Video records of the arrest of Eric Garner have gone viral, and his repeated words “I can’t breathe” have become a rallying cry for protesters around the country. There are portions of the video that conflict with the police report of the arrest, which states that Garner did not seem to be in great distress and was not observed to be making any statements. However, several videos of the incident show Garner clearly stating at least eight times that he could not breathe.

Much has been made of the fact that the chokehold that appears to have killed Garner, who is black, was applied by NYPD officer Daniel Pantaleo, who is white. What has not been widely reported is that the sergeant on the scene who oversaw the arrest, Kizzy Adoni, is black.

The New York Daily News reports that having a black sergeant in charge of the arrest removes the question of race from the investigation. The grand jury, who had this information, was left to determine only if Pantaleo had malicious intentions, which they decided he did not. Although murder was not a question for the grand jury, many legal experts thought that the video evidence should have been enough to bring negligent homicide or reckless manslaughter charges against the officer.

Adoni and another officer on the scene have been given immunity in exchange for testimony in the case, even though as the one overseeing the arrest she could have ordered Pantaleo to stop using the chokehold that allegedly killed Garner. Adoni is not shown in the multitude of media replays of cellphone footage of the incident, but she is said to be seen in the original video. She is also not mentioned in most of the reports of the grand jury decision not to indict.

Sergeant Dhanan Saminath, the supervising officer, arrived at the scene after Garner was down. He stated that he did not observe Garner making any statements, and also said Garner did not appear to be in great distress.

Rep. Peter King, R-N.Y., argues that the grand jury outcome would have been the same no matter what Garner’s race, saying the police were right to ignore his complaints of being unable to breathe. He said that people who are resisting arrest are always saying something like “you’re killing me,” “you’re breaking my arm,” or “you’re breaking my neck.” King, who is the son of a police officer, said the fact that Garner was able to say he could not breathe meant he was able to breathe. However, several of the videos show him unresponsive at one point.

The Justice Department has announced that they will open a civil rights investigation into Garner’s death. Attorney General Eric Holder said the federal investigation would be thorough, fair and expeditious. Legal experts caution that it is often difficult for federal prosecutors to prove criminal civil rights cases against police officers. Some think that the presence of Adoni during the incident will make it even more difficult to connect any civil rights violations with factors of race. At this point the question not being raised is whether Garner’s rights were violated because he was black.

Mark F. Pomerantz, a former federal prosecutor, said that the federally protected right in question is Garner’s right to be free of an unreasonable seizure of his person. The video footage or the arrest is expected to go a long way toward helping prosecutors determine whether a constitutional violation occurred, according to Christopher Dunn, associate legal director for the New York Civil Liberties Union.

Garner’s family has filed a claim against the city, the Police Department and specific officers, seeking $75 million in damages. Pantaleo has been sued twice in the past for alleged racially motivated misconduct. One incident was the illegal strip search of two black been in 2012, the second from a man that claimed he was arrested despite committing no crime and not acting suspiciously. The officers involved, including Pantaleo, were accused of including misleading data on the police report to justify the arrest.