Candidates Debate Choke-Hold Garner Case But Misunderstand Evidence

Candidates Debate NYC Choke-Hold Cop But Misunderstand Evidence; Reenactments Show How Approved Police Maneuver Had to Be Modified For Garner

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WASHINGTON, D.C.  (August 1, 2019) – Several Democratic candidates for president who called for the firing of New York City police officer Daniel Pantaleo in last night’s debate fail to understand that, despite the video tape, he did not use a prohibited choke hold on Eric Garner – a conclusion demonstrated by two different reenactments of the event – argues public interest law professor John Banzhaf.

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The Department of Justice has held that the NYC police officer who allegedly used a choke hold which led to the victim's death will not face federal prosecution - a ruling which could also help protect him in his departmental hearing - because the prosecutor accepted the theory of the event urged by his lawyer, and originally suggested by public interest law professor John 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 help persuade the hearing examiner that it is reasonable, or that at least that the proof does not refute it.

Quite frankly, it could also make it easier for the examiner to rule for the officer, even in the face of harsh public criticism and the statements of several major presidential candidates, since she could then note that she had reached the same conclusion as the federal government did, based upon all the evidence, including the video tape, says Banzhaf.

Two reenactments of the hold placed on Eric Garner, one at the trial of officer Pantaleo for allegedly committing a crime by using a banned choke hold, and another by professor Banzhaf seeking to duplicate the event, support the officer'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 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."

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.

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.

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, 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.

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




About the Author

JOHN F. BANZHAF
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/ jbanzhaf@law.gwu.edu