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Judge Naplitano Overruled
While driving home from work Wednesday evening, I listened to Hugh Hewitt interviewing Andrew Napolitano, the former judge who now serves as a legal analyst for the Fox News Channel. Among the topics discussed was the day’s news that a Staten Island grand jury had declined to indict an NYPD officer in the death of Eric Garner.
Recall that Garner died July 17 after struggling with several NYPD officers who were trying to arrest him for selling “looses,” or individual, untaxed cigarettes. The incident was recorded on video by a witness. One of the officers, Daniel Pantaleo, can be seen in the video briefly wrapping his arm around Garner’s neck as Garner is wrestled to the ground. But for the unfortunate outcome, it appeared to me to be an unremarkable application of force against a resisting individual, one whose large size made it especially difficult to get him into handcuffs. (I wrote about the incident in an August column for PJ Media.)
Judge Napolitano expressed surprise and disappointment that the grand jury did not indict Officer Pantaleo. “I think it is clearly a case for criminally negligent homicide,” he said. “I think that the use of deadly force – this is not Ferguson, Missouri. This is not somebody wrestling for your gun. This is not where you shoot or be shot at. This is choking to death a mentally impaired, grossly obese person whose only crime was selling cigarettes without collecting taxes on them. This does not call for deadly force by any stretch of the imagination.”
A bit later in the interview, Napolitano summed up the reasons for his disappointment at the grand jury’s decision. “In a nutshell,” he said, “because it was all on tape, because there was no resistance, because there was use of deadly force for the most minor of civil violations, failure to collect taxes by selling individual cigarettes to local bums.”
Bilge.
Napolitano’s assertion that there was “no resistance” on Garner’s part is belied by the tape, which clearly shows him refusing to be handcuffed. And Napolitano’s characterization that the force used on Garner was “deadly” is also without foundation. Though Officer Pantaleo’s arm can be seen around Garner’s neck, the tape is far from dispositive that the man was choked at all. If he was, it was for no more than ten seconds, not long enough to cause unconsciousness, let alone death. Furthermore, Garner’s autopsy revealed no damage to his throat or neck as one would expect to find in a choking death. The force used on Garner was no more deadly than that used in many arrests made throughout New York City every day. Garner’s medical condition being what it was, he might just as easily have died from running up a flight of stairs (not that he seemed disposed to it).
Napolitano is on firmer ground in his criticism of the law for which the officers sought to arrest Garner, but that is a matter for the people of New York to resolve through the democratic process. As the law now stands, police are sometimes called to act as enforcement agents for the nanny state New York has become. Don’t put a law on the books if you don’t want the cops to enforce it, and don’t ask them to enforce it if you’re not willing to accept the fact that violence will sometimes occur when people resist that enforcement.
The place for Garner to argue his case was not on the sidewalk but in a courtroom. He learned this lesson too late, but when a police officer tells you you’re going to jail, you are going to jail. The only question then remaining is whether you will be taken there directly or with an intervening stop at a hospital.
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Jack, this is where we part company. Garner was “resisting” arrest only in the most technical sense: i.e., he pulled his hand away from the officer when the officer grabbed his hand. While I admit that was a mistake on his part, he never laid a finger on any of the officers and addressed them as “officer” repeatedly during the incident and never even cursed at them during the parts of the incident that I saw recorded. Indeed, his last words before the chokehead are “Listen, don’t touch me please,” while his hands were raised.
I agree that it’s clear that Garner’s death was an accident and would not have happened were it not for his medical issues, and that NYC’s nannyism bears a great deal of the burden in this. But if Garner was “resisting” then everyone who isn’t wholly docile during an arrest is resisting and subject to tackle and choke hold.
So, what is a police officer to do when the subject *peacefully* resists arrest? Walk away?
Well, they could always issue him a summons and slip it into his back pocket as he leaves.
I was getting out of the car as Hewitt was going to Napolitano, and so I missed it. I suspected he would say something like that. I live on Staten island, so this case has been close to me. Here’s where Napolitano is wrong. The cops did not use deadly force. They used modest force on a person who WAS resisting arrest. Not physically resisting, but still nonetheless resisting. Apparently it wasn’t the force that caused Garner’s death, though it may have contributed. Here’s how I see it. I believe the policemen should have been indicted. There is probable cause that they committed some crime, if not manslaughter, then certainly reckless endangerment since the man was crying out that he couldn’t breath. It should have gone to trial and under a higher standard of proof the cops probably should have gotten off entirely. But that’s not clear until you get all the evidence and medical experts together under a full blown trial.
Of course not.
There were at least five officers involved in Garner’s arrest. Even accounting for his bulk — or, indeed, because of it — is a chokehold and tackle from behind really the best and/or only way to gain his compliance?
I concede I’ve the luxury of not begin there and knowing how things panned out, neither of which the officers had. I don’t think these guys are monsters; I think they made a mistake. But some mistakes should have criminal consequences, even granting the privileges and immunities we (rightly) afford police officers.
I had no idea that they were trolling for illegal cigarette sales violations. From the NY Post story linked above:
Was it a chokehold?
Apparently at the behest of the brass.
I met a young man on the streets of Seattle. He was just a touch “off” in terms of mental capacity. He was homeless. He made his living going out of the city to places where cigarettes were cheaper, and bringing them into the city to sell to bums. He told me he didn’t want to take money from anyone, so this is what he did. In fact, he still slept in shelters most nights, and took a free meal from time to time. But he was trying.
I can’t imagine living in a world where such an entrepreneurial spirit is met with 5 officers wrestling you to the ground. As liberal as Washington is, we haven’t gotten that bad (yet).
We can wring our hands and split hairs over the whys and hows of this poor guys death. Or we can recognize that the real cause is a state that has gone so far in the direction of tyranny, that they are willing to let a man die before they’ll let a few bucks slip though their greezy fingers, And we can try to do something about it.
Each day brings me closer to libertarianism, and that really, really bothers me.
These sorts of laws are not liberal, they are statist. Bloomberg is a centrist statist. These are the sorts of laws and petty tyrannies that our founding fathers started the revolution over.
Great point. This term has been used in just about every media account of the event I’ve seen. Usually like this, “The chokehold death of Eric Garner…”
This is a critical distinction, as the officer claims this absolutely wasn’t a chokehold, but a take-down method. There really is a difference.
That being said this is a hard case, he wasn’t violently resisting arrest, and the cops didn’t use deadly force. This incident reminds me of many you see on the show Cops where I think the cops go for chokehold way too quickly. It seems to me that cops often mistake slowness for noncooperation, and escalate to physically forceful arrest too quickly. This seems to happen more often when there are several cops around, becuase it only takes one cop to escalate the arrest to a forceful one.
Sounds to me like Garner’s heart attack was brought on by lack of O2 or by the stress of being in terror of loosing his air supply. And I don’t believe the police couldn’t see by looking at him that he was a fat, weak man. How long did they spend trying to talk Garner into compliance? This is police brutality. But of course it can’t be, since the person in charge, who made no attempt to stop it, was a black woman.
Eric Holder plays the race card in these situations to keep people of all races from observing that the real problem is the large number of laws and the power of the police.
So, since Democrats (and way-left-of-center ones at that) control the Mayor’s Office, NY City Council, have working majorities in both houses of the state legislature, and have the governorship, maybe they can change the laws that make it attractive to sell untaxed cigarettes on the streets. I read that New York City Council passed heightened penalties against selling “loosies” earlier this year–on DeBlasio’s watch–and the cops were only responding to the signals sent by the city council that this was an enforcement priority.
Of course. This is the New York that Bloomberg and DiBlasio have made.
While Garner’s death subsequent to his arrest is lamentable and is a direct result of the enforcement of tyrannical tax laws I think it needs to be noted that this is not exactly a model citizen.
Is it possible that the police were willing to escalate quickly because of prior knowledge of Garner’s disposition? Had he been involved with the police prior to this incident and developed a reputation for being a tough screw to turn? My guess would be “yes” and that Garner had probably been warned off about his illegal activities in the past.
Here is the Wikipedia entry on Garner’s criminal record:
So, this is a career criminal and troublemaker who was known to the cops as such. He was also the image of a welfare pimp, with 6 children (I can’t find attribution regarding how many different mothers there are) who was morbidly obese and got into a tussle with cops.
I hate to say it, but I think Garner bears as much responsibility for his death as anybody, although the police in this case executed poor judgment on the level of force employed.
That doesn’t make them guilty (or even suspect) of negligent manslaughter however.
Kind of like the difference between Ray Rice “punching” his wife and using “Alternative Sign Language Conflict Resolution Methodologies”.
I find the Garner grand jury decision much more troubling than the Ferguson case. I don’t know that their decision was wrong but am not confident it was right. This column by Andrew McCarthy at NR does a good job summarizing the factual and legal issues.
sorry, double post
I can understand there is a difference between a take down hold and a choke hold. But when that take down move is directed at the throat, there is a small margin for error. Five cops don’t have a selection of take down methods? They choose to use one on the throat? Do they train to do these moves with small distinctions on large obese men? It’s like firing a warning shot intended to graze the ear, but putting it through the middle of the brain. Small margin for error, and you should have used a different technique that didn’t have the same margin.
I think the biggest takeaway from this incident isn’t about “chokehold” technique… but that putting cameras on cops will not necessarily solve these things.
Actually, I think we learned this lesson in the trial of the officers who arrested Rodney King (or rather the lesson was given, don’t know how much we actually learned form it).
Pictures may tell a thousand words, but sometimes ten-thousand words are required to determine the truth.
Great column, Jack Dunphy.
I think you are misjudging the intensity of the act. Even if you want to say he performed a chokehold… chokeholds aren’t lethal. A take-down that turns in to a chokehold is quite different than firing a warning shot and missing.
I’m sure they had alternative takedown methods, like using a taser. If Garner had died as a result of that, would you seek to prosecute the cop? What if they did nothing around the neck and just knocked him over by taking out his legs and he hit his head and died? Was a crime committed?
The cop didn’t choke him to death. If he had, then I’m confident that the grand jury would have indicted him.
I agree. It seems to me that, had the GJ found that a banned chokehold had been used, they would have had no choice but to indict. The fact that they did not indict leads me to believe that they found the hold used was not the banned chokehold, but rather a technique permissible under police procedures, albeit one with unfortunate results in this case.
I hear what your saying. I think I am upset by the notion that government actors never seem to be held responsible for anything. I wasn’t upset by the Zimmerman or Wilson acquittals, but this one rubs me the wrong way. I can’t really put my finger on it. I fear that this kind of case conditions people and government that government agents can get away with anything. How long until someone at a Tea Party protest is “resisting arrest” and has an unfortunate accident? Look at how this administration lies, cheats and withhold documents. I think that kind of arrogance filters down through all levels of government.
I have a lot of respect for Jack Dunphy’s arguments. But on the issue as to the cop trying to restrain Garner… It seems to me anytime you put your hands or arms around someone’s neck, you run the risk of doing serious damage, it doesn’t matter what your intentions are. You don’t need to crush someone’s trachea to asphyxiate them, you don’t even need to bruise their throat. So I don’t get the argument about the examiner not finding damage to the neck.
I used to do a decent amount amateur MMA training in college (some buddies would train me, to be sure) and it’s tough fighting someone who is your size and strength. It is significantly harder to do so when they are bigger and heavier than you. It is really hard to describe the feeling that you get when you bring a bigger guy into your guard, or when they fall onto you, knocking the wid out of you. It makes everything go wrong.
The much smaller cop was asking for trouble trying to choke garner like that because he was going to have to use a lot of force to restrain him. Guessing here: I’m sure he was trained to do that, I’m sure he was told that the type of maneuver he was using was proven to be the safest way (for both parties) to restrain an individual. But I’m also guessing he may not have practiced on a really big guy like Garner. I’m open to correction of course! So it seems he put himself in a situation where a lot of things would go wrong. Why’d he do that? Was Garner– as visibly out of shape as he was– really gonna run away from him? Should the potential health of a perpetrator factor into arrest tactics? Would you wrestle an elderly person down? I’m not saying it is illegal, here I really don’t know.
I can’t judge the law here cause I don’t know. But I know the grand jury had to decide whether the police officer acted illegally– not whether the police officer was being silly or using poor judgment. And I can see why they wouldn’t bring charges. So I’m not outraged at that part of the case. To be clear, Garner shouldn’t have resisted arrest. That was a terrible idea on his part. What did he think the cops were going to do? There were a whole bunch of cops around him. They clearly weren’t there to take no for an answer.
Yes. And an illegal one.
Is this from the Grand Jury findings?
Putting your arm around someone’s neck such that your elbow is opposite his throat is an acceptable hold. It allows for leverage without potentially blocking airflow.
Putting your arm across someone’s adam’s apple is potentially lethal. The video clearly shows that this is the hold used. And, according to multiple sources, the use of this kind of hold is banned by NYPD policy.
I’m completely with Napolitano on this.