Ruling Against NYC’s Choke-Hold Cop Can Still Be Reversed; Reenactments Showed How Approved Police Seat Belt Maneuver Had to Be Modified By Daniel Pantaleo For Garner
WASHINGTON, D.C. (August 2, 2019) – An administrative judge has just issued a tentative ruling which recommends that the New York City police officer involved in the so-called choke-hold death be fired, but Daniel Pantaleo’s lawyer still has an opportunity to respond, and try to change the judge’s tentative ruling.
It may well be that she did not fully understand or believe that, despite the video tape, he did not use a prohibited choke hold - a conclusion demonstrated by two different reenactments of the event, and accepted by the U.S. Department of Justice, notes public interest law professor John Banzhaf.
The Department of Justice has held that the NYC police officer who allegedly used a choke hold which led to a victim's death will not face federal prosecution - a ruling which could still help him in his hearing - because the prosecutor accepted the theory of the event urged by his lawyer, says Banzhaf.
According to USA Today, U.S. attorney Richard P. Donoghue said that officer "Pantaleo inadvertently grab[ed] Garner by the neck"; tried to employ an approved NYPD tactic of a "rear takedown" or "seatbelt," which is used to knock suspects off balance and bring them to the ground; cited "the size difference between Pantaleo and Garner as a reason the police officer had trouble subduing Garner"; and that he didn't intentionally place Garner in a choke hold.
Because this is the same explanation advanced by Pantaleo in his department hearing, it might still persuade the hearing examiner that it is reasonable, or that at least that the proof does not refute it.
Two 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 professor Banzhaf 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 Pantaleo, has insisted that what his client actually used was an authorized seat belt maneuver 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, suggests public interest law professor John 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, suggests Banzhaf, 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, notes Banzhaf, there are several types of holds involving the neck, and only one - putting pressure directly on the windpipe to restrict air flow - is prohibited.
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, notes Banzhaf, 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 take downs. This is very similar to the reenactment/demonstration reported by university professor Banzhaf almost a month ago.
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 agsint Daniel Pantaleo, 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.
So the Justice Department has apparently accepted the theory advanced by the officer's lawyer, and originally by Professor Banzhaf, that Pantaleo originally tried to use the "seat belt" take down maneuver, but the huge size of Garner's chest made it impossible, so his arm momentarily touched Garner's neck, but did not cut off his airway - a result consistent with a demonstration also staged by Banzhaf.
In many administrative proceedings, counsel for each side are provided with a draft of the initial decision - often called findings of fact and conclusions of law - which they can review and critique.
Sometimes they are able to point to apparent errors in the tentative decision - including evidence which might have been overlooked, misunderstood, and contradicted by other things in the record, questionable conclusions regarding the applicable law, etc. - which could change the final decision.
In a highly controversial and political situation such as this with Daniel Pantaleo- one which has already been the subject of a debate between major presidential candidates, and which has the potential to affect the policing New York's residents will receive for the foreseeable future - care must be taken to get it right, says Banzhaf.
He noted the changes in police behavior, and its effect on crime, which occurred in Baltimore after several officers were charged with homicide regarding the death of Freddie Grey, even though none were even convicted.
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