Updated October 25, 2016 8:35 PM

Lawyer decries Justice Department move in Eric Garner case

By John Riley and Robert E. Kessler

New York-based federal prosecutors, FBI agents and police have been removed by the Justice Department from investigating the videotaped 2014 choking death of Eric Garner after the investigators concluded their key target, NYPD Officer Daniel Pantaleo, was not guilty of any federal crime, according to sources familiar with the situation.

Garner, 43, died more than two years ago on Staten Island when Pantaleo took him down by grabbing him around the neck during an arrest for selling loose cigarettes and maintaining the hold as Garner gasped, “I can’t breathe.” The district attorney and a grand jury in Staten Island did not bring state charges.

Those taken off the federal civil rights investigation, the sources said, believed the evidence showed that Pantaleo did not intend to violate Garner’s civil rights and was attempting to subdue Garner with methods approved by the NYPD when — either because his hands slipped or because of Garner’s resistance — he ended up applying what appeared to be an illegal chokehold banned by the NYPD.

Their viewpoint differed from lawyers in the Justice Department’s Washington-based civil rights division, working jointly on the case in New York. They felt civil rights charges could be brought, the sources said, because whatever Pantaleo’s initial intention, his use of a banned chokehold resulting in Garner’s death was enough to meet the legal standard.

Because of the difference of opinions, the sources said, high-ranking Justice Department officials thought the investigation couldn’t continue and come to a final conclusion with the involvement of the New York-based investigators and prosecutors, who had made it clear they felt the evidence showed it would be a mistake to attempt to further build a case against Pantaleo.

The group removed from the case included federal prosecutors under U.S. Attorney Robert Capers in Brooklyn and investigators from the NYPD and the New York office of the FBI. The case will continue to be investigated by the civil rights division lawyers from Washington, aided possibly by FBI agents from outside the metropolitan area, the sources said.

It is unclear how long a decision whether to prosecute will take. Spokeswomen for the Justice Department, the FBI’s New York office and Capers declined to comment, as did a spokesman for the NYPD.

A lawyer for Pantaleo, 31, who is on modified duty, denounced the unusual decision by U.S. Attorney General Loretta Lynch to shift the case away from local investigators and prosecutors as an inappropriate concession to political pressure. The shift was first reported Tuesday morning by The New York Times.

“Politics should never play a role when you’re determining the fate of someone’s life,” defense lawyer Stuart London said. “If the Department of Justice is ignoring seasoned prosecutors and FBI agents and going in the direction of someone who will agree to bring a case, that’s really worse than anything Pantaleo did.”

Jonathan Moore, a lawyer for members of Garner’s family, said their reaction to the move was mixed.

“The reaction is that we’re concerned that it’s taking so long to bring a civil rights indictment which is so obvious,” he said. “It’s good they’ve replaced recalcitrant FBI agents and prosecutors, but in the end it just means further delay.”

“Justice delayed is justice denied,” he said. “To live with the uncertainty and be constantly reminded that no one has been charged is a serious burden. It’s taken its toll on them.”

Federal charges are typically brought only in police excessive-force cases in which there is evidence of an intent to violate a person’s civil rights. Although Pantaleo is white and Garner was black, no evidence has surfaced so far in the Garner death of racial motivation.

London said prosecution of Pantaleo wasn’t merited because the Garner incident was a “simple street encounter” in which the cop’s intent was to make a lawful arrest. “It’s just not there, even though people politically want it to be,” he said.

“To reject the recommendation of a sitting U.S. Attorney and his staff is unprecedented,” he added. “There should be editorials denouncing FBI shopping and U.S. Attorney shopping. Our system of justice is supposed to be fair to everyone, including police officers.”

London also said that if Pantaleo ultimately is prosecuted, internal communications from the Justice Department and FBI indicating they did not believe the evidence supported a prosecution could potentially be valuable evidence for the defense.

Patrick J. Lynch, the head of the Patrolmen’s Benevolent Association, also denounced the changes.

“The decision to remove the local officials investigating this case is both highly unusual and deeply troubling,” he said. “It is time to end this fishing expedition and let Police Officer Pantaleo move forward.”

But Moore said the family hopes that Pantaleo and other officers involved in busting Garner will be charged, both for the original decision to arrest him on a charge that should at most have produced a summons and for holding him down as he repeatedly cried out for help while struggling for air.

“We’re hopeful that they’ll do the right thing,” he said. “Criminal civil rights charges are hard, but we think there’s enough here.”