THE BLOG
12/05/2014 07:02 pm ET Updated Feb 04, 2015

'I Can't Breathe'

If a picture's worth a thousand words, how come this one didn't convince 23 grand jurors?

That is the question being asked in New York City and throughout the country in the wake of a grand jury's failure to indict Officer Daniel Panteleo in connection with the death of Eric Garner this past summer.

All of us have seen the video of the encounter. In it, one uniformed officer -- not Panteleo -- is standing in front and to the left of an obviously irate Garner, who repeatedly complains that he has been and is being being harassed by the police. Garner and the officer obviously know each other. Garner excitedly tells the officer that "it stops today" and that he "did not sell nothin'," apparently referring either to the policeman's claim that he was illegally selling untaxed cigarettes -- "loosies," in the parlance of the street -- at that time, or to prior encounters where that charge was made. When the cop appears to ask why Garner is screaming (the audio on the police officer is hard to pick up), Garner explains that "every time you see me, you want to harass me, you want to stop me.... I'm minding my business, officer." He then says, "Please, just leave me alone. I told you the last time, please, just leave me alone."

At that point there appears to be a break in the tape. Then two more officers approach Garner from his front, and Panteleo, who is dressed in street clothes -- shorts and a green jersey with the number 99 on its back -- moves toward and touches Garner from the right and behind. Garner raises his hands and says, apparently in response to Panteleo (whom Garner does not seem to think is a cop), "Please, don't touch me."

Panteleo then grabs Garner by placing his left arm around Garner's neck, with his right arm under Garner's right arm, near the armpit. Panteleo rapidly moves backwards, more or less parallel to the store window in front of which Garner was standing, turns Garner around slightly and moves back toward where they all started, and then takes Garner down. All this time Panteleo's arm remains on Garner's neck; as Garner is prone on the sidewalk, Panteleo is spread lengthwise over Garner's back and legs.

As the other officers -- three of them -- secure Garner's legs and torso against the sidewalk, Panteleo moves to his knees and then compresses Garner's head against the sidewalk with his hands. Garner then says, "I can't breathe." In fact, he doesn't just say he can't breathe. He repeats the statement -- seven more times.

Meanwhile, the guy with the cellphone who is taking the video of the encounter is told by still more police (by this time two or three additional officers appear to be on the scene) to "back up." While doing this, and while continuing to film the event, the guy says, "All he did was try to break up a fight."

Shortly after repeatedly telling them he couldn't breathe, Garner, according to a witness, "went limp." He apparently went into cardiac arrest. EMS arrived and took him to Richmond County Hospital, where he was pronounced dead.

As a matter of policy, the police in New York City are prohibited from using chokeholds. The policy was inaugurated in the early '90s after there had been at least one fatality following use of the technique during an arrest. In that case, unlike here, the police were actually indicted. Though they were acquitted in the subsequent criminal trial, the family later prosecuted a civil rights claim against the City of New York, which paid them a seven-figure settlement.

Why no indictment here?

There really does not appear to be a credible answer.

Grand jury proceedings are secret, so we have no solid idea what the jurors heard or saw during the month-long investigation. The Staten Island prosecutor who presented the case to the grand jury has petitioned the court to release some of the contents of the proceeding, but it is not clear what portions -- if any -- will be made public. Moreover, unless everything is disclosed, any type of selective unveiling will just contribute to the already widely shared view that the police are immune from accountability.

Is that view accurate?

It is always dangerous to make assumptions or conclusions without the benefit of seeing the full record. But in this case, all of what we do know makes it virtually impossible not to conclude that at least some law was broken and a trial should have occurred.

First, though Officer Panteleo's lawyer says that Panteleo was not applying a chokehold, the video evidence refutes that claim. The officer clearly puts his arm around Garner's neck and keeps it there until Garner is on the ground and he can move to his knees and compress Garner's head. If, as his lawyer is claiming, Panteleo was just using an authorized take-down procedure, that arm would have been nowhere near Garner's neck; instead, it would have been under Garner's left arm and around Garner's chest or near Garner's shoulders.

Second, the medical examiner who autopsied Garner concluded that the death was a homicide caused by a combination of neck and chest compression. This in itself refutes the claim that a chokehold wasn't applied. The medical examiner likely saw on Garner's larynx what are known as petechial hemorrhages -- small, burst blood vessels -- which are the common result of fatal neck compressions.

Third, the notion that a grand jury -- as distinct from a trial on some criminal charge, even one short of intentional murder -- is or could be an appropriate vehicle for accountability in this case is itself very suspect. I am a former federal prosecutor, and the conventional wisdom that prosecutors control grand juries is true. The old adage that a prosecutor could get a grand jury to indict a ham sandwich if he or she wanted is founded on the reality that prosecutors -- and prosecutors alone -- decide what evidence gets presented to a grand jury. Prosecutors also instruct grand juries on the applicable law. Consequently, their control of the process is fairly complete. In the case of most crimes, that structure materially favors indictment. In the case of alleged crimes perpetrated by the police, however, especially alleged crimes arising out of the use of force, a countervailing pressure is at work. The police and their supporters -- the various PBAs and SBAs -- are almost universally opposed to these types of claims, and prosecutors for the most part allow them to present their defenses in an unimpeded way to the grand jury, and provide the instructions needed for a "no bill" -- law speak for no indictment -- if the jurors like what they see and hear. Moreover, this is a dispensation granted no other defendants.

Fourth, the prosecutor in this case gave all the police officers on the scene -- except Panteleo -- immunity. This allowed all of them to testify without fear that they too might be indicted. Had they not been granted immunity, their own lawyers undoubtedly would not have allowed them to testify, so defenders of the district attorney will naturally claim that the immunity deal allowed the grand jury to get relevant evidence it otherwise would not have heard.

Maybe so.

The immunity deal, however, also allowed all the other officers to support Panteleo in whatever account Panteleo provided. Without assuming the testifying cops did anything other than tell the truth, it is still hard not to assume they were at least biased in Panteleo's favor. It is also not clear that they themselves did not violate proper procedure. The arrest and take-down in this case was not problematic and irregular simply because a chokehold was applied. The chest compression the other police applied to Garner while he was on the ground telling them he couldn't breathe -- which the medical examiner cited as another factor contributing to Garner's death -- itself violated policy.

Whether the arrest was irregular for other reasons is also an open question. From the video, it just isn't clear exactly why the police were interested in Garner that day at that time. If, as some of the backtalk suggests, they thought he was selling illegal "loosies," a charge that Garner himself vehemently denied, why did they not just give him a summons? Was it because he was then out on bail for that same charge? If so, what evidence did they have of the crime given Garner's denial -- a denial that appears to have been true in that there were no reports of "loosies" on his person, and one that, in any case, makes perfect sense if Garner was then minding his own business and staying on the right side of the law. (Lots of folks on bail try to avoid committing the crimes for which they are about to be tried.)

Or was it because this is just what cops do in the era of "broken windows" policing?

"Broken windows" policing has been around now for more than 20 years. The theory is that arrests for small crimes -- panhandling, subway turnstile jumping, illegal graffiti -- stop criminals from moving up the ladder to bigger crimes. Crime has gone down dramatically in New York City over the last two-plus decades, so supporters of "broken windows" claim it is working. Whether this is so, however, has been questioned by criminologists who have noted a host of other factors -- demographic, in the form of an aging population (crime is a young man's game), and penal, in the form of longer prison terms -- which might explain the result.

Undeniably, however, "broken windows" -- along with "stop and frisk," which New York City only recently ended -- disproportionately captures minorities and people of color, and they are rightly sick and tired of that reality. They are also rightly sick and tired of the risks they face when confronted by the police. Whatever Eric Garner was or wasn't doing on a street in Staten Island this past summer when four cops more or less surrounded him, one thing is absolutely clear: He should not have died for it.

That is why thousands of New Yorkers have taken to the city's streets in protest. On Wednesday night, as they engaged in "die-ins" at Grand Central Station, protested in Times Square, and took over a portion of the West Side Highway, passersby gave them thumbs up and shouts of approval. The mayor appropriately wondered about the risks his own mixed-race son faces in the current environment. And for their part, the police in New York City managed the protests well -- unlike the para-militarists in Ferguson a few weeks ago. As they should have, they let the protest go forward without any undue confrontations. They followed the proper procedures. They were professional.

Too bad that wasn't the case over the summer.