Eric Garner, New York police case in limbo with Lynch leaving Justice Department

Attorney General Loretta Lynch will step down without the Justice Department’s having charged or cleared police officers in the death of Eric Garner, whose videotaped takedown by New York City officers sparked national outrage, people familiar with the matter said.

Lynch authorized the department to move forward with the case but made that decision so late in her tenure that lawyers and investigators could not take all the necessary steps to procure an indictment. That would entail assembling evidence in the case and presenting it to a grand jury in a bid to persuade the panel to return criminal charges.

The controversial case will pass to the administration of President-elect Donald Trump, with the ultimate decision likely to be made by Jeff Sessions, Trump’s nominee to be attorney general. Sessions has said publicly that he is wary of police being judged unfairly, and he is viewed as less likely to seek charges against officers involved in Garner’s death.

A Justice Department spokesman declined to comment. The people familiar with the matter spoke on the condition of anonymity to discuss an ongoing criminal case.

Garner died on July 17, 2014, after he was taken to the ground by New York City police officers, with one officer applying what appeared to be a chokehold. The encounter, which was caught on video, ignited protests across the country, and Garner’s gasping declaration of “I can’t breathe” became a rallying cry for those angered by the perceived harsh treatment of African-Americans by police.

Exactly why the nearly 2 1/2-year-old case could not be resolved before Lynch’s departure from office remains unclear. The matter was initially left to state authorities – with the Justice Department watching behind them – but in late 2014, a Staten Island grand jury declined to bring charges.

Early in 2016, federal authorities began presenting the case to a grand jury, but the matter soon languished, in part because of a dispute inside the Justice Department.

It is possible that the grand jury has now expired, and the case would have to be presented to a new panel.

At least some prosecutors in the U.S. attorney’s office for the Eastern District of New York felt that civil rights charges were not appropriate in the case, while lawyers in the Civil Rights Division at the Justice Department in Washington thought that such charges were warranted, according to people familiar with the case.

The Justice Department then removed New York FBI agents from the team of investigators, although others pressed forward, people familiar with the matter said.

Lynch made police reform a centerpiece of her tenure, and in the waning days of her administration, she seemed to push to cement her legacy. On Thursday, she traveled to Baltimore to announce a court-enforceable agreement that mandates broad changes at the police department in that city, where the 2015 death of another black man, Freddie Gray, sparked riots. On Friday, she flew to Chicago, making public a scathing report about that police department’s pattern or practice of using excessive force on suspects and revealing that city leaders had agreed in principle to a set of improvements.

The lack of a resolution in the Garner case, though, is glaring, particularly given the amount of time that Lynch had to resolve it.

In the incident in which Garner died, he initially drew the attention of police officers for allegedly selling loose cigarettes on the street. New York City reached a civil settlement with his family last year for $5.9 million. Although the encounter between Garner and police was caught on video, convicting officers on federal charges in the case would not necessarily be easy. Substantiating civil rights charges requires prosecutors to meet a heavy burden of proof and present evidence that might indicate an officer’s intent at the time of the incident.

In the high-profile case of Darren Wilson, the white police officer who fatally shot 18-year-old Michael Brown in Ferguson, Missouri, on Aug. 9, 2014, the Justice Department found there was “no evidence upon which prosecutors can rely to disprove Wilson’s stated subjective belief that he feared for his safety.” Prosecutors came to a similar conclusion in the fatal police shooting of Jamar Clark in Minneapolis on Nov. 15, 2015, describing in a lengthy news release the exacting standard they would have had to meet.

“It is not enough to show that the officer made a mistake, acted negligently, acted by accident or mistake or even exercised bad judgment,” the Justice Department wrote in the release. “Although Clark’s death is undeniably tragic, the evidence is insufficient to meet these substantial evidentiary requirements.”

Sessions is a former U.S. attorney in Alabama who at his confirmation hearing this week insisted that he will follow the law and said that his political views will have no impact on his decision-making. But he also presented himself as a friend to local police and as a person wary of actions that broadly paint police negatively.

“In the last several years, law enforcement as a whole has been unfairly maligned and blamed for the unacceptable actions of a few of their bad actors,” he said. “They believe the political leadership of this country abandoned them.”

Lawyer Jonathan Moore, who represents Garner’s family, said in an interview Friday that on Jan. 6 he sent an email to Vanita Gupta, the head of the Civil Rights Division at the Justice Department, asking for a status update in the Garner case and that she had not responded. He said his last conversation with officials at Justice was in early December; he said they told him they were still investigating.

“Our position is that whether it’s now, next week, two weeks or four months from now, that there should be an indictment,” he said. “When that happens, obviously the sooner the better.”

Stuart London, who is representing the officer who in the video seems to have Garner in a chokehold, said he, too, had not heard anything from the Justice Department.

“I’ve always said from the beginning that the standard needed to indict my client under a federal statute is even greater than under a state statute, and he was exonerated by a state grand jury,” London said.

London said his client, Daniel Pantaleo, remains a police officer on desk duty.