This article is more than 1 year old

This article is more than 1 year old

Federal prosecutors will not charge the New York police officer implicated in the chokehold death of Eric Garner, an African American man killed almost five years ago.

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The decision announced by the US attorney Richard Donoghue on Tuesday was another blow to the Garner family, figureheads in the Black Lives Matter movement, who have campaigned to hold the NYPD accountable. US justice department sources said the final call on the non-indictment was made by the attorney general, William Barr.

Garner’s death, on 17 July 2014, became a focal point for national conversation on race and policing. Garner’s last words, “I can’t breathe”, were chanted by protesters across the US.

On Tuesday, Garner’s mother, Gwen Carr, said: “Five years ago my son said ‘I can’t breathe’ 11 times. Today we can’t breathe because they [the federal government] have let us down.”

The arrest was captured on cellphone video which showed Garner repeating the phrase 11 times as Officer Daniel Pantaleo pulled him to the ground in what has been described as a banned chokehold.

The incident was ruled a homicide by the investigating medical examiner but in December 2014 a grand jury in Staten Island declined to charge Pantaleo in a separate case investigated by local prosecutors.

Federal prosecutors have long been considering whether to bring civil rights charges against Pantaleo in a case that has spanned the Obama and Trump administrations and four attorneys general. The decision comes a day before the statute of limitations was due to expire.

Five years ago my son said ‘I can’t breathe’ 11 times. Today we can’t breathe because they have let us down Gwen Carr

Reports indicated that civil rights prosecutors recommended bringing a case against Pantaleo in 2018 but were blocked by senior justice department officials. Those reports came under Trump’s first attorney general, Jeff Sessions, amid a reversal of an Obama-era push to hold police accountable for excessive force and racially biased policing.

Donoghue, US attorney for the eastern district of New York, made the highly unusual move of announcing the decision and providing details of the underlying reasoning.

At a news conference in Brooklyn, he told reporters there was “insufficient evidence” to meet the high bar of a federal civil rights prosecution.

“Let me say as clearly and unequivocally as I can: Mr Garner’s death was a tragedy,” he said, acknowledging: “Admittedly, many may disagree with this decision, and this is their right.”

Donoghue described the near five-year wait for a decision as “regrettable and inappropriate”.

Play Video 2:08 'Today we can't breathe': Garner family react after prosecutors fail to charge NYPD officer – video

To charge Pantaleo under federal statute, prosecutors would have had to prove not only that he had used objectively unreasonable force but also that he had wilfully violated the law. Donoghue said that while his department had interviewed in excess of four dozen witnesses, the video of Garner’s death provided the central evidence.

He said prosecutors believed the video showed that Pantaleo attempted to perform two approved restraints on Garner before he placed Garner in “what appeared to be a chokehold” for seven seconds as the two fell to the floor.

Pivotally, Donogue said: “Officer Pantaleo was not engaged in a chokehold on Mr Garner when he said he can’t breathe.”

Justice department officials met members of the Garner family shortly before the announcement. Emerging from the meeting visibly angered, family members spoke briefly to the media.

Garner’s daughter Emerald Snipes paid tribute to another of his daughters, Erica Garner, a longtime campaigner who died in December 2017 after a heart attack.

“I stand here in the spirit of my sister,” she said, “who fought for justice until her dying day for my father, standing outside protesting … who called the Department of Justice, [and] they didn’t do their job.”

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New York’s mayor, Bill de Blasio, issued a statement shortly before the decision was formally announced. “Years ago, we put our faith in the federal government to act,” he said. “We won’t make that mistake again.”

The decision not to indict Pantaleo means the Garner family’s only recourse is now a secretive internal investigation into the death, which only began last year as the De Blasio administration waited for news from federal prosecutors.

The administrative trial concluded last month. A number of witnesses to the incident, the medical examiner and senior NYPD officers testified against Pantaleo.

The most severe punishment the officer faces is losing his job. Under New York privacy laws the decision, which will be made by the NYPD commissioner, James O’Neill, does not have to be announced.

Pantaleo has remained employed since Garner’s death, working desk duty and earning a salary of more than $100,000.

Speaking to the Guardian during Pantaleo’s administrative trial, Garner’s mother Gwen Carr expressed exasperation.

“There is no justice at all for Eric,” she said. “The harshest punishment is firing. They murdered him and if there was going to be justice, it would have been at the point when he said ‘I can’t breathe’.”