Monthly Archives: December 2014

Yes, The NYPD Officer Who Killed Eric Garner Should Have Been Indicted


You know the background by now so let me skip ahead to why I think the officer should have been indicted.

Here’s what we know. These are not facts in question.

1. Officer Pantaleo used a choke hold on Eric Garner.

2. The chokehold was the cause of Eric Garner’s death.

3. Eric Garner’s death was a homicide.

You do not need to decipher this from the video or a photograph. You do not need to talk to experts in MMA or police trainers on use of force. This is the official ruling of the NYC Medical Examiner.

The New York City Medical Examiner ruled that the cause of death was “compression of neck (choke hold), compression of chest, and prone positioning during physical restraint by police.”

The ME is not some random person chiming in. This is the office charged with providing a legally binding determination on the cause of death.

Another thing we know for a fact is that the NYPD bans the use of chokeholds. From the NYPD Patrol Guide, which all officers are trained on.

Members of the New York City Police Department will NOT use chokeholds. A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.

So here’s what we know:

A NYC police officer used a prohibited technique on an individual leading to that individual’s death.

That’s not speculation or opinion.

So is that enough for a Grand Jury to find a crime has been committed? Clearly based on the indisputable facts above, the answer is yes. The question is what charge?

Sean Davis makes the case for Manslaughter in the 2nd degree.

At the very least I would argue that the threshold for Criminally Negligent Homicide (a lesser charge than Manslaughter) has been reached.

Here’s the NY State definition of Criminal Negligence.


NYC cops are trained not to use chokeholds for the very reason we saw in the Garner case…the danger outweighs the potential benefits. Officer Pantaleo knew this, or should have and ignorance of procedures is not a defense, yet he used the hold anyway (again, not according to me or a video but the NYC Medical Examiner). That on its face is proof of “a gross deviation from the standard of care that a reasonable person would observe in the situation”.

Now, are there reasons why this may have happened that excuse the officer? Could the Medical Examiner be in error? Were there other factors that mitigate against a conviction? Of course. That’s what trials are for. The Grand Jury is not a trial. Its much simpler task is to find if there is “legally sufficient evidence” and that’s there’s “probable cause” that the target of the Grand Jury committed the offense.

Surely the ME’s report and the NYPD policy manual meet this threshold.  People have certainly been indicted on less.

Now, let’s move from the realm of facts to some speculation. You may not agree with my speculation but it doesn’t change any of the facts I’ve laid out to this point.

How did we get to the point where a Grand Jury didn’t find even “probable cause” to send this case to trial? The DA put his thumb on the scale in favor of the cop.

How did he do this? We can’t know entirely because the Grand Jury records are sealed but we do know some important facts.

All the cops at the scene that day, other than Pantaleo, were granted immunity from prosecution for their testimony before the Grand Jury.

First, why did they need immunity if he and they followed procedures and the law? Part of a cop’s job is to testify before Grand Juries and at trials, yet they were given rather special treatment here.

Second, why did the DA even call them before the Grand Jury? Clearly there were there to back up Pantaleo’s story because they weren’t needed to establish grounds for an indictment.

A prosecutor is under no obligation to present exculpatory evidence to a Grand Jury and a target of the Grand Jury has no right to testify before one. Yet the DA decided to let the cops put on a defense  (if they were there to buttress the case for an indictment they clearly did a terrible job and should be investigated for basic competence).

Here’s a thought experiment…how many people being investigated by the Staten Island DA are allowed to bring in 10 or so co-workers to help tell their side of the story to a Grand Jury?

My problem isn’t with enforcing the law against “lossies” (it’s a stupid law but it’s a law) and I’m not arguing that people may simply decline to be arrested. My point is that there are rules and laws about how cops may go about doing these things. To establish a system where police are never held accountable or even forced to account for their actions is a very dangerous idea.

The facts and the law are clear here. This case should have gone to trial.