14 Comments

I usually oppose “double jeopardy” prosecutions by the Federal Department of Justice, but here is an exception that proves the rule. Before DoJ tries to prosecute, however, they need to restore their credibility by distinguishing this case from Michael Brown, an aggressive bully caught on camera.

In any case, I understand that “double jeopardy” applies to verdicts by petit juries, not to failure to indict by grand juries.

Leaving aside the assault itself, it seems to me that the fact that they stood around for seven minutes doing nothing after he passed out and actually pushed back bystanders warrants a charge of criminally negligent homicide against the police. Unlike ordinary citizens, the police do have a duty of care, and they are supposed to be trained in CPR.

What the cops used was not really a chokehold, if they were, Mr. Garner windpipe would be crushed and he wouldn’t be able say anything. BTW, if you are saying: “I can’t breathe”, then you are breathing.

Although the video is great proof of liability in a wrongful death suit, before criticizing the Grand Jury for not at least indicting for negligent homicide, you should research N.Y. law. Obtaining a conviction would be very iffy:

NY Penal Code §125.10: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

People v Sanders, 114 A.D.3d 1260, 1260 – 61, 980 N.Y.S.2d 681, 683 (N.Y. App. 2014):

“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person” . . .A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists[;] [t]he risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” . . .. ” ‘[T]he carelessness required for criminal negligence . . . must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong’ ” (citations omitted)
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Here, the evidence at trial established that defendant rushed at the victim from behind and, without warning, delivered a powerful blow with his closed fist to the victim’s head, which resulted in massive bleeding around the victim’s brain and, ultimately, his death. Eyewitnesses described defendant as using all of his body weight and all of his momentum to deliver a blow that immediately dropped the victim to the ground. The sound of the punch was described by eyewitnesses as a very loud crack, like a wooden bat hitting a ball.
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we conclude that, although an acquittal would not have been unreasonable, it cannot be said that County Court failed to give the evidence the weight it should be accorded.”

If, even in dicta, the NY appellate court would conclude that a jury trying the facts in Sanders “would not have been unreasonable” to acquit, a choke-hold, allegely taught at the NY State Police Academy, although prohibited by the NYPD, looks to fall short of the standard to prove “criminal negligence.”

You don’t have to approve of NY law, but don’t criticize a Grand Jury in NY for applying it. If you believe that it’s a bad law, then go to the legislature to get it changed.

I supplement Mr. John Rohan comment.

Mr. Garner said very clearly “I can’t breath” at least 11 times. To do so, air from his lungs had to pass over his vocal cords with sufficient volume to carry his words to others. Mr.Garner was breathing pretty well. Had he said more accurately “My asthma”, he might have gotten medical attention sooner. According to another commentator, the “Choke hold” was applied only when Mr. Garner was taken to the ground, about 10 seconds. Mr. Garner’s neck was not broken so it is difficult to blame his demise on the officer’s take down. Mr. Olson could have been dismayed by a supposedly scientific office making such a ridiculous and inflammatory finding. but he wasn’t. I’m disappointed.

A chokehold need not involve the larynx at all. Some chokes work primarily or wholly by compressing the carotid arteries and cutting off the flow of blood to the brain. An example familiar to those who have studied judo is the set of three related chokes namijujijime, gyakujujime, and katajujijime.

Someone saying “I can’t breathe”, which involves a pulmonic egressive airstream, that is, air flow from the lungs out through the mouth and/or nose, may well be unable to breathe, which involves airflow in the opposite direction. The continued ability to speak merely shows that the person has not yet completely exhausted the air in his lungs; he may well be unable to draw air into his lungs.

It is hard to tell form that video, but at the point at which Mr. Garner said “I can’t breathe”, he was on the ground with several police officers on him.. His breathing may well have been inhibited by the compression of his chest, which would be quite compatible with continued speech.

A choke that cuts off the flow of air to the lungs need not result in the crushing of the larynx. To cut off the flow of air to the lungs, you need to compress the trachea. That is most commonly done at the level of the larynx, but it can also be done by constricting the neck below the larynx. You can easily feel this on your own neck: put your hand around your neck right at the base, so that your palm rests on your chest. You will feel only soft tissue between your thumb and fingers.

John Rohan 12.04.14 at 3:00 pm:

BTW, if you are saying: “I can’t breathe”, then you are breathing.

William Nuesslein 12.04.14 at 7:56 pm:

I supplement Mr. John Rohan comment.

Mr. Garner said very clearly “I can’t breath” at least 11 times. To do so, air from his lungs had to pass over his vocal cords with sufficient volume to carry his words to others. Mr.Garner was breathing pretty well. Had he said more accurately “My asthma”, he might have gotten medical attention sooner.

Excuse my French, but these assertions are ridiculous excuses to blame any asthmatic person for failing to communicate his distress with perfect scientific accuracy.

Human beings in pain and distress often use succinct and technically inaccurate expressions to describe their pain and distress. Any normal human being knows what they mean.

I’m not sure what to think of anyone in a position to render aid, but who refuses because the injured person didn’t make a legally and scientifically vetted statement about the nature of their distress.

I think that any normal human being, hearing an asthmatic gasp “I can’t breathe”, would take that to mean that he needs immediate medical assistance or emergency first aid in order to breathe; not scolding for technical inaccuracy in stating his physical condition.

The idea that “I can’t breathe” is contradicted by the fact Garner was speaking assumes that either one has total flow of air (100% flow) or no flow of air at all (0% flow.)

“I can’t breathe” is not a binary choice. There is not a person here who has witnessed a heart attack, seen an accident, been on a ballfield where there is an injury, etc and have not heard “I can’t breathe.” It doesn’t mean the person is not able to speak or to take in some air – it is “shorthand” for “help” and a specific cause.

The medical examiner classified Garner’s death as a homicide. The other officers involved were granted immunity to testify.

I fail to see how a bunch of cops choking a man, sitting on his chest (starting a chain of medical events) and then denying the man care while handcuffed and in their custodial care doesn’t amount to something other than “go home, officer.”

Good policing calls for quickly getting Mr. Garner cuffed so that he can’t harm himself or others. The take down was very quick and effective.

Mr. Garner may have helped himself had he been more specific in his complaint. “Hey guys I have asthma problems, take it easy.” comes to mind. But people check their text messages while driving. That is not a capital offense either, but it can lead to disaster. Sometimes God is stern.

Some have pointed out that air can be exhaled and inhaled from a choke hold. But the only way Mr. garner could say “I can’t breath” 11 times, he had to put more air into his lungs after the utterance or two.

Sorry William and John – you’re being pedantic. That he wasn’t LITERALLY choked doesn’t mean he wasn’t being choked and airflow wasn’t being seriously compromised.

William – I ask – will you submit to having your airflow and / or blood flow through the neck veins / arteries being medically restricted to a same amount? You could be “trachea tubed” and then have an orifice placed on the tube to restrict the flow. Then come on back and tell us all about the experience and how you weren’t being “choked”.

Article argues that Garner’s asphyxiation was more due to being leaned on face down with officers’ weight on him than the neck collar itself: http://thefederalist.com/2014/12/05/what-everyones-missing-by-focusing-on-nypd-chokehold-of-eric-garner/

Very well Walter – I revise my offer / request to William: Have some straps, or how about a large Boa constrictor, wrapped around the chest to restrict ones ability to inhale and come on back and tell us all about how you weren’t being choked, but being suffocated instead.

Yes….not literally being “choked” there Mr. Pedantic William.

“Mr. Garner may have helped himself had he been more specific in his complaint. “Hey guys I have asthma problems, take it easy.” comes to mind. ” – William N.

William – do you recall that scene from the movie Gandhi…the one where there is the commission investigating the massacre where British troops fired into an unarmed crowd? Where the Brit general indicated he would have used the armored car mounted machine gun, if it could have made it through the gate? One of the lines questions that the commission put to the general was more or less “what aid did you provide for the wounded?” And the General’s response was along the lines of “I was willing to help anyone who applied for aid” whereupon he was asked by one of the commissioners “Just how does a child shot with a .303 Lee Enfield apply for aid?”

Seems to me like “you’re choking me” is the guy asking for help as best he can under the circumstances.

Shame on you William. Absolute shame, Sir.