Officer in ‘i Can’t Breathe’ Chokehold Was ‘Untruthful,’ Judge Says

By Ashley Southall, New York Times

Mr. Garner, in an undated family photo, with his children. Credit via Associated Press

Mr. Garner, in an undated family photo, with his children. Credit via Associated Press

When internal affairs investigators asked Officer Daniel Pantaleo in 2014 to define a chokehold, he described a scenario where “you use your forearm, grasped with the other hand, and you pull back with your forearm onto the windpipe preventing him from breathing.”

The investigators with the New York Police Department then had him watch video that showed him standing behind Eric Garner during a botched arrest five months earlier on Staten Island. In the video, Officer Pantaleo had his left forearm wrapped around Mr. Garner’s neck, hands clasped. Still, he denied having used the prohibited maneuver.

“No, I did not,” Officer Pantaleo said.

An administrative judge, in a 46-page opinion obtained by The New York Times, found this explanation “implausible and self-serving.”

The judge, Rosemarie Maldonado, who has recommended that Officer Pantaleo be fired, concluded that he had been “untruthful” during the interview, according to the opinion that grew out of a departmental trial that ended in June.

Judge Maldonado, a deputy commissioner with the Police Department, also found that officers who testified in Officer Pantaleo’s defense were “unhelpful or unreliable.”

A final decision about Officer Pantaleo’s fate rests with the police commissioner, and will come five years after the death of Mr. Garner — who uttered “I can’t breathe” 11 times — first galvanized the Black Lives Matter movement.

Judge Maldonado said the video of the July 17, 2014, encounter and an autopsy that found fresh hemorrhaging in Mr. Garner’s neck muscles provided “overwhelming” evidence that Officer Pantaleo had used a chokehold in spite of being trained not to.

However troubling, she said she was not persuaded that it was his intent to choke Mr. Garner, and she acquitted the officer of strangulation.

Officer Pantaleo’s “use of a chokehold,” she wrote, “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.”

Officer Pantaleo did not testify in his own defense during the departmental trial.

The judge’s finding that Officer Pantaleo was “untruthful” underscores a broader problem with the credibility of police accounts about interactions with civilians, particularly in high-profile cases.

The police commissioner, James P. O’Neill, is expected to decide by the end of the month whether to dismiss Officer Pantaleo, as Judge Maldonado recommended, or to take less drastic measures. The controversy has become central to Bill de Blasio’s tenure as mayor, and his campaign for the Democratic presidential nomination.

Commissioner O’Neill is also expected to consider responses to the ruling from Officer Pantaleo’s defense lawyer, Stuart London, and the Civilian Complaint Review Board, the city agency that prosecuted the case under an agreement with the Police Department.

Officer Pantaleo, 34, has been suspended since Aug. 2. He has spent the last five years on desk duty on Staten Island while the criminal and disciplinary processes played out.

Mr. London did not answer phone calls and text messages seeking comment on Sunday. Albert W. O’Leary, a spokesman for the Police Benevolent Association, declined to comment.

Five days before Officer Pantaleo’s 2014 interview with internal affairs, a grand jury on Staten Island declined to bring criminal charges against him. And on the eve of the fifth anniversary of Mr. Garner’s death, the United States attorney general, William P. Barr, ordered the federal civil rights investigation to be closed without charges.

Officer Pantaleo was not the only officer whose testimony during the departmental trial Judge Maldonado deemed questionable.

Officers Mark Ramos and Craig Furlani responded to the scene in the Tompkinsville neighborhood of Staten Island, but testified that they did not note the positioning of Officer Pantaleo’s arms, Ms. Maldonado said. Officer William Meems, who arrived after Mr. Garner was on the ground, said at the trial that he did not “‘focus on any one spot.’” And Officer Pantaleo’s partner, Justin Damico, who can be seen in the video stretching his hands between Mr. Garner’s head and Officer Pantaleo’s face, claimed he had “no focus” on what his partner was doing.

“The more central the factual inquiry was, the more vague recollections became,” Judge Maldonado said. She did not say whether she believed the officers were truthful, or if they should be disciplined.

Instead, she focused on a nine-second portion of a video filmed by Ramsey Orta, Mr. Garner’s friend, that she said was pivotal to proving not only that Officer Pantaleo had violated police rules, but that his conduct was a crime.

Two and a half minutes into the video, Officer Pantaleo and Mr. Garner fell away from a plate-glass window to the ground. Officer Pantaleo’s left arm was around Mr. Garner’s neck while they were both on the Bay Street sidewalk.

Officers Ramos and Furlani had arrived, giving Officer Pantaleo other options to gain compliance and adjust his grip, Judge Maldonado said. But instead of letting go, he clasped his hands.

Two seconds later, she said, Mr. Garner gave what appeared to be the first signal of distress: He opened his right hand with his palm out and made a guttural sound. His suffering was confirmed, she said, when Mr. Garner, on his side with his left arm behind his back and his right hand still open and out, coughed and grimaced as Officer Pantaleo maintained his grip.

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