1. A choke hold is not against the law. It is against NYPD procedure. It is not against the law to not follow NYPD procedure, although the officer could be subject to internal disciple, including termination.
2. The officer actually claims that his maneuver was not actually the prohibited choke hold. As I'm not an expert in police tactics, I have no idea about the veracity of such a position.
3. A suspect stating "I can't breathe" is not necessarily dispositive. In addition to the arguments that his statements proved that he could breathe (which I personally do not credit, although I jury might easily disagree), suspects often make such claims in order to attempt escape or improve otherwise acceptable police treatment. I used to go on police ride alongs all the time. If I had a dime whenever someone claimed brutality or something similar without any basis in fact, I would be a rich man. Simply, at trial, Garner's statement would not be as powerful or convincing as you may believe. Defense attorneys are well equipped and prepared to deal with such issues.
4. Murder requires specific intent. I cannot see how any prosecutor could support such a charge. A more appropriate charge would be manslaughter or negligent homicide. The fact that Garner's death could be partially attributed to his poor health makes any charging decision and trial all the more difficult for the prosecution.
5. Politically or legally, I do not know how the case can be brought before another state grand jury, and neither the NY AG or governor has made any such suggestion.
6. A federal criminal civil rights charge must meet a higher burden than a state case. It is not simply a second bite at the apple. Like murder, it requires specific intent to violate Garner's civil rights, and is why there are so few federal prosecutions. I would also note that at the time of the incident, among the many officers involved, the officer in charge was actually a black female sergeant. I have no idea how any federal prosecutor could show racial animus unless there is a currently unrevealed, yet very large revealed trove, of blatantly and easily demonstrated racist conduct by the choking officer.
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