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What Eric Garner case says about federal prosecution of police officers on duty

Eric Garner’s dying words, “I can’t breathe,” served as a rallying cry for protests against police brutality. But the Justice Department announced Tuesday it would not file charges against the officer involved in the incident. The decision closes the door on federal prosecution, as the statute of limitations expires Wednesday. Yamiche Alcindor talks to Katie Benner of The New York Times.

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  • Judy Woodruff:

    Five years ago, a New York man, Eric Garner's dying words, "I can't breathe," served as a rallying cry that led to national demonstrations and gave further momentum to the Black Lives Matter movement.

    Tomorrow will mark the expiration of the statute of limitations to bring federal charges. But the case lingered through several U.S. attorneys general in both the Obama and Trump administrations.

    Yamiche Alcindor looks now at why the Justice Department decided not to file charges against the officer.

  • Yamiche Alcindor:

    Eric Garner died after a police officer choked him while they were arresting him for selling untaxed single cigarettes. Garner was 43 years old and had severe asthma. He said "I can't breathe" 11 times before he died.

    Cell phone video shows Garner in a choke hold, which is prohibited by the New York City Police Department.

    But the officer, Daniel Pantaleo, has maintained he didn't use a choke hold to bring him down. Pantaleo has been on desk duty since then. Today, U.S. attorney for the Eastern District of New York, Richard Donoghue, announced the decision. He said his team decided they could not prove the officer willfully intended to use excessive force that led to Garner's death.

  • Richard Donoghue:

    We are committed to aggressively prosecuting excessive force cases whenever there is sufficient evidence to bring them.

    Mr. Garner's death was a terrible tragedy. But having thoroughly investigated the surrounding circumstances, the department has concluded that the available evidence wouldn't support federal civil rights charges against any officer.

  • Yamiche Alcindor:

    Let's dig in a little deeper on this reasoning and the larger issue as to why the federal government rarely brings charges against an officer in the line of duty.

    Katie Benner covers the Justice Department for The New York Times, and joins me now.

    Thanks so much for being here, Katie.

    This decision to not charge this officer in the death of Eric Garner essentially came down to the attorney general, Bill Barr. What more do we know about why Bill Barr did not want to bring charges?

  • Katie Benner:


    I think, if we just take a step back real quick, when this case opened, right after Eric Garner died, you saw the Eastern District of New York almost immediately decide that the case wasn't going to be one they could win. They struggled with it.

    Some of the prosecutors, I'm told, based on people who worked on the case, they say that some of the prosecutors didn't even know that they felt that Eric Garner had acted wrongfully.

    Very, very soon after that, the Civil Rights Division down here in Washington decided that there was a crime committed and they could prosecute this case, setting off a long-running, years-long battle between these two sides. They just didn't agree.

    We saw the case languish. We saw the case get caught up in the Sessions Justice Department, where not a lot was happening because of the Russia distraction and then Sessions' firing.

    So, finally, when Bill Barr gets to the Justice Department, when he becomes the U.S. attorney — I'm sorry — when he becomes the attorney general, he now has to clean up this mess.

    He held multiple meetings with constituents from both sides. He heard arguments from prosecutors in Brooklyn, arguments from prosecutors in the Civil Rights Division. He reviewed the tape himself multiple times.

    And, ultimately, he agreed with the prosecutors in Brooklyn, who were really worried that this wasn't a case that they could bring before a jury and win.

  • Yamiche Alcindor:

    And the DOJ occasionally looks at these local issues with officers and fatal interactions, but they rarely bring charges.

    Why is it so rare for the DOJ to bring charges in officer-involved encounters?

  • Katie Benner:

    I think part of the reason is because they feel that the cases are extremely difficult to win.

    As long as an officer is willing to say that he had a fear, credible fear, during the altercation, as long as he's willing to say that he felt that he was in danger, jurors have been very sympathetic to that argument.

    So if it's a case that can't be won, or they feel can't be won, I think that law enforcement has been reluctant to bring those cases.

    And what makes the Eric Garner case unique is that, when Eric Holder was the attorney general, he felt that the case was worth bringing even if they didn't win, simply because he felt that the evidence was strong.

    And, of course, the videos really shocked the nation. They galvanized the Black Lives Matter movement. They made us believe that police body cameras could help tamp down on excessive use of force.

    And so today's decision, I think, is really surprising for many people.

  • Yamiche Alcindor:

    You mentioned that the Eric Garner case was unique and that it galvanized people.

    Millions of people watched the video of Eric Garner dying. The rallying cry "I can't breathe" became a rallying cry for a lot of people talking about and protesting police brutality.

    Did any of that outrage factor into how this case was handled?

  • Katie Benner:

    Yes, I think that the — that the outrage over the video has made this case — has allowed this case to remain in the public interest even five years later.

    And I also think that a lot of the case of hung on the video. The prosecutors studied the video minute by minute, second by second. And what they decided after a very careful review is that Officer Pantaleo, he let go of Eric Garner's neck before Mr. Garner said "I can't breathe."

    And they felt that he didn't purposefully put him into a choke hold, but did it only after they were falling to the ground. Now, people can dispute that interpretation, but that's certainly — they used the video, the prosecutors used the video to prove their case.

    People might have been expecting prosecutors to use the video to prove the case otherwise, but I do think that it also raises questions. As we ask for more police officers to wear body cameras, we take more cell phone footage of incidents, we have to ask ourselves, how will this be used and what kind of arguments will be made from it?

  • Yamiche Alcindor:

    Eric Garner's family is reeling from this decision. There's also this idea that the officer might not ever face jail time now that this has gone through.

    But there is this disciplinary review going through the New York City Police Department. What consequences, if at all, might this officer face?

  • Katie Benner:

    You know, it's interesting. The officer could face consequences. He could be stripped of his badge.

    We will — we're waiting to see the results of that review. Today, we saw pressure being put on Mayor Bill de Blasio to actually fire the officer.

    We saw that coming not only from Eric Garner's mother and family. We saw that pressure coming from people like Senator Kirsten Gillibrand, who put out a statement saying, Bill de Blasio, I think that it's now your move and you need to take care of this situation.

  • Yamiche Alcindor:

    Well, this is certainly a unique case, as you said,

    Katie Benner of The New York Times, thank you for being — for joining us.

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