Why There Was No Indictment in the Eric Garner Case

PoliceBadge2by Matthew Ernst   12/11/14
As protests continue to occur in American cities, it has become obvious that there is an enormous gap between how ordinary citizens perceive police work vs. the reality of police work, as understood by the officers who perform the work on a daily basis.  In the Eric Garner case from New York City, a recent poll revealed that 57% of Americans think that the officer should have been indicted.  Many people want to know how an officer can choke someone, which contributes to that person’s death, and not be charged with any crime.  Yet, a grand jury, that consisted of members of the general public, who after hearing all of the evidence, chose not to indict the officer.

This should be our first clue that the media does not accurately report on police incidents, thus making the general public inaccurately informed.  [As an officer, I have witnessed the inaccurate reporting of police incidents on a regular basis.  There are several reasons for this:

1.  Police incidents are inherently secretive (for a valid reason), which results in the media not getting all of the facts and relevant information.  Left with this void, many media members speculate or seek information from less-than-credible sources.

2.   Police incidents are oftentimes complex and involve legal principles that officers, lawyers, and judges spend years learning about. No journalist can even begin to accurately understand these same principles after reading a police report or hearing court testimony.  When faced with this reality, media members try to paraphrase, which results in inaccurate reporting.

3.  Many members of the media, whether they admit it or not, have this underlying belief that behind every police incident there has to be police corruption somewhere, and they want to be the first to report it.  But police work is naturally controversial and when something goes wrong, the media and politicians immediately come up with explanations such as racism, excessive use of force, poor training, etc.  The reality is that officers receive more training, in a wider variety of topics, than most professions.  Officers simply go where the crime is and do the best they can with the evidence they find based on their training.]

So why was there no indictment in the Eric Garner case?

NYPD Ofc. Daniel Pantaleo was not indicted because he lacked the intent to kill Eric Garner.  And, most often (but not always), the single most important factor in determining whether a crime was committed was whether there was intent to commit the crime by the actor.  Ofc. Pantaleo was simply trying to effect an arrest on a very large, and non-compliant person.  It was obviously an arrest that resulted in consequences that Ofc. Pantaleo could not foresee, nor desired.

As an example of what can happen when a very large, non-compliant person resists arrest, let’s remember the arrest of University of Nebraska football player, Andy Christensen.  Christensen, who was approximately 6’6” 300 lbs., was being placed under arrest for sexual assault when he resisted arrest. It took 7-8 officers, all on him at the same time, to get him into custody.  But Christensen did not die, and he was obviously in better physical shape than Eric Garner, who had diabetes and asthma.

In watching the video of the arrest we see that the officers who initially contacted Mr. Garner, which included Ofc. Pantaleo, were very calm and professional while talking with Garner.  Rather it was Garner who was irate.  They did not simply run up and jump on Mr. Garner’s back and begin choking him.  It appears to me that the officers were stalling for more time as they waited for additional officers to arrive before attempting to place Mr. Garner into custody.  This is something that officers routinely do as it helps decrease the chance that the suspect will resist arrest and if he does resist, it minimizes the risk of injury to officers.

In addition, Ofc. Pantaleo had his arm around Mr. Garner’s neck for no more than 15 seconds.  While everyone has been calling this a chokehold, it is very possible that Ofc. Pantaleo was attempting what is known as the Lateral Vascular Neck Restraint (LVNR), which many officers are trained on.  To the average person, the LVNR will look like a chokehold.  However, in a properly performed LVNR, pressure is applied to the sides of the neck, which can potentially cause the person to be knocked unconscious.  The LVNR is not to be applied to the front of the neck, which is where someone’s windpipe could be crushed, thus resulting in a fatal injury.

But let’s remember that it is much harder to apply the LVNR during a real-life skirmish than compared to a training session.  It is also very hard for someone as small as Ofc. Pantaleo to properly apply the LVNR to someone as large as Eric Garner because Ofc. Pantaleo’s arm would not be long enough to do so without also putting pressure on the front of the neck.

In addition, a small percentage of people will lose consciousness when they have the LVNR applied to them.  And this is exactly the purpose of the maneuver — to help gain control of a large, non-compliant person.  So when Eric Garner was saying “I can’t breathe” the officers likely figured that Garner would re-gain consciousness in a few seconds.

The medical examiner ruled choking played a part in Garner’s death but

also noted, “Garner’s acute and chronic bronchial asthma, obesity and hypertensive cardiovascular disease were contributing factors.”  While the NYPD policy reportedly forbids the use of “chokeholds”, Ofc. Pantaleo’s use of a “chokehold” would constitute a policy violation, but not necessarily a crime.

It must be remembered that Mr. Garner had the opportunity to comply with the officers’ orders.  If this simple request had occurred, Mr. Garner would be alive today and we would not be discussing this issue.  But, Mr. Garner, who had been arrested 31 times since 1988, chose not to follow orders.  This, in turn, led the officers to use aggressive tactics, (perhaps improperly applied), to bring a large, non-compliant person under control.

So in summary, the officers responded to the scene at the request of a business owner because Eric Garner was breaking the law.  Once there, the officers were confronted with a very large, unhealthy person who had a lengthy history of breaking the law, who then refused to obey officers’ orders.  This then led those same officers to use aggressive tactics in order to subdue him, which his body could not handle and he unfortunately died.  Does this officer sound like someone who we should be trying to send to prison?

Officers do not want to have to use physical force to arrest someone.  I have been injured, and have injured other people, in the process of making arrests.

And although I am trained and prepared to use physical force, my job is simply much easier when people are compliant.  I take no satisfaction in injuring other people, but I hold no regret either because people make choices, which in turn causes me to respond in a certain way.  And the reality is that very rarely does a fight with a suspect go exactly as planned.  Rarely am I able to perfectly apply a technique, even if I have rehearsed it in training, when the suspect is actively resisting my efforts.

Despite what the media reports, officers are ordinary people who serve their community by enforcing the law and protecting others from crime.  When someone as large and unhealthy as Mr. Garner, who has a lifetime of arrests to reflect his repeated disrespect for the law, chooses to actively resist arrest, things will not always end well.  Unfortunately, too many in our society have skewed this reality to make us believe that the police are the bad guys who are racist, untrained, and out to hurt people.  The reality could not be further from the truth.
Matt Ernst is a law enforcement officer and instructor in defensive tactics for the law enforcement agency he works for.  Matt is also a national security and law enforcement analyst.  Matt can be contacted at ernst1997@hotmail.com • (1870 views)

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9 Responses to Why There Was No Indictment in the Eric Garner Case

  1. Timothy Lane says:

    I gather from the coverage that the chokehold is legal in New York, but is not an approved procedure by the NYPD. One thing I will note is that while there clearly was no basis for charging Pantaleo (or anyone else) with murder, and probably not voluntary homicide, some sort of involuntary homicide would have been reasonable on the information we have. The prosecutor in Staten Island should have done what McCulloch did in Ferguson: provide a complete transcript of the evidence. Then we could better evaluate the decision. Many people are too ready to attack the police (liberals, of course, seek to destroy law enforcement in order to assist their goal of revolution), but the fact remains that the police are no more perfect than any other group of hundreds of thousands of people.

  2. Matt Ernst says:

    I am not overly familiar with Missouri or New York State law but I believe that more restrictive state laws in New York regarding grand juries was why the prosecutor in NY did not release as much information as compared to the prosecutor in Missouri. In fact, much of the information we have re: the Garner case was only released following an additional ruling from a court.


    Ernst writes an informative piece, in fact much better than the one that appeared in NRO by another officer, but there are certain facts and points of law he inadvertently omitted, and when we consider them it is by no means obvious that the grand jury was correct in not returning an indictment.

    Before getting into that, I must say that I am dismayed that so many Conservatives seem to line up reflexively behind the police no matter the circumstances. I think that generally, police today are largely well-trained and professional (that may be starting to change as the Left puts more and more unjust laws on the books), but at the same time as Tim Lane noted above the police are not perfect. I would add that I think police should be held to exactly the same standards as anyone else (which is not quite the law in New York). When I suggested over on NRO that the grand jury might have been wrong, I was greeted not by polite disagreement but by such vicious invective you’d have thought I’d joined Al Sharpton in accusing the police of being racist murderers. The reasons for this might be worth an article by themselves, and I myself am still not sure why so many Conservatives seemed unable to even consider the possibility that perhaps the police had used excessive force. I think two reasons were (1) a desire not to give any ammunition to the Left, which is always ready to distort the slightest police misconduct into systematic racism against blacks, and (2) discomfort with holding people accountable for criminal negligence, which we’ll come back to.

    Some of the counter-arguments I was met with were truly disturbing: a couple of people suggested that once a subject resists arrest, anything that happens afterward is his fault – indeed, Thomas Sowell, no less, almost said the same thing although he phrased it a little more elegantly. But such is not the law in any state (which I pointed out in vain). Many decided to play armchair coroner, and claimed that Garner died in the ambulance from a heart attack (not true, by the way, although even an M.D. engaged in pure speculation over on The American Thinker), and that the fact he could say “I can’t breathe” meant that he could, indeed, breathe perfectly well (also not medically true). A few maintained that I was somehow unqualified to judge, because I wasn’t a police officer – the logical consequences of that line of thinking I leave for each to work out for himself.

    And there were many digressions on both sides: the law was unjust, Garner was arrested 31 times, etc. While true, none of these facts had the slightest bearing on the case. Which brings us to:

    Let’s begin with the question of intent. Ernst points out that Pantaleo and the other officers had no intent to kill Garner, which of course is true. But intent is only necessary to prove murder, and there are degrees of homicide less than that. For example, if I recklessly drive my car at high speed over the curb and kill a pedestrian, I’m not guilty of murder because I didn’t intend to kill the man, yet I negligently caused his death. Such an act is usually called reckless or negligent homicide, and it is a crime. It isn’t pleasant to have to send people to prison for such crimes, precisely because they do lack criminal intent of the kind seen in robbery or murder.

    And that makes things much more difficult, because the video combined with the ME’s findings suggest that the police may in fact have been negligent here. The relevant standard is that when making an arrest in the State of New York, the officer may “use physical force when and to the extent he or she reasonably believes such to be necessary”. [Emphasis added]. If then the force used was unreasonable, and if that force caused Garner’s death, and if the police knew it could easily cause his death, then a case for negligent homicide can certainly be made although I have to say it probably wouldn’t be strong enough to prevail at trial.

    Of course that’s a lot of “ifs,” and there are a lot of things the grand jury may know that we don’t. But we do see a hold of some sort being applied to Garner’s neck, and the officers do pile on Garner (at the point in the video he says “I can’t breathe” for the first time), and they did leave him handcuffed in a prone position for an indeterminate length of time (based on the video I have seen) before turning him on his side, which brings up the question of positional asphyxia. I can’t help believing that the force used was excessive and unreasonable.

    The second key point Ernst didn’t get into was the ME’s report. It concluded that Garner’s death resulted from pressure to his neck and chest, with Garner’s medical conditions a contributing factor, and the ME ruled the death a homicide. What exactly does this mean? It could mean the the police were in fact the cause (in the legal sense) of Garner’s death – but it might not. What exactly did the police do to Garner? Was their training sufficient to inform them that what they were doing was dangerous? Why did they at first do nothing when Garner complained he couldn’t breathe?

    So right now we have more questions than answers (again, perhaps the grand jury heard a lot more, and we can hope that they did). I can’t say that the grand jury was wrong, but I don’t think Ernst or anyone else can say for certain that they were right, either.

    (Andy McCarthy gives a careful account on NRO, and he also concluded that the grand jury might have been mistaken – not that it was, but that it might have been).

    • Timothy Lane says:

      Reflexive defense of the police is wrong, as is reflexive criticism of the police, because any such reflexive behavior involves a failure (or even refusal) to think. (Robert Tracinski has an article on that subject at the Federalist, about the one thing liberals can learn from Ayn Rand. I may add a link to it as an addendum.)

      Many years ago, I read a book by a California forensic psychologist (who had been involved in the trial of Dan White for the Moscone-Milk murders, one of the cases he discussed). He noted the 4 levels of homicide: premeditated murder (deliberate and planned in advance), unpremeditated murder (deliberate but not planned), voluntary homicide (not deliberate but resulting from an illegal act), and involuntary homicide (resulting from an accident). I certainly think a case can be made for involuntary homicide in the Garner case. Of course, different states have different standards.

      And here is the link to the Tracinski article:


    • Kung Fu Zu Kung Fu Zu says:

      the ME’s report. It concluded that Garner’s death resulted from pressure to his neck and chest, with Garner’s medical conditions a contributing factor, and the ME ruled the death a homicide.

      I tend to agree with your points. I find it somewhat strange that only officer Pantaleo was considered worthy of interest. If you watch the video of the arrest you will note another officer handling Garner’s head and neck very recklessly. Garner was already down and pretty well under control yet this policeman pushed his head down on the concrete with some substantial force. Frankly, it looked as if a pack mentality took over once the police started to take Garner down. Garner did not resist very violently to begin with or after the choke hold was applied.

      While Garner was foolish in pushing away the hands of the policeman trying to arrest him, that does not excuse the use of excessive force as pictured in the video. And I don’t buy the usual response that “if you think it is so easy, you should become a cop.” A person takes on great responsibility when becoming a policeman. If it is too much for him, he shouldn’t become one.

      I am interested in why the police could not have continued talking to Garner in the hope of him calming down? How about confiscating his cigarettes and writing a ticket? Why the obvious aggressive stance for someone selling single cigarettes? How about a little bit of a measured response to the crime? But of course, who made the selling of tax free cigarettes a capital crime? Why the liberals of course. While Garner was no doubt a petty criminal with a long record, the dishonest and insane taxation policy applied to cigarettes helped things along. Perhaps Garner would have found some other law to break, but I believe this whole episode looks pretty disgraceful. And just to make it clear, I don’t smoke.

      Of course, I would like to be proven wrong, but nothing has come out from the grand jury which would contradict my opinion. As to whether or not Pantaleo or others who took part in the arrest deserve a prison sentence, maybe-maybe not. But it is questionable whether they should still be policemen. And that is a discussion which should take place.

  4. Brad Nelson Brad Nelson says:

    I see that the StubbornThings brain trust has things well in hand. I couldn’t agree more with Nik about the mindless pro-cop stance by some conservatives. We need to give law enforcement due deference. And we certainly, unlike the Left and libertarians, should not view them as an inherent enemy. But, Jesus Christ, no “resisting arrest” regarding selling single cigarettes on the street should result in anyone’s death.

    Cops have a tough job. They face the scum of the earth on a daily basis and make it so that we, the ordinary citizenry, can more or less forget about them. They clean up our garbage. We should therefore cut them some slack when they do get a little excessive. I’d rather have them be excessive than to put their own life at risk for politically correct reasons.

    But, Jesus, this arrest and death was over the sale of some god damn single cigarettes on the street corner. At worst, you hand out a ticket and move on. But these cops seem to be symptomatic of something I’ve seen come for a long time: Your rank-and-file public servant now has the value system as inculcated by the Left, not the classical ethics of Americanism/Judeo-Christianity. As hard as it might be for some conservatives to face, spread all throughout government, the “good guys” are often no longer particularly so good. At best, many are often mindlessly pedantic. At worse an increasing number are militaristic.

    • Timothy Lane says:

      I believe it was the NYPD that I first heard of that had the practice known as “testilying”. Some police forces have problems — though that was quite some time ago, and things might have improved. Of course, one must remember that the police aren’t the ones who decide how the cigarette laws will be enforced — blame for that follows on Michael Bloomberg and his equally fanatical Humanoid successor, Bill de Blasio. (Note that they arrested Garner after complaints from local business owners, mostly black, and that the sergeant in charge of the arrest was a black woman.)

      Incidentally, the inflammatory hostility to the police (who were enforcing his demands, after all) by de Blasio and other pols has had a consequence: the NYPD is suggesting that its members sign a form asking de Blasio and the City Council President not to attend their funerals if they’re killed. Most amusingly, the inflammatory de Blasio has complained about how divisive this response to his open hostility to the police is. This seems particularly strange because radical (i.e., revolutionary) leftists like de Blasio reject traditions such as the tradition that the mayor attends police funerals.

      • Brad Nelson Brad Nelson says:

        Of course, one must remember that the police aren’t the ones who decide how the cigarette laws will be enforced — blame for that follows on Michael Bloomberg and his equally fanatical Humanoid successor, Bill de Blasio.

        And this points to the problem. In a Leftist state, there is little room left for the human. If I’m a cop, that last thing I’m on the lookout for is people selling single cigarettes. Only a mind conditioned by the ruthlessly inhuman and unreasonable nanny state could give a flying f**k enough about enforcing this silly law to put a guy in a choke hold.

        Yes, dumb law. But let’s remember that down on the street level, officers have enormous discretion — unless that part of them that is human has been undernourished and suffocated by Leftist/statist thinking. And I think that has obviously been the case.

        Regarding de Blasio, one thing we must have frontmost in our minds is this ridiculous smug idea New Yorkers have: “If you can make it here, you can make in anywhere.” That might have been true at one time. But now New York is the haven of pansy girls and pansy men who will vote these strange and bizarre people into office. New Yorkers are a clear symptom of a republic that has gone mad, at least in the urban areas. The Big Apple is now the sick apple.

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