The judge’s decision sets in motion the final stage of a long legal and political battle over the fate of the officer, Daniel Pantaleo, who has become for many critics of the department an emblem of what they see as overly aggressive policing in black and Hispanic neighborhoods.
Garner’s death helped spur a wave of protests against police brutality that led to changes in policy in many cities, and his last words — “I can’t breathe” — became a battle cry for the Black Lives Matter movement.
New York City Police Commissioner James P. O’Neill must now make a final decision on whether to allow Pantaleo to remain on the force and finds himself caught between elected leaders who have been calling for the officer to be fired and leaders of police unions, who have cast the officer as a scapegoat.
The Garner family called on O’Neill to dismiss the officer immediately.
“This has been a long battle; five years too long,” Garner’s daughter, Emerald Snipes Garner, said at a news conference in Manhattan with the Rev. Al Sharpton. “And finally, somebody has said that there’s some information that this cop has done something wrong.”
A Police Department spokesman said O’Neill had yet to receive a copy of the judge’s report and would not make a decision until later this month, after lawyers for both sides have a chance to comment on the conclusions. O’Neill did suspend Pantaleo on Friday.
“All of New York City understandably seeks closure to this difficult chapter in our city’s history,” the spokesman, Phillip Walzak, said. “Premature statements or judgments before the process is complete, however, cannot and will not be made.”
Mayor Bill de Blasio, a Democrat running for president, has resisted pushing for the officer’s dismissal for years, saying he was respecting due process. He was heckled at a national debate Wednesday night by protesters shouting “Fire Pantaleo” and vowed that Garner’s family would soon receive justice.
But Friday, de Blasio declined to say whether he believed Pantaleo should be fired. The mayor’s office said that legally, de Blasio could not express an opinion on Pantaleo’s status.
“Today, for the first time in these long five years, the system of justice is working,” de Blasio said. He continued, “I want to remind everyone, this is an ongoing legal matter, so there’s very little I can add.”
He was interrupted later by two protesters who burst into the room chanting, “Fire Pantaleo.”
The judge’s recommendation comes two weeks after Attorney General William Barr announced that the Justice Department would not seek a federal indictment against the officer on civil rights charges, ending five years of internal debate among federal prosecutors.
Pantaleo was captured on video using a chokehold on Garner in 2014 as he and other officers subdued him. Garner was believed to be illegally selling loose cigarettes. A city medical examiner determined the chokehold set in motion a “lethal cascade” of events, including an asthma attack and a fatal heart attack.
Whether Pantaleo will be dismissed and lose his pension is up to O’Neill, who has the final say over the disciplining of officers. Prosecutors and the defense typically have up to two weeks to respond to the findings of the judge, Rosemarie Maldonado, a deputy police commissioner who oversees disciplinary hearings.
O’Neill could decide to uphold, modify or reverse her findings. The officer could also resign before a decision. Pantaleo’s lawyer, Stuart London, could not be reached for comment Friday.
On Friday, the city’s largest police union called the verdict “pure political insanity” and said O’Neill should reject the judge’s recommendation to fire Pantaleo.
“The only hope for justice now lies with Police Commissioner O’Neill,” said Patrick J. Lynch, president of the Police Benevolent Association. “He knows that if he affirms this horrendous decision, he will lose his police department.”
The 47-page decision, dated Friday, found Pantaleo had used excessive force and was reckless when he applied a chokehold, one person familiar with the decision said. Maldonado also determined that the officer was aware of the risk of using a chokehold and knew he was not supposed to use it, the person said.
Still, the judge cleared Pantaleo of one charge against him: She found that he had not intentionally restricted Garner’s breathing.
Fred Davie, chairman of the Civilian Complaint Review Board, an independent agency which acted as prosecutors at the disciplinary hearing, said the judge had vindicated the board’s long-held position that Pantaleo had caused Garner’s death.
“Commissioner O’Neill must uphold this verdict and dismiss Pantaleo from the department,” Davie said in a statement.
The chokehold was captured in bystanders’ videos of Garner’s July 17, 2014, arrest published by The New York Daily News.
One shows Pantaleo’s arms gripping Garner’s upper body and quickly slipping up to his neck as the two stumbled to the ground. Garner repeated “I can’t breathe” 11 times as officers pressed him onto the sidewalk.
The recommendation came after both a grand jury on Staten Island and the Department of Justice had previously declined to bring criminal charges against Pantaleo in connection with Garner’s death.
The decision by Barr to not bring federal civil rights charges against Pantaleo, which came on the day before the fifth anniversary of Garner’s death in July, angered the slain man’s family and turned up the pressure on de Blasio and his police commissioner to dismiss Pantaleo.
Although federal prosecutors determined that Pantaleo had used a chokehold, they could not agree whether they could prove it was intentional and win the case.
On Friday, Sen. Kirsten Gillibrand, D-N.Y., who is running for president, called for the Justice Department’s Inspector General to examine why federal prosecutors declined the case. “We need answers about the government’s failure to seek justice in this disturbing case,” she said in a statement.
The decision not to bring a criminal case against Pantaleo in Garner’s death remained a point of contention for his family and their supporters Friday, who remain convinced Pantaleo should have faced criminal charges in state or federal court.
“Make no mistake about it, this is not justice for the Garner family,” Sharpton said.
In the past two weeks, Garner’s relatives, backed by many of the city’s elected officials, have threatened to shut down the city if de Blasio does not fire Pantaleo. The mayor has not pushed the police commissioner to do so, saying that state law and city rules prevent him from firing the officer or overriding a commissioner’s decision.
The videos of the chokehold were key pieces of evidence at Pantaleo’s disciplinary trial. Police union lawyers argued that he had used an authorized takedown tactic to subdue Garner, who they said was resisting a lawful arrest. Supervisors had ordered Pantaleo and his partner, Justin Damico, to arrest Garner for selling loose, untaxed cigarettes, which is illegal in New York.
The pair were among at least 12 officers who failed to render aid to Garner as he was being held on the ground or later omitted the use of force from official reports, Garner’s family has said.
Garner’s mother, Gwenn Carr, said Friday that those officers should also be held accountable for her son’s death and said the department should schedule a trial date for Sgt. Kizzy Adonis, one of the first supervisors to arrive at the scene in 2014.
“I will continue to fight — and I’m asking everyone who supports me in NYC and around the country to continue to fight — until there is accountability for Eric and for all New Yorkers, and until Pantaleo and all of these officers who engaged in misconduct related to Eric’s murder have been fired from the NYPD,” Carr said in a statement.
Carr called for the department to fire Damico and Lt. Christopher Bannon, who supervised the two officers. In text messages to a supervisor at the time, Bannon had called Garner’s death “not a big deal.”
Prosecutors from the Civilian Complaint Review Board, a city agency that investigates police misconduct accusations, presented evidence that Pantaleo performed a takedown technique that he had not been trained to use. When it went wrong, instead of letting go, he clasped his hands to secure his grip around Garner’s neck, they said.
The prosecutors, Suzanne O’Hare and Jonathan Fogel, said that Garner was trying to talk the officers out of arresting him, just as he had done two weeks earlier with Damico.
Davie said the evidence prosecutors had brought forward at the departmental trial, which took place at Police Headquarters in lower Manhattan, “was more than sufficient to prove Pantaleo unfit to serve.”
The proceedings had been delayed in deference to the federal investigation until last summer, after federal prosecutors said their case had stalled.
After Garner’s death, the Police Department retrained officers on de-escalation tactics, adopted a body-camera program and revised its use-of-force policy. But officials also loosened the ban on chokeholds in 2016 to allow officers to use them in extraordinary circumstances.
Since O’Neill became police commissioner in 2016, no officer has been fired for using a chokehold. Many city leaders have applauded his efforts to build trust with black and Latino communities alienated by aggressive policing practices but also say he falls short when it comes to disciplining officers who abuse civilians.
This article originally appeared in The New York Times.