Grand Jury Again Fails to Indict Officer in Death, This Time in a New York Chokehold Incident

Candles are seen at the memorial of Eric Garner in Staten Island, New York, July 21, 2014.
Candles are seen at the memorial of Eric Garner in Staten Island, New York, July 21, 2014.

In a moment that has become as sadly iconic as the hands up in the air from Ferguson, Eric Garner repeatedly screamed “I can’t breathe!” before he died at the hands of NY Police Officer Daniel Pantaleo, as a viral video of his arrest captured images of the officer with his armed wrapped around Mr. Garner’s neck.

The question remains – why was Eric Garner strangled? Chokeholds are not only considered dangerous and potentially lethal, they are prohibited by the NY Police Department.

Once again, a man dies at the hands of a police officer, and this time it was a Staten Island Grand Jury who declined to not indict.

As the New York Times explains this morning, “It was never supposed to be a chokehold, the officer testified. It was a wrestling move.”

They note that the 29-year-old officer (one year older than Officer Wilson) led the jury through three different videos of the arrest.

The Times notes, “One video, widely seen on the Internet, seemed to show Officer Pantaleo using a chokehold — a move banned by the Police Department, but not explicitly against state law — to bring Mr. Garner down. The medical examiner’s office determined that the chokehold, as well as compression to the chest, caused Mr. Garner’s death, and ruled it a homicide.”

Officer Pantaleo acknowledged hearing Mr. Garner repeatedly saying, “I can’t breathe” and claimed he was attempting to disengage. However, he also argued that his ability to speak meant he could in fact breathe.

Mr. Garner, a 350-pound man, was being arrested for the illegal sale of cigarettes. He first complained about harassment and then was physically resisting arrest by several officers.

However, the Times describes, “As the struggle continued, one of Officer Pantaleo’s arms moved around Mr. Garner’s neck. Officer Pantaleo told the grand jury that he became fearful as he found himself sandwiched between a much larger man and a storefront window.”

Through his lawyer, we learn that the officer “testified that the glass buckled while Garner was up against him and he was against the glass. He was concerned that both he and Garner would go through that glass.”

The Times writes, “On the video, the men toppled to the ground, but the arm around Mr. Garner’s neck did not appear to move. Officer Pantaleo told jurors he continued to hold on to Mr. Garner as he struggled to regain his balance, Mr. London said. He said he wanted to make sure that Mr. Garner was not injured by other officers rushing in, as well as to prevent Mr. Garner from possibly biting one of them.

“On the video, Mr. Garner, 43, can be heard saying that he could not breathe. Officer Pantaleo told the grand jurors he heard those pleas.”

“That’s why he attempted to get off as quick as he could,” Mr. London, his attorney, said. “He thought that once E.M.T. arrived, everything would be O.K.”

However, the Times notes, “This account does not seem to match what is seen on the video, with Officer Pantaleo holding firm and not appearing to hurry to get off Mr. Garner.”

The New York Civil Liberties Union director Donna Lieberman said, “The failure of the Staten Island Grand Jury to file an indictment in the killing of Eric Garner leaves New Yorkers with an inescapable question: How will the NYPD hold the officers involved accountable for his death? And what will Commissioner Bratton do to ensure that this is the last tragedy of its kind? Unless the Police Department aggressively deals with its culture of impunity and trains officers that they must simultaneously protect both safety and individual rights, officers will continue to believe that they can act without consequence.”

The NYCLU also called on lawmakers to swiftly pass the Right to Know Act, a pair of bills currently before the City Council which would require police officers to identify themselves formally to people they stop and, if there is no arrest or summons, provide a business card and require officers to obtain proof of consent before searching someone when there is no warrant or probable cause.

The ACLU notes, “This decision follows an appalling national pattern where police officers use excessive and sometimes fatal force against people of color and are frequently not held responsible.”

They argue, “There needs to be a shift in the culture of policing in America. A good start would be for our national leaders to come out strongly against excessive force and racial profiling.”

They add, “Eric Garner’s story is sadly all too common. Police officers disproportionately stop people because of their race or engage in aggressive enforcement of nonviolent infractions in communities of color.”

And they write, “We cannot ignore the systemic use of excessive force and discriminatory policing. Law enforcement often does not treat communities of color as equal partners in a shared, collaborative effort to ensure public safety.”

“It’s become ‘us’ versus ‘them’ where communities of color are often treated like the enemy,” the ACLU continues. “Trust between communities and law enforcement is deeply eroded. Police can no longer cast a broad blanket of suspicion over entire communities under the guise of preventing crime.”

On the other coast, San Francisco Public Defender Jeff Adachi wrote, “As San Francisco Public Defender, I am profoundly dismayed by a Staten Island grand jury’s refusal to bring charges against Officer Daniel Pantaleo in the chokehold death of Eric Garner.

“The facts in this case were not murky due to unreliable witnesses or subjective memories,” he stated. “The struggle that ended in Garner’s death was caught entirely on video. Officer Pantaleo, the subject of two previous civil suits, used a hold on Garner that was explicitly prohibited by NYPD’s own patrol guide. Garner, who had asthma, could be heard repeatedly telling officers he couldn’t breathe. The New York City Medical Examiner ruled Garner’s death a homicide.

“A grand jury refusing to indict in such an evidence-heavy case would defy belief–if it didn’t happen so often,” Mr. Adachi continued. “It is less than two weeks since a grand jury in Ferguson, Missouri, failed to bring charges against another white officer who shot another black man. Garner was one of four unarmed black men killed by police in the U.S. over a single month this past summer.

“It is rare for grand juries to return indictments against police officers, at least in part because local prosecutors rely upon local police to bring their cases. Perhaps it is time to bring in district attorneys from outside jurisdictions when a police officer is accused of a crime,” Jeff Adachi concluded. “Eric Garner’s death is not an isolated tragedy. Neither is Michael Brown’s. But together they have significantly eroded faith in the justice system.”

The reaction in New York was different from Ferguson. Protests broke out, with signs stating “I can’t Breathe,” but they were largely peaceful with about 30 arrests reported by 10 pm on Wednesday night.

The Times also notes, “Yet this was no Ferguson, where conflicting witness accounts obscured the circumstances of the confrontation between Michael Brown and Darren Wilson, the white officer who shot him. This encounter was recorded at close range on a cellphone camera, the fact that kept many on Wednesday asking: How? Why?”

We have been talking about the interactions between the police and the black community for the past week and a half, and this type of decision, in this case much more defined, typifies why the black community is so distrustful of the system.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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36 Comments

  1. Barack Palin

    Watching the video and hearing Garner say repeatedly that he can’t breathe I believe this case should’ve gone to trial. I don’t believe this had anything to do with race or the officers being racists.

        1. South of Davis

          David wrote:

          > why do you believe that this would have occurred with a white suspect?

          If you live in SF for a decade (where most of the homeless are white) you will see that cops don’t just get rough with black people, but they get rough with most (but not all) people (of all races) that don’t do what they say (or don’t do it with the kind of “respect” they feel they deserve)…

          The bigger story in this incident is how the government is making almost all small business people criminals.  It is scary that it is now illegal for kids to sell lemonade, a kid to get paid to mow a neighbors lawn or a guy to sell a few smokes to someone on the street (and if you don’t stop the cops will kill you)…

          http://www.amazon.com/The-Right-Earn-Living-Economic/dp/1935308335

          1. Don Shor

            The bigger story in this incident is how the government is making almost all small business people criminals.

            Really? That’s the ‘bigger story’ here?

        2. Barack Palin

          So out of curiosity, why do you believe that this would have occurred with a white suspect?

          First of all I don’t view the world through a prism of race as I believe you do.  Any man who stood 6’3″ tall and weighed 350 lbs. who resisted arrest would’ve been taken down.

        3. Davis Progressive

          doesn’t matter if you view the world through a prism of race – race exists and it has been a long standing problem and there are deep roots of distrust within the black community because of that.

          it’s actually a testable hypothesis whether blacks are disproportionately targets of police misconduct over and above their expected numbers within the legal system.

          “Any man who stood 6’3″ tall and weighed 350 lbs. who resisted arrest would’ve been taken down.”

          but that ignores several nuances…

          1. would a white man in a similar position be approached in the same manner?

          2. were there ways that the incident could have been avoided that might have occur with a white suspect?

          3. there is another factor here – would a white person be as distrustful of the police as this man was and did that contribute to the incident.  it is quite possible for an event to unfold as an interaction where the police was was wrong in how he handled it but the incident was triggered by the actions of the suspect – and would that have been different with a white person.

          add all of those up and i don’t think you can say race had nothing to do with this incident – that doesn’t mean the cop was racist.

        4. Barack Palin

          We can agree that the cop should’ve let up when Garner said he couldn’t breathe, I’ve already stated that.  I’ve also stated that the cop should have been indicted for his actions, he went way overboard.  But once again, quit making it about race, you’re wrong here.

      1. TrueBlueDevil

        Yes. See my comments below.

        According to Bill O’Reilly, roughly 120 African Americans are shot (killed?) every year by police; over 330 white Americans.

      2. TrueBlueDevil

        Yes. See my comments below. According to Bill O’Reilly, roughly 120 African Americans are shot (killed?) every year by police; over 330 white Americans.

  2. Tia Will

    “It was never supposed to be a chokehold, the officer testified. It was a wrestling move.”

    “It was not my intent to harm Mr. Garner”

    Both of these statements have been attributed to the officer who applied the illegal chokehold on Mr. Garner. It seems to me that there is a clear double standard being applied here. One standard for police, and an entirely different standard for civilians. It seems that the police officer’s stated intent, not his actions and obvious outcome that are being used to judge the fact of death directly caused by his actions.

    Can we imagine a grand jury not indicting in the case of a civilian charged in causing the death of another ? What we would make of the statement ” I didn’t intend to kill the officer by shooting at him, I only wanted to scare him so that I could escape”.  Would anyone believe that this should be cause not to indict ?  Or how about ” I didn’t intend to kill my ex girl friend. I just wanted to scare her into taking me back.” Cause to not indict ? If not, what makes this case different ?

    Here we seem to have a police officer given not only the benefit of the doubt, but having doubt created by his stated intent, even when the hold he was using has been declared illegal, even when there was clear evidence of impending harm, (” I can’t breathe”) and even with the entire episode recorded.  If not this case, what will it take to make the clear assessment that there is excessive use of police force and that this must be changed if there is any hope of restoring any degree of trust between police and the communities they serve ?

    1. South of Davis

      Tia wrote:

      > Can we imagine a grand jury not indicting in the case of

      > a civilian charged in causing the death of another ? 

      Not unless citizens (vs the Government) ran the grand juries.

      The main purpose of Government is to protect Government.

      The Government will continue to protect the cops who kill anyone that dares to try and avoid paying a $0.25 cigarette tax (or does anything else the government finds threatening).

      The Government is not guying millions of rounds of ammo and spreading MRAPs around the country to keep citizens safe they are doing it to keep the Government safe.

  3. sisterhood

    “Through his lawyer, we learn that the Officer “testified that the glass buckled while Garner was up against him and he was against the glass. He was concerned that both he and Garner would go through that glass.”

    Then don’t position yourself next to a glass window. Duh.

    So this guy is surrounded by armed officers, and one of them was still fearful for his life, or at least afraid of breaking through a window and getting cut. And Wilson was fearful of his life, too. Seems like both of these young cops picked the wrong line of work.

    “So you believe a white man who committed the same offense and had the same reaction as Garner would have been treated the same?”

    No, of course not. Another example of the necessity of body cameras on law enforcement.

  4. PhilColeman

    I enjoyed pondering Tia’s analogy, but came away with the feeling that race did not really have a bearing in this decision. Shuffle a Technicolor spectrum among all the participants, all the bystanders, the indictment decision would very likely have been the same.

    In the spirit of full disclosure, had this been my criminal case to file, I would have personally taken the case file to the District Attorney and begged him to prosecute for negligent homicide. The probable cause standard for prosecution was achieved with lots to spare.

    The failure to indict was not based on color (appropriately), but rather on the remarks of the officer who said he had no intention to cause the death of the victim. I fully believe the officer’s remarks, even though they were obviously self-serving under the circumstances. I refuse to believe he wanted to kill this man.

    But using an attorney’s favored word argument, the officer’s mindset or intent is irrelevant to the crime of negligent homicide. The officer was criminally negligent, beginning with the indisputable fact that he violated departmental policy on use of force, and somebody died as a result.

    “I didn’t mean to do it,” somehow came into the early thinking process of the New York Grand Jury. Presumably, their Grand Jury is an exclusive prosecutor stage-play like ours. Cynics can, and will, say that the prosecutor must have somehow manipulated the Grand Jury down this path. I don’t believe that either, it’s too high-risk. Some juror would be on the phone to the New York Times in a millisecond afterwards if it did happen, and the prosecutor would be emptying his/her desk a hour later.

    “Runaway Grand Juries” is not a new phrase, but its use, historically, has been applied to different circumstances. We are now painfully discovering that grand juries can take off on a collective mind of their own, and society suffers.

    With thanks to Medieval England for letting us borrow it, it’s way past time to destroy the current grand jury system in this country and reconfigure it into a replacement body that reflects contemporary standards of public protection and accountability. Yes, I just said abolish grand juries. How about that ruining for your entire day?

    1. tj

      GRAND JURIES  —  Don’t forget only 4 out of 12 grand jurors were needed to kill an indictment against Wilson.

      And, Grand Juries are not randomly selected.

      1. Don Shor

        Police oversight commissions, presumably. I agree that our current grand jury system is very problematic. At the very least, change the way people are selected for grand juries so they are more representative of the community.

  5. Anon

    “If you live in SF for a decade (where most of the homeless are white) you will see that cops don’t just get rough with black people, but they get rough with most (but not all) people (of all races) that don’t do what they say (or don’t do it with the kind of “respect” they feel they deserve)…”

    Precisely.  It would not have mattered what the race of this guy was.  He did not obey the cop, and once one doesn’t obey the police, the police feel entitled to do whatever it takes to force obedience.

    “But using an attorney’s favored word argument, the officer’s mindset or intent is irrelevant to the crime of negligent homicide. The officer was criminally negligent, beginning with the indisputable fact that he violated departmental policy on use of force, and somebody died as a result.”

    I wholeheartedly agree.  Chokeholds were banned in Los Angeles and elsewhere for a reason – bc it did result in so many deaths.

    “With thanks to Medieval England for letting us borrow it, it’s way past time to destroy the current grand jury system in this country and reconfigure it into a replacement body that reflects contemporary standards of public protection and accountability. Yes, I just said abolish grand juries. How about that ruining for your entire day?”

    I don’t know if I would agree to entirely scrapping the grand jury system, but it certainly needs to be reformed in the way it does business.  I’ll make a guess here that the Grand Jury refused to indict because of the “law and order” view of things.  In other words, people are afraid that if cops are not obeyed to the letter, all hell will break loose.  I suspect because the guy who died was involved in criminal activity and resisted arrest, the Grand Jury figured he brought his death upon himself.   The problem with that sort of thinking is that if a cop suspects someone of a crime and is not instantly obeyed, the cop is pretty much free to do whatever s/he wants.  I remember a video of an officer who had stopped a car and asked the heavy female driver to get out of the car.  She couldn’t get her seatbelt unhooked fast enough, so the officer started screaming at her, then yanked her arm over and over, but she was stuck.  All caught on video – it was shameful.  I was involved in a minor fender bender one time, in which the police officer I just barely touched (not a mark on his car) got way out of control because I would not admit fault (your insurance company tells you not to admit fault at the scene of the accident).  He called his buddies at the station house, they arrived on the scene quickly, and refused to give me even so much as a ticket, much to the out-of-control police officer’s dismay.  His two buddies knew he was over-reacting.  When I left, the idiot could be scene officially blocking traffic while he paced off distances at the “accident scene”.  I received a ticket in the mail which he had obviously concocted, stating I was driving “too fast for conditions”.

    1. Davis Progressive

      “Precisely.  It would not have mattered what the race of this guy was.  He did not obey the cop, and once one doesn’t obey the police, the police feel entitled to do whatever it takes to force obedience.”

      you’re making the same mistake that barack is making and assuming the interactions are uni-directional when in fact they are interactions.  and the race matters because a black person approached for a crime  is going to react potentially very differently to the same actions by the police officer.

      “I don’t know if I would agree to entirely scrapping the grand jury system, but it certainly needs to be reformed in the way it does business. ”

      you’re missing another key point here – the grand jury is largely a function of the prosecutor.  the prosecutor controls the entire process and what information they get.  both in ferguson and new york, the prosecutor did not want an indictment.  and if they want to charge the guy they could charge him right now and either convene a new grand jury or take it through a preliminary hearing.

      1. South of Davis

        DP wrote:

        > you’re making the same mistake that barack is making and

        > assuming the interactions are uni-directional 

        To get started let’s say that I think the grand jury was wrong and the cop should be standing trial for killing the guy (and despite the fact that I hate smoking I think people should be able to sell a couple smokes to other adults on the street without getting hassled by the cops).

        BP and I have both mentioned that there is plenty of racism in America (both white against black and black against white) and I think the difference is that DP (and to some extent David) seems to think that EVERY time something bad happens to a black guy that racism was involved…

        1. Davis Progressive

          i’ll state i don’t think that racism is always involved and i’m not arguing that racism was involved here.  the argument is whether race had nothing to do with this situation and i think on both ends of the interaction race was a factor.

  6. Barbara King

    An August 1, 2014 article in The Washington Post reports that “He [Eric Garner] died because of “compression of chest and prone positioning during physical restraint by police,” according to medical examiner spokeswoman Julie Bolcer. Contributing factors to his death included asthma and hypertensive cardiovascular disease, the office ruled. The Associated Press first reported the medical examiner’s findings.” 

    My husband is a heavy, gentle, law-abiding guy, but it still scares me to death to think of his being mistaken for a suspect and then being taken down in a high-pressure situation because he is ALWAYS a beat or two slower than most in processing words spoken to him.
    So I am writing to call, once again, for more police training in the risks of the prone restraint of heavy folks, among others.  I think that the Woodland and Staten Island officers would have done everything possible to avoid or minimize prone restraint in these cases if they had been fully aware of the risk of sudden death from prone restraint for some individuals.
    I am sorry that I don’t have the time today to dig out material on this subject, but I thought it was worth pointing out that prone restraint may be at least as big a contributor to this preventable death as the neck hold is.
     

     

  7. TrueBlueDevil

    I believe I was the first person to lay out this case, provide a link, and mention my disgust with what transpired. That it bears no resemblance to Ferguson. And I knew David would follow up on this story.

    Extremely interesting is that David chose to bypass the story of the Bosnian immigrant who was attacked by young men of color, and beaten to death with a hammer in south St. Louis. There were even references to the man being white, the couple being white. This was not a car jacking, not a robbery, but a brazen racial hate crime and murder.

    Hypocrisy?

    Or does one story fit the liberal narrative – black good, white bad – and the Bosnian couple doesn’t? Bosnian immigrants have peacefully protested, but they are ignored.

    I will also add context.

    According to Bill O’Reilly of Fox News, in 2012 there were approximately 120 African Americans shot by police officers, whereas there were over 330 white Americans shot by the police. These numbers don’t seem to prove any widespread racism or discrimination. This is  a 3-to-1 ratio.

    Over the years when I see actual data from the Justice Department, violent crimes of various types are committed by roughly 40 to 45% African Americans, so that is a close to 1-to-1 ratio.

    This case is tragic, he was a peaceful giant. Not only was the choke hold not department policy, the cop who I heard kneeled on the back of his head, that is against policy and can kill someone! Where was the humanity? This tape shows we have issues with police training.

    But the media also doesn’t help shed light.

  8. Frankly

    Interesting article:

    http://online.wsj.com/articles/hundreds-of-police-killings-are-uncounted-in-federal-statistics-1417577504

    A Wall Street Journal analysis of the latest data from 105 of the country’s largest police agencies found more than 550 police killings during those years were missing from the national tally or, in a few dozen cases, not attributed to the agency involved. The result: It is nearly impossible to determine how many people are killed by the police each year.

    Three sources of information about deaths caused by police—the FBI numbers, figures from the Centers for Disease Control and data at the Bureau of Justice Statistics—differ from one another widely in any given year or state, according to a 2012 report by David Klinger, a criminologist with the University of Missouri-St. Louis and a onetime police officer.

    To analyze the accuracy of the FBI data, the Journal requested internal records on killings by officers from the nation’s 110 largest police departments. One-hundred-five of them provided figures.

    Those internal figures show at least 1,800 police killings in those 105 departments between 2007 and 2012, about 45% more than the FBI’s tally for justifiable homicides in those departments’ jurisdictions, which was 1,242, according to the Journal’s analysis. Nearly all police killings are deemed by the departments or other authorities to be justifiable.

    The full national scope of the underreporting can’t be quantified. In the period analyzed by the Journal, 753 police entities reported about 2,400 killings by police. The large majority of the nation’s roughly 18,000 law-enforcement agencies didn’t report any.

    The question to ask here is how might the full picture of suspects killed by law enforcement change the picture?  Might the number of whites killed be greater and closer to the general population percentage?

    But then also consider that during the time 2007-2012 there were 917 officers killed in the line of duty.  And this does not include the number of suicides nor the number of officers injured in the line of duty.  It seems that the criminals are holding their own in the war on crime.

  9. tribeUSA

    Yup, there is plenty of evidence in this particular incident that excessive force was likely used, in contrast with other recent incidents that have been pushed by the mainstream media. It certainly looks like the police handled treated this man with unneccessary roughness and force; even if he had not died or been seriously injured, the cops were out of line on this one. It makes me uneasy when I see police treating even those who are passively protesting their arrest like dangerous wild animals; with better people skills they should be able to talk a guy like this into a calmer state and avoid a dangerous situation for themselves and the suspect. But instead the police behave robotically, and when full compliance is not immediate, go into combat mode even against a nonviolent suspect.

    I watch cops occassionally, and there is one particular move the cops frequently make that strikes me as abusive: when the suspect is face-down, placing their knee on the upper part of the suspects back/lower part of the neck area; basically grinding their head/neck area into the pavement. Often they do this to suspects who are only passively resisting or not resisting at all. It doesn’t look like the officers usually put their entire body weight on the knee that is grinding them down ; but what if they get slightly off balance; a 250-lb beefy cop with most of his body weight on the back of your neck; seems non-conducive to prospects for trouble-free back and neck for the suspect; there must be places on the upper back/lower neck where such pressure could cause serious injury (if not a broken neck).

    Thinking of myself, I have some problems with my left shoulder–if an officer were to forcibly move my left arm behind my back and my arm/shoulder was slightly out of position, it could do serious damage to my shoulder; the pain would be unbearable and my body would naturally resist the motion; the officer might think I’m resisting arrest and put further pressure on my arm or get rougher with me; I could wind up with a crippled shoulder for life.

  10. tribeUSA

    I’m puzzled as to what evidence there is that this particular incident is a racially-motivated? I have no doubt that there have been and continue to be some racial-motivated incidents of police abuse; but don’t see the evidence that this is one of them.

    The only way to evaluate whether there is systematic abuse by the police based on race of the suspect is with a full suite of statistical data from a scientifically rigorous study.

    1. Anon

      Except that “racism” is a very subjective term.  Some use it to mean any interaction between black and white; others refuse to believe it exists at all.  In fact I challenge you to define what you mean by racism, and see if it matches others’ views of what it means.

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