Charges Sought in Garner’s Death, but Justice Officials Have Doubts

WASHINGTON — Federal civil rights prosecutors have recommended charges against a New York police officer in the 2014 death of Eric Garner, three current and former officials said, but top Justice Department officials have expressed strong reservations about whether to move forward with a case they say may not be winnable.

Garner died on a Staten Island street after the police officer, Daniel Pantaleo, used a chokehold to subdue him. Officers had confronted Garner, who was unarmed, over accusations of selling untaxed cigarettes. His final gasps of “I can’t breathe,” captured on a cellphone video, became a rallying cry for protesters around the country.

In recent weeks, career prosecutors recommended civil rights charges against Pantaleo and sought approval from the deputy attorney general, Rod J. Rosenstein, to seek an indictment, according to the officials. Rosenstein has convened several meetings that revealed divisions within the Justice Department over whether to move forward. No decision has been made, but one law enforcement official said that, based on the discussions so far, it appeared unlikely that Rosenstein would approve charges.

Attorney General Jeff Sessions has also been briefed on the case and could weigh in after Rosenstein makes his own recommendation, officials said.

The death of Garner, along with the shooting death a month later of Michael Brown in Ferguson, Missouri, and several other high-profile police encounters ignited the most significant debate over the use of force by police officers since the beating of Rodney King in Los Angeles in 1991.

The federal inquiry into Garner’s death dragged on for years and has divided the Justice Department investigative team since the Obama administration. Prosecutors in New York argued against bringing charges, while civil rights prosecutors in Washington said it represented a clear case of excessive force. In the final months of the administration, the attorney general at the time, Loretta E. Lynch, sided with her civil rights chief, Vanita Gupta, and authorized prosecutors to build a case for indictment.

Garner’s mother, Gwen Carr, said Friday that Justice Department officials had promised to tell her when a decision was made. “I haven’t heard anything,” she said. “I’m hopeful. But we’ll never know until there’s a decision.”

The fate of the investigation has been uncertain under the Trump administration. Sessions has rolled back efforts to use his civil rights team to investigate unconstitutional police practices and force changes on entire departments. He said that approach, favored by the Obama administration, unfairly tarnished good police officers and contributed to racial unrest.

But Sessions has also promised to hold officers accountable for abuses. “Just as I am committed to defending law enforcement who use deadly force while lawfully engaged in their work, I will also hold any officer responsible breaking the law,” he told the National Organization of Black Law Enforcement Executives last year.

Trump’s pick to lead the civil rights unit, Eric S. Dreiband, has been awaiting a vote in the Senate for months. John M. Gore, a deputy chief and a Trump appointee, is temporarily overseeing the division. Career prosecutors specializing in police abuse have been running the Garner investigation.

Devin O’Malley, a Justice Department spokesman, had no comment.

“It’s been a long road for Officer Pantaleo and a very frustrating one,” said Stuart London, Pantaleo’s lawyer. “He has always been confident that he never violated Eric Garner’s civil rights. He’s also always denied he used a chokehold.”

“Any time there is a loss of life, it’s a tragedy,” he said, adding, “It’s been a long road for the Garner family, too.”

It is rare for civil rights prosecutors to recommend criminal charges against officers in excessive force cases. Declining to indict would be certain to ignite fresh criticism that the Justice Department under Sessions is indifferent to allegations of police abuse.

But law enforcement officials, including some on both sides of this case, acknowledge serious challenges with the case. When he was attorney general, Eric H. Holder Jr. said the evidence clearly justified indictment, but he acknowledged prosecutors might lose at trial.

Lynch was less certain and deliberated for months before allowing it to move forward. Even some of the civil rights prosecutors who argued in favor of charging Pantaleo acknowledged that the case had weaknesses. For instance, some former officials said the initial FBI team believed early on that Pantaleo had done nothing wrong and skewed their investigation accordingly.

A state grand jury previously declined to bring charges in the case. Police abuse cases are among the most difficult courtroom challenges that prosecutors face. Juries frequently give great deference to police officers for actions carried out under pressure. That is important because, before bringing charges, federal prosecutors must consider whether they are likely to win at trial — a rule that some civil rights advocates say gives officers an advantage before charges are even filed.

Pantaleo has said he did not mean to put Garner in a chokehold. The officer said he tried to use a “seat belt maneuver,” which involved hooking an arm underneath one of Garner’s arms while wrapping the other around his torso. During the struggle, Pantaleo said he feared he would be pushed through a storefront window behind him.

Federal prosecutors in Brooklyn were convinced by that argument, but the civil rights specialists were not. They said the video, captured by a bystander, showed clear evidence of willful wrongdoing. In particular, they have singled out the moments after Pantaleo was clear of the storefront window and appeared to keep putting pressure on Garner’s neck. The spate of high-profile deaths at the hands of police officers spurred angry, sometimes violent protests around the country, inspiring changes in policing strategies in many cities and a federal push to collect better data on the use of force.

Pantaleo has been on desk duty since shortly after Garner’s death. While the police department’s internal inquiry of him has been completed, the results are unknown and police officials are waiting to mete out any potential discipline — up to and including termination — until the federal government resolves its own case.