emerald garner presser 07162019
Garner's daughter's emotional response to Justice Department decision
01:58 - Source: HLN

Editor’s Note: Joey Jackson is a legal analyst for CNN and HLN, and a partner at New York City-based Watford Jackson, PLLC. The views expressed here are solely his. Read more opinion on CNN.

CNN  — 

The Justice Department announced on Tuesday that it would not be pursuing federal charges against Daniel Pantaleo, the NYPD officer accused of fatally choking Eric Garner, who was approached by police for allegedly selling loose cigarettes. The decision was apparently made by Attorney General William Barr himself, after the DOJ’s Civil Rights Division favored an indictment while a competing faction in the New York office felt otherwise.

The announcement on Tuesday, five years after the incident, was nothing short of a disgrace. It’s a complete abdication of responsibility, and a slap in the face to any notion of justice, particularly for victims of color.

Garner was victimized in life, and is being re-victimized in death. Achieving justice is hard, but that’s the very job of the Department of Justice. In making the announcement, US Attorney Richard P. Donoghue stated that “the evidence does not support charging Police Officer Pantaleo with a federal civil rights violation.” I could not disagree more forcefully.

Lawyers within the Justice Department have wrestled over this issue with much rancor and disagreement as to whether they have a viable case. In such a situation, the tie should go to the victim, with a jury making the final decision.

Communities throughout the country continue to see black men brutalized at the hands of police – without consequence or recourse. This does nothing but further the racial divide and lead to ongoing mistrust between communities and law enforcement. The Justice Department’s decision makes this divide even deeper.

There is no denying that as a result of being tackled and placed in a chokehold by Officer Pantaleo, Garner lost his life. The medical examiner ruled his death a homicide.

Several months after the incident occurred, the case was presented to a Staten Island grand jury. In a development that angered the community greatly, and led to a variety of protests, the grand jury declined to indict Officer Pantaleo. To the extent that a grand jury will generally indict a ham sandwich, their failure to do so here was largely seen as a political maneuver on the part of the sitting Republican District Attorney at the time, Dan Donovan.

Given all of this, the DOJ owed it to Garner, his memory, his family, and the community to allow federal charges. Prosecutors should not simply be guided by the odds of winning cases. Instead, they must be guided by pursuing justice and truth. In doing so, they give voice to victims by presenting all the relevant facts on the victim’s behalf. Additionally, they empower communities by allowing jurors to make the ultimate decision.

Succeeding in a case against Officer Pantaleo would require that prosecutors prove three legal elements beyond a reasonable doubt.

First, they must show that Pantaleo’s actions were undertaken while he was acting in his law enforcement capacity. That’s pretty easy to do, as Pantaleo was employed as an officer of the NYPD at the time of the encounter. The fact that he still is angers the community even further.

While a departmental proceeding seeking his termination took place in June, a decision has yet to be made.

A hearing officer will make a determination in the coming weeks. However, no matter what that hearing officer concludes, a final decision about Officer Pantaleo’s future will rest in the hands of NYPD Police Commissioner James P. O’Neal.

In any event, justice demands more than a loss of his job. It demands the potential loss of liberty based upon the nature of his actions that day which deprived Mr. Garner of his life, and his family of the benefit of his company forevermore.

With regard to Officer Pantaleo’s liberty, the second element that prosecutors would have to show is that Garner was deprived of his constitutional rights. That right would plainly be the right, enjoyed by all, to be free from excessive force. Here too, prosecutors are on solid ground. Many have seen the shocking video where Officer Pantaleo is seen with his arms around the neck of Garner, who was unarmed.

The federal case, then, would turn on whether Officer Pantaleo’s conduct was “willful.” That is, whether he intentionally subjected Garner to excessive force while knowing it was wrong to do so. Here, prosecutors could have certainly highlighted that the choke hold used by Pantaleo against Garner was outlawed by the NYPD over 20 years ago, and therefore deemed unlawful and improper.

That sounds pretty willful to me.

In fairness, however, Pantaleo would most assuredly have countered that he did not use such a choke hold, but rather applied a lawful maneuver while himself being afraid for his life.

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    These are healthy questions of fact that would be within the province of a jury to decide. For the Department of Justice to abdicate its responsibly and refuse to prosecute based upon concerns about whether a jury would agree with their assessment of “willfulness” is outrageous.

    Slam dunk cases are rarely ever tried in a court of law. Instead, they are the focus of resolution by way of plea bargains. The closer and harder questions are those that our system designs juries to answer. They should have been allowed to give their answer here.

    The fact that they didn’t even try leaves Eric Garner, his family, his legacy, and communities of color feeling abandoned and disregarded. And that’s shameful. We should all expect more from the Department of Justice.