Both ABC7NY and the Gothamist, among others, are reporting that NYPD Deputy Commissioner of Trials Rosemarie Maldonado ruled the Officer Daniel Pantaleo “is guilty of using a chokehold but not guilty of aggravated assault nor obstructing breathing.”
But this determination seems internally contradictory because the only “choke hold” which is prohibited by the NYPD regulation which Pantaleo was charged with violating is narrowly defined as “any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air,” argues public interest law professor John Banzhaf.
He notes that making a mistake in applying the law, or applying the wrong law to a given situation, is a frequent legal ground for reversing a ruling.
So, if Maldonado is correct in ruling that Pantaleo is “not guilty of . . . obstructing breathing,” the hold or maneuver which he used to subdue Eric Garner is not a hold prohibited by NYPD regulations, but rather is one of several possible police tactics which involve the neck but are completely lawful.
These include the carotid neck hold often seen in judo matches in which blood to the brain, and not the “intake of air,” is restricted, as well as the “seat belt” maneuver in which an arm in placed on one side of the neck but no breathing is hindered.
Indeed, notes Banzhaf, the Justice Department itself found that Pantaleo had attempted to use a seat belt maneuver, and not the only type of choke hold which is prohibited by applicable NYPD regulations.
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 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.
This is important, not only because it casts major doubt on the departmental finding that Pantaleo “is guilty of using a chokehold,” but also because it helps establish that, even if a choke hold somehow resulted for his efforts, Pantaleo did not not have the intent to choke Garner.
Thus, Pantaleo apparently did not have the requisite criminal intent (“mens rea”) for a crime, and therefore cannot be legally disciplined, suggests Banzhaf, since although the proceeding was civil rather than criminal in nature, he could only be found subject to discipline if the elements of a crime were in fact established.
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 difference between the “choke hold which is prohibited by NYPD regulations, and the approved seat belt maneuver, should be obvious to anyone who carefully studied all the evidence, and who witnessed a demonstration of both techniques put on during the civil proceeding.
For example, New York Times reporter Kirk Semple, who participated in a separate demonstration, noted that “the differences between the legal and illegal seemed obvious in the highly controlled environment of the studio.”
So, Banzhaf, concludes, the ruling that Pantaleo should be fired because he violated an NYPD regulation which prohibits holds “which may prevent or hinder breathing or reduce intake of air” appears to be wrong as a clear matter of law because it is contrary to the other reported determination that Pantaleo was “not guilty of . . . obstructing breathing.”