The finding 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 New York Police Department an emblem of what they see as overly aggressive policing in black and Hispanic neighborhoods.
How to handle Pantaleo has been a political minefield for both Police Commissioner James P. O’Neill — who now must decide whether to fire him and incur the wrath of police unions — and Mayor Bill de Blasio, who for years has expressed solidarity with the Garner family while avoiding saying whether Pantaleo should remain on the force.
For the police, Garner’s death was a watershed moment, forcing a reckoning over how the department engaged with its residents. Across the country, his last words — “I can’t breathe” — became a battle cry for the Black Lives Matter movement, and led to sweeping changes in use-of-force policies.
But Pantaleo’s continued employment has shadowed de Blasio, dogging him as he embarked on a run for president as a progressive Democrat. The mayor, who ran on a platform of police reform, has worked to reduce incarceration, cutting the number of arrests for minor crimes, but also labored to avoid alienating rank-and-file officers.
His unwillingness to call for Pantaleo’s dismissal came up at the Democratic primary debate Wednesday night when he was criticized by his fellow New Yorker, Sen. Kirsten Gillibrand, and by protesters shouting “Fire Pantaleo.”
On Friday, de Blasio said the Garner family had waited too long for action and had been failed by federal and state law enforcement prosecutors. But he again declined to say whether he believed Pantaleo should be fired.
“Today, we finally saw a step toward justice and accountability,” de Blasio said. “We saw a process that was actually fair and impartial, and I hope this will now bring the Garner family a sense of closure and the beginning of some peace.”
Under the City Charter and court rulings, O’Neill has the final say over whether Pantaleo will be dismissed and lose his pension. 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, which were confirmed by two people familiar with the decision. The officer could also resign ahead of a decision.
In recent weeks, O’Neill has found himself caught between elected officials and community leaders who have been calling for the officer to be fired and leaders of police unions who have cast Pantaleo as a scapegoat.
The Garner family called on O’Neill to dismiss the officer immediately.
“This has been a long battle,” 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.”
But the president of the Police Benevolent Association, Patrick J. Lynch, warned that the commissioner and the mayor would lose the support of officers if the decision was made to terminate Pantaleo.
“This decision is pure insanity,” he said in a statement. “If it is allowed to stand it will paralyze the NYPD for years to come.”
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.”
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.
Though de Blasio is not allowed to directly fire a police officer, he can influence the decision because the police commissioner serves at his pleasure. De Blasio has said he cannot publicly express an opinion on Pantaleo’s status because it could be seen as an attempt to influence the department’s decision, exposing the city to a lawsuit.
Lynch, the union president, said the mayor had already exerted that influence with his remarks on the presidential debate stage.
“We have a mayor who predetermined the outcome,” he said. “He said the family will get justice. Of course that family’s justice is finding a police officer guilty and firing them.”
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.
Pantaleo’s lawyer, Stuart London, said the judge had ignored the evidence and bowed to outside political pressure. He said Pantaleo was disappointed but would continue to fight to keep his job.
“This case was won in that courtroom,” London said. He added that, “Politics trumped, unfortunately, the rule of law.”
In the 47-page decision, dated Friday, Maldonado found that 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 sliding 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.
Both a grand jury on Staten Island and the Department of Justice declined to bring criminal charges against Pantaleo. Federal prosecutors determined that Pantaleo had used a chokehold, but they could not agree on whether they could prove it was intentional.
On Friday, Gillibrand called for the Justice Department’s Inspector General to examine that decision.
“We need answers about the government’s failure to seek justice in this disturbing case,” she said in a statement.
In the last two weeks, Garner’s relatives, backed by many of the city’s elected officials, have threatened to shut down the city if the de Blasio administration did not fire Pantaleo.
On Friday, Garner’s family and their supporters said even Pantaleo’s dismissal would not satisfy them, and they 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.
Garner’s mother, Gwenn Carr, also called on the commissioner to fire other officers involved in the arrest, including Pantaleo’s partner, Justin Damico, and Lt. Christopher Bannon, who supervised the two officers and said in text messages that Garner’s death was “not a big deal.”
Police union lawyers argued at the disciplinary hearing that Pantaleo had used an authorized takedown tactic to subdue Garner, who they said was resisting a lawful arrest.
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 “was more than sufficient to prove Pantaleo unfit to serve.”
This article originally appeared in The New York Times.