NYC Cop “Choke Hold” Trial Begins Today Amidst Confusion

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NYC Cop “Choke Hold” Trial Begins Today Amidst Confusion; Did He Use a Prohibited Choke Hold?; Did It Cause Garner’s Death 

WASHINGTON, D.C.  (May 13, 2019) – The trial of NYC police officer Daniel Pantaleo, who used a so-called “choke hold” which allegedly caused the death of  350-pound asthmatic Eric Garner, begins Monday, after a judge’s ruling helped clarify some of the legal confusion involved in the case, but there’s still widespread misunderstanding, suggests public interest law professor John Banzhaf.   The judge’s ruling, and the defense strategy, follow the same legal analysis Banzhaf published shortly after the incident occurred.

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First, noted Banzhaf, not every violation of a police department rule or policy - e.g. one prohibiting certain choke holds - automatically and necessarily makes an officer guilty of a crime.

For example, if an officer defending himself from a knife attack used a baton or other striking weapon, or a mace-type chemical repellent, other than ones approved by the department, and the assailant died as a result, the cop would not be guilty of a crime - rather than a mere departmental violation - unless he used more force than reasonably necessary under the circumstances, regardless of departmental regulations.

That's effectively the law which will be applied on Monday. As the New York Times put it, "the Police Department judge overseeing the trial said that prosecutors must prove that Officer Pantaleo's actions went beyond a violation of departmental rules and constituted a crime - an unusually high bar."

The Washington Post said "a ruling late last week requires the police watchdog agency bringing the case prove not only that Pantaleo violated department rules, but that his actions fit the criteria for criminal charges."

Second, there is also confusion regarding what is a "choke hold," and exactly what is prohibited by the applicable NYC police department regulation, so it is far from clear that Pantaleo did in fact violate the departmental policy prohibiting some choke holds.

One 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 vascular 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."

The New York City Police defines it as "any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air."

In this second type of choke hold, pressure (generally with a forearm) is applied directly and forcefully to the front of the neck -  directly onto the windpipe or trachea - where it cuts off the flow of air, not blood, and may cause sufficient swelling to make subsequent breathing difficult if not impossible.

It is particularly dangerous, especially in arrest situations, because it can cause severe damage to the windpipe and cause suffocation.  In other words, unlike the momentary loss of oxygen caused by cutting off blood flow from which vessels very quickly recover, this second type of choke, which endangers the windpipe, can easily deprive the body of oxygen long enough to cause permanent injury or even death.

This is why many police departments, including New York City's, have banned the windpipe type of choke hold, while at the same time continuing to teach and use other forms.

In this third version, an officer's forearm 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 sideways 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 it 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 [choke holds] seemed obvious in the highly controlled environment of the studio."

Although there have been many interpretations of the Garner video, there are at least two which would support the officer's version that he did not intentionally use a prohibited choke hold designed to cut off the perp's airway. One such version was reported by NPR this way.

"These are holds where the arm comes around the neck in such a way that the crook of the arm is in front of the Adam's apple. So the Adam's apple's actually not being pushed in. You can still breathe, but the pressure's on the two sides of your neck. And the point there is to press down on the arteries leading to brain, briefly cutting off the flow of blood to your brain and causing the person to pass out for a few seconds - long enough for a police officer to cuff that person. This vascular hold is something that's actually formally trained. There's certification in it. And police officers who like this method say it's actually a very painless and often very safe way of subduing someone who's agitated."

In other words, some would argue that the videotape shows the officer's trying to use this permitted maneuver where the "crook of the arm is in front of the Adam's apple. So the Adam's apple's actually not being pushed in."

Another interpretation would suggest that the officer begins - and is trying to use - the seat belt take down, but that Garner's huge size makes it impossible for Pantaleo to bring his other arm - the so-called underhook - around Garner's very large chest, so he has to link it over Garner's other shoulder.

In other words, unless it can be proven that Pantaleo intended to use a hold where his forearm is forced into Garner's windpipe in order to cut off his breathing - rather than that he attempted to cut off his blood supply, or to simply throw him to the ground by forcing his head down and to the side - Pantaleo could be found not guilty.

Also, any attempt to prove that Pantaleo caused the death of Garner will be difficult because the official cause of death listed, in addition to the choke hold, is "compression of chest and prone positioning during physical restraint by police" - in other words, actions by other police officers which cannot be blamed on Pantaleo.

Also, NYPD's chief surgeon ruled in 2014 that Pantaleo had not used a choke hold on Garner, and no harm to the trachea was found on the autopsy.

In short, summarizes Banzhaf, the case is more complicated than those who say the video clearly shows Pantaleo using a choke hold prohibited by regulations, and that it clearly killed Garner.


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  @profbanzhaf

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