12/05/2014 05:04 pm ET Updated Dec 06, 2017

Making the Case in the Garner Tragedy


Tragedy on the Sidewalk

A grand jury decision in Staten Island, New York, not to indict New York City Police Officer Daniel Pantaleo, 29, for the July 17 death of Eric Garner, 43, has ignited outrage across the political spectrum. Garner died during a dispute over allegations relating to the sale of individual untaxed cigarettes known as loosies. The decision comes on the heels of another controversial grand jury decision out of Missouri, where yet another unarmed African-American male, Michael Brown, 18, died this summer after being shot six times by Ferguson Police Officer Darren Wilson, 28. In recent weeks a 12-year-old African-American boy in Cleveland with a realistic toy gun was killed by police, while in nearby Brooklyn, an unarmed African-American man was shot dead by accident inside a housing project.

The fatal Staten Island interaction, unlike the Missouri one, was captured on video first presented by the New York Daily News months ago. The video shows a non-violent, yet non-compliant, Garner telling police, "Every time you see me you want to arrest me, I'm tired of this, this stops today...I didn't do nothing...I'm minding my business, officer..." Then, with his hands up, Garner is wrestled to the sidewalk with Pantaleo's arm around his neck as he is surrounded by other officers. Among the most disturbing aspects of the video is his distressed plea "I can't breathe" being repeated 11 times after police tackled him and attempted to cuff him while he lay on his stomach.

Garner went unconscious and died shortly thereafter. The medical examiner ruled his death a homicide caused by "Compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police...." with asthma, heart disease and obesity being cited as contributing factors.

County Grand Jury

The 23-member Staten Island grand jury consisted of 14 whites; and 12 members are needed to support an indictment upon a finding of probable cause that a crime took place. Staten Island, with almost 473,000 residents is the least populated, most white (78 percent), most conservative and most geographically isolated of the five boroughs that make up New York City. Overall New York City's 8.4 million residents are 44 percent white and 25.5 percent African-Americans, whereas only 12 percent of Staten Islanders are black. While Staten Island is one of the five boroughs that make up New York City and is served by the NYPD, it is also coextensively its own county, Richmond. Each borough has its own District Attorney and Borough President, with Staten Island being the only New York City borough led by Republicans.

Richmond County District Attorney Daniel Donovan, a Fordham Law School graduate and one time Republican candidate for state attorney general had several possible choices under New York law to pursue possible charges against Officer Pantaleo, an eight-year veteran of the NYPD. We do not know what potential charges were explored because grand jury proceedings are secret, unless released by a judge. Mr. Donovan has just petitioned for such a release.

Reasonableness Key To Legal Analysis Regarding Excessive Force

Central to any legal case regarding the use of force by a police officer effecting an arrest is the concept of reasonableness. Under New York law:

A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force.

While Mr. Garner does not have the right to resist a lawful arrest, even for something as minor as selling a cigarette, the officer has a duty to only use reasonable physical force to effect the arrest. According to Pantaleo's lawyer, the officer told the grand jury he started using a takedown wrestling technique with his arm pinning one arm, while his other was around Mr. Garner's torso. That arm, he says, later circled Garner's neck as the two entwined, hit a glass window and fell. Despite the video which clearly shows Pantaleo's arm around Garner's neck, Pantaleo said it was not a chokehold, a maneuver prohibited by the NYPD since the 1980s and formally proscribed in 1993. The officer stated in a press release, "It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner."

Esaw Garner, Eric's wife, flatly rejected the apology at a news conference on Wednesday:

"Hell no. ... The time for remorse would have been when my husband was yelling to breathe. That would have been the time for him to show some type of remorse or some type of care for another human being's life when he was screaming 11 times that he can't breathe."

Available State Charges Declined By Grand Jury

Possible charges included second-degree manslaughter, criminally negligent homicide and reckless endangerment, and choking. In New York State, like other states, manslaughter is a type of unjustifiable killing that because of the circumstances is considered less egregious than murder. New York's more serious manslaughter charge, first degree manslaughter, known as voluntary manslaughter elsewhere requires "intent to cause serious physical injury that results in death."

The more applicable possible manslaughter charge was second degree manslaughter which under Section 15.05 of the penal code punishes recklessly causing the death of another person. Under New York law recklessness is when one is "aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. Similarly, another possible charge, reckless endangerment in the first degree Section 120.25 punishes "evincing a depraved indifference to human life,...[a defendant] recklessly engages in conduct which creates a grave risk of death to another person." WNBC in New York reports that this potential charge was not reviewed by the grand jury. Yet another possible charge is criminally negligent homicide which occurs when a death arises out of a failure "to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists." The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

A 2010 law punishing felony choking passed in New York and about 30 other states had not been successfully prosecuted through 2013. The law punishes loss of consciousness or serious injury to a victim when:

with intent to impede the normal breathing or circulation of the blood of another person, he or she:
a. applies pressure on the throat or neck of such person; or
b. blocks the nose or mouth of such person.

Federal Criminal Civil Rights Law Used For Excessive Force Cases

While Attorney General Eric Holder has announced that he will proceed with a federal investigation, state law, at least in the abstract is better suited for prosecution. The applicable federal statute is "Deprivation of Civil Rights Under Color of Law," 18 U.S.C. 242." Enacted after the Civil War, it punishes civil rights violations by government officials like police or corrections officers. The law has four elements, when used in cases of excessive force, that must be established beyond a reasonable doubt, for a conviction to take place:

(1) defendant acted under color of law;
(2) used unreasonable force;
(3) acted willfully; and
(4) caused bodily injury to Mr. Garner, a resident of the United States.

Reflecting prior caselaw, a federal jury would need to find that Officer Pantaleo was reckless: aware of the risk created by his conduct, a virtually identical element to what is found under involuntary manslaughter or manslaughter in the second degree in New York law. A federal trial would also have a much different prosecutor and a far more diverse jury pool than the county trial on Staten Island. The Eastern District of New York is led by United States Attorney and Attorney General nominee Loretta Lynch, who has been involved in high police civil rights cases before. Furthermore, the massive jury pool would encompass a much larger and racially diverse population of 7.7 million spread across much of New York City and all of Long Island.

1998 NYPD Federal Chokehold Case Is Similar

A federal trial court has the discretion to consider a defendant's disregard of NYPD policy in its deliberations. In an eerily similar 1998 trial a federal judge held:

"A rational juror could also have determined beyond a reasonable doubt that [NYPD Officer] Livoti's actions were willful based on his prolonged application of a chokehold, a restraining technique that he knew was prohibited by the New York City Police Department in all situations."

In that case out of the Bronx, a police officer used a chokehold on December 22, 1994, against brothers whose football struck his patrol car. One of the brothers, Anthony Baez, died after being placed in a chokehold.

The officer, Francis Livotti, was convicted in federal court under 18 USC 242 following a two week trial and sentenced to 90 months imprisonment. At trial then medical examiner Dr. Charles Hirsch reached a conclusion about the cause of death that mirrors the finding in the Garner case: "[T]he primary cause of death was asphyxia, due to compression of his neck and chest. It is also my opinion that acute and chronic asthma were contributory, lesser factors in his death." The officer denied using a chokehold, in that case as well. In the Garner case the death was caused by the chokehold, apparent positional asphyxia from when he was compressed on to the sidewalk and his medical condition.

Notwithstanding federal commitment and expertise, a federal case is more difficult for prosecutors, but not at all impossible. While the strength of the evidence, a showing of beyond a reasonable doubt is required under both state and federal statutes, the federal law requires more facts to be proven about what the officer knew and intended. A bigoted racial motive on the part of the officer would help prosecutors if proven, but it is enough to simply show a willful use of excessive force that disregarded the risk of harm to Mr. Garner.

Civil Actions

Garner's family said it would pursue a multimillion-dollar civil suit against the city as well. In New York a wrongful death action requires a showing of negligence causing a person's death and a financial loss to family members such as a spouse and children.

Even though chokeholds are banned by the NYPD, the city could also be held liable for damages for other things such as negligent supervision and failure to render aid. The family could also sue in federal court for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" that Mr. Garner suffered at the hands of the officer while on duty. The standard of proof for the family to win in these civil cases is much lower, a preponderance of the evidence. That standard only requires that their version be more believable than that of the defendant city and officer.

Conclusion: Hyper Enforcement Should Be on Trial Too

For all the debate about the specifics of each case, and the need for body cameras, reformed grand jury procedures, training, diverse police forces and alike, the Garner case brings another critical macro issue to the surface about the intensity of policing in a time of low crime rates. When I was on the force in the 1980s major cities like New York had a huge problem with drugs and violence, as well as a general feeling that city life was out of control not only from crime, but from disorder. In particular the NYPD then focused on quality of life offenses like disruptive behavior, gangs taking over parks, turnstyle jumping, and vandalism, with some of the enforcement done by foot patrol oriented community officers who responded to the complaints of citizens they saw on their beat. Many of those ensnared for petty offenses had more serious criminal records. Today, after outcry relating to the overuse of stop and frisk under a previous administration, the breadth of police-citizen enforcement interactions are again in the spotlight. Citizens are not just reexamining the specific evidence for a possible federal trail, but macro issues as well like the cost of the increased breadth of enforcement of low level tax transgressions that disproportionately ensnare the poor and people of color into dangerous and unnecessary confrontations.