Deputy Attorney General Rod Rosenstein is weighing whether to pursue federal charges against a New York City police officer in the death of Eric Garner, according to a law enforcement source familiar with the discussions.
There is a split among department prosecutors on whether to pursue charges, but they appear to be moving toward declining to prosecute, the source said.
“At this point, there’s real push-back from some of the career prosecutors at the table on the idea of moving forward,” the source said, explaining that the department has not made an official decision, but “it’s leaning no.”
A separate source familiar with the discussions said that the civil rights division is prepared to indict the police officer, Daniel Pantaleo, and has recommended prosecution.
Federal investigators have been examining the circumstances of Garner’s death since 2014 after a grand jury in New York declined to indict the Staten Island officer, who is white.
The case plagued the Obama Justice Department. The civil rights division in DC was poised to pursue charges, but prosecutors in the Eastern District of New York and the local FBI field office did not support the move, causing a stalemate that was left unresolved before President Donald Trump was elected in November 2016, according to another source familiar with the discussions.
Experts say excessive force cases are notoriously difficult to win given the high standard under federal civil rights statutes. The law requires that an officer’s conduct be evaluated from the perspective of a “reasonable” officer on the scene, rather than with added perspective of hindsight.
The Justice Department declined to comment.
Garner, a 43-year-old African-American father of six, was confronted by police for allegedly selling cigarettes illegally in July 2014. When approached, Garner raised both hands in the air and told the officers not to touch him. He was unarmed.
Video footage shows Pantaleo grab Garner from behind and put him in a choke hold, causing Garner to say repeatedly: “I can’t breathe!”
An asthmatic, Garner was later pronounced dead.
Jonathan Moore, the Garner family’s lawyer, told CNN Friday that they don’t understand what is taking so long.
“It is an ongoing insult to the family. We’re not confident they are going to do anything. They dropped the ball on this a long time ago,” Moore said. “This is clearly an example of justice delayed and justice denied.”
New York Mayor Bill de Blasio called upon the Justice Department to make a decision soon.
“The family and loved ones of Eric Garner have waited long enough. Our city has waited long enough,” de Blasio said in a statement. “After almost four years of deliberation, and with the NYPD long ready to proceed with its disciplinary process, we once again urge the Department of Justice to show some level of decency to the Garner family and make its decision.”
Pantaleo’s attorney, Stuart London, said his client “has consistently denied that he ever used the choke hold or violated Mr. Garner’s civil rights.”
“This has always a simply street encounter,” London continued. “Although this has been a frustrating period for officer Pantaleo, my client realizes that the case is a tragedy based on the loss of life.”
The New York Times first reported the current division within the Justice Department.
Garner’s case is just one of a series that were left in limbo at the end of the Obama administration, leaving some civil rights advocates bracing for how Attorney General Jeff Sessions might handle the decisions.
At a speech to the International Association of Chiefs of Police in Arizona last year, Sessions vowed to make sure the department addresses police misconduct.
“This Department of Justice will encourage the proactive policing that your departments must do to keep our neighborhoods safe,” Sessions said. “And we will have the back of all honest and honorable law enforcement officers.”