The revelation raised questions about why the New York Police Department never took independent action against the officer, Daniel Pantaleo, but instead allowed him to remain on desk duty for five years as a federal investigation dragged on. The Police Department did not respond to an email seeking comment.
The testimony came on the first day of Pantaleo’s long-delayed disciplinary trial. Garner died after officers held him down and handcuffed him on the pavement near the Staten Island Ferry Terminal. Police had stopped him because they thought he was selling untaxed cigarettes, or “loosies.”
Captured on video, his death was one of several across the country that set off protests and led to a national reckoning over how the police treat people in poor and minority neighborhoods. Garner’s last words — “I can’t breathe” — became a rallying cry for people protesting police brutality.
On Monday, the supervisor who oversaw the internal review, Deputy Inspector Charles Barton, testified that in 2015 he ordered the lead investigator to recommend disciplinary charges against Pantaleo.
The department’s internal prosecution unit never filed charges. The current charges, of reckless use of a chokehold and intentional restriction of breathing, were brought by an independent police watchdog agency, the Civilian Complaint Review Board.
The hearing centers on the question of whether Pantaleo used a banned chokehold or a different takedown technique taught in the Police Academy, and whether his actions were justified.
A prosecutor said in an opening statement that a bystander’s video of the arrest shows Pantaleo using lethal force that led to Garner’s cardiac arrest.
The video shows that Pantaleo wrapped his arm around Garner’s neck and clasped his hands like a “vise grip,” said the prosecutor, Jonathan Fogel, of the review board. The Police Department has “explicitly, unequivocally and absolutely” banned the maneuver, and it triggered “a lethal cascade,” Fogel said.
“It is an outrage that Eric Garner is not alive today,” Fogel said. “He did not deserve a death sentence over loosies.”
Pantaleo’s lawyer, Stuart London, countered that his client was being made into a “scapegoat” in a politically charged atmosphere. He said Pantaleo had used an approved maneuver known as a “seat belt hold” that the police have been trained to use on people acting violently or resisting arrest.
London said the video showed that Pantaleo’s hands were not around Garner’s neck when he began saying “I can’t breathe” before he lost consciousness.
Though London conceded that Garner should not have died, he said Pantaleo was not to blame. He said Garner, who was 43 and in poor health, “was a ticking time bomb who set these factors in motion by resisting arrest.”
“Had he merely accepted a summons, he would be here with us today,” London said.
Ramsey Orta, 27, a friend of Garner who shot the video of the confrontation, testified over a video link from state prison, where he is serving four years for gun possession and heroin sales.
He said he had run into Garner the day he died at a local Popeye’s restaurant and later on a stoop on Bay Street in the Tompkinsville neighborhood of Staten Island in New York City. Garner was not selling cigarettes that day, he said.
His video captured Pantaleo speaking into his radio before he and his partner moved in to make an arrest. Pantaleo grabbed Garner, who weighed 395 pounds, from behind and the two stumbled into a plate-glass window before falling to the ground, where Garner begged for air.
“He kept saying, ‘I can’t breathe, I can’t breathe,’” Orta said. “Then I saw his eyes roll back, and that was it.”
Garner’s family watched from the front row as prosecutors replayed the video. His mother, Gwen Carr, and sister, Ellisha Garner, left the room weeping. Iris Baez, whose son Anthony Baez died in a similar confrontation with police in 1994, comforted them.
The medical examiner ruled Garner’s death a homicide caused by the compression of his neck from a “choke hold” and the compression of his chest while being forced to the ground in a prone position.
London said the medical examiner’s findings were “worthless, completely worthless” as he ripped a piece of paper in the trial room.
But police investigators disagreed. Barton, who oversaw the internal review, said he recommended disciplinary charges against Pantaleo in January 2015, after a grand jury declined to bring criminal charges.
On cross-examination, Barton, who left the Internal Affairs Bureau two years ago for the Information Technology Bureau, could not define for London what maneuvers were considered a chokehold. “Look, the book says no chokehold shall be used,” he said, referring to the Patrol Guide. “I don’t know what the definition of a chokehold is.”
Sgt. Luke Vasquez, the lead investigator, said his team interviewed more than 40 witnesses and officers before wrapping up its investigation.
The Police Department, which tabled the disciplinary matter while the FBI investigated a possible civil rights case against Pantaleo, decided to move forward with the discipline case in 2018. The Justice Department has until July to file charges.
Outside Police Headquarters Monday, about two dozen people gathered in a steady rain, chanting slogans and holding signs demanding that the department fire Pantaleo. Joining Carr were the mothers of several other people who died at the hands of police, including Akai Gurley and Mohamed Bah.
“These are just tears from heaven,” Carr said. “Eric is crying from heaven because he sees his mother and his family still out here trying to fight for justice for him.”
This article originally appeared in The New York Times.