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Officer testifies he thought Eric Garner was 'playing possum' during arrest

Gwen Carr, mother of Eric Garner, joins others

Gwen Carr, mother of Eric Garner, joins others during a news conference outside of Police Headquarters in Manhattan to protest during the police disciplinary hearing for Officer Daniel Pantaleo, who was accused of recklessly using a chokehold that led to Eric Garners death during an arrest in July 2014 on May 21, 2019 in New York City. Credit: Getty Images/Spencer Platt

An NYPD officer who took part in the 2014 arrest that led to the death of Eric Garner testified Tuesday that he thought the Staten Island man was “playing possum” when he seemed unresponsive on a sidewalk as he was being handcuffed.

Officer Justin Damico, testifying at the NYPD administrative trial of his former partner Daniel Pantaleo, said he had surveilled Garner from about 328 feet away selling untaxed, loose cigarettes on a sidewalk in the Tompkinsville section on July 17, 2014. At that point, both he and Pantaleo, who were tasked with going after quality-of-life offenses, moved in on Garner to arrest him, Damico testified.

Damico said that weeks earlier he had spotted Garner, who was known to police as a repeated seller of untaxed cigarettes, making sales and decided to give him a warning. But in the July 2014 incident Garner was combative, claiming he had not sold cigarettes, and resisted arrest, Damico testified.

Pantaleo is on trial over allegations of assault and strangulation of Garner for what investigators and police officials believe was the use of an unauthorized chokehold. The disciplinary case is being tried by attorneys for the Civilian Complaint Review Board. Although a chokehold is alleged, Pantaleo is not formally charged with the use of the tactic, which has been unauthorized by the NYPD for years.  His attorneys maintain that Pantaleo used a “seat belt” maneuver in taking down Garner, not a chokehold.

Pantaleo, who does not face criminal charges, faces penalties from the NYPD including termination.   

Earlier in the case a city medical examiner testified that she believed Pantaleo had used the banned chokehold but explained that because of Garner’s obesity and other medical conditions, he died from an asthma attack. 

Damico was testifying as a defense witness in the departmental trial. After Garner was taken down by cops, including Pantaleo, Damico testified that he thought the 390-pound man with numerous health problems was “playing possum” or possibly feigning unconsciousness when he seemed unresponsive on the sidewalk.  A video of the incident played Tuesday showed Garner being brought down and then saying repeatedly, “I can’t breathe.”

Under cross-examination by CCRB attorney Suzanne O’Hare, Damico explained that he thought Garner might be faking because another cop had taken his pulse.

Damico said that he tried to use verbal “judo” to get the upper hand on an irate Garner, who had protested that he hadn’t made any sale of loose cigarettes. Damico said he was trying to avoid a physical altercation during the arrest and at one point signaled with Pantaleo to call for police backup before the arrest attempt. 

Tuesday’s hearing got a little heated when Damico, shown a photograph of Pantaleo taking down Garner, said on cross-examination at one point that it appeared that his partner had his arm around Garner’s upper body.

 “From that photo I can’t tell if it’s around the neck — the bicep is in the head area,” Damico said.

“Oh come on!” exclaimed a supporter of the Garner family in the courtroom, an outburst that prompted NYPD Deputy Commissioner for Trials Rosemarie Maldonado to bang her gavel.

Shown a different photo, Damico said Pantaleo’s arm seemed to be around Garner’s neck area.

The trial adjourned until early June, at which point Pantaleo’s attorney Stuart London will call a medical expert witness.

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