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Wednesday September 18th, 2019 1:29AM

Officer in 'I can't breathe' death is scapegoat, lawyer says

By The Associated Press
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NEW YORK (AP) — The New York City police department on Monday began a long-awaited public examination of the sidewalk confrontation five summers ago that left an unarmed black man dead and his pleas of "I can't breathe" resonating as a rallying cry against police brutality.

The start of Officer Daniel Pantaleo's long-delayed disciplinary trial sparked protests and evoked emotional reactions from Eric Garner's family as a bystander's video of the confrontation was played in the hearing room.

A police watchdog agency says the video shows Pantaleo ignoring his training and using brutal, lethal force that led to Garner going into cardiac arrest. Pantaleo's lawyer and the powerful police union say he used a technique that is taught by the department and that he's being made to be a scapegoat in a politically charged atmosphere.

"His last words, 'I can't breathe,' tell you who caused his death," Civilian Complaint Review Board lawyer Jonathan Fogel said in an opening statement.

Pantaleo's lawyer, Stuart London, countered that the video shows the officer using an approved technique known as a "seat-belt hold" to restrain Garner. He said Pantaleo is seen pulling Garner to the ground because he feared he and the 350-pound Garner would crash through a plate-glass window as they struggled against a Staten Island storefront.

Pantaleo, 33, has been on desk duty since Garner's death. He could face penalties ranging from the loss of vacation days to firing if he is found to have violated department rules. He denies wrongdoing and does not face criminal charges.

A grand jury that examined Garner's death declined to bring criminal charges against any of the officers involved. A U.S. Justice Department investigation into possible civil rights charges against Pantaleo stalled.

The police department's disciplinary process plays out like a trial before an administrative judge, the NYPD's Deputy Commissioner for Trials, but the purpose is to determine whether Pantaleo violated department rules. A final decision on what punishment, if any, he faces would be determined by Police Commissioner James O'Neill.

Ramsey Orta, a friend of Garner's who shot the video of the confrontation, was the first witness to testify, appearing via video from a state prison where he's serving a four-year sentence for gun and drug possession.

Orta, 27, conceded during cross-examination that Pantaleo's arm wasn't around Garner's neck when he uttered, "I can't breathe."

"We know he wasn't choked out because he is speaking," London said, calling it a common misconception that the phrase was uttered when the officer's hands or arms were around Garner's neck. Garner made the plea when officers were trying to handcuff him, London said.

Eric Garner's sister, Ellisha Garner, left the courtroom wailing as video was played of the arrest that led to his death. Garner's mother, Gwen Carr, also left, accompanied by activist Rev. Al Sharpton.

Back in the courtroom later, Ellisha looked away and pressed her fingers into her ears to block the sound as the video was played again.

Pantaleo, wearing a gray suit, sat quietly throughout the proceeding.

"There are a lot of mixed emotions," Ellisha Garner said afterward.

About 100 people marched from City Hall to police headquarters in lower Manhattan as the trial began. Another protest briefly stopped traffic during the morning rush hour on Manhattan's FDR Drive. A smaller group chanting "Fire Pantaleo" tried to drown out Pat Lynch, the president of the Police Benevolent Association, as he spoke to reporters outside.

Pantaleo's administrative trial is open to the public, but space was tight. Reporters from major news outlets were left outside, along with some activists and others looking to get a glimpse of the proceedings. The police department won't allow video, photos or even a sketch artist.

Two police officials who were involved in an internal affairs investigation of Garner's death testified that their investigation found Pantaleo likely violated department rules and that a request for disciplinary charges was made in January 2015.

The police department put the disciplinary matter on hold while federal law enforcement investigated a possible civil rights case against Pantaleo. The department decided to move forward with the discipline case last year. The Justice Department has until July to file charges.

Orta, in his testimony, backed off a claim he made to internal affairs investigators two days after Garner's death that Pantaleo had his knee on Garner's back for five to 10 seconds. The video showed it was not on his back.

Pantaleo's lawyer, Stuart London, tried poking more holes in Orta's credibility by pointing to his criminal record and what Orta said was $10,000 to $15,000 he's earned in royalties on the video.

Orta helped London by saying he didn't actually commit some of the crimes he's locked up for. London asked if that meant he lied to the judge when he pleaded guilty.

"Does the oath mean anything to you?" London asked.

"No," Orta said.

Later, under questioning by review board lawyer Suzanne O'Hare, Orta said he was telling the truth about what happened to Garner.

"It's fair to say your cell phone video is not lying under oath," O'Hare added.

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Follow Michael Sisak at twitter.com/mikesisak

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