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.”
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.
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 ahead of a decision.
The 47-page decision, dated Friday, found Pantaleo had used excessive force and was reckless when he applied a chokehold, the person familiar with the decision said. Maldonado also determined that the officer was aware of the risk of applying a chokehold and knew he was not supposed to have used it, the person said.
Fred Davie, chairman of the Civilian Complaint Review Board, an independent agency which acted as prosecutors for at a disciplinary hearing, said the judge had vindicated the board’s 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 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.
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.
Snipes-Garner, Garner’s daughter, said her family has waited long enough.
“We’ve been waiting too long,” she said Thursday on CNN. “Time’s up. We need answers now.”
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.
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.
A spokeswoman for the review board said prosecutors had expected a guilty verdict based on the evidence presented at trial, which took place at Police Headquarters in Lower Manhattan. Because the de Blasio administration delayed filing charges, prosecutors were required to prove that Pantaleo’s conduct would have been a crime.
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.