Officer who helped take down Eric Garner faces internal trial

Case centers on use of chokehold

By Eliott C. McLaughlin and Sonia Moghe, CNN

NEW YORK - The New York police officer accused of using a banned chokehold in the 2014 death of Eric Garner administered "a lethal dose of prohibited force" for no reason, as Garner posed no danger, a lawyer said Monday in a disciplinary hearing.

Anticipating Officer Daniel Pantaleo's well-publicized defense -- that he never choked Garner and that his technique for subduing him was in line with his training -- attorney Jonathan Fogel said medical evidence will show hemorrhaging and trauma around Garner's throat.

That trauma was the result of Pantaleo using an "explicitly, unequivocally" banned chokehold, said Fogel, who is acting as prosecutor for the Civilian Complaint Review Board in the New York Police Department proceedings against Pantaleo.

"He gave his victim a death sentence over loose cigarettes," the attorney said.

Wearing a charcoal-colored suit, Pantaleo looked on as his attorney, Stuart London, countered that Garner was suffering from multiple health issues when he resisted arrest -- the combination of which led to his death. Officers "exercised tremendous restraint" during the apprehension, which came after police accused Garner of selling cigarettes, he said.

"Mr. Garner died from being morbidly obese" and having other health issues, London said. "He was a ticking time bomb and set these facts in motion by resisting arrest."

The defense attorney also called the autopsy report "wrong" and the medical examiner's findings "inaccurate." He said Garner suffered muscle bruising when he and an officer slammed into a store window. Officers never obstructed Garner's breathing, he said.

It's been almost five years since Garner died after telling officers, "I can't breathe," during an arrest in Staten Island. Garner's words -- with which Fogel began his opening statement -- became a rallying cry against police use of excessive force.

 

Ten days, 20 witnesses

 

Pantaleo stands accused of breaking protocol by cutting off the 43-year-old's air passage with a chokehold that the NYPD had banned years before Garner's 2014 death. The officer's lawyer and the police union have denied the allegation.

The 10-day disciplinary hearing will determine whether Pantaleo can remain on the force. As many as 20 witnesses, including the medical examiner in the case, are expected to be called.

Rosemarie Maldonado, the department's deputy commissioner for trials, is overseeing the proceeding. If Pantaleo is found guilty of using a banned chokehold, Maldonado can recommend he be terminated. Commissioner James O'Neill then would determine whether Pantaleo could keep his job.

"We are confident that, once all the evidence has been presented, the Police Commissioner will find Officer Pantaleo guilty of misconduct and ultimately terminate him from the Department," review board chairman Fred Davie said in a statement.

Garner's mother, Gwen Carr, has called for Pantaleo and other officers involved in her son's arrest to be fired. She wept Monday as video of the encounter was played.

She left with her daughter and the Rev. Al Sharpton, who has demanded justice in Garner's killing. She later told a crowd outside it was difficult to see the video again: "It is very, very hard. You just don't know. It's beyond belief," she says in video posted online by a police reform organization.

Carr said she and her family "have been fighting for five years to get justice."

"I'm tired of the lies and misdirection from Daniel Pantaleo's lawyers," a Monday statement read. "They can call Pantaleo's chokehold whatever fancy term they want to try to confuse people; it doesn't matter -- because the facts and the video speak for themselves."

The NYPD is expected to launch disciplinary proceedings against Pantaleo's supervisor, Sgt. Kizzy Adonis, one of the first officers to respond to the scene.

Without conceding liability, New York City Comptroller Scott Stringer in 2015 issued a $5.9 million check to Garner's family, saying the payout was "in the best interests of all parties."

 

Officer's attorney: No chokehold

 

London said in July -- after the NYPD announced departmental charges of using a chokehold and restricting Garner's breathing -- that his client is "looking forward to being vindicated." A few months later, he said an expert would testify that Pantaleo did not administer a chokehold and that the officer's arm was not around Garner's neck when he said, "I can't breathe."

"If you look at the video frame by frame it's a very different video than if you view it once in real time," London said. "The problem is we need to educate both the media and the public that not only was there never a chokehold, but officer Pantaleo was just making a simple arrest using a seat belt technique."

According to the New York City Police Benevolent Association, Maldonado has ruled that Pantaleo cannot be found guilty if the sole basis for such a ruling is a violation of the NYPD patrol guide.

The city's civil service law requires that the city file charges alleging administrative violations within 18 months of the alleged wrongdoing. As the review board did not bring the charges until July, the only way the proceeding can yield a guilty verdict is if Pantaleo committed a crime -- either third-degree assault or second-degree strangulation, the association said.

In the days after Garner died, the NYPD put its internal disciplinary proceedings on hold so they would not affect the US Justice Department's investigation. The police department announced it would pursue charges in July.

Patrick Lynch, president of the New York City Police Benevolent Association, has called the proceeding a "kangaroo court" and asked for fairness. He says Pantaleo is innocent, as evidenced by a grand jury's decision not to bring charges against him in 2014.

"This case now boils down to a single fact: P.O. Pantaleo did not commit a crime," Lynch said. "A grand jury of regular New Yorkers has already reviewed the same evidence and come to that conclusion. This disciplinary trial must yield a similar result."

The police association released a statement late Monday saying "a careful review of the video of Eric Garner's arrest will sweep away five years' worth of rhetoric and misinformation."

"P.O. Pantaleo did not use a chokehold and did not obstruct Mr. Garner's breathing," the association's statement read. "We hope that the remainder of the trial continues in this vein, with a focus on the evidence in the courtroom, not the noise in the street. If it does, P.O. Pantaleo will be cleared of all charges."

 

'I did not sell nothing'

 

On July 17, 2014, Garner was allegedly selling "loosies," or single cigarettes -- something he had been arrested for in the past -- in the Tompkinsville neighborhood of Staten Island.

Camera phone footage shows Garner arguing with two officers, denying that he was selling cigarettes and repeatedly asking to whom he was accused of selling them. The 350-pound man tells police he's minding his business. He's upset, gesticulating as he accuses officers of previous harassment.

"I'm tired of it. This stops today," he tells them. "I did not sell nothing."

As the two officers reach for his arms to make an arrest, he pulls away, telling them, "Don't touch me please." From behind, Pantaleo puts his arm around Garner's neck after two more officers appear. Within nine seconds, they take Garner to the ground.

A fifth officer joins the effort as Pantaleo forces Garner's head into the sidewalk, eliciting repeated, muffled cries of "I can't breathe. I can't breathe."

After handcuffing him, police place him on a stretcher and carry him to a waiting ambulance. A bystander asks why none of the officers is performing CPR, and one of them responds, "Because he's breathing."

Garner, a father of six, later died.

Ramsey Orta, 27, filmed the video of the arrest that went viral, and he testified from an upstate New York prison where he is serving time on drug and weapons charges.

A friend of Garner's, he testified Garner had just broken up a fight when police arrived and told him he was under arrest. Though London said police found untaxed cigarettes from Virginia on Garner, Orta testified he did not see Garner sell any cigarettes and began recording about a minute after police arrived.

He said he saw Pantaleo try "to form a lock around (Garner's) neck from behind," and after Garner told officers he couldn't breathe, his eyes rolled back in his head, Orta said.

However, Orta told London that Pantaleo's arm was not around Garner's neck when he heard Garner say, "I can't breathe."

London contends that Pantaleo used a "seatbelt maneuver," a takedown move, and claims that if Garner was able to speak, his breathing wasn't obstructed.

 

Union has denounced medical examiner finding

 

After two weeks of demonstrations in the summer of 2014, the city's medical examiner's office seemed to confirm what protesters had been saying: that a chokehold killed Garner.

The cause of Garner's death was "compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police," said Julie Bolcer, a spokeswoman for the medical examiner's office. Police said he had suffered a heart attack on the way to the hospital.

The autopsy report was not released to the public, but in December, Lynch said the report, which has been provided to Pantaleo's legal team, showed the officer did not choke Garner, whose "health was so poor that it is highly likely that if he had decided to flee police instead of fighting them, the end result would have been the same."

Lynch concluded, "(Pantaleo) simply used leverage against a much larger, much stronger man to bring him to the ground in order to complete the arrest," in accordance with his training.

Pantaleo was placed on modified assignment and stripped of his badge and gun amid the investigation, the NYPD said. A second police officer was placed on desk duty.

Following Garner's death, the Civilian Complaint Review Board conducted a review of the department's use of chokeholds. It found that despite the NYPD banning chokeholds in the 1990s, officers were accused of putting someone in a chokehold, on average, every other day from 2009 through the first half of 2014.

Of those 1,048 complaints, the review board substantiated only 10, according to the report.

CNN's Mark Morales and Ray Sanchez contributed to this report.

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