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by Peter Moskos

July 21, 2014

The chokehold that wasn't?

Not surprisingly, the preliminary autopsy report in the death of Eric Garner shows, shows that the "deadly encounter Thursday did not damage his windpipe or neck bones."

Why is the not surprising? Because I'm still not convinced there was any chokehold at all. It certainly did not happen when Mr. Garner was taken down. There may have been a chokehold later, but as I have said, and without 100 percent certainly, I don't think there was. But seeing how Garner apparently didn't suffer any damage from a chokehold, can we at least stop saying a chokehold killed him?

The Daily News, which has been the most harsh of all the NYC newspapers, has repeated mentioned "chokehold" as a matter of fact, even though it may not be. "Chokehold" is mentioned around eight times in a webpage that ends with, "Sources told the Daily News that a preliminary report found no signs of neck trauma, such as a crushed windpipe."

There's something very strange about people who are screaming about "police killing a man with an illegal chokehold" who then don't care that there perhaps there wasn't a chokehold. Don't facts matter? Of course it doesn't help that Commissioner Bratton himself has called it a chokehold, which seems to sort of settle the matter, at least in the media.

Of course Garner is dead, so it's fair to ask, "does it matter?" Well, yes. It does. Because (as I've said before) there's a big difference between police killing a man and having a man die of a heart attack in the course of resisting arrest. It matters because the former is a crime and the latter is a tragedy. The guy seems to have died from physical exertion while resisting arrest. Is that the fault of police?

Meanwhile a police officer has been tried in the court of public opinion and found guilty. He very well may be tried in a criminal court -- and then there will be further shock and uproar when he is acquitted.

Except for some of the more extreme cops, who believe everybody resisting police should die, most decent people can agree that something went wrong. A man shouldn't be dead after a minor police encounter over a non-violent crime. That should be a starting point for discussion. But if you start by saying police killed a man -- even if it's not true -- it's hard to have any sort of reasonable or productive discussion.

This ideological anti-police bias is a left-wing lie similar to the right-wing lies I prefer to write about. It's like Larmondo "Flair" Allen, the drug dealer who, according to a right-wing email being sent around, was receiving $13,500 a month in welfare before he was murdered. "An outrage!" people scream while blaming Obama ("Flair" died in 2004). When I corrected this fact -- the real figure would have been more like $550 a month -- most people who so outraged by the $13,500 figure didn't seem to give a damn that it wasn't true. They want to be outraged! Facts be damned! "Well," they say, "maybe those numbers are wrong, but that doesn't change my opinion." Well... then you're a fool. If your opinion is based on beliefs that are not true, shouldn't you perhaps change your opinion? Or at least get your facts right?

Maybe in my next post I'll try and break down the Garner encounter situation and point out various points where something could have been done differently. Choices, had they been taken, where Mr. Garner wouldn't end up dead. Certainly things went wrong; a man is dead. But that doesn't mean the officers on scene killed a man.

[Update: I defer to the medical examiner, who says otherwise.]


David Woycechowsky said...

The arm on his neck caused him stress, and also to further resistance, and the stress and further resistance caused some Type of fatal attack. The arm on the neck (and face in the pavement) are both but-for causes and proximate causes of his death. It is kind of like if the policeman decided to hold a gun to his head and he had had a heart attack because of stress over that.

The fact that that he did not die from a broken windpipe does not matter. The fact that the policemen did not specifically intend him to die does not matter, except maybe in deciding between 1st and 2d degree murder charges.

PCM said...

Isn't what you're saying the same thing as "getting arrested caused him to die." Which indeed, seems to be true.

But unless we want cops to stop arresting criminals, I'm willing to accept that sometimes people die during the stress of an arrest because that stress, as in this case (as in almost all cases except home raids), was created by the suspect, who could have complied but chose not to.

If a suspect can't handle the exertion that comes from his own decision to take a strong (in this case last) verbal and physical stand against being taken into custody, well, that's on him. You don't see any force used by cops after the cuffs are on (which is never OK).

And *if* his death wasn't caused by excessive force or intent to harm (on the part of police), I don't think it's fair to blame officers for an unfortunate ending.

And you can't let a guy walk simply because he doesn't want to go to jail.

[The whole medical abandonment issue seems more relevant, but I not EMS and don't know what to say about that.]

I think a case can be made that he shouldn't have been arrested at this moment at all. Also, one could argue that instituting an active take-down on this large guy at that moment was a bit premature. In hindsight, yeah, perhaps less aggressive tactics would have been better. But maybe not. You can't let a crowd situation like that get out of control. That would be bad tactics, too.

But I'm talking about shades of gray. Important shades, mind you, but I don't think anything here was clear-cut wrong or excessive.

I'm open to ideas about how police should have taken this guy into custody. Myself, I would have continued to talk to the guy, to try to get him to calm down and be compliant. I was good at that. And that seemed like what the officer was doing before #99 decided to get physical.

Of course talking doesn't always work. But it seems like persuasion could have gone on for longer. And it would have had not #99 jumped in. Sometimes that works. But not always. What then if he starts walking away? But at least then I would feel more justified in using force.

Still, it's a problem in policing that as soon as the one most aggressive officer decides to get physical, all the work the smarter and better talking officers have done goes to waste.

Sure, once the fight is on I want big burly cops with me, but often smaller less physical cops (including women cops) are better at completely avoiding that the fight. *That* is good policing. Cops win most fights, but you can't lose a fight that doesn't happen.

[Seems worth mentioning that a woman cop lost her teeth trying to make an arrest around the same time as Garner's death. There's no single effective solution to any given situation.]

But at least now we're talking about actual tactics and arrest decisions rather than the lie that this guy was killed by an illegal chokehold.

But I can't help but keep harping on the fact that this guy's only problem seemed to be that he was a serial seller of untaxed loosie cigarettes (at 50 cents a pop). Maybe that shouldn't be illegal. Maybe bodegas should be allowed to sell loosies. Would that be so bad?

But for whatever reason, the powers that be have declared loosies a prohibited practice. And then, as usual, police get caught in the middle of a dumb prohibition problem.

David Woycechowsky said...

False dichotomy. It was the hand in the neck and the face in the pavement in the face that would have caused anyone huge stress, fear for his life, etc. If he had a heart attack during a slower, more deliberate, less violent arrest then I would have been fine with it (assuming that there was sufficient cause to detain / arrest in the first place, which there may well not have been here).

Adam said...

"The fact that the policemen did not specifically intend him to die does not matter, except maybe in deciding between 1st and 2d degree murder charges."

Let's not get carried away, David. Any degree of murder requires the intent to kill, save some extraordinarily rare exceptions that do not apply here. Even First Degree Manslaughter, as it's called in New York, requires an intentional killing. At most, I would think these cops could be on the hook for second degree manslaughter, which applies to someone who "recklessly causes the death of another person." And I think Pete has shown that it isn't crystal clear that they were reckless. It would be easier to show that they were negligent, in which case they could be sued, and the concepts of "but for" and "proximate" causation, which you also referenced, would come into play.

PCM said...


David Woycechowsky said...

Felony battery plus death = murder.

In the state of New York, the common law felony murder rule has been codified in New York Penal Code § 125.25.[1] The New York version of the rule provides that a death occurring during the commission of a felony becomes second degree murder.

This is certainly how it would be charged (and likely convicted) if the policemen weren't policemen.

PCM said...

Charged, maybe. But it would get quickly get pled down to something more rational.

David Woycechowsky said...

I am not saying that this is the most relevant case (I spent less than a minute searching), but it does show the lay of the land on felony murder:


Long story short, a conviction is quite possible.

PCM said...

Not on Staten Island it's not.

Adam said...

The officers could not be convicted of murder because battery can never be the underlying felony for purposes of felony murder liability. That's referred to as the "merger doctrine." People v. Cahill, 809 N.E.2d 561 (N.Y. 2003), discusses it thoroughly starting on page 628. Moreover, you can see by looking at § 125.25.[1] that the felonies which trigger felony murder liability in New York are specifically enumerated (everything from robbery to escape), but battery ain't on the list.

David Woycechowsky said...

Well, I stand corrected on NYS felony murder , Adam, so thanks for that. On the other hand, my original comment was that intent to kill versus recklessness was the difference between first and second degree murder, which was in reference to the second section of NYS second degree murder statute (section 125.25):

"2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person"

The attitude of the policemen toward Mr. Garner's life at the scene (and on the internet) was surely "indifferent" and "reckless," but I guess we would need a jury to say whether it was actually "depraved indifference."

Adam said...

Yes, so-called "depraved-heart murder" [see http://en.wikipedia.org/wiki/Depraved-heart_murder] is what I had in mind when I mentioned the "extraordinarily rare exceptions" to the requirement of intent to kill in murder cases. I think a murder charge is too much of a stretch here because representative depraved-heart cases involve circumstances like games of Russian Roulette and driving 100 MPH on the wrong side of the Interstate. But I agree, the officers' degree of recklessness would be a jury question.

David Woycechowsky said...

I don't think it is that rare -- it is one of three categories of second degree murder. There are a ton of cases on it every year -- many resulting in written opinions. They aren't all reckless driving and Rusian Roulette either. Many involve one sided "fights."

Also, recklessness seems pretty easy in this case because the arm around the neck violated a specific written policy, and a fairly famous one at that. It is known that an arm around the neck is fairly likely to result in somebody dying.

"Depraved indifference" is the more difficult issue. If someone that you are attacking says (in so many words) that he is having an attack, then is it depraved indifference to ignore the attackee's remonstrations because the attackee might be faking? Hard question it seems to me. It was an awfully one sided "fight" though.

The policemen's actions after it became clear that Garner was not faking, when he was lying motionless in handcuffs, do look like the textbook definition of indifference.