“I can’t breathe” became the rallying cry after the death of Eric Garner resulting from his July 17, 2014 encounter with NYPD officers, including Daniel Pantaleo, echoing in marches and protests by Black Lives Matter activists and others across the country.
Mr. Garner, in a cellphone video seen untold number of times since then, uttered the phrase 11 times as five officers attempted to handcuff him as he lay on the hot Tompkinsville concrete that summer afternoon, under arrest for selling untaxed cigarettes.
Text Bites Lieutenant
But another refrain now looms over the episode: “Not a big deal.”
Lieut. Christopher Bannon, a supervising officer at the 120th Precinct in Staten Island, texted as much to Sergeant Dhanan Saminath shortly after the Sergeant messaged his supervisor that Mr. Garner “was unresponsive” following the altercation.
The Lieutenant’s text was entered into evidence on Thursday, during day four of the disciplinary trial of Officer Pantaleo, who is accused of using a department-prohibited chokehold when trying to subdue Mr. Garner, who resisted being taken into custody.
Nearly five years after the fatal encounter between Mr. Garner, a 43-year-old married father of six, regarded by police as a petty criminal but known to residents as an affable gentle giant, Mr. Pantaleo’s departmental trial began May 13.
'A Legal Arrest'
Although Lieutenant Bannon testified that he used the phrase to ease concerns about the outcome of the confrontation—“We were effecting a legal arrest,” his text to Sergeant Saminath continued—after it became clear that Mr. Garner was unlikely to survive, and that he did not "at all" intend it as a cold statement, it was derisively repeated later in the proceedings from the front of the gallery, where Mr. Garner’s mother and other family members have been seated since the start of the trial. It also echoed at the end of the day’s proceedings, just outside Police Headquarters, before Ms. Carr, as she has every day since the trial’s start, addressed the media.
“It’s disturbing, it’s so disheartening for me to sit in the courtroom and to listen to these officers, the things they say and they say it without any remorse,” she said.
Officer Pantaleo has been on desk duty in Staten Island since shortly after the deadly confrontation. He is being tried on administrative charges, and prosecuted by two lawyers from the Civilian Complaint Review Board’s Administrative Prosecution Unit.
The two, Jonathan Fogel and Suzanne O’Hare, must show that Mr. Panteleo committed either third-degree assault, by recklessly causing injury, or strangulation, defined as criminal obstruction of breathing causing serious injury, and not just that he violated the NYPD’s Patrol Guide by using a chokehold. But they need to do so according to civil trial rules, that is by convincing Deputy Commissioner of Trials Rosemarie Maldonado through a preponderance of evidence rather than by proving guilt beyond a reasonable doubt.
‘A Lethal Cascade’
On the trial’s third day, May 15, Dr. Floriana Persechino, the forensic pathologist with the city’s Medical Examiner’s Office who performed a lengthy autopsy of Mr. Garner’s body, testified that the chokehold was “a significant initial aspect” in a “lethal cascade” of events that led to Mr. Garner’s death. She classified the manner of death as a homicide in her autopsy report, which the president of the Police Benevolent Association, Patrick J. Lynch, would later that day call “a thoroughly political document.”
During the trial’s second day, the head of training at the Police Academy, Inspector Richard Dee, also said the officer’s maneuver in his takedown of Mr. Garner was a department-prohibited chokehold.
“I believe what we see meets the definition, yes,” Inspector Dee said.
That Mr. Pantaleo used a chokehold is being fiercely contested by the officer’s lawyers, as well as by Mr. Lynch, who contend he used a department-sanctioned “seatbelt” maneuver in trying to subdue the 6-foot, 3-inch Mr. Garner, who weighed nearly 400 pounds.
Stuart London, Mr. Pantaleo’s chief lawyer, has also maintained at several points during the trial that Mr. Garner’s poor health—he had an enlarged heart and suffered from hypertension and obesity—was the single-most determining factor in his death.
‘A Right to Live, Breathe’
“If he had acquiesced to officers’ commands, none of your cascade would have happened,” he said during his cross-examination of Dr. Persechino.
That sentiment, too, was seized on by Gwen Carr. “We have a right to live and breathe,” irrespective of one’s health, she said in Police Plaza after Dr. Persechino’s testimony.
The video of Mr. Garner’s clash with police, now an official trial exhibit, and that of two others, one from a surveillance camera showing Mr. Garner crossing a street minutes before the confrontation, has been cited as evidence numerous times since the proceedings began to either demonstrate or refute what one side or the other claims as fact, such that it’s become a sort of syncopated soundtrack to the proceedings.
Although Mr. London—as have Mr. Fogel and Ms. O’Hare for their purposes—has dissected the video in his attempt to prove that Mr. Pantaleo did not mean to harm Mr. Garner but only to subdue him, he has also insisted it is impossible to ascertain his client’s “intent” from what’s being shown.
“Life does not happen frame by frame,” he said.
Scrutiny in that trial room resumes on May 21, with the two sides trying to outline what each claims as truth.
Deputy Commissioner Maldonado will be the final arbiter of proceedings scheduled to conclude next week following the testimony of at least five more witnesses, possibly including Officer Pantaleo, for the defense.
But although the trial is open to the public, its outcome could be far less so.
Ms. Maldonado is precluded from publicly releasing her verdict, which she will render to Commissioner James P. O’Neill, who will then make a final conclusion on either guilt or innocence and then, if need be, administer punishment.
A section of the state’s civil-rights law, however, could prevent Mr. O’Neill from publicly releasing his determinations.
But in answer to a question from Mr. London, Officer Mark Ramos, one of the four officers from the 120th Precinct, in addition to Mr. Pantaleo, who struggled with Mr. Garner, said he had testified before a Federal grand jury. His testimony, and, presumably, that of others, could yet lead to civil-rights charges against Mr. Pantaleo.