Five years on, after protests around the country and millions of dollars paid to the family, no one has been held liable for Garner’s death

Gwen Carr bowed her head and turned away from the screen as her son’s last words rang out across the trial room.

To her left, a few feet away, sat the NYPD officer Daniel Pantaleo, who almost five years ago had placed her son, Eric Garner, in an alleged chokehold that led to his death. He too stared at the ground as his actions on that humid day on Staten Island in 2014 were broadcast to the packed trial room.

Three rows behind her, sat Garner’s widow, Esaw Snipes, whose sobs could be heard almost as loudly as the videotaped evidence. As the video rolled and Garner cried “I can’t breathe” for the first of 11 times, Snipes, overcome, had to be escorted from the room.

The video had already been played countless times over the past two weeks at Pantaleo’s disciplinary hearing on the fourth floor of NYPD headquarters. It has been broadcast in all corners of the world, described as crystal-clear evidence of the sort of fatal police misconduct that disproportionately affects black men.

And yet, for all the years that have elapsed, the protests around the country, the millions of dollars paid to the Garner family in compensation, and the tragedy that has beset them in the aftermath, no one has been held liable for Eric Garner’s death.

Although a federal criminal investigation remains open, it seems likely this administrative hearing, set to conclude this week, could be the only time Pantaleo, who remains an NYPD officer earning in excess of $100,000 a year, will face charges. The highest penalty he faces is losing his job. A punishment that hinges on the ability of prosecutors from New York’s Criminal Complaints Review Board (CCRB) to prove the officer used a banned chokehold as he restrained Garner at the neck.

“There is no justice at all for Eric,” Carr told the Guardian one recent day as she sat outside police headquarters in the dappled shade.

“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’. ”

‘We have to deal with that they give us’

The trial represents one of the most significant episodes in recent NYPD history, but the process itself is shrouded in secrecy and inaccessibility that has angered the Garner family and civil rights groups around the city.

None of the evidence presented during the hearing will be placed in the public record. Transcripts of the proceedings will not see the light of day. The judge’s recommendation, forwarded to the NYPD commissioner, James O’Neill, will not be seen. O’Neill, who will make the final decision on Pantaleo’s fate, is under no obligation to announce what he decides.

For Gwen Carr, the daily routine of queueing outside the institution responsible for her son’s death is a mixture of sadness and frustration. It is coupled with the fact the trial room holds only enough space for a few dozen people, meaning many attendees and some media organizations (including the Guardian), have been turned away from viewing the proceedings inside on certain days.

NYPD lieutenant texted ‘not a big deal’ after being told of Eric Garner’s death Read more

“It’s very emotional to have to come here and then have such a small courtroom so everybody can’t get in,” Carr said. “I know it is what it is. We have to deal with that they give us, and I’m just thankful, at this point, that we did get a hearing and we did get a trial.”

The NYPD did not respond to specific questions about the process, but spokeswoman Detective Sophia Mason issued a statement saying: “NYPD administrative trials are held at One Police Plaza and are open to the public. Seating is limited. Rules governing administrative trials are the Rules of the City of New York, Title 38, Chapter 15.”

But those familiar with NYPD trials argue it was entirely within the power of the department to make this process more accessible.

“They had a lot of leeway,” said Christopher Dunn, the legal director of the New York Civil Liberties Union. “It’s quite common for courts to arrange for backup spaces so that people can watch from another room. The department could have and should have predicted that was what was going to happen here. It’s particularly important when there’s not a transcript available.”

Facebook Twitter Pinterest Patrick Lynch, president of the Patrolmen’s Benevolent Association, during a news conference outside of police headquarters on 21 May. Photograph: Spencer Platt/Getty Images

A fatal encounter

There is little doubt that what has been heard so far, before administrative judge Rosemarie Maldonado, has shed important light on the circumstances of Garner’s death, starting with the relative mundanity that led up to his fatal encounter with police, and ending with the perceived callous behavior of NYPD officers in the aftermath.

The 43 year-old was arrested under suspicion of selling untaxed cigarettes in July 2014. He had been known to police before, arrested at least twice for this misdemeanor offense that carries no prison time punishment.

The entire saga was initiated, the court heard, by a senior NYPD officer, Lieutenant Christopher Bannon. Bannon told the trial he “made an observation” as he drove to a meeting in Staten Island that a group of “approximately six males”, including Garner, were involved in suspicious activity. Bannon told the trial that although he “didn’t see the exchange of cigarettes or the exchange of currency”, he instructed an NYPD sergeant overseeing “quality-of-life” issues to “collar the cigarette guy [Garner]”.

Pantaleo and his partner Justin Damico were dispatched to surveil the group of men. Although they observed them from 328ft away, using only their own eyesight, Damico told the trial he was able to observe Garner selling cigarettes. And so the officers swooped in to arrest him.

Much of what happened next has been viewed millions of times on the video capturing Garner’s arrest and death. But Damico told the hearing that even as he uttered his infamous last words, he suspected Garner of “playing possum” to get out of the arrest.

The officer also revealed that he processed Garner’s arrest back at the precinct, even after knowing that Garner was dead. He initially charged him with an inflated felony that suggested Garner had sold 10,000 untaxed cigarettes even though he was found with just two packets of Newports in his pocket.

Upon learning of Garner’s death Lieutenant Bannon texted his sergeant: “Not a big deal. We were effecting a lawful arrest.”

Facebook Twitter Pinterest Despite the international significance of this case, past precedent suggests there is an extremely high bar to yield any sort of disciplinary action. Photograph: Spencer Platt/Getty Images

‘I think [Mayor Bill de Blasio] is afraid of the police’

The trial has also heard how Pantaleo’s restraint has long been viewed by the NYPD’s internal investigators as a breach of protocol. In 2015 investigators recommended Pantaleo face internal charges, which never manifested.

The revelations sparked instant criticism for New York City’s mayor, Bill de Blasio, who, days later, announced his run for the Democratic nomination for president in 2020. De Blasio has long maintained that any internal discipline for Pantaleo would have to wait until federal investigators had concluded their own investigation.

It is an assertion that looks increasingly preposterous now, according to onlookers.

“The police department could have prosecuted this case in August of 2014, one month after Eric Garner was killed,” said Dunn of the NYCLU. “It was reasonable to wait a little bit of time to see if there would be a criminal prosecution, but after a year or two the city should have moved forward, there is absolutely no excuse for them having waited five years.”

De Blasio too, has stalled in his promises to push for revisions to restrictive state laws, which means Pantatelo’s disciplinary records cannot be entered as evidence during the trial.

“He has said a lot publicly about how this should change, but from the people we’ve spoken to in Albany [the state capital], he’s made no such efforts to actually change the law,” said Cynthia Conti-Cook a staff attorney for the Legal Aid Society. “I think he’s afraid of the police.”

Hearing adjourned

Pantaleo’s administrative hearing has been adjourned since 21 May, after his defense lawyers told the trial room they were unable to bring their next witness, a medical examiner in St Louis, until 5 June.

Those familiar with proceedings have suggested there could be just two days left of the trial, unless Pantaleo himself testifies.

But the continued delays drew the ire of Garner’s family who see it as yet another example of Pantaleo postponing any form of consequence for his actions.

Despite the international significance of this case, past precedent suggests there is an extremely high bar to yield any sort of disciplinary action. According to the CCRB, just 182 complaints made to the board have resulted in a trial that has led to disciplinary action since April 2013. None of these resulted in an officer losing their job. In that timespan the CCRB received 1,135 complaints related to alleged use of chokeholds by an NYPD officer. Only 10 resulted in any disciplinary action.

As the trial wrapped for the day back in May, Pantaleo could be seen, among a mass of broad-shouldered police union officials and defence attorneys, flicking a brief smile to his attorney, the veteran police defense lawyer Stuart London.

Those in the public gallery were led out of the trial room, row by row, and made to stand single file by a wall next to the fourth-floor elevator, watched by a phalanx of uniformed NYPD officers. They were then escorted from the building.

“It all takes a toll,” Carr said. “It keeps reminding me of everything I’ve gone through, of what I’m going through and what I will still have to go through.”