Statement by United States Attorney Richard P. Donoghue

Introduction:

Thank you for coming today.  My name is Richard Donoghue and I am the United States Attorney for the Eastern District of New York.  I am joined here today by the Special Agent-In-Charge of the FBI New York’s Criminal Division, Michael Driscoll.   

We are here to announce that, after an exhaustive investigation, the Department of Justice has reached the conclusion that insufficient evidence exists to prove beyond a reasonable doubt that the police officers who arrested Eric Garner in Staten Island on July 17, 2014 acted in violation of the federal criminal civil rights statute.  Consequently, the investigation into this incident has been closed. 

We met with Mr. Garner’s family earlier this morning and shared our findings and decision with them.  I offered my sincere condolences and those of Attorney General Barr and the entire Justice Department to the family for their tragic loss.

This morning I want to discuss the reasons for our decision and how we reached it.  While the Department does not normally publicly discuss a decision not to bring charges, we felt that this matter is an exception because it means so much to our community and beyond.

Before I continue, let me say as clearly and unequivocally as I can that Mr. Garner’s death was a tragedy.  For anyone to die under circumstances like these is a tremendous loss.  For the family to suffer as this family has only compounds that loss. 

But these unassailable facts are separate and distinct from whether a federal crime has been committed.  And the evidence here does not support charging Police Officer Daniel Pantaleo or any other officer with a federal criminal civil rights violation. 

Admittedly, many may disagree with the decision, and that is their right.  However, we hope that by announcing and explaining our decision today, we can bring some measure of closure to one of this City’s more upsetting incidents involving the police and a member of the community.

Law:

To fully understand how we made this decision, I want to briefly discuss the applicable law.

In order for a federal criminal civil rights charge to be brought, the government must prove, beyond a reasonable doubt, four elements: (1) that the officer acted under color of law; (2) that the officer used objectively unreasonable force under the circumstances; (3) that the officer violated the law willfully; and (4) that the wrongful conduct caused bodily injury to the victim. 

In simpler terms, this means that the government must prove beyond a reasonable doubt that an officer willfully used more force than he reasonably could have believed was necessary under the circumstances.

During the Department’s investigation, we focused primarily on two of these elements: 1) whether the force used was objectively unreasonable and 2) whether the officer acted willfully in violation of the law. 

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.  And the law recognizes that the police are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. 

However, even if the government can prove beyond a reasonable doubt that the force used was objectively unreasonable, the government must also prove beyond a reasonable doubt that the officer acted willfully.  This is the highest standard of intent imposed by law, and is different and higher than the intent standard under the relevant state statutes.  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. 

What all of this means is that, even if we could prove that Officer Pantaleo’s hold of Mr. Garner constituted unreasonable force, we would still have to prove beyond a reasonable doubt that Officer Pantaleo acted willfully.

The Video:

Eric Garner’s arrest was largely captured on video and the video has been replayed in the media on countless occasions.  Like many of you, I have watched the video many times and, each time I’ve watched it, I am left with the same reaction – that the death of Eric Garner was a tragedy.  And I know that every one of my colleagues who reviewed the video shares that sentiment.

The job of a federal prosecutor, however, is not to let our emotions dictate our decisions. 

Our job is to review the evidence gathered during the investigation – like the video - to assess whether we can prove that a federal crime was committed. 

When viewed in its entirety, the video documents a tense and escalating encounter between Mr. Garner and the officers, and shows that the officers had to make split-second decisions under stressful circumstances.  The video shows that the officers’ initial actions were in accordance with established police tactics and procedures, but that the situation deteriorated as it progressed.  At the end of the day, however, the video and the other evidence gathered in the investigation does not establish beyond a reasonable doubt that Officer Pantaleo acted in willful violation of federal law.

The Evidence:

Now let me address the video and some of the other evidence.

On July 17, 2014, Officers Justin D’Amico and Daniel Pantaleo attempted to place Eric Garner under arrest.  The officers were acting that day under direct orders to address complaints about the sale of untaxed cigarettes in the vicinity of Tompkinsville Park in Staten Island.  Mr. Garner resisted arrest, both verbally and physically, and consequently the officers were permitted to use force to effect the arrest.  That force, of course, had to be reasonable. 

After Mr. Garner resisted arrest, Officer Pantaleo appeared to attempt two approved NYPD tactics, both of which involved force.  First, he appeared to attempt an “arm bar,” which involves pulling the hand of a person down, while the officer goes behind the person to gain control of him to put handcuffs on him.  As the video makes clear, Mr. Garner twisted his body and freed his arms, evaded Pantaleo’s grasp, and avoided being placed in handcuffs.

Officer Pantaleo next appeared to attempt a second approved tactic, this one called the “rear takedown” or “seat belt.”  In this tactic, an officer places one arm under a person’s armpit and the other hand across the shoulder and chest of the person in order to unbalance the person and bring him to the ground.  Here, Officer Pantaleo placed his right arm under Mr. Garner’s right armpit and his left arm on Mr. Garner’s shoulder and upper chest, with his left palm facing out and away from Mr. Garner’s neck.  At this point, there is nothing in the video to suggest that Officer Pantaleo intended or attempted to place Mr. Garner in a chokehold. 

I would also note that there was a significant difference in size and weight between Mr. Garner, who stood 6’2” and weighed close to 400 lbs., and Officer Pantaleo, who was considerably smaller.  And it is clear that this disparity in size and weight contributed to Officer Pantaleo being unable to bring Mr. Garner under arrest quickly and without further incident.

Officer Pantaleo then attempted to complete the rear takedown to put Mr. Garner off balance.  This is where the situation rapidly deteriorated.  As Mr. Garner and Officer Pantaleo struggled, Officer Pantaleo held onto Mr. Garner and both men fell backward.  In the process, Officer Pantaleo’s body slammed against a store window, causing the window to buckle.  It appears that, in response to that collision, and to maintain a hold on Mr. Garner, Officer Pantaleo wrapped his left arm around Mr. Garner’s neck, resulting in what was, in effect, a chokehold.  Officer Pantaleo maintained that hold on Mr. Garner for a total of approximately seven seconds.  During the first few seconds of that hold, the two men were falling to the sidewalk.

As has been widely reported, Mr. Garner stated, “I can’t breathe,” but I would point out that he made this statement only after he fell to the sidewalk and after Officer Pantaleo released his grip from Mr. Garner’s neck.  Significantly, Officer Pantaleo was not engaged in a chokehold on Mr. Garner when he said he could not breathe, and neither Officer Pantaleo nor any other officer applied a chokehold to Mr. Garner after he first said he could not breathe.

It is also important to understand that there is a disagreement among medical experts regarding the cause of Mr. Garner’s death.  While the medical examiner who conducted Mr. Garner’s autopsy ruled it a homicide – meaning that the death resulted, rightly or wrongly, from the actions of another – another medical examiner who reviewed the autopsy report could not conclusively determine whether the chokehold itself caused Mr. Garner’s death.  

At least two different medical experts have explained that the sudden cardiac arrest suffered by Mr. Garner could have resulted from a number of causes in addition to the chokehold, including being restrained in a prone position, damage to his neck area that was not attributable to the chokehold and Mr. Garner’s serious underlying medical conditions.  This is significant because it casts doubt upon whether the chokehold itself caused Mr. Garner’s death. 

The Decision:    

When we evaluated Officer Pantaleo’s actions in light of (1) his training and experience, (2) Mr. Garner’s size, weight and actions to resist arrest, and (3) the duration and escalating nature of their interaction, we determined that there was insufficient evidence to prove beyond a reasonable doubt that Pantaleo acted in willful violation of the law. 

As a result, we conclude that there is insufficient evidence to bring a federal criminal charge against Officer Pantaleo for his role in the untimely death of Mr. Garner.

Conclusion:

Before I conclude, I also would like to address the timing of today’s announcement.  As I mentioned earlier, this investigation was extremely thorough and time consuming and the recent administrative hearing conducted by the NYPD provided, at least potentially, one last opportunity to develop evidence that might have put us in a position to bring charges. 

But regardless, today’s announcement is long overdue.  We, the Department, owed it to Mr. Garner’s family and to the community to complete the investigation and announce our decision earlier.

I should emphasize that this was a very difficult decision, and it was one that was contemplated and considered at the very highest levels of the Department of Justice for several years.

For the family, for the community, and for the cause of justice, please know that experienced, highly trained federal agents and career prosecutors worked hard to investigate and examine the facts to determine if a federal criminal case could be brought here.  The Department remains committed to aggressively investigating allegations of excessive force by police officers and others, and will continue to dedicate all necessary resources to doing so.  We are committed to aggressively prosecuting excessive force cases whenever there is sufficient evidence to bring them.

Mr. Garner’s death was a terrible tragedy.  But having thoroughly investigated the surrounding circumstances, the Department has concluded that the available evidence would not support federal civil rights charges against any officer.

We know and understand that some will be disappointed by this decision, but it is the conclusion that is compelled by the evidence and the law.