Judge orders judicial review in 2014 NYPD chokehold death of Eric Garner

STATEN ISLAND, N.Y. — A New York judge has ordered a judicial inquiry into the death of Eric Garner more than six years after the Staten Island man died following a chokehold by a New York City police officer.

Garner, a 43-year-old husband and father of six, died of a fatal asthma attack on July 17, 2014, after being put in a chokehold by former New York police officer Daniel Pantaleo. Officers had confronted Garner for allegedly selling loose, untaxed cigarettes on the street.

The chokehold used on Garner was banned by New York police officials in 1993.

Garner’s on-camera cries of “I can’t breathe” have become a rallying cry in subsequent protests against police brutality.

🚨 MAJOR WIN🚨 Yesterday a judge granted CPR's judicial inquiry request. The court's decision paves the way for City...

Posted by Communities United for Police Reform (CPR) on Friday, September 25, 2020

New York Supreme Court Judge Joan Madden on Thursday ordered a summary inquiry into Garner’s case. Garner’s mother and sister sought a probe into several allegations against the New York Police Department, including, in part, an alleged lack of immediate medical aid for Garner on the scene; alleged lies in police reports and the unauthorized release of Garner’s arrest and medical records.

NBC News reported that Madden’s ruling is part of the civil litigation against the city by Garner’s mother, Gwen Carr, and his sister, Ellisha Flagg. The family was awarded $5.9 million in 2015 in a civil lawsuit.

A state grand jury in 2014 declined to indict Pantaleo on criminal charges in Garner’s death, and federal prosecutors announced in July 2019 – one day shy of the fifth anniversary of Garner’s killing and just before the statute of limitations expired – that there was insufficient evidence to prove Pantaleo and other officers violated Garner’s civil rights.

Pantaleo was fired in August 2019, based upon the recommendation of a departmental trial judge. Deputy Commissioner of Trials Rosemarie Maldonado found Pantaleo guilty of third-degree assault, but ruled that the evidence failed to prove intent for a first-degree strangulation charge.

That same month, Communities United for Police Reform, or CPR, joined Carr, Flagg and Constance Malcolm in filing a petition “demanding a judicial inquiry into the violation and neglect of duty by Mayor Bill de Blasio, (former) NYPD Commissioner (James) O’Neill and others related to the unjust killing of Eric Garner, the cover-up that continues to this day, and the related failure to discipline officers for misconduct in a meaningful or timely manner,” according to a news release.

Malcolm is the mother of Ramarley Graham, an 18-year-old Black man shot and killed by New York police Feb. 2, 2012, in his Bronx apartment.

The petition was filed under New York City Charter Section 1109, which allows any group of at least five taxpayers to bring a city employee before a judge to investigate allegations of misconduct.

“Although the arrest and death of Eric Garner has received considerable attention in the press over the past six years, many facts relating to his arrest and death, and the investigations and any disciplinary actions taken in response to his death, have not been disclosed to the public or the family of Mr. Garner,” Madden wrote in her ruling. “In this regard, the court notes that the purpose of Section 1109 is to bring transparency to the actions of public officials.”

De Blasio responded to the request by filing a motion to dismiss the petition. Arguments were heard by Madden last month.

Read Judge Joan Madden’s decision below.

CPR officials called Madden’s ruling “a major win for transparency and basic civil rights.”

“In granting the majority of the request for a judicial inquiry, the decision paves the way for city officials – including potentially de Blasio, O’Neill, and others – to take the stand and answer to claims of neglect and the violations of duty related to the killing of Eric Garner and what petitioners call the city’s subsequent cover-up,” a CPR news release said.

Carr praised the judge’s decision in a statement through CPR.

“It has been more than six long years since the NYPD killed my son, and six long years of cover-ups and excuses from Mayor de Blasio and his entire administration,” Carr said. “Today is an important sign of hope that their misdeeds will not stay in the dark – the world will know what they did to my son and my family.”

Madden wrote in her ruling that evidence showed no indication that police gave first aid to Garner after he lost consciousness and before paramedics arrived.

She also wrote that one of the officers trying to arrest Garner, Officer Justin D’Amico, lied on reports regarding the charges Garner would have faced. He alleged that Garner had committed a Class E felony by selling untaxed cigarettes.

The felony charge would have required Garner to have evaded taxes on 10,000 or more cigarettes.

“Officer D’Amico found four sealed packs of cigarettes (on Garner) and one open pack containing 15 cigarettes, for a total of 95 cigarettes,” Madden wrote. “Each of the packs had Virginia tax stamps but none had a New York tax stamp.”

‘I can’t breathe’

According to background information included in the family’s petition, as well as in Madden’s ruling, New York police officers were cracking down on the sale of loose cigarettes in Staten Island when they approached Garner around 4:45 p.m. on July 17, 2014. Garner had twice before been arrested for selling cigarettes illegally.

When Pantaleo and another officer, Officer Justin D’Amico, approached him that day, however, Garner denied selling cigarettes and said he’d been breaking up a fight between two other men. Pantaleo later said he had not seen the alleged cigarette sales but relied on D’Amico’s word that he had witnessed them.

“What are you talking about?” Garner asks D’Amico. “I didn’t do anything. I didn’t sell nothing. I didn’t do (expletive).”

Other witnesses at the scene, including one of the people recording cellphone footage of the incident, are heard backing Garner’s statement about the fight.

In the footage, Garner accuses the officers of harassment.

“Every time you see me, you want to mess with me. I’m tired of it. It stops today,” Garner tells the officers.

Watch partial footage of Garner’s encounter with police below, courtesy of the Daily News. Warning: The images are disturbing.

The confrontation grows more heated.

“Everyone standing here will tell you I didn’t do nothing. I did not sell nothing,” Garner says. “I’m minding my business, officer, I’m minding my business.”

By this time, additional police officers are around Garner.

“People out here fighting and you’re grabbing me for what?” Garner says in the video. “What did I do?”

D’Amico tells him he sold loose cigarettes.

“I did not sell no cigarettes,” Garner says.

When D’Amico repeats the claim, an increasingly upset Garner asks, “To who? To who?”

When D’Amico answers, the witness recording the footage calls out, “That’s who had the fight. Yo, boss, that’s who had the fight.”

D’Amico orders the cameraman to stand back.

Garner points to the witnesses, including the man recording the incident, to prove he did nothing wrong.

As he continues to protest his innocence, Pantaleo and D’Amico each grabs one of Garner’s arms in an effort to take him into custody.

“Don’t touch me, please. Do not touch me,” Garner says.

The confrontation escalates quickly as Pantaleo grabs the slightly taller, but much heavier, Garner around the neck and tugs him backward. They fall against the glass window of a beauty supply shop, which, according to O’Neill, visibly buckled.

“It is at that point in the video that Officer Pantaleo is seen with his hands clasped together and his left forearm pressed against Mr. Garner’s neck in what does constitute a chokehold,” O’Neill said last year. "The NYPD court ruled that while certainly not preferable, that hold was acceptable during that brief moment in time because the risk of falling through the window was so high.

“But that exigent circumstance no longer existed, the court found, when Officer Pantaleo and Mr. Garner moved to the ground.”

In the footage, Pantaleo appears to ride Garner’s back to the ground as the bigger man falls onto his hands and knees. His arm remains around Garner’s neck.

Maldonado found that the officer’s use of the chokehold “fell so far short of objective reasonableness that this tribunal found it to be reckless, a gross deviation from the standard of conduct established for a New York City police officer.”

Moments after falling to the ground, Garner begins struggling to breathe.

Maldonado found that Pantaleo had ample opportunity to readjust his grip on Garner but did not do so. Instead, even as Garner was moved onto his side, the officer “kept his hands clasped and maintained the chokehold,” O’Neill wrote.

“Mr. Garner’s obvious distress is confirmed when he coughs and grimaces,” the commissioner said.

The footage shows that despite several other officers assisting in holding Garner still, Pantaleo lets go of his neck and presses the man’s head into the sidewalk.

“I can’t breathe,” Garner says in a strangled-sounding voice.

He utters the statement a total of 11 times before he loses consciousness.

Additional footage of the aftermath of Garner’s struggle with the officers shows that he lay unresponsive on the sidewalk for more than seven minutes. None of the police officers at the scene provided first aid. See that footage here. Warning: The images are graphic.

Several officers who were there testified before Maldonado that they thought Garner might have been feigning unconsciousness, with D’Amico saying Garner might have been “playing possum,” Maldonado wrote.

Other officers noted, however, that Garner’s breathing was shallow and he was having difficultly. He was later pronounced dead at Richmond University Medical Center.

The doctor who performed Garner’s autopsy testified last year that the chokehold set off a “lethal cascade” of events that led to the Black man’s death.

“The chokehold is a significant initial factor of the cascade,” Dr. Floriana Persechino said, according to Madden’s ruling.

Read Deputy Commissioner of Trials Rosemarie Maldonado’s ruling in Eric Garner’s death below. Maldonado recommended last year that police officials fire the officer who placed Garner in the chokehold that led to his death.

Though the chokehold was not the primary cause of Garner’s death, Persechino found that it caused multi-layer internal bruising and hemorrhaging in his neck. Garner also had petechial hemorrhages in his eyes and on his face, most notably on his upper lip.

Petechiae are the result of the rupturing of tiny blood vessels.

“In this instance, the petechiae could have been caused by neck compression, prone positioning and/or cardiopulmonary resuscitative efforts,” Maldonado’s ruling stated.

Along with his chronic asthma, Garner had an enlarged heart due to hypertension and was considered obese, both conditions that likely contributed to his death at the hands of police.

O’Neill said the chokehold “impaired Mr. Garner’s physical condition and caused substantial pain and was a significant factor in triggering an asthma attack.”