Get ready for some protests this week after the Department of Justice ended a nearly five-year probe into the death of Eric Garner without filing any charges. When police tried to arrest the African-American man for illegal cigarette sales, an officer used a chokehold that the coroner concluded led to Garner’s death. Garner’s last words — “I can’t breathe” — became a rallying cry for Black Lives Matter:
Federal prosecutors won’t bring civil-rights charges against a New York police officer accused of killing an unarmed black man, people familiar with the decision said Tuesday, five years after the incident became a flashpoint over race and policing across the U.S. …
After a state grand jury declined to indict the officer, the Justice Department opened an investigation into whether Mr. Pantaleo violated Mr. Garner’s civil rights when he placed him in an alleged chokehold.
The statute of limitations runs out tomorrow on any civil-rights violations that might have been charged. The length of the investigation gave a broad hint as to the difficulty of putting the case together. In order to prevail in court, prosecutors would have had to prove that NYPD officer Daniel Pantaleo intended to deprive Garner of his civil rights, a high bar that would be tough to clear in this case.
Or would it? NBC New York reports that William Barr made the final call over objections from attorneys in the Civil Rights Division:
U.S. Attorney General William Barr made the final decision, the 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.
Get ready for more than just protests from House Democrats. On the heels of Donald Trump’s contretemps with the “Squad” over racism, Jerrold Nadler will want to dig into this decision and determine how Barr made it. It will give Nadler a huge opportunity to embarrass Barr and Trump and pontificate on racism, especially if CRD attorneys are willing to go on record with their objections to Barr’s decision.
However, Barr took the recommendation of the US Attorney in charge of the district, which would have had to carry the load in a prosecution. One official from the Eastern District explained that the case just wasn’t there:
The Justice Department’s decision, according to a senior official, was made by Attorney General William Barr, who took the Eastern District of New York’s recommendation not to prosecute over the department’s civil rights division’s recommendation to move forward with a prosecution.
“This should not have ended with the death of a person, but that’s a very different question than what’s presented to a prosecutor when deciding under the Justice manual whether a person should be indicted,” the official said. “You can’t watch the video and not feel great sympathy towards Eric Garner but then I think you have to impose a rigorous legal examination of the facts.”
The official said that once the department had determined that it could not establish the willful intent requirement, it did not seek to analyze elements like whether Pantaleo’s actions were not permissible or even reasonable under NYPD or other law enforcement policies. The official also acknowledged that the legal analysis surrounding Pantaleo’s actions would have been different had he been a civilian that had engaged in a chokehold against Garner.
This doesn’t mean Pantaleo is completely out of trouble. The NYPD has had Pantaleo on restricted duty with full pay since Garner’s death, but finally held a disciplinary hearing for him earlier this month. An administrative judge will make a recommendation to police commissioner James P. O’Neill as to what action to take with Pantaleo. Given that the NYPD barred the chokehold used by Pantaleo more than twenty years earlier and the massive protests coming, the officer had better have plans for his post-police career firmly in place.
Garner’s daughter blasted the DoJ, the NYPD, and especially Pantaleo in a presser after the announcement. “Pantaleo needs to be fired!” she shouted repeatedly, and added, “No justice, no peace”:
"Pantaleo needs to be fired! He needs to be fired" Eric Garner's daughter Emerald blasts decision for no federal charges on NYPD officer Daniel Pantaleo https://t.co/5X2QK5Mptl pic.twitter.com/SO0EXWKNsF
— CBS News (@CBSNews) July 16, 2019
That will certainly charge the atmosphere in New York City. It’s tough to blame Emerald Garner for her anger and outrage, especially since there’s no more venues in which to channel them. The family won a wrongful-death claim against the city, so the DoJ was the last stop for specific accountability.
Perhaps hoping to calm matters, New York AG Letitia James pledged to continue the struggle … non-specifically:
NEW: New York Attorney General Letitia James: "This inaction by the DOJ in the death of Eric Garner shows they've turned their back on seeking & serving justice…We'll continue to fight to reform a criminal justice system that remains broken." https://t.co/1Edwbc7Z1Y pic.twitter.com/aTtzPzxVlg
— ABC News (@ABC) July 16, 2019
Pantaleo might need to be worried that his criminal woes aren’t over yet either. James could go back and seek an indictment for murder if she feels that strongly about it. She would run into the same issues that the DoJ did, but James might be motivated to force the issue anyway. If she doesn’t, wouldn’t she also be “turning [her] back on seeking & serving justice”? That’s a provocative statement that almost promises action on this case in particular. Don’t be surprised if we hear about a new grand jury probe.