Attorney General Letitia James speaks during a Law Day ceremony at the Court of Appeals in Albany on May 1st, 2019. Chief Justice Janet DiFiore is on the left and Chief Administrative Judge Lawrence Marks is on the right. Photo: David Handschuh/NYLJ

After federal prosecutors declined Tuesday to bring criminal charges in the death of Eric Garner, whose last words—“I can't breathe”—inspired a rallying cry among the Black Lives Matter movement, some attorneys and public officials denounced the decision and called for more action.

U.S. Attorney Richard Donoghue said during a press briefing Tuesday morning that the evidence in the case wasn't enough to meet the burden they would have to show to convict NYPD Officer Daniel Pantaleo on federal charges.

To do so, they would have had to prove that Pantaleo both used unreasonable force when he placed Garner in a chokehold, and intended to do so. The latter part was especially difficult, Donoghue said.

“Even if we could prove that Officer Pantaleo's hold of Mr. Garner constituted unreasonable force, we would still have to prove beyond a reasonable doubt that Officer Pantaleo acted willfully,” Donoghue said.

Donoghue also said at least two medical experts told them the cardiac arrest that Garner suffered during the encounter may not have been the result of the chokehold. It could have happened in response to any part of the physical interaction, he said.

“This is significant because it casts doubt upon whether the chokehold itself caused Mr. Garner's death,” Donoghue said.

He made the announcement one day before the window expires to bring federal civil rights charges in the case. Wednesday will mark five years since Garner's death, which is when the statute of limitations runs out.

Garner died after an interaction with Pantaleo and other officers led to him eventually being put in a chokehold and falling to the ground. Officers were attempting to arrest him for selling loose, or untaxed, cigarettes, in a neighborhood on Staten Island. Garner had initially resisted the arrest, which is when the officers became physical.

A video of the encounter quickly went viral after Garner's death, during which he can be heard telling officers repeatedly that he couldn't breath. Donoghue said Garner only said as much after Pantaleo released his grip.

Pantaleo, meanwhile, has been on desk duty at the NYPD for the last several years since Garner's death. A grand jury on Staten Island declined to indict him on charges in 2014, after which federal prosecutors said they would conduct their own probe.

The NYPD finished an internal, administrative trial on Pantaleo's actions last month. A verdict has yet to be announced. NYPD Commissioner James O'Neill is expected make the final decision on whether Pantaleo is fired from the agency or kept on with some other form of punishment, if any at all.

New York Attorney General Letitia James, whose office now handles police-involved deaths of unarmed civilians at the state level, criticized federal prosecutors for not bringing charges against Pantaleo. The state Attorney General's Office didn't have jurisdiction over police-involved deaths until an executive order from Gov. Andrew Cuomo in 2015.

“The entire world saw the same devastating video five years ago, and our eyes did not lie. Today's inaction reflects a DOJ that has turned its back on its fundamental mission—to seek and serve justice,” James said. “In times like these, we must remember that the arc of the moral universe is long, but it bends toward justice.”

James said she'll continue to advocate for criminal justice reform in New York. She was elected to the state's highest law enforcement post last year.

She was previously the New York City Public Advocate. During her tenure in the position, she had called on the NYPD to wear body cameras, which were eventually installed. She was also an early proponent for Cuomo's executive order giving more power to the state Attorney General's Office to investigate police-involved deaths.

When she was running to be the state's top lawyer last year, James said she would support broadening the executive order by allowing her office to investigate other crimes where police are involved, like a hate crime or sexual assault.

The Legislature failed to codify and expand the executive order this year, despite advocacy around the measure from criminal justice groups and Cuomo himself. Cuomo said last month he would consider changing the executive order but didn't provide details on what that would mean.

The New York Civil Liberties Union went further than James on Tuesday, calling for the NYPD to remove Pantaleo from the force. NYCLU Executive Director Donna Lieberman said the agency should set an example where federal prosecutors, in their view, had fallen short.

“Garner's death sparked a national conversation about police brutality, yet for five years, the DOJ dragged its feet, confirming that police officers who kill unarmed Black men rarely face any measure of accountability,” Lieberman said. “We all know that Pantaleo used prohibited and lethal force against an unarmed and non-violent man, and the duty now lies with the NYPD to demonstrate that officers are not above the law—by ensuring that Pantaleo will never wear an NYPD uniform again.”

Deputy Commissioner of Public Information Philip Walzak of the NYPD said in a statement Tuesday afternoon that they wouldn't be taking any immediate action in regards to Pantaleo. Walzak said they're waiting on the result of the internal trial.

“Commissioner O'Neill is now awaiting the report and recommendation from the Deputy Commissioner of Trials, after which he will make the final determination on the matter,” Walzak said. “In order to ensure the integrity of the process, the NYPD will not comment further at this time.”

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