Although the death of Eric Garner immediately following a neck hold by a police officer in New York City was recorded on a widely-replayed videotape, federal prosecutors are reportedly reluctant to charge the officer involved, but there may be – in addition to political explanations based upon new leadership at the Department of Justice – good legal reasons why the criminal prosecution should not go forward, says public interest law professor John Banzhaf.
Although many may find it inexplicable that a police officer – clearly shown on a videotape to be using a neck hold arguably prohibited by New York City police policy – was not indicted by local authorities even though the death of his prisoner was determined to be a “homicide,” there are at least two legal reason why criminal charges may not be warranted, Banzhaf explained at the time the decision was announced.
These reasons may also help explain why the Justice Department now is reportedly reluctant to move forward with a civil rights prosecution.
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First, although many commentators are stating that the officer used an “illegal” tactic known as a choke hold, and therefore is guilty of a crime simply because choke holds violate NYC police policy, that conclusion is not correct – a practice may be prohibited by NYC police policy for its officers, yet without more not be a violation of any criminal statute, notes Banzhaf.
For example, in a typical police shooting case where the officer claims self defense, he is not automatically guilty of a crime, much less of manslaughter, simply because the bullets he used were not authorized by his department.
Rather the criminal case would focus, as it would in any similar case, on whether or not his belief that the perpetrator was threatening him was reasonable.
His use of unauthorized bullets would be a matter of internal police discipline under established departmental procedural rules and guidelines, and could result in anything from a fine or brief suspension, to dismissal from the force.
To convict the officer of the easiest criminal charge to prove – second-degree manslaughter – Section 125.15 requires a showing that the defendant acted “recklessly.”
While some choke holds can cause death, such a result is apparently somewhat rare, and seem to occur primarily when using the bar-arm hold or the carotid hold type of neck hold, neither of which clearly appears from the video to have been used here.
In other words, if the officer simply grabbed Garner around the neck to maintain control of this large suspect, and did not specifically position the hold to crush his windpipe (bar-arm hold) or cut off blood to his brain (carotid hold), it might not necessarily be “reckless” – or, at very least, a prosecutor might not be able to prove that use of a simple neck hold, used frequently in many wresting situations, is reckless.
Alternatively, in an actual case, the prosecution might have a hard time proving, beyond a reasonable doubt, that the hold was in fact a bar-arm or carotid hold, rather than a simple neck hold.
Moreover, although the NYC Police Department, like other police departments around the country, has prohibited the use of choke holds by its officers, many police forces do not prohibit them.
“It would be difficult to prove – especially beyond a reasonable doubt – that any tactic or maneuver still in wide use by many police forces falls within the narrow category of ‘reckless’ behavior,” says Banzhaf, noting that tasers and the PIT maneuver likewise can and have caused deaths, but are still in wide use and therefor not necessarily “reckless.”
On a second issue, for any indictment of succeed, the prosecutor must also prove that the defendant caused the death of another.
Here, although the official cause of death does list “compression of neck (chokehold),” it also lists “compression of chest and prone positioning during physical restraint by police.”
But Garner’s acute and chronic bronchial asthma, obesity and hypertensive cardiovascular disease were also listed as contributing factors, the medical examiner determined.
Since the videotape appears to show one or more officers other than Daniel Pantaleo on top or Gardner and contributing to the “compression of chest and prone positioning,” it may be difficult to isolate Pantaleo’s choke hold as a cause of Garner’s death in a criminal proceeding, at least beyond a reasonable doubt, suggests Banzhaf.
Thus, although Attorney General Jeff Session’s reported reluctance to move forward in the Pantaleo case may well be based in part on his announced effort to cut back on the use of civil rights prosecutions to deter unconstitutional police practices – which he says under Obama unfairly tarnished good police officers and contributed to racial unrest – it may also be based upon valid legal considerations, say Banzhaf.