaths in police custody. In 2016, the department added an exception to its chokehold ban under certain circumstances, which critics said made it easier for officers to justify its use.

After Mr. Garner’s death, the Police Department spent $35 million to retrain officers not to use chokeholds, but they continue to use the maneuver and rarely face punishment.

The trial is expected to last two weeks, with testimony from about two dozen witnesses. Officer Pantaleo has not decided whether he will testify, Mr. London said.

When the trial ends, Deputy Commissioner Maldonado, will decide if Officer Pantaleo is guilty. If guilt is determined, she will recommend a penalty to Police Commissioner James P. O’Neill, who will make the final decision.

Short of firing, any discipline of Officer Pantaleo, a 13-year veteran, may never become public because of a state law that shields police disciplinary records from public disclosure.

The delays and secrecy surrounding officer discipline are part of the reason that police reform advocates say the public has lost trust in the city’s process for assessing complaints against officers.

The de Blasio administration fought to keep prior abuse complaints against Officer Pantaleo secret, including one stemming from a car stop in which the occupants said he strip-searched them on the street.

The records were eventually leaked, but the administration won several court rulings broadening the scope of the secrecy law.

“It’s been de Blasio and his administration who’ve been blocking the whole time that I’ve been trying to get the officers fired,” Ms. Carr said.

The trial will revisit a painful chapter marked by months of protests with marchers chanting Mr. Garner’s final words.

Not long after a Staten Island grand jury in December 2014 decided not to charge Officer Pantaleo with a crime, two officers were ambushed and killed by a gunman while sitting in their patrol car.

To Mr. Garner’s family and their supporters, his death discredited a crime-fighting strategy that the police and mayors have cited repeatedly as helping to drive crime rates to their lowest level in recent history. The strategy relies on targeting lower-level offenses that the police believe create the environment for more violent crime.

But critics say it has resulted in racial profiling, targeting mostly black and Latino men in poorer neighborhoods.

The Police Department delayed disciplinary proceedings against Officer Pantaleo for years because of an ongoing federal investigation. But with prosecutors in the Department of Justice divided over whether to bring charges, police officials decided to allow the disciplinary process to move forward.

Officer Pantaleo and Sergeant Kizzy Adonis, who was the first supervisor to arrive on the scene where the police were confronting Mr. Garner, were stripped of their guns and placed on desk jobs. Sergeant Adonis, who has since been restored to full duty, has been administratively charged with failing to properly oversee officers, but a date for her disciplinary trial has not been set.

A state judge recently denied Officer Pantaleo’s motion to have the civilian review board removed from the case. He argued that the agency lacked jurisdiction because the person who filed the complaint was not involved or an eyewitness.

“It’s time for Eric Garner’s mother, Gwen Carr, the rest of the Garner family, and the people of the City of New York to have closure,” Fred Davie, the chairman of the civilian review board, said in a statement.

On the stretch of Bay Street where Mr. Garner died, the type of behavior that drew police attention five years ago persists. People peddle loose cigarettes and a sign affixed to a door outside an apartment building warns against selling heroin on a stoop.

“It’s a hustle block,” Christopher Sweat, a retired chef, said. “It’s a regular mood until the cops get called.”

Nearby, a plaque memorializes Mr. Garner’s death as a murder, adding, “May his soul rest in peace.” Passers-by on a recent afternoon were unanimous in their belief that Officer Pantaleo deserved to be fired.

“It was a blatant chokehold,” said Keenen Hill, 46, a maintenance man who lives in the neighborhood. “Stevie Wonder saw that.”

Laura Dimon and Ali Winston contributed reporting.