In Eric Garner case, Justice Department declines civil rights charges against New York City police officer

Despite disagreement between top prosecutors regarding the strength of the case, the U.S. Department of Justice on Tuesday ultimately declined to bring civil rights charges against the New York City police officer involved in the controversial and racially-charged death of Eric Garner -- with Attorney General Bill Barr stepping in to make the ultimate decision, a person familiar with the case confirmed to Fox News.

Garner, who was black, died in 2014 during his arrest for selling loose, untaxed cigarettes outside a Staten Island convenience store. The 43-year-old refused to be handcuffed, and cops -- including the white officer who the DOJ declined to prosecute -- took him down.

A senior justice official familiar with the case told Fox News the DOJ's Civil Rights Division recommended charges be brought against officer Daniel Pantaleo -- but the U.S. Attorney's Office in the Eastern District of New York disagreed, saying the government's burden of proof could not be met.

Ultimately, the decision fell to Barr, who broke the tie and made the final call not to bring charges after several briefings with lawyers on both sides of the issue and after viewing the video of the arrest gone awry on numerous occasions.

In the video, taken by a bystander, Garner was heard crying out “I can’t breathe” at least 11 times before he fell unconscious. The phrase has since become a rallying cry among those protesting perceived racial injustices perpetrated by police departments nationwide.

FILE - In this May 13, 2019, file photo, New York City police officer Daniel Pantaleo leaves his house in Staten Island, N.Y. Time is running out for federal prosecutors to take action in the 2014 death of Eric Garner, the unarmed black man heard on video crying "I can't breathe" after Pantaleo put him in an apparent chokehold. (AP Photo/Eduardo Munoz Alvarez, File)

FILE - In this May 13, 2019, file photo, New York City police officer Daniel Pantaleo leaves his house in Staten Island, N.Y. Time is running out for federal prosecutors to take action in the 2014 death of Eric Garner, the unarmed black man heard on video crying "I can't breathe" after Pantaleo put him in an apparent chokehold. (AP Photo/Eduardo Munoz Alvarez, File)

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The decision not to bring charges against Pantaleo comes a day before the statute of limitations was set to expire, marking five years since the encounter that led to Garner’s death.

A state grand jury has also refused to indict the officer on criminal charges. Civil rights prosecutors have advocated charges in the case, though they've met fierce resistance.

Garner's family and attorney were informed of a decision Tuesday morning. During a press conference later with the Rev. Al Sharpton, Garner's mother, Gwen Carr, demanded the police department act immediately to fire Pantaleo.

"We are here with heavy hearts because the DOJ has failed us," she said. "Five years ago my son said he couldn't breathe 11 times. Today we can't breathe because they have let us down."

She added: "We will keep pushing. This is not the end. We are asking the commissioner to make the right decision."

An attorney for the family said the DOJ's failure to bring charges against Pantaleo was a "national shame" and said every candidate running for president will need to take a position on this case.

Chokeholds are banned under police policy and, though Pantaleo maintained he used a different and legal takedown maneuver called the “seatbelt,” the medical examiner’s office has said a chokehold contributed to Garner’s death.

But, according to a senior Department of Justice official, prosecutors still felt they couldn't reach the bar for proving Pantaleo or other officers acted "willfully" during the physical confrontation.

"What's communicated to the officer is relevant, but it is not determinative to what was going through the officer's mind," the official said.

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Part of the Department's thinking in the matter relied on Supreme Court precedent, specifically, the case 'Graham v. Connor,' in which the high court ruled "not every push or shove violates the Fourth Amendment" and the fact that police officers must make "split-second decisions" has to be taken into account.

The particular test that could not be met was whether the officers -- and Pantaleo in particular -- carried out their actions "willfully," the official said. To meet that burden, the government would have been required to prove officers were acting with "some clarity of thought."

"We expect a different outcome when a member of the public comes in contact with a police officer," a senior DOJ official said. "But the decision to bring federal charges is a different matter."

The New York Police Department brought Pantaleo up on departmental charges earlier this year. An administrative judge has not ruled whether he violated policy. He could face dismissal, but Police Commissioner James O’Neill has the final say. O'Neill will not make a formal decision until the police administrative judge who oversaw the disciplinary trial renders her verdict, the New York Times reported.

The NYPD said in a tweet on Tuesday that the internal department disciplinary case against Pantaleo is "proceeding and a determination has NOT yet been made."

"Today's announcement by the US Department of Justice does not affect this process," it said.

None of the other police officers involved in Garner's death have been charged with a crime or disciplined by the Police Department.

"All the officers involved need to be off the books. The steers of New York City are not safe with them," Carr said. "Five years ago, it was my family. Tomorrow it could be yours... We are going to keep fighting. This will not be swept under the rug."

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In the years since Garner’s death, Pantaleo has remained on the job but not in the field, and activists have decried the fact he's still being issued paychecks that include union-negotiated raises.

New York Mayor Bill de Blasio said in a statement that the city put their faith in the federal government to act on possible charges against Pantaleo and that they "won't make that mistake again."

"New York City is not the same city it was five years ago. We are a different city, and we must act like a different city," he said. "Moving forward, we will not wait for the federal government to commence our own disciplinary proceedings."

The city of New York also reached a civil settlement with Garner's family in 2015 for $5.9 million.

The Associated Press contributed to this report.