Five years ago today, Eric Garner’s final words “I can’t breathe” sparked a nationwide rallying cry to demand more police accountability in the deaths of unarmed black men.
But on the eve of the anniversary, Garner’s family was grieving again – this time because the Justice Department announced Tuesday it was declining to bring federal charges against the New York police officer accused of using a chokehold on the 43-year-old father of six.
Daughter Emerald Garner led supporters at a vigil in New York on Tuesday night, chanting “I can’t breathe!” 11 times before releasing balloons in her father’s memory.
Garner’s mother, Gwen Carr, said the Department of Justice had failed them.
“Five years ago, my son said ‘I can’t breathe’ 11 times,” Carr said. “And today we can’t breathe, because they let us down.”
Federal authorities had a deadline of Wednesday – five years since Garner’s death – to decide whether to bring charges against NYPD Officer Daniel Pantaleo.
In a cell phone video, the officer appeared to have Garner in a chokehold shortly before Garner died. Pantaleo denies that he used a chokehold.
The city medical examiner’s office ruled Garner’s death a homicide. The medical examiner testified that Pantaleo’s alleged chokehold caused an asthma attack and was “part of the lethal cascade of events.”
But US Attorney Richard P. Donoghue said on Tuesday that there was insufficient evidence to prove beyond a reasonable doubt that Pantaleo acted “willfully” in violation of the federal criminal civil rights act.
“There is nothing in the video to suggest that Officer Pantaleo intended or attempted to place Mr. Garner in a chokehold,” Donoghue said.
Attorney General William Barr made the decision to not bring charges against Pantaleo, siding with a Justice Department team from New York over the Civil Rights Division in Washington.
The decision stemmed from concerns that prosecutors could not successfully prove the officer acted willfully, a senior Justice Department official said.
“While willfulness may be inferred from blatantly wrongful conduct, such as a gratuitous kick to the head, an officer’s mistake, fear, misperception, or even poor judgment does not constitute willful conduct under federal criminal civil rights law,” Donoghue said.
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. The city of New York settled with Garner’s estate for $5.9 million in 2015.
Members of Garner’s family, the Rev. Al Sharpton and several others met with federal prosecutors Tuesday to learn of the decision.
“They came in that room and they gave condolences,” daughter Emerald Garner said. “I don’t want no condolences. I want my father.”
Garner’s death happened three weeks before the death of Michael Brown in Ferguson, Missouri.
Their deaths reinvigorated the Black Lives Matter movement and renewed demands for police accountability in the deaths of unarmed black men.
The “I can’t breathe” phrase reflected the frustration with what activists said was a lack of police accountability after police killings of unarmed black men.
The phrase was widely seen and heard at protests. Athletes like NBA star LeBron James bore the message on T-shirts in support of the cause.
What the video showed
Half a decade later, the debate over whether Pantaleo used a chokehold continues.
Garner died on July 17, 2014, after police attempted to arrest Garner, who was allegedly selling loose cigarettes illegally on Staten Island, a crime he had been arrested for previously.
Garner’s friend, Ramsey Orta, recorded the confrontation on his cell phone as it quickly escalated.
In the video, Pantaleo can be seen wrapping one arm around Garner’s shoulder and the other around his neck before jerking him back and pulling him to the ground.
As Pantaleo forces Garner’s head into the sidewalk, Garner can be heard saying, “I can’t breathe. I can’t breathe.”
An attorney called Garner ‘a ticking time bomb’
Police union officials and Pantaleo’s attorney blamed Garner’s death on his poor health.
“Mr. Garner died from being morbidly obese” and having other health issues, attorney Stuart London said earlier this year. “He was a ticking time bomb and set these facts in motion by resisting arrest.”
London says his client is different from other officers he’s represented in his almost 22 years defending cops. The other officers were aggressive, young police officers, he said.
“(Pantaleo) has been characterized as an overly aggressive officer with a history of this sort of behavior, and nothing can be further from the truth,” London said. “This was a regular patrolman doing regular police work.”
The officer still faces NYPD charges
While Pantaleo will not face any criminal charges related to Garner’s death, he still faces departmental charges.
The NYPD has brought departmental charges against Pantaleo. If found guilty of using the chokehold and restricting Garner’s breathing, he could face discipline ranging from loss of vacation days to the loss of his job.
Activists and lawyers for the Civilian Complaint Review Board, the city agency charged with overseeing the NYPD, said Pantaleo used an illegal chokehold, which is banned by the department.
But union officials and lawyers for Daniel Pantaleo call it a “seatbelt hold,” a takedown maneuver that is taught to rookies while at the academy.
Pantaleo’s disciplinary trial ended last month. NYPD Commissioner James O’Neill will make a decision after he receives a report and recommendation from the deputy commissioner of trials, Deputy Commissioner Phillip Walzak said.
Meanwhile, Garner’s mother said the loss of Pantaleo’s job wouldn’t fix anything, though it would be welcome.
“It doesn’t do a lot. It’s just that we must have some type of accountability, some type of responsibility, where the police officers are held accountable and pay for their misconduct,” Carr said.
“If we just sit aside on the sidelines and let it go, it’s going to keep on happening.”
CNN’s Eric Levenson, Shimon Procupecz, Evan Perez, Laura Ly and Rob Frehse contributed to this report.