Analysis of the Grand Jury Proceeding and the Death of Eric Garner by Police Officer Daniel Pantaleo

Below is a basic legal analysis of the circumstances surrounding the death of Eric Garner and the subsequent decision by a New York Grand Jury not to indict the police officer involved in the incident.  This analysis was written utilizing information retrieved from various sources on the internet and it may be subject to correction.  


Factual Background
On July 17, 2014, Eric Garner died in Staten Island, New York, after a police officer used a grappling hold around his neck for about 19 seconds. Some have described it as a chokehold, while others argue it was a submission hold or headlock and that no choking took place; the use of chokeholds is a violation of New York City Police Department (NYPD) policy but a submission hold is not.

When officers moved to arrest Garner on suspicion of selling "loosies" (single cigarettes) from packs without tax stamps, Garner pulled his arms away from officer Daniel Pantaleo and other officers, told the officers to leave him alone and he refused to be handcuffed.  Pantaleo then put his arm around the much taller Garner's neck, (Garner was 6-foot-3 and weighed 350 pounds, and suffered from heart disease, severe asthma, diabetes, obesity, and sleep apnea) and pulled him backwards and down onto the ground.  After Pantaleo removed his arm from Garner's neck, he pushed Garner's head into the ground while four officers moved to restrain Garner, who stated "I can't breathe" while lying face down on the sidewalk.  After Garner lost consciousness, officers turned him onto his side to ease his breathing. Garner remained lying on the sidewalk for several minutes while the officers waited for an ambulance to arrive. Upon information and belief, the officers and EMTs did not perform CPR on Garner at the scene because they believed that Garner was breathing and that it would be improper to perform CPR on someone who was still breathing.  He was pronounced dead on arrival at the hospital approximately one hour later.  The medical examiner found that compression of the neck and chest, along with Garner’s positioning on the ground while being restrained by police, caused his death but that Garner’s acute and chronic bronchial asthma, obesity and hypertensive cardiovascular disease were contributing factors.  

At the time of his death, Garner was out on bail after being charged with illegally selling cigarettes, driving without a license, marijuana possession and false impersonation.

Query:  Did Pantaleo commit any crimes? If so, were his actions justified?

The Grand Jury in New York
Under New York State law, unless the defendant consents, all felony cases must be presented to the Grand Jury.  Grand Juries are empowered to hear evidence presented by prosecutors, and to take various actions regarding the evidence and legal charges they are to consider.  The Grand Jury can also conduct independent investigations.  Grand Juries sit for a term of approximately one month.  Each Grand Jury is comprised of 23 citizens who hear and examine evidence concerning offenses and take action based on such evidence.

What Can a Grand Jury Do?
The Grand Jury can vote an indictment (a written statement charging an individual with the commission of a felony), direct the filing of a prosecutor's information (which contains non-felony charges), direct the removal of a case to Family Court, or issue a report.  For the first three actions, the Grand Jury must determine that the evidence is legally sufficient and that it provides reasonable cause to believe that the defendant has committed the crime.  Otherwise, the Grand Jury dismisses the matter.  If the Grand Jury votes an indictment, the case is adjourned to a Supreme Court Arraignment Part.

Are Grand Jury proceedings open to the public?
No. Grand Jury proceedings are secret and only specifically-authorized persons can be present.  In addition to the Assistant District Attorney (ADA) and the Grand Jurors, there is a stenographer and a Grand Jury Warden, who oversees administrative aspects of the proceedings.  The ADA is the legal adviser of the Grand Jury and examines all witnesses who testify before it, including any defendant or defense witnesses.  At least 16 Grand Jurors must be present for any Grand Jury to hear evidence and take action.  Furthermore, at least 12 of the members who have heard the evidence must agree before any affirmative action can be taken.

Limited Release of Evidence From Grand Jury Proceeding
The release of material by Staten Island Supreme Court Judge Stephen Rooney was made on the request of Staten Island District Attorney Daniel Donovan “in the interest of assuring the public that the relevant evidence was presented” to the grand jury.  The disclosed details, some already public knowledge, were that:

--- The grand jury sat for nine weeks and heard from 50 witnesses, including 22 civilians.

--- Sixty exhibits were admitted into evidence, including four videos, crime scene photographs, four videos, medical records, autopsy photos and records pertaining to NYPD training.

--- The grand jury was instructed on relevant principles of law, including Penal Law Sec. 35.30 (below) regarding a police officer’s use of physical force by a police officer making an arrest.

--- The grand jury followed the proper procedure in reaching its decision not to indict Pantaleo.

N.Y. PENAL LAW § 35.30 entitled “Justification; use of physical force in making an arrest or in preventing an escape” provides in pertinent part as follows

1. 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; except that deadly physical force may be used for such purposes only when he or she reasonably believes that:

(a) The offense committed by such person was:
(i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; or
(ii) kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or

(b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; or

(c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force. (emphasis added).

Our laws give police officers broad leeway to use force, either when they fear their lives are in danger or when they are making an arrest. The Supreme Court cemented the scope of that authority in 1989’s Graham v. Connor, in effect barring courts from scrutinizing most of the split-second decisions a cop makes in the heat of the moment.

While NYPD officers have broad authority to use force to apprehend a suspect, the department explicitly bars officers from using chokeholds, which have been blamed for the deaths of untold suspects over the past several decades.  City officials restricted the use of the dangerous maneuver in 1985—allowing it only when an officer’s life was in danger, and it was the “least dangerous alternative method of restraint”—before banning it outright in 1993. At the time, then-chief John Timoney summed up the policy shift like so: “Basically, stay the hell away from the neck.” Still, Timoney offered a caveat that he could imagine “extreme circumstances” in which an officer might have no other choice but to break the rule. 

However, according to a scientific research study entitled "Mechanism of loss of consciousness during vascular neck restraint" that appeared in the Journal of Applied Physiology, the findings emphatically refuted assertions that this valuable control technique was inherently dangerous and potentially lethal. 
"With the majority of subjects [in the study] rendered unconscious and, importantly, [with] no serious adverse events in our subjects, we conclude that VNR is a safe and effective force intervention," writes the lead researcher, Dr. Jamie Mitchell.  He hedges that statement by cautioning that "outcomes could vary" in some populations, such as unhealthy or older subjects, who were not part of the study.

If chokeholds are banned by the NYPD, why wasn’t Pantaleo indicted?
While Pantaleo’s use of the banned maneuver on Garner received significant scrutiny in the court of public opinion, it likely received much less consideration in the court of law. As stated by Eugene O’Donnell, a professor at the John Jay College of Criminal Justice, “there is a difference between an act that is banned in the NYPD’s rulebook and one that is deemed criminal. There is no explicit law that criminalizes the use of a chokehold on someone either by a police officer or someone else.”

In the United States, police officers get the benefit of the doubt in most circumstances because they are putting their lives on the line every day and in many instances they must make split-second decisions in the heat of the moment.  

It’s tough to say whether Pantaleo should have reasonably expected his chokehold to end Garner’s life. Had he used a Taser, would there have been a similar result?
In a prepared statement following the Grand Jury’s announcement, Pantaleo said: “It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner.” 



We may never know exactly what convinced at least 12 of the 23 jurors to vote against an indictment of any kind against Pantaleo. But by deciding—despite the weeks of testimony, the photographs, the video and the plethora of other data -- that there was insufficient evidence to justify the case going to trial. The jurors effectively declared that Garner’s death was, at worst, a horrible mistake, one that might amount to misconduct but any crime that may have been committed by Pantaleo was excusable and justified under Sec. 35.30 of the N.Y. Penal Law.
Respectfully submitted,

Lidia Szczepanowski, Esq.

#Attorney, #Lifestyle Authority, #TheEverythingLidiaShow, #MrsCorpAmerica2013, #Entrepreneur, #Designer, #FounderNOWSA, #PersonalSafetyExpert #ClosetSuperHero

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