On the Staten Island Decision: The grand jury may have gotten it wrong on Eric Garner.

Several news organizations have reported that a New York grand jury in Staten Island has voted against indicting Daniel Pantaleo, a New York City police officer, in the choking death of Eric Garner. The decision is to be announced officially on Thursday. Clearly, this No True Bill is more difficult to justify than the St. Louis grand jury’s vote against filing homicide charges against Ferguson police officer Darren Wilson in the shooting death of Michael Brown.

Officer Pantaleo, who is white, is being investigated for killing Mr. Garner, a 43-year-old black man who was physically imposing but unarmed, and who was resisting arrest (for a nonviolent crime, the illegal sale of untaxed cigarettes) but not overtly threatening the safety of the police. As National Review Online reported on Wednesday, the confrontation between Garner and the police was captured on videotape.

NYPD guidelines ban a form of chokehold. Contrary to some reporting, however, even that technique is not illegal per se. In fact, it used to be part of police training before concerns about accidental death convinced the NYPD to prohibit its use. Much of the coverage I have heard assumes that the chokehold Pantaleo applied is one that the guidelines ban (and, so the narrative goes, is illegal). This is hotly disputed by some police advocates, who claim that what Pantaleo did was more in the nature of a headlock or a wrestler’s swift takedown. Obviously, we do not yet know what, if any, testimony the grand jury heard on this point.

In any event, others counter that Garner could be heard repeatedly telling the police he could not breathe. While this actually undercuts the claim that a banned chokehold was used (since, if it had been, Garner would have had great difficulty speaking so audibly), Garner’s pleas suggest that the police used excessive force — a problem that makes the chokehold debate nearly irrelevant. In the absence of any apparent threat to the police, critics forcefully ask, shouldn’t Pantaleo have stopped whatever hold was being applied?

There is no doubt that Pantaleo aggressively handled Garner around the neck and then pressed his head to the ground. Soon after, Garner died. On top of that, the state medical examiner (ME) concluded that a homicide occurred. Sounds cut and dried, especially given that grand juries need merely find probable cause in order to return an indictment.

But it’s not that simple. Carefully examined, the ME’s homicide finding may have hurt more than helped the argument for indictment. As New York law makes clear, homicide does not necessarily mean murder or some other criminal form of taking human life. A homicide finding simply means that some form of conduct — which could be innocent — caused death to occur.

More importantly, many media reports about the ME’s homicide finding assert that it means that the police conduct alone caused Garner’s death. That is apparently not the case. Other reporting indicates that the ME also concluded that Garner’s asthma, heart problems, and obesity were contributing factors. That certainly complicates things.

Plus, even if the ME had said that police conduct alone was responsible for Garner’s death, the grand jury would not have been bound by that conclusion. Indeed, they could have concluded that Garner’s physical ailments were more of a factor than the police conduct. At this point, we don’t know.

Nevertheless, let’s again bear in mind that the evidentiary standard for indictment is mere probable cause, not the more demanding “proof beyond a reasonable doubt” standard that applies at trial. It is unlikely that the grand jury would have completely rejected the ME’s conclusion that Garner’s death was a homicide caused by police conduct — even allowing for other contributing factors. When one looks at the video, it is hard to imagine that the grand jury decided not only that the ME’s homicide finding was an overstatement but that it was so clearly erroneous as to preclude probable cause of a crime.

So the question is, was the police conduct — Pantaleo’s in particular — justified? We must thus assume that the grand jury was persuaded against indicting Pantaleo by something in New York State’s justification statute (Section 35.30 of the state’s penal code). This is the provision that controls the use of physical force.

It provides that if a person has committed a crime, a police officer who is attempting to effect that person’s arrest, or prevent that person’s escape from custody, may “use physical force when and to the extent he or she reasonably believes such to be necessary” to those ends. The officer may also use physical force to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force.

I highlight references to reasonableness in order to stress that we are dealing with an objective test. It is not enough that the police officer subjectively believed the force he used was necessary. That belief must have been reasonable – i.e., consistent with what a reasonable police officer would have thought necessary under the circumstances. (The standard should not be what any reasonable person would have thought, but what a reasonable person with a police officer’s training and experience would have thought.)

The justification statute distinguishes physical force from deadly physical force. The latter may be used only if the officer reasonably believes that the subject has committed a violent felony, is armed with a deadly weapon, or is about to use deadly physical force against the officer or someone else. Based on what we know at the moment, Garner did not fit any of these categories: The untaxed cigarette sales police observed were not violent crimes; he was reportedly unarmed; and, though the video shows him resisting arrest, his resistance was along the lines of waving his arms in a manner that made it difficult for police to cuff him. He does not appear to have menaced the police. Indeed, it looks as if he may not even have seen Pantaleo before the latter came up from behind him while he was evading the grasp of other officers.

Does the fact that deadly physical force was not justified necessarily mean Pantaleo’s use of force was unreasonable and excessive? No, because it is not clear that Pantaleo’s choke/takedown technique constituted deadly force.

Remember, it is disputed whether the chokehold applied was one the NYPD has banned. It is quite possible that Pantaleo used a different technique, or that he assaulted Garner with nothing like the intensity or duration of the prohibited chokehold. If that is the case, it could credibly be argued that Pantaleo did not use deadly force. The fact that Garner died is not dispositive of the “deadly force” issue. If, for example, A shoves B, causing B to trip on the curb, hit his head, and die, A has obviously used force that caused death, but he has not used deadly force — as he would have if, say, he shot B with a gun.

Understand that intent matters critically in a criminal case. In civil cases, a person who negligently or recklessly injures someone is said to “take his victim as he finds him.” Let’s say A does not know B has a heart condition and intentionally frightens B, who proceeds to suffer a heart attack. A is responsible for all B’s damages, even if they are far heavier than would have occurred if B were an average person. By contrast, the criminal law usually does not hold a person liable unless he intends, or at least should have foreseen, the natural consequences of his actions.

Officer Pantaleo plainly did not intend to kill Mr. Garner; he applied force he judged necessary to take Garner down to the ground so Garner could be cuffed. That this ended up killing Garner was unexpected and tragic, not intentional or willful.

So let’s assume Pantaleo did not use deadly force. That still leaves open the question at the heart of the matter: Was the force that he did use reasonable under the circumstances? This is why I think the debate over the chokehold is mainly an academic diversion. The salient issue is reasonableness. Even if we assume that a banned chokehold was not used, it is still entirely possible that the forcible tactics Pantaleo did employ were excessive.

It is here that the grand jury’s conclusion that there was no probable cause to indict is most vulnerable to attack. Again, we do not know all the evidence in the record so it is perilous to opine. But as the confrontation is depicted on the video, there is a good argument that Officer Pantaleo used more force than was reasonably necessary to effect the arrest, prevent flight, or prevent injury to himself or other officers.

Here, bear in mind that murder was not the only potential homicide charge at issue. The grand jury would also have been considering such offenses as involuntary manslaughter (i.e., recklessly causing the death of another person) or criminally negligent homicide. To be criminally culpable, the officer need not have intended to kill or even seriously injure Garner. If there is probable cause that Pantaleo acted recklessly or with criminal negligence — i.e., if he acted with an unreasonable degree of force — an indictment for a grade of criminal homicide less serious than murder would be the appropriate result.

Finally, I should note something about New York’s justification statute that struck me as potentially confusing for a grand jury. It states in part:

The fact that a police officer . . . is justified in using deadly physical force . . . does not constitute justification for reckless conduct by such police officer . . . amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody. [Emphasis added.]

We are thus told that even if a police officer is in such dire straits that deadly force is permitted, he still will not be excused for taking reckless action that ends up harming innocent third parties he is not trying to arrest. Fair enough. But isn’t it also fair to infer from this that the officer will be excused for reckless action that ends up harming the non-innocent person he is seeking to arrest?

The suggestion is that what is reckless (which by definition is unreasonable) is nevertheless permissible in some contested arrest situations. That muddies the waters, but should we really be surprised? Most people realize that the police must have wide latitude in judging the amount of force that seems necessary to subdue a suspect. This is not an exact science. We are talking about snap judgments. If the law regulates them too tightly, cops will be paralyzed — they simply will not take the measures necessary to arrest violent criminals. Criminals would still be using force, but innocent citizens who expect to be protected and served by the police would be on their own.

Still, we all know there is a line, and police sometimes cross it. You don’t have to buy the race-obsessed demagoguery about white cops’ having it in for black men to acknowledge this.

I don’t think race had anything to do with what happened between Eric Garner and the police. I intend to keep an open mind until we learn all the evidence the grand jury relied on. And I continue to believe the NYPD is the best police force there is. But I also know, as good cops know, that there is a difference between resisting arrest by not cooperating, as Garner was doing in Staten Island, and resisting arrest by violent assaults and threats of harm, as Michael Brown did in Ferguson. Police deserve a very wide berth in responding to the latter, but less of one with the former. I thus cannot in good conscience say there was insufficient probable cause to indict Officer Pantaleo for involuntary manslaughter or criminally negligent homicide.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

This case simply doesn’t have the right material to get the left riled up.

This guy is too old, doesn’t represent the thug culture, takes place in NYC (no racists in blue cities /s), and people on the right were out front in condemning this, so there is no political mileage to be made.

I admit that the Staten Island case is much more "questionable" than the Ferguson case. I think the NY cops may have been in the wrong. But this --

Garner’s pleas suggest that the police used excessive force

I have to reject that. People who are choking cannot talk. Garner spoke repeatedly, saying he couldn't breathe. To me, he was giving evidence that he was breathing.

I think we all know that cops are trained to say "I was in fear for my life" -- that can justify almost any shooting.
Well, crooks aren't dumb. If the crook wants you to get off him, he's apt to say "I can't breathe". That does not mean that he cannot breathe.

Lastly, Garner was an enormous individual. People like that should have an awareness of their situation -- if the cops are hassling you, you have 2 essential choices:
1) Drop to your knees, spread your arms and legs, go flat on the ground, and be ready to be handcuffed.
2) Resist.

There is not in-between option with a guy of that seize. If he's not being 100% submissive, then the cops are going to decide he's resisting. And that isn't going to go well.

Cops should not be required to enforce tax laws. In this case, the police were given no options - they were charged with arresting an individual who was appealing to the public by eliminating excessive taxes for a legal product.

Garner and the cops are victims of an abusive regulation.

1. Garner was belligerent and argumentative.

2. The police were there because the owner of the property in front of which Garner was attempting to illegally sell loose cigarettes called them to complain about it.

3. Garner physically resisted arrest.

4. Garner had 30 prior arrests. How does someone even get arrested that many times? Obviously, at least some of those were valid, and not just because racist cops felt like giving him a hard time.

5. Garner was quite overweight, diabetic, and asthmatic - all factors which contributed to his death.

6. Don't start nothin', won't be nothin'.

I am by no means saying he deserved to die over this, but the sequence of events that led to his death were entirely his own doing. I have never been handcuffed, or beaten, or otherwise threatened by police. But that may have more to do with the fact that I haven't tried to sell anything illegally, haven't walked down the middle of the street when a cop told me to get on the sidewalk, and haven't strong-arm robbed a convenience store for cheap cigars, than with the fact that I happen to be white.

I’m really torn by this grand jury decision because the Police should not have used the excessive force they did on this victim because the sale of a single cigarette.

Though at the same time the Victim is also responsible because he failed to submit to the officers authority,when the officer told him he was under arrest.

All the Victim had to do was willingly submit and he would have been out of jail in hours instead of dead.

The way I see it the Police should have used a Tazer on this guy as soon as he started to resist.Though,There is no guarantee he would have survived that with his health issues.

The bottom line here is that You don’t Resist the Police when you’re placed under arrest.

I’ve been thinking mostly the same. I’ll openly admit, I have issues with the methods used by police and have always noted they don’t seem to much care how much injury they are causing so I am somewhat biased, admittedly. Most times, pepper spray is just as effective. However, the “if you can talk, you can breath” is somewhat misleading. If your throat is closed off, you can’t speak obviously true. However, if you have a couple of 200 pound men with their knees in your back, you can’t inhale, but you can exhale and produce strained speech for a while. You may also be able to intake a small amount of air, but not enough to stay conscious for long. Your diaphragm simply isn’t strong enough to work against the weigh at a certain point. Granted, some sort of force was necessary in this case, but I do believe it was excessive... not counting the fact that this probably would NOT have killed a normal person, this guy had medical issues that more than likely added to enough to cause the death (just as pepper spray might have to be hones, asthma was a factor). I just don’t believe a knee to the back and a knee on someone’s head is proportional reaction at least until other methods have been exhausted and are no other choices. I mean really, how fast or far could this guy have ran?

I doubt this was racial at all. Of course, don't try telling that to the millions who didn't consider the evidence in the Brown case and who certainly won't in this case either.

That said, Why are cops arresting people for selling "illegal" cigarettes? Give him a ticket, tell him to move on, whatever, but this whole mess seemed unnecessary.

Obama “this is an American issue”.

He attacks the legal process. He complained about Ferguson, mischaracterizing it and casting it in racial terms. He complained about the GJ decision there, calling protestors actions “understandable anger”... admonishing police, and thus legitimizing rioters. And now again here in NY he mouths off.

He attacks Congress’s authority, usurping it, and daring them to oppose him.

Obama is evil.

It looks like the hold put pressure on the carotid arteries on both sides of the neck while pushing his head forward, which restricted blood flow to the brain leading to unconsciousness.
The sensation he felt as he was passing out probably was a sensation of not being able to breathe.

Why is the NYPD enforcing tax law? This is small time stuff. Its all about the pennies the city would receive on the sale of untaxed cigarettes.
It boils down to $$$. Get stopped in NYC with a small amount of marijuana, you get a ticket.

Obama has said since he came on the scene that he didn’t like the Constitution because it was too restricting. He wants a Constitution which gives more power to government and less to the people. And if you notice, he has been chipping away at the edges. By castigating law enforcement and the judicial system (Grand Jury)and causing people to loose respect for them is only a first step. Some folks here on FR seem to be part and party of such a movement.Looking back at the past five years you will find other instances whereby he is attacking the Constitution. What say ye!!!

"Again, we do not know all the evidence in the record so it is perilous to opine. "

And that's the crux of the matter. In Browns GJ all evidence was allowed. This Prosecutor did not want a true bill so may have kept critical evidence excluded.

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