Why Justice Refused To Prosecute NYC “Choke Hold” Cop; Two Different Reenactments Provide Strong Support for Defense Theory
WASHINGTON, D.C. (July 16, 2019) – Two different reenactments of the hold placed on Eric Garner, one at the trial of officer Daniel Pantaleo for allegedly committing a crime by using a banned choke hold, and another by a professor seeking to duplicate the event, support the cop’s claim that he attempted to use an authorized seat belt maneuver to take down Garner, but was unable to complete it because of Garner’s huge size.
The lawyer for Daniel Pantaleo, the police officer on trial for allegedly using a choke hold prohibited by New York City police regulations to cause the death of Garner, has insisted that what his client actually used was an authorized seat belt maneuver or take down which slipped as Garner struggled, and that Pantaleo did not intend to use a banned choke hold technique.
If that is true, Pantaleo apparently did not have the requisite criminal intent ("mens rea") for a crime, and therefore cannot be legally disciplined, claims Banzhaf.
To dramatize how this probably happened, the defense called Russell Jung, a retired NYPD sergeant who was the police academy supervisor when Pantaleo was training. He testified that the video showed a seat belt hold, not a choke hold. "That's the first thing I said when I saw the video," he said.
Jung also testified that the approved technique might result in "incidental contact with the neck."There's no airway restraint," Jung testified, based upon video. "The windpipe is in between the crook of the elbow."
This is important, and much misunderstood, because the only "choke hold" which is prohibited is narrowly defined by police regulations as "any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air."
Actually, there are several types of holds involving the neck, and only one - putting pressure directly on the windpipe to restrict air flow - is prohibited, says Banzhaf.
Another type of choke hold, familiar to anyone who has watched Olympic judo, is one designed to render the opponent temporarily unconscious by momentarily cutting off the flow of blood (and therefore oxygen) to the brain. To accomplish this, pressure is applied to the sides of the neck rather than to the front.
This application, which is fully permitted by the rules of the sport and taught to competitors, is very dramatic when used in matches, since the competition ends with one participant unconscious on the mat, only to regain consciousness seconds later.
But this type of choke hold, which cuts off blood flow to the brain, is not the type prohibited by NYC police regulations." As NPR reported: "What the New York Police Department bans is a hold that cuts off the air - that crushes windpipe in such a way that you can't breathe."
In a third version, an officer's arm is applied to the perpetrator's [hereinafter "perp"] neck, not to cut off blood or air flow, but rather to apply force with maximum leverage or control to bring him to the ground where he can more easily be controlled, and prevented from injuring one of more of the officers.
It's obviously better than seeking to apply the same amount of force to the perp's waist, his shoulder, or to the top of his head where it would be less effective, and is more easily evaded.
In one version, which is illustrated by many videos available on the Internet, a officer brings one arm over the perp's shoulder and pushes on the neck while the other arm goes under the perp's armpit on the other side so that the officer can then maintain a tight hold by clasping his hands over the perp's chest.
This for obvious reasons is sometimes called the "seat belt" maneuver or take down, and is widely taught and practiced by many police departments, apparently including New York City's.
New York Times reporter Kirk Semple, who participated in a demonstration, noted that "the differences between the legal and illegal seemed obvious in the highly controlled environment of the studio."
To illustrate how an attempt to use the approved seat belt maneuver could fail when used on a huge perp and result in some incidental contact with the neck, Jung put on a demonstration with a volunteer showing different holds and takedowns - something reported by the Washington Post. This is very similar to the reenactment/demonstration reported by public interest law professor John Banzhaf almost a month ago.
Banzhaf says that was able to find a volunteer who is very big but still slightly smaller than Garner - the volunteer was about 6 ft 4 in and 300 lbs, while Garner weighted some 396 lbs. - and who agreed to stand perfectly still while the professor tried to execute the approved seat belt maneuver on him.
This maneuver requires that the arresting officer extend one of his arms over the perp's shoulder while the officer's other arm goes under the perp's opposite armpit.
Then, to use this maneuver to bring a reluctant perp to the ground, the officer clasps or interlocks both his hands across the perp's chest so that the perp can be held tightly, and then thrown to the ground. In other words, the officer's two arms resemble a seat belt holding the perp firmly in place.
At no time is there any intent to choke the victim, or to otherwise restrict his breathing.
The "choke hold" which is prohibited is defined police department regulations as "any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air."
Strangely, a key witness for the prosecution, Deputy Inspector Charles Barton, admitted on cross examination that he did not know the definition of the hold which is prohibited, and about which he testified as an expert witness.
What Banzhaf - who at 5 ft. 10 in. is slightly above average male height - found was that in trying to execute the seat belt maneuver or take down, he could not bring his two hands together, much less securely clasp or interlock them across the large perp's chest. Thus he could not control this large volunteer and throw him to the ground, even though he had kindly agreed not to struggle or even move.
Banzhaf says that, because of the perp's very large chest, he was not able to control him at all, much less lock his hand's together in a simulated seat belt to throw him to the ground. This meant, Banzhaf says, that he had to suddenly and unexpectedly alter the configuration of his arms in such a way that it might seem to be a choking maneuver.
If, as in Garner's case, the perp had struggled and resisted the seat belt hold being put on him, the officer would have no choice - to protect himself, the other officers, and even Garner from harm, especially from falling into a plate glass window immediately behind them - but to momentarily alter the configuration of the approved seat belt hold.
Banzhaf suggests that TV and other reporters who have doubts that this might happen find a volunteer about the size of Garner and have another volunteer Pantaleo's size try to execute the approved seat belt maneuver and bring him down, especially if the perp struggles as Garner clearly did.
If he can't, it helps prove the validity of Pantaleo's theory of the case, although obviously it cannot conclusively establish that he was not guilty of a crime.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf