New York City police car. New York City police car. Photo: flickr

The New York City Police Department said Monday it intends to move forward with its own internal disciplinary proceedings related to the 2014 police-involved death of Eric Garner unless the U.S. Department of Justice moves ahead with charges of its own by Aug. 31.

But a DOJ spokesman said Monday afternoon that Main Justice months ago—back in the spring—had given the green light to a disciplinary proceeding stemming from the Garner matter.

A letter from Chief Legal Operations Officer Lawrence Byrnes to the head of Main Justice’s civil rights division, Principal Deputy Chief Paige Fitzgerald, outlined the NYPD’s plan just ahead of the four-year anniversary of Garner’s death at the hands of police officers near his Staten Island home. The incident, caught on camera, became a flash point for public concerns about the use of excessive force by the police, especially in communities of color.

A Staten Island grand jury ultimately declined to bring charges against any of the officers involved, including Officer Daniel Pantaleo, who could be seen in the video applying a hold to Garner around his neck that allows the much smaller officer to bring Garner to the ground. Numerous officers are seen after applying pressure to Garner, who can be heard saying repeatedly that he cannot breathe. He’s seen unresponsive shortly thereafter, and was pronounced dead at a nearby hospital within an hour.

Widespread protests followed the grand jury’s decision, helping to raise the profile of the Black Lives Matter social movement.

In December 2014, the DOJ announced it was opening an investigation into police officers’ actions related to Garner’s death. The investigation would result in a divide between local prosecutors in the U.S. Attorney’s Office for the Eastern District of New York and Main Justice’s civil rights division, with federal investigators in Brooklyn disinclined to bring charges and those in Washington, D.C., believing there was evidence to proceed.

As Byrnes’ letter indicates, the police department has not moved forward with disciplinary proceedings against some of the officers involved in Garner’s death “so as not to have an adverse impact” on ongoing federal investigations.

“You and others at the U.S. DOJ have kept us apprised of the procedural status of your investigation at various stages over the past four years and we have continued to forebear from proceeding with our own disciplinary proceedings,” Byrnes wrote. “However, based on our most recent conversations, it has become clear that a definite date by which time a final decision by the U.S. DOJ will be rendered in this matter cannot be predicted.”

As recently as April reports indicated some lawyers in the D.C. office remained firm in their stance that charges should be brought in the case, despite reservations expressed by officials atop the Department of Justice under U.S. Attorney General Jeff Sessions.

Absent a decision by the DOJ, Byrnes said the department was planning on taking action on its own beginning Sept. 1.

“We believe that this course of action will give the U.S. DOJ sufficient time to make a final decision in this matter while hopefully providing the Gamer family and the public with some assurance that appropriate disciplinary proceedings will proceed within a definite time frame,” Byrnes wrote.

Police accountability activists have long sought movement from the NYPD regardless of what federal authorities chose to do. Leaked information in 2017 from the police oversight Civilian Complaint Review Board showed that Pantaleo had a long disciplinary history prior to Garner’s death, prompting calls for action by the department. Pantaleo has remained on desk duty since Garner’s death.

Under a memorandum of understanding with the NYPD, the CCRB will proceed with an investigation into Pantaleo’s conduct during the encounter with Garner based on a complaint made by the Garner family. The cases of other officers are set to be handled by the Department Advocate’s Office.

“The CCRB’s Administrative Prosecution Unit stands ready to prosecute Officer Pantaleo as it does in cases in which the board substantiates misconduct against a member of the NYPD and recommends charges and specifications,” CCRB chairman Fred Davies said in a statement.

Byrnes’ letter Monday appeared to do little to temper activists’ ire over the situation. In a statement, Communities United for Police Reform spokeswoman Carolyn Martinez-Class called the letter a distraction.

“It is the NYPD’s systemic failure to hold officers accountable for police abuses, brutality, killings and the misconduct surrounding them that perpetuates police killings,” she said.

In a statement, a spokesman for the DOJ provided a degree of support for claims made by those seeking movement by the NYPD.

“As officials at the Department of Justice informed Mr. Byrne this spring, the New York Police Department may move forward with its disciplinary proceedings,” the spokesman said. “Mr. Byrnes’ letter does not have any bearing on the decision-making timeline at the Justice Department, and the department cannot comment further at this time.”

A spokesman for the NYPD disputed the DOJ’s claim, stating that federal authorities did not give a green light to proceed in the spring.