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.
"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."
Follow Michael Sisak at twitter.com/mikesisak
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