More Logic; Less Emotion

Over 23 centuries ago, Aristotle wrote his treatise on rhetoric. His three principles, or components, of argument were ethos, logos, and pathos. What Aristotle meant by these three concepts were, ethos, by which he meant the character, or credentials of the speaker or writer, logos, whether what was being said was logical in context and in light of common experience, and, pathos, not what we commonly mean by the word pathetic, but whether the argument was emotionally satisfying. A speaker who can nail all three can usually sell his idea or point of view, at least to those who grant his premises about the subject matter.

The death of Eric Garner in New York has generated rhetoric full of pathos, but short on both ethos and logos. Permit me to make an argument that supplies those lacking elements.

Let’s start with the ethos. I am confident that I have the knowledge and experience to speak to the topics. I have served as a police officer, both on the street and as a criminal investigator. In that connection, I observed many crime scenes and street altercations, as well as participated in the latter.

I have had special training in criminalistics—forensic sciences. We did not call it “CSI” back then, but it is the same thing. I am particularly familiar with the uses and limitations of photography, both in the forensic area and as a hobbyist.

As a lawyer I have tried cases before judges, juries, and arbitrators. I have had both basic and advanced study of criminal law and procedure. While my law practice is primarily civil, I have been a member of the Criminal Justice Act panel for the federal Northern District of Texas for 20 years and have been appointed to defend those accused of committing federal crimes. I have owned and successfully operated a small business. I have studied history at the graduate level and have taught it to undergraduates as an adjunct instructor. So much for qualifications to speak.

Now for some logos. Eric Garner was a 43 year old 6′ 5″’ 350 pound man who was selling individual cigarettes—“loosies” they’re called—on the street in New York City. This activity was illegal, and Garner had been arrested several times previously for the same offense. As New York police officers approached and attempted to arrest him, Garner resisted and made several statements, including “I’m tired of this” and “it stops today.” One officer attempted to take Garner’s hands. Garner slaps that officer’s hands away. Whereupon Officer Daniel Pantaleo puts his left arm over Garner’s shoulder, grasps his own wrist, and both men struggle with each other. As other police officers join in the melee, both men go down to the sidewalk. It is not clear whether he has his arm around Garner’s throat, or his upper chest at the clavicle. At any rate, after Garner is on the ground, Pantaleo releases the hold. Garner does not say “I can’t breathe” until after Pantaleo releases his hold. A number of police continue to hold Garner down, apparently while he is trying to resist being handcuffed.

It was reported that an ambulance was immediately called to the scene and Garner was transported to the hospital there on Staten Island. He went into cardiac arrest while he was in the vehicle and was pronounced dead approximately one hour later at the hospital. A second video apparently taken by a bystander was later released that appears to show that Garner lay motionless and unresponsive for several minutes before an ambulance arrived. It was also reported that the responding paramedics were disciplined for violating procedures.

It is reported that New York City Medical Examiner’s Office found Garner’s death was caused by compression to the neck, compression to the body, and prone positioning, along with asthma, heart disease and obesity as contributing factors. There was no damage to the windpipe or neck-bones. No police officer used a weapon, not even a nightstick or cosh. I have not found where the autopsy report was released and, accordingly, have not read the document.

The “choke hold” was at one time used almost universally by police. And with few fatalities or serious injuries. It can be safely applied with a minimum amount of training and is often the only method of restraint available to a police officer in close quarters. The idea is not to “choke” a subject, but to render them unconscious by temporarily restricting the carotid arteries on both sides of the neck. Those arteries open up after pressure is released and consciousness is restored in a short time. An actual “choke hold” across the neck could crush the larynx and be irreversible. The idea is to put pressure to the sides of the neck while not compressing the front where the larynx is located. It is actually less trouble to do correctly than incorrectly because the front of the neck easily fits in the vee formed by the crook in the elbow, while the pressure is applied by the upper arm and forearm. The main problem with the hold is that it looks so violent and brutal. From personal experience, I can say that it really isn’t, especially when compared to other alternatives, including using a nightstick or a gun.                                                                                
Regarding the video(s), as well as still photographs, it is not correct to say the “pictures do not lie.” Putting aside the current Photoshop® and similar photo- manipulative technologies that probably do not have relevance here, photos and videos can be misleading. Camera focus, angle, distance, lens focal length, f-stop, resolution, all can have an effect on what the photo shows or does not show. So can the two-dimensional character of photography and videography, as well as interference of persons or things in the line-of-sight between the camera and subject. That is why multiple photographs from different positions and angles are typically made of crime scenes. The duration of a video can also be important in order to show context.

In the present case, it is not clear that Pantaleo used a “choke hold” or another, similar, restraining hold. The video also does not show what happened between the time Pantaleo initiated the restraint and when Garner was on the pavement. It is possible that Garner’s struggling caused Pantaleo arm to tighten around Garner’s neck during the scuffle. It does appear clear that Pantaleo released his hold fairly soon after they all went down.

As far as the cause of death, it appears that had not Garner been in such poor health, he might have survived with little more than bruises. There is no evidence mentioned that Pantaleo (1) knew Garner was unarmed, or (2) knew of his poor health. All he really saw was that Garner was a big man resisting being arrested by another officer who was physically much smaller. Nothing in the video suggests that Pantaleo intended to kill or injure Garner.

Much can be made out of the pettiness of the offense for which Garner was arrested. I agree that hawking goods on the street should not be illegal. It has been stated that this is part of the “broken windows” theory of policing that is credited with a vast reduction of all crime in New York City. Maybe, but I do not see selling a product to a willing buyer to be necessarily a part of that. Nevertheless, it is not the call of the police officer as to what should be illegal. Pantaleo was assigned to a detail that looked for this offense and made arrests for it. He had no choice but to make such arrests and assist other officers in doing so, especially when they were being resisted.

With regard to possible prosecution of Pantaleo, it is necessary to understand the concept of culpable mental states necessary to impose criminal responsibility. The precise definitions vary somewhat from state to state, but nearly all embody the same concepts. New York Penal Code Section 15.05 provides four culpable mental states:

“1. ‘Intentionally.’ A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

“2. ‘Knowingly.’ A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.

“3. ‘Recklessly. A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. 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. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

“4. ‘Criminal negligence.’ 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. The 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.”

In the Garner matter, lay persons have bandied about the term “murder” rather recklessly. Murder is defined by the New York Criminal Code in rather complex terms, but the gist is that it requires the intentional mental state in killing of another human being. No way was that present in this case.

The mental state ‘knowingly’ applies in murder cases to knowledge of certain aggravating circumstances, such as whether the victim was a public servant in the course and scope of his duties.

“Recklessly” as defined by New York, as elsewhere, is limited to acts like driving 60 miles an hour down residential streets and running over someone and killing them, or celebrating New Years Eve by firing a machine gun in the air resulting in a killing.

“Criminal negligence” does not apply in this case either. There was not a “substantial and unjustifiable risk” that Pantaleo failed to perceive, and because he grossly deviated from the standard of care that a reasonable person would observe in the situation.” Unless Pantaleo knew that Garner was asthmatic, diabetic, and had cardiovascular disease, it is doubtful that any reasonable jury could find he acted unreasonably.

“Section 37.27 A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.

“Section 35.30 A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, . . . of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, . . . or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force.”

Garner was using physical force to resist arrest and his acts appeared to be an imminent threat of use of force against Pantaleo and another police officer.

The grand jury would have been provided with the foregoing law. All the facts and circumstances they heard and considered convinced them that there was not probable cause that Pantaleo committed a crime as defined by the penal code.

This does not mean that New York City or Pantaleo cannot be sued in civil court for damages. The burden of proof is much lower, and the standard for negligence is less stringent in civil cases.

In conclusion, here’s some pathos. The precipitating event of this case was Garner’s resisting arrest. What flowed from that was unfortunate and might have been negligent, in the civil sense, on the part of the officers, but was not a crime. Asking for an indictment is seeking to put a public servant in jeopardy of going to prison for (maybe) a misstep when doing his job. Like all police officers, Pantaleo spent all of his working hours in constant danger. Police work can be, like piloting an airliner, hours of boredom punctuated by moments of sheer terror. But, of course, police officers do not get paid anything near what airline pilots do. Perhaps Pantaleo made a mistake, perhaps an investigation might show he should be disciplined, maybe even fired. Perhaps he might be liable for civil damages. He does not, by any standard, need to go to jail and be branded a felon. I have not read the medical examiner’s report, but it appears that Garner probably would not have died had he not been asthmatic, obese, diabetic, and suffering from a heart condition. Except for the obesity – and that Garner was 6′ 5″ tall – nothing indicates Pantaleo knew of those conditions.

Without evidence of a culpable mental state, no accusation of criminal conduct can be sustained.

My conclusion is that, based on the law and the evidence, the grand jury did the right thing

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