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
