NYPD officer says he inflated charge against Eric Garner

NEW YORK (AP) — After Eric Garner's death following a confrontation with New York City police five years ago, one officer involved in the struggle wrote up paperwork that exaggerated the seriousness of the dead man's suspected crime, that officer testified Tuesday.

Officer Justin Damico said that after riding in an ambulance with the dying Garner, he filled out arrest papers listing a felony tax charge that would have required prosecutors to prove Garner, a small-time street hustler, had sold 10,000 untaxed cigarettes.

Damico was questioned about the posthumous arrest papers while testifying at the disciplinary trial of Officer Daniel Pantaleo, a one-time partner accused of restraining Garner with a banned chokehold as they tried to arrest him for selling loose, untaxed cigarettes on Staten Island in July 2014.

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A demonstrator with a shirt painted 'Fight the Power' stands before a crowd of other demonstrators during the 'Justice For All' march in Washington, DC, December 13, 2014. Thousands of people descended on Washington to demand justice Saturday for black men who have died at the hands of white police, the latest in weeks of demonstrations across the United States. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
Demonstrators hold up a giant placard of a man with his hands up during the 'Justice For All' march in Washington, DC, December 13, 2014. Thousands of people descended on Washington to demand justice Saturday for black men who have died at the hands of white police, the latest in weeks of demonstrations across the United States. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
Colin Kirk (R) and Margaus Van Allen (L) hold placards as they march during the 'Justice For All' march in Washington, DC, December 13, 2014. Thousands of people descended on Washington to demand justice Saturday for black men who have died at the hands of white police, the latest in weeks of demonstrations across the United States. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
A demonstrator with gloves that read 'Stop Killing' chants during the 'Justice For All' march in Washington, DC, December 13, 2014. Thousands of people descended on Washington to demand justice Saturday for black men who have died at the hands of white police, the latest in weeks of demonstrations across the United States. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
Demonstrators chant during the 'Justice For All' march in Washington, DC, December 13, 2014. Thousands of people descended on Washington to demand justice Saturday for black men who have died at the hands of white police, the latest in weeks of demonstrations across the United States. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
WASHINGTON, DC - DECEMBER 13: Lesley McSpadden, mother of police shooting victim Michael Brown helps lead the 'Justice For All' rally and march in the nation's capital against police brutality and the killing of unarmed black men by police, December 13, 2014 in Washington, DC. Organized by Rev. Al Sharpton's National Action Network, this march and other like it across the country aim to tell Congress and the country that demonstrators will not stand down until there is systemic change, accountability and justice in cases of police misconduct. Sharpton said the demonstration is happening in Washington 'because all over the country we all need to come together and demand this Congress deal with the issues, that we need laws to protect the citizens in these states from these state grand jurors.' (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - DECEMBER 13: Thousands of people gather for the 'Justice For All' rally and march in the nation's capital against police brutality and the killing of unarmed black men by police, December 13, 2014 in Washington, DC. Organized by Rev. Al Sharpton's National Action Network, this march and other like it across the country aim to tell Congress and the country that demonstrators will not stand down until there is systemic change, accountability and justice in cases of police misconduct. Sharpton said the demonstration is happening in Washington 'because all over the country we all need to come together and demand this Congress deal with the issues, that we need laws to protect the citizens in these states from these state grand jurors.' (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - DECEMBER 13: Thousands of people participate in the 'Justice For All' rally and march in the nation's capital against police brutality and the killing of unarmed black men by police, December 13, 2014 in Washington, DC. Organized by Rev. Al Sharpton's National Action Network, this march and other like it across the country aim to tell Congress and the country that demonstrators will not stand down until there is systemic change, accountability and justice in cases of police misconduct. Sharpton said the demonstration is happening in Washington 'because all over the country we all need to come together and demand this Congress deal with the issues, that we need laws to protect the citizens in these states from these state grand jurors.' (Photo by Chip Somodevilla/Getty Images)
UNITED STATES - DECEMBER 13: Thousands of protesters participate in the 'Justice For All' march against police violence on Pennsylvania Avenue in Washington on Saturday, Dec. 13, 2014. Protesters held a rally at Freedom Plaza before marching to the U.S. Capitol. (Photo By Bill Clark/CQ Roll Call)
A demonstrator holds a placard during the 'Justice For All' march in Washington, DC, December 13, 2014. Thousands of people descended on Washington to demand justice Saturday for black men who have died at the hands of white police, the latest in weeks of demonstrations across the United States. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
US film director Spike Lee (R) holds a US flag as thousands take part in the Justice for All March and Rally down Pennsylvania Avenue through downtown Washington, DC, December 13, 2014, to protest the killings of unarmed African Americans by police officers and the decisions by Grand Juries to not indict them. AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Thousands take part in the Justice for All March and Rally on Pennsylvania Avenue through downtown Washington, DC, on December 13, 2014, to protest the killings of unarmed African Americans by police officers and the decisions by Grand Juries to not indict them. AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Protesters fill Pennsylvania Avenue during the 'Justice For All' march December 13, 2014 in Washington, DC. Thousands of people descended on Washington to demand justice Saturday for black men who have died at the hands of white police, the latest in weeks of demonstrations across the United States. AFP PHOTO/BRENDAN SMIALOWSKI (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
Reverend Al Sharpton (C) stands alongside US Senator Kirsten Gillibrand (L), Democrat of New York, and family members of unarmed African-Americans who have been killed by police offiers, join thousands as they take part in the Justice for All March and Rally down Pennsylvania Avenue through downtown Washington, DC, December 13, 2014, to protest the killings of unarmed African-Americans by police officers and the decisions by Grand Juries to not indict them. AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Thousands take part in the Justice for All March and Rally on Pennsylvania Avenue to the US Capitol in Washington, DC, on December 13, 2014, to protest the killings of unarmed African-Americans by police officers and the decisions by Grand Juries to not indict them. AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Thousands take part in the Justice for All March and Rally on Pennsylvania Avenue to the US Capitol in Washington, DC, on December 13, 2014, to protest the killings of unarmed African-Americans by police officers and the decisions by Grand Juries to not indict them. AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Thousands take part in the Justice for All March and Rally on Pennsylvania Avenue to the US Capitol in Washington, DC, on December 13, 2014, to protest the killings of unarmed African-Americans by police officers and the decisions by Grand Juries to not indict them. AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
Thousands take part in the Justice for All March and Rally on Pennsylvania Avenue to the US Capitol in Washington, DC, on December 13, 2014, to protest the killings of unarmed African-Americans by police officers and the decisions by Grand Juries to not indict them. AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
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"You initiated this on your own, writing up the arrest of a dead man?" asked Suzanne O'Hare, a lawyer for the police watchdog agency bringing the disciplinary case against Pantaleo.

Damico acknowledged that the felony charge was incorrect because Garner actually had with him five packs of Newports that contained a total of less than 100 cigarettes. The cigarettes were marked for sale in Virginia, a sign they were being resold illegally in New York.

Garner was ultimately posthumously charged with two misdemeanors, which alleged he resisted arrest and sold untaxed cigarettes. The case was not prosecuted because Garner is dead.

Damico's testimony was often revealing, giving the never-before-heard perspective of the one officer who had been with Pantaleo throughout the confrontation. Pantaleo, 33, denies wrongdoing. He has been on desk duty since Garner's death.

Speaking for more than an hour in a nearly full hearing room at police headquarters, Damico recounted how he'd given an agitated Garner a warning two weeks earlier, instead of arresting him, for selling loose cigarettes because he felt that approach was "the right thing to do."

Once Pantaleo grabbed Garner and pulled him to the ground, Damico said he just assumed that Garner was faking unresponsiveness — "playing possum" — to get out of being arrested. An officer who arrived as Garner was being restrained testified that he had the same thought.

Garner's dying pleas of "I can't breathe," captured on a bystander's cellphone video, became a rallying cry against police brutality targeting black people.

Damico testified he saw Pantaleo's arm around Garner's neck as the two men struggled — but he didn't say if he thought the move was a chokehold.

At one point in his testimony, Damico said he recalled Pantaleo's arm being around Garner's "upper body." That description prompted Garner's widow, Esaw, to mutter: "Oh, come on."

Damico, then in charge of combatting graffiti and quality of life issues in a neighborhood near the Staten Island Ferry terminal, said he was paired with Pantaleo to watch for loose cigarette sales when he saw Garner completing such a transaction.

Damico, who hasn't faced disciplinary action, testified that he and Pantaleo didn't rush to arrest Garner because they were "trying to avoid a physical fight." They stayed calm as Garner screamed for around 10 minutes about feeling targeted by police and swatted Damico's hands away while refusing to be arrested, Damico said.

Pat Lynch, the president of the Police Benevolent Association officers' union, said Damico and Pantaleo "utilized textbook de-escalation techniques to limit the use of force against a much larger and irate individual."

"We are convinced that if the politics of the streets are removed from this process and the case is decided on a dispassionate hearing of the facts, that Police Officer Pantaleo will be exonerated," he said.

The NYPD's disciplinary process plays out like a trial in front of an administrative judge.

Normally the purpose is to determine whether an officer violated department rules, but that's only if disciplinary charges are filed within 18 months of an incident.

Because Pantaleo's case languished, the watchdog Civilian Complaint Review Board must show that his actions rose to the level of criminal conduct, even though he faces no criminal charges and is being tried in a department tribunal, not a criminal court.

The final decision on any punishment lies with the police commissioner. Penalties range from the loss of vacation days to firing.

The disciplinary hearing is scheduled to resume June 5.

Pantaleo's lawyers say they will call a medical examiner from St. Louis, Missouri, to rebut the New York medical examiner's finding that a chokehold set into motion "a lethal sequence of events" for Garner.

Garner's mother, Gwen Carr, said she's "tired of the disruptions."

 

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