Officer Justin Damico said that after riding in an ambulance with the dying Garner, he filled out arrest papers listing a felony tax charge that would have required prosecutors to prove Garner, a small-time street hustler, had sold 10,000 untaxed cigarettes.
"You initiated this on your own, writing up the arrest of a dead man?" asked Suzanne O'Hare, a lawyer for the police watchdog agency bringing the disciplinary case against Pantaleo.
Damico acknowledged that the felony charge was incorrect because Garner actually had with him five packs of Newports that contained a total of less than 100 cigarettes. The cigarettes were marked for sale in Virginia, a sign they were being resold illegally in New York.
Garner was ultimately posthumously charged with two misdemeanors, which alleged he resisted arrest and sold untaxed cigarettes. The case was not prosecuted because Garner is dead.
Damico's testimony was often revealing, giving the never-before-heard perspective of the one officer who had been with Pantaleo throughout the confrontation. Pantaleo, 33, denies wrongdoing. He has been on desk duty since Garner's death.
Speaking for more than an hour in a nearly full hearing room at police headquarters, Damico recounted how he'd given an agitated Garner a warning two weeks earlier, instead of arresting him, for selling loose cigarettes because he felt that approach was "the right thing to do."
Once Pantaleo grabbed Garner and pulled him to the ground, Damico said he just assumed that Garner was faking unresponsiveness — "playing possum" — to get out of being arrested. An officer who arrived as Garner was being restrained testified that he had the same thought.
Garner's dying pleas of "I can't breathe," captured on a bystander's cellphone video, became a rallying cry against police brutality targeting black people.
Damico testified he saw Pantaleo's arm around Garner's neck as the two men struggled — but he didn't say if he thought the move was a chokehold.