Dec
05

The Eric Garner Homicide -- A Crime? No

Eric Garner paid with his life for making a simple mistake: He played street lawyer when officers tried to arrest him. The time and place to dispute facts with a cop is not on the street. It is in a courtroom. Resist an officer trying to arrest you, and you may well end up injured, or even dead.

Store owners on Staten Island had complained to local police that Garner was selling individual cigarettes, known as loosies, in front of their shops. Apparently, that’s against the law. It may well be a silly law, but it is a law that is on the books.

Daniel Pantaleo, a young police officer, approached Garner with other officers. You can watch Garner protest on YouTube. “I did not sell nothing,” he says, as he backs away. Pantaleo was about to arrest him.

Police officers need not witness a crime take place to make an arrest. When it comes to minor offenses, they can arrest a person on the speedy information of others. In this case, it appears as if store owners complained about Garner, and officers, in reliance on the store owners, sought to arrest him.

Obviously, I have no idea whether Garner sold cigarettes or not. Most likely, the cops simply relied upon the accusations of others when they approached Garner. All that was necessary to detain him was a reasonable suspicion, more than a hunch, that he had broken the law. To arrest him, they need only conclude that there was a reasonable belief he broke the law.

Garner had every right to argue with the police, but the law requires all of us to submit to officers when they try to arrest us. If we resist, they are entitled to use reasonable force to overcome our resistance. It is generally foolish to pick a fight with a cop: not only are they trained in the use of force, they also come equipped with lethal tools to use to assure they win any confrontation.

In the Garner case, officers used what are called “take-down” holds to bring him down. They are trained to do that. You can see officers reach for his hands to make sure he did not swing them at him. Another officer got behind Garner, and ended up with his arm around Garner’s neck.

Then Garner was on all fours, and still four officers could not get him into a position in which they could handcuff him. Officers are trained in such situations to use the ground as leverage. That is precisely what they did in this instance, seeking to pin him so that they could get his hands behind his back.

As the officers and Garner struggle on the ground, Garner gasped: “I can’t breathe” eleven times. You can hear the officers telling him to put his hands behind his back. He doesn’t, and perhaps cannot, comply.

One officer, Pantaleo, ended up with his arm around Garner’s neck, in a choke hold prohibited by the New York Police Department.

I’ve watched the video of the take down a dozen times, and, candidly, it looks just like any number of arrests I’ve seen. Police with suspicion confront a man to question him or arrest him. The man objects, and gets angry. The officers decide to take him into custody. The man does not comply with the officers’ commands, so they use force. White, black, Hispanic, the results are always the same — the struggler loses and is sometimes injured or killed.

An autopsy of Garner revealed that he died due to compression, or pressure, on his neck and chest. Among the contributing factors was the fact that he suffered from asthma and was obese; he also suffered from hypertensive cardiovascular disease. There’s no reason to suspect the officers knew of his medical history; the law does not require them to know it.

The police killed Eric Garner. This is a homicide, plain and simple.

But it is a long leap to go from homicide to a crime, and the Staten Island grand jury had good reason to refuse to indict, or charge, Pantaleo with a crime. Homicide comes in several shapes and forms.

To find probable cause for intentional homicide, the grand jury would have had to conclude that Pantaleo had the conscious objective, a synonym for specific intent, to kill Garner. The videotape reflects a struggle, not an execution.

To find a reasonable basis to believe there was a reckless homicide, the grand jury would have had to conclude that Pantaleo was aware of a serious risk of injury and proceeded nonetheless. This is a closer call. Choke holds are prohibited because they do cause a serious risk of injury when pressure is applied on the carotid artery.

But what should the officers have done? Should they have walked away from Garner because he protested? That’s a standard with ridiculous consequences. The place to say the police got it wrong is in a courtroom. Not on the streets.

To proceed on negligent homicide, the grand jury would have to conclude the Pantaleo engaged in conduct that was a gross departure from the standard of care. This garden variety arrest of a man in response to garden variety criminal allegations simply isn’t shocking to those schooled in the business of evaluating police conduct.

Pantaleo most likely will face police discipline for using poor tactical judgment in how he helped take Garner to the ground. But that does not mean the take down itself was without justification. It was justified under current law, and it happens daily on streets throughout the United States.

Efforts to transform the Garner homicide into a race case are irresponsible.

We need to have a serious discussion about race in the United States. And the manner in which communities, particularly communities of color, are policed is often deeply troubling. But Eric Garner was everyman, not just a black man, in his deadly struggle.

The death of Eric Garner is not an example of racial injustice. It’s a tragic consequence of a man who refused to take his grievance to a courtroom, where it could be sorted out without violence. He paid for that mistake with his life. That does not make him a martyr.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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