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by Peter Moskos

December 4, 2014

Garner's Death

I don't have much to say because I wasn't sitting on the grand jury. I have no new information. Apparently the good citizens of Staten Island have spoken. From the Daily News:
After four months of reviewing the evidence, a majority on the panel concluded there was not enough there to charge Pantaleo with manslaughter, reckless endangerment or criminally negligent homicide. The 23-member grand jury, sources said, was comprised of 14 whites, with the rest being black or Hispanic.
I wrote about Garner in the Daily News a few months ago and stand by it. And here's everything I've blogged about the incident. And see this in the Times.

I will add:

A) I'm a bit surprised that the officer wasn't indicted. My money would have been on an indictment.

B) The cop is lucky as hell he killed a guy in Staten Island (as opposed to Brooklyn or the Bronx).

C) I strongly suspect the officer is a dick. Now this isn't based on fact but just my own small-minded prejudice. But from my limited experience policing, when you have a group of cops, the cop who first gets physical? The cop who jumps on an unarmed suspect? The cop who, with a half dozen other cops right there still deems it necessary to single-handedly take a guy down? Half a dozen other cops, smart cops, also there at the scene didn't see a need to get physical right there and then. And one cop decides to get physical? And getting physical is a way you can't get yourself cleanly out of? From my experience: 9 times out of 10 that cop, the most aggressive cop, is a dick. And 10 times out of 10 the cop who is most aggressive sets the tone for the entire incident.

But being a dick isn't a crime. Nor is a chokehold.

D) But a chokehold is against departmental rules. That officer is now going to be f*cked by the department. It is written.

E) And yet... I still keep thinking that a fat guy in horrible shape maybe shouldn't make such a stupid choice as to actively resist arrest. The force stops when the resistance stops. He died. There seemed to be no intent to kill anybody. You might have bad policy, bad tactics, and a tragedy, but even all of that together doesn't equal a crime.

F) I would love for just one "progressive" liberal to come out against New York City's crazy cigarettes taxes and prohibition against selling loosies (individual cigarettes). By one estimate (in the Bronx) 76%(!) of cigarettes are now bootlegged! Prohibition has consequences, particularly -- historically and today -- for minorities.

I'm off to Mexico for a week. Comment nicely and stay safe.

15 comments:

David Woycechowsky said...

I don't disagree with your comments on Garner, but there is something about the whole Garner situation that I can't find an answer to in the media, and that something is this:

We know that Garner had 32 (or 33 by some accounts) prior arrests. BUT HOW MANY CONVICTIONS?

If he had 32 arrests and zero convictions, then I am pretty symapthetic to Garner's "resistance" such as it was. If the police are constantly hauling someone in on charges that can't be proved, then that is a powerful sign of police harrassment. Not saying that every arrest that doesn't lead to charges is a bad arrest, but if there are 32 arrests and no convictions, then I begin to think that Garner was not just "resisting" an arrest, but, rather, resisting a pattern of unlawful arrests, and that is quite a different thing. Maybe it doesn't mean manslaughter charges for Officer Hands-On-Neck, but it should mean much punitive damages on the civil side, and every officer who participated in the arrest being terminated on the IA side.

ON THE OTHER HAND, if it is 32 arrests and, say, 20 convictions, then I am more inclined to see some portion of the fault on Garner (eg, no punitives).

The frustrating thing is that I can't find out the conviction thing.

One last point: Even under the permissive standards of Lago Vista, I am not sure that selling loosies is an arrestable offence. I don't think it should be. While I share your distaste for the law against selling loosies, I have a much greater distaste for the idea that selling loosies is a sufficiently serious crime such that the policeman has discretion to do a custodial arrest.

Adam said...

David, I've always read Lago Vista to hold that *any* arrest is reasonable if supported by probable cause, no matter how insignificant the underlying offense is. What do you see in the case that makes you think differently? Have you encountered any lower federal courts that deem an arrest unreasonable because the offense wasn't "sufficiently serious"?

I realize state courts are free to make their own rules about what is and is not an arrestable offense, but I assume selling loosies is arrestable under NY law.

(I also realize this is not the most important aspect of this tragic case, but it's an interesting topic for law geeks).

David Woycechowsky said...

Three reasons:

1. Lago Vista was a "misdemeanor" under state law. It may not me applicable to mere "infractions" that are not also misdemeanors. The language of Lago Vista majority sounds like it would apply to "infractions," but: (i) that would be dicta; and (ii) Lago Vista was 5-4.

2. This footnote:

The dissent insists that a minor traffic infraction “may serve as an excuse” for harassment, and that fine-only misdemeanor prohibitions “may be enforced” in an arbitrary manner. Post, at 13—14. Thus, the dissent warns, the rule that we recognize today “has potentially serious consequences for the everyday lives of Americans” and “carries with it grave potential for abuse.” Post, at 12—13. But the dissent’s own language (e.g., “may,” “potentially”) betrays the speculative nature of its claims. Noticeably absent from the parade of horribles is any indication that the “potential for abuse” has ever ripened into a reality. In fact, as we have pointed out in text, there simply is no evidence of widespread abuse of minor-offense arrest authority.

This footnote says that if the right kind of evidence can be mustered then the court will reconsider.


3. The increasing prevalence of strip searches for all arrests since Florence. If Gail Atwater had been strip searched then I strongly believe Lago Vista would have gone the opposite way.

You may want to do a GOOGLE Scholar case search on sylvan lake leash dog "fourth amendment" "qualified immunity" bcs there was an interesting case this week -- but I forgot the plaintiff's name.

Dave- IL said...

"From my experience: 9 times out of 10 that cop, the most aggressive cop, is a dick. And 10 times out of 10 the cop who is most aggressive sets the tone for the entire incident."

I think this just shows that moral courage is profoundly lacking in policing. If it wasn't, the other cops would tell the dick to back off or physically restrain him to avert a crisis. Instead, we have case after case where everyone just piles on like an unruly mob. Professionals my ass!

In the Garner case, there were multiple officers on scene. If a physical arrest was necessary in this case--and I doubt it was--then why wasn't the first response to move in and control Garner's arms so he could not deliver strikes? Going for the throat as a first response to a suspect pushing an officers hands away is absurd. I don't think the officer was trying to kill Garner, but if you put your arm around my neck, I would consider it an attempt to murder me and I would resist violently. It takes a matter of seconds to lose consciousness or die if the trachea or the carotid arteries are compressed.

The Garner killing shows that NYPD officers are behind the curve when it comes to defensive tactics training. Have they even heard of positional asphyxia? Or is it not "real police work" to concern themselves with these matters. They obviously didn't pay attention during first aid training either, since they just let Garner lie there instead of quickly assessing him. But that's doctor shit, right? Let's bust some heads and kick in doors!

This officer's actions were negligent at best and he should have been indicted. Let's hope NYPD at least has the courage to take him off the street, no matter what the cartoonish goon Pat Lynch says.

Anonymous said...

Wrong again. You're a dick (believe me that's the nicest thing I can say after your string of BS cops can do not wrong posts). Being a dick who kills someone is usually a crime unless you're a cop.

Anonymous said...

You might have bad policy, bad tactics, and a tragedy, but even all of that together doesn't equal a crime.

I thought he was going to get indicted as well. I'm kind of surprised they didn't come back with second degree manslaughter. The threshold they need to meet there is "recklessly causes the death of another person." For reckless you need to demonstrate "aware of and consciously disregards a substantial and unjustifiable risk...The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

I was skeptical of the "chokehold" claim at first seeing only the beginning of the video, but like you, I think once they both were on the ground it looks like it's in chokehold territory. We also have the ME saying unambiguously that the hold was a contributing factor in the death.

Which leaves us to meet the "reckless" standard above. I really thought the NYPD having a longtime policy against chokeholds was going to do him in here. The policy predates the officer's hire so there's never been time that guy has been a cop that the dept. line hasn't been that chokeholds are dangerous to suspects and we don't do them. Violating that plus the ME's statement and the video I thought would reach PC for that manslaughter charge but this certainly isn't the first time a jury's done something that I couldn't make sense out of.

campbell said...

The above was me.

They obviously didn't pay attention during first aid training either, since they just let Garner lie there instead of quickly assessing him. But that's doctor shit, right?

They might not have any of that training. I've never had any. They only started giving it to the last one or two academy classes here and as far as I know it's not a state requirement. I've never even had so much as a CPR class.

campbell said...

I think this just shows that moral courage is profoundly lacking in policing. If it wasn't, the other cops would tell the dick to back off or physically restrain him to avert a crisis. Instead, we have case after case where everyone just piles on like an unruly mob. Professionals my ass!

The problem is that once the fight's on that bell isn't getting unrung. You're better off piling on and everyone taking a limb and getting the guy in cuffs quick.

Anonymous said...

Nope. Moral cowardice like when PCM jumps in to defend the killer of a 12 year old boy who. 1. Shoots to ill less than 2 seconds after pulling up. 2. Was judged unfit for duty by his former employer 3. Works for a police force with a long history of abuse which is (will soon be) under a DOJ order.

PCM is supposedly smart and I imagine he is perceived as liberal by his former colleagues and yet his moral compass is profoundly broken. The only time cops ever endorse accountability is if one of their own is harmed (see Bryce Masters in KC where the offending cop has left the force before the investigation is finished and it took only 2 months).

David Woycechowsky said...

PCM long ago chose sides in what is, to me at least, the most important political issue of our time. He chose wrong, and is kind of stuck because he has built a professional network on being, essentially, in the pro-cop camp.

However, he does dialogue with the pro-regcit camp. He goes against his general pro-cop ways sometimes (great on Ayers for example). He may even be drifting over time.

Perhaps most importantly, he expresses the pro-cop position well, which: (i) sometimes persuades one that the cops did good in this situation or that; and/or (ii) helps the pro-regcit side (the side of the angels since 12 sep 2001) polish their arguments and appeals to anticipate smart pro-cop responses.

I am glad that PCM keeps on blogging. he is clearly a nice guy, he means well, and he helps move America's most important debate forward.

CollegeCop said...

What odds will anyone give me on the bet that this anonymous dude who is trolling PCM's blog has an extensive criminal record?


--
I think this just shows that moral courage is profoundly lacking in policing. If it wasn't, the other cops would tell the dick to back off or physically restrain him to avert a crisis. Instead, we have case after case where everyone just piles on like an unruly mob. Professionals my ass!--

And I just want to quote the above from Dave, as it's a perfect example of a prejudiced mindset (the prejudice in this case being against LEOs). A prejudiced person always seeks to lay collective blame on a group rather than directed at the one individual who is actually responsible for a situation. This is how they justify (in their own twisted minds) their per-judgement.

Anonymous said...

Ooh boy, I'm not sure that PCM is ready to take those odds, I'll give you 20 to 1 odds. I bet $10,000. As soon as you have written the legal documents and deposited the money in escrow, I will reveal my identity and you can do a complete search. C'mon, 200k awaits you!!!

Anonymous said...

How about these odds? Garner and Rice's family will win multi-million dollar judgements. Brown may or may not, but probably will. And since the civil standard is above the standard required to indict, that will prove that those assessments were objectively wrong.

Peter Moskos said...

David,
What is "the side" I chose in "the most important political issue of our time."

I'm really not clear what the issue is or what side I'm on.
Just guessing, but maybe you're seeing police as a more macro-social issue and I'm looking at individual incidents and police officers? I really don't know. I don't even know what regcit is. Should I?

David Woycechowsky said...

No, I think the issue is the traditional issue of "law and order" versus "freedom from government interference for the regcit (regular citizen, non-government affiliated)."

These positions are poles on a spectrum, of course, and pretty much everyone falls somewheres between these two poles.

I think that, since 12 September 2001, the US has gotten way too close to the law and order pole. I think you are too close to the law and order pole, personally (as former policemen usually are).