I had no comment on Ferguson because the Grand Jury had access to much more evidence than I. The NYC case is different and how anyone can defend the cop's action needs serious help. The video tells all.

You forgot lifted trucks.....

The video is certainly ugly, but to say that it tells all is simplistic at best.

Did you realize that the man died of a heart attack? Did you realize that it was a minority shop owner that called the police because Mr.Garner was illegally selling black market cigarettes in front of his store? Did you know that the first officer on the scene called for reinforcements after he assessed the situation? Did you know that it was a black female sergeant who was in charge and on the scene and directed the arrest? Do you know the statutes that the grand jury were charged with enforcing and were also limited by?

It seems to me that if you are going to be critical of anything it would be the obscene taxes imposed on cigarettes, that are made necessary by a much to powerful and intrusive government.

You would be well advised to establish and consider the facts before coming to a conclusion, and to consider that you might be the one that 'needs serious help'.

A few points of clarification that might help some put these types of "use of force" issues in context.

"Unarmed" is as irrelevant as the color of someone's skin when it comes to judging whether force applied is reasonable or unreasonable. Unarmed people can pose a legitimate threat of serious injury or death to officers and the public at large. Likewise, it is possible for armed people to pose no threat whatsoever.

The standard of "reasonable" that is applied by the courts is defined in a few landmark cases, the most important of those being Graham vs. Connor. In Graham vs. Connor the court went to great length to define what is reasonable with regard to applications of force required to affect and arrest or mitigate a threat.

The key elements that came out of this case say that some level of force "may" be reasonable when weighed against these factors:

1. The seriousness of the crime
2. Whether the subject posed an immediate threat to officers or others.
3. Whether the subject was resisting arrest
4. Whether the subject was fleeing to avoid arrest.

The line between reasonable and unreasonable will be drawn by the judge or jury based on the facts of the case.

Fact finding and determination is the goal of these grand jury proceedings. The grand jury hears testimony and evaluates evidence to determine if there is "probable cause" that a crime was committed. Probable cause is a standard that has a strict definition and the standard is either met, or it is not, there is no gray area.

Looking at severity of the crime in both the Ferguson case and the Eric Garner case. At first both were fairly benign. One was jaywalking and the other was selling cigarettes. As events unfolded and more information was gathered the severity of the crime changed. In the case of Ferguson the new and more serious crimes were assault, robbery, and assaulting a police officer. In NYC the new crime was resisting arrest.

Defining the crime is important because it is not fair to say cops killed someone for selling cigarettes or for walking down the middle of the road. As an isolated event with compliant subject neither of those "crimes" would have resulted in any use of force let alone deadly force. The crimes later committed in those contacts were much more serious and the courts have obviously stated that some application of force will be reasonable to in response.

The Ferguson case has been well dissected and I won't dive back into that one. Instead lets take a quick look at the Garner NYC case as it seems like most here are taking the stance that they are OK with Ferguson but think Garner is different and the cops actions were unacceptable and intolerable.

I'll admit I haven't looked too deeply into the facts. I've seen a few articles here and there that piqued my interest and I just recently watched the video clip. Prior to watching the video, I had a pretty different mental picture of the events. The media snippets I saw had the usual drama inducing descriptors like "unarmed black man choked to death by white cop, etc."

Before I watched the video I expected to see a fairly prolonged and violent struggle, which I would think would have to be the case for an individual to be choked "to death," but that wasn't the case at all. The period of time that Garner was in a "choke hold" was fairly brief and has been pointed out, when you can't breathe, it is impossible to say "I can't breathe. As one who has been choked and who has applied these types of holds both in training and in personal pursuits of mixed martial arts I will say with absolute confidence that when your airway is obstructed/occluded to the point of not being able to breathe, speech is impossible.

Putting aside of whether he was choked to death or not for now, lets revisit the Graham factors to determine what level of force might be appropriate.

1. The severity of the crime. The crime for which force was applied was resisting arrest. Resisting falls into two categories, actively resisting and passively resisting.

Passive resistance is easy to define. The person resisting takes no physical action but rather is verbally uncooperative and won't comply with commands. Any physical action or threat thereof qualifies as an application of force and the only reasonable one for someone passively resisting is to grab their hands and put them in handcuffs.

Active resistance covers a range from simply physically non-complaint (pulling arms away, walking away) to more serious active resistance that could be considered combative or assault, which again ups the severity of the crime ante.

What I saw in the Garner video was active resistance. When passive resistance turn to active, the amount of force needed to affect an arrest will necessarily increase in response. What level is appropriate and reasonable will depend on the facts.

The size of the subject vs. the size of the officer or officers in question is another element of Graham vs. Connor but it is not one of the key elements. The duration of the struggle is another. Garner was a huge dude that was obviously physically imposing. The officers by comparison were relatively small. Common sense would say that it is probably going to take a few guys trying pretty hard to get a guy the size of Garner into handcuffs if he doesn't want them on, let alone if he decides to fight. Likewise the courts have also said that when these disparities exist a higher level of force can be reasonable as compared to when the playing fields are more level.

Once his passive resistance turned active after the officers initial attempt to get him in cuffs, he forced an escalation. As a general principle, more force applied earlier in struggle generally means less damage to all in the end. In other words, letting these struggles go on for long periods of time is generally bad news for everyone and getting the fight over quickly is in everyone's best interest.

Looking at the methods used by the officers, grabbing someone who is actively resisting or fighting around the neck in order to subdue them is a commonly used takedown in law enforcement. It sounds like that technique may not be supported by NYPD policy, but the questions at hand here are those of law and not policy and so the agency policy isn't relevant.

The law says is that the implement of force applied and the resulting injuries suffered are of no consequence as long as the level of force is reasonable. Should a choke hold be considered deadly force? Again looking at the law, deadly force is defined as force that is likely to cause serious injury or death. I would submit that when a choke hold is applied for a relatively short period of time it does not and should not fit the definition of deadly force. I don't believe any facts of this case would show deadly force to be reasonable and I don't believe deadly force was applied.

So to the question at hand, was this method of subduing the subject reasonable? Based on the facts of the case I would say that it is. When the outcome is considered, Garner dying, it can certainly seem otherwise but these things are judged from the perspective of a reasonable officer, on scene working with the facts that they had at the time.

I don't think any reasonable officer would conclude that the duration of the hold around Garners neck was likely to cause serious injury or death. This is further supported by the autopsy which pointed to the causes of death being related to heart disease, and an asthmatic condition and there was no trauma to the subject that would suggest airway damage or dysfunctionality.

Obviously these things were exacerbated by the struggle but no reasonable officer could have known of those conditions. The force applied in this case would not have caused the same outcome in most other individuals of a similar size and shape let alone someone who was fit and healthy. Though the struggle was a catalyst, Garner wasn't choked to death as the headlines would have you believe.

Please don't read this analysis as me defending the cops or saying that there wasn't a better way to handle this contact. I am merely trying to illuminate some aspects of the process and the manner in which these events are judged for a more complete understanding. Few realize the level of scrutiny that officers are held to and how well established some of these legal standards are. Because we can't see behind closed doors and/or don't take the time to research it is easy to cry foul and point to conspiracy.

I spend a lot of time reading through case law and court opinions and I have a fair amount of faith in the system and it's ability to be fair and consistent. It takes a lot for me to say that as generally I don't trust government.

Are there abuses of power that take place. Absolutely and I've been a victim of those as many have and it sucks. As a society we can't paint all enforcers of the law with a broad bush of badness based on events that are relatively rare by comparison.

That type of chokehold...the NYPD is forbidden by regulation to use it.

And it lead to the death of an unarmed man.

Add to it that as the man lay there dying that no one did anything to save his life...they just left him lying there.

And the cop didn't get indicted.

Fish on...

Todd

The Grand Jury doesn't consider agency policy when making their probable cause determination. The fact that NYPD's company rules forbid that technique has no bearing on what the courts consider reasonable vs. unreasonable.

Again unarmed isn't necessarily relevant either, the questions to ask are outlined in Graham vs. Connor. I spoke to severity of the crime. He was actively resisting. As such law says that some level of force is reasonable. The question then becomes was the level of force used reasonable.

No facts of the case would seem to support deadly force, and as defined deadly force wasn't applied.

I agree wholeheartedly that those on scene were negligent in not rendering medical assistance immediately, but the video I saw doesn't give enough detail as to the state of Garner while he was on the ground and whether he seemed to be in crisis or not. From a first responder standpoint, there isn't much that can be done for someone suffering an asthma and/or heart attack anyhow. CPR is only administered to those not capable of breathing on their own who lack a heartbeat, neither of which applied in this case. He was breathing and had a beating heart even after he was on the ambulance. At most he could have been given oxygen and a dose from an inhaler if those things were available. Neither of which would be likely to resolve cardiac arrest.

The video and the whole situation evoke an emotional response and it doesn't feel good. These events have to be broken down into facts and be weighed against laws and standards. That is the only way the system will continue to work.

None of the facts in this case, bad as it may feel, support the point of view that the officer(s) acted unreasonably or committed a crime which is the conclusion the jury came to as well.

What about the other officer with his knee on Garner's neck after the choke hold was released? Why isn't he being criticized?

I agree as well and that is a culture and big picture issue that definitely needs highlighting.

The officers in this case though were performing their jobs as instructed.

Well said Coley. Now condense all that down to a piffy bumper sticker and it will gain traction with citizens, media and politicians.

Till then we are stuck with, "I can't breath" and "Hands up, don't shoot."

It's.. "I cant breave"

Laws aren't being contrived. The laws, case laws specifically, that speak to the reasonable standard are well established. It is rare that any new cases come about that affect the courts interpretation of reasonable as the standards have been heavily analyzed. The exercise now is how to apply these standards to the facts of new cases.

What you should have said, Hank, is that agencies need to more closely scrutinize what is an arrestable offense. This is a matter of policy again, not law.

Generally what is an arrestable offense should take into consideration the governments (state, fed, or local) interest in apprehending the person and stopping whatever it is they were doing and the benefit to the public in doing so.

Selling single cigarettes doesn't seem to be a very compelling reason to take someone into custody. This call was made by the dept and the officers on scene cannot be faulted for that.

A good example of new circumstances directing how existing standards are applied is the use of tazers by law enforcement. Being a fairly new tool, the courts are still ironing out how to apply existing standards to the use of that tool. There have been some inconsistencies from district to district so far, much more so that in more well established force application tools. Time will iron those things out though. Hesterberg vs. the US is a good recent example and probably the most comprehensive discussion on the topic thus far.

Here is my vote for the bumper sticker.

My policy, should I ever feel I am being wrongly arrested, will be to state my argument, comply, and then seek retribution via legal channels after the fact.

Coley,

You won't do the classic ow ow ow I'm not resisting ?

If I am getting my ass beat without cause, I will certainly vocalize my feedback.

Hank,

Popo are given lots of discretion on whether a person is arrested. More discretion is used when determining if that person is going to be issued a court date or booked.

There are mandatory arrest and bookable offense and then there are many that aren't

A
T
F

The call was initiated by a business owner complaining about Garner selling untaxed loosies in front of his store. The business felt cheated by someone not paying the taxes that he has to with a legal business.

More or less. Selling single cigarettes violates one or more laws. Each law enforcement agency determines which violations of the law they will arrest for and which they will not.

A law enforcement agency's authority will be spelled out in the legislation, typically referred to as enabling legislation, that grants that authority. This language usually reads something along the lines of "officers have the authority to make arrests, serve warrants, and carry firearms to enforce XXX laws." In other words it's fairly general.

The agency, sometimes under other political influences, then determines how they will handle violations (citation, vs, arrest, vs. charging documents) etc.

From the anecdotal information out there, it would appear the agency in question had dictated that their officers were to arrest for the above named offense rather than cite or pursue correction via other means.

Thank you for your input.

Coley,

I'm curious about whether the chokehold fits the definition of reasonable force. I think the reason NYPD invoked a policy prohibiting it is because too often it resulted in death, when simply subduing a perp for arrest was the desired result. If there isn't one yet, I think it's possible there could be a finding that the chokehold is not reasonable force due to unintended fatalities from its use.

I've read both at this point that Garner's death was due to the chokehold (direct cause of death) and that he had cardiac arrest, that was either due to or exacerbated by stress from the chokehold (making it the indirect cause of death). I'm splitting this hair because if the chokehold is seen as indirect, the analogy could follow, for example, that it "wasn't the gunshot that caused the victim's death; it was the destruction of tissue and loss of blood that caused the death."

It appears that death by police chokehold isn't rare, although it is uncommon. I think a case might be made that a chokehold should not be used if lethal force isn't being considered. And if lethal force is being considered, then shooting the perp is much more efficient.

Oh, and the officer's knee on Garger's neck doesn't look very professional for a takedown considering the seriousness of the crime. But that officer and 3 others were somehow granted immunity, according to what I read.

All in all I'm still puzzled at the lack of indictment. Probable cause of a crime in GJ proceedings is a pretty low legal bar. There is testimony with no cross examination. Only the PA questions witnesses. The outcome is as much up to the PA as it is to the GJ.

Sg

Salmo,

In WA we do in quests which I hear are similar to the gj. The main purpose is to judge whether the use of force was legal and reasonable.

As for the "choke hold", in the video I saw it wasn't a choke. It almost resembled an attempted far hand cross face take down. It came out with his arm across the neck because of the height disparity.

Knee across the neck on a suspect is actually a taught cuff ing position. What should've happened is the main officer should've grabbed an arm instead of fishing for hands. And one of the other officers should've grabbed the other arm into a straight wrist twist to gain compliance and get Gardner to a cuffing position.

I wasn't there but there looked to be a lot of hesitation by the back up officers until one took action.

It's easy to Monday morning quarterback stuff like this. I wasn't there nor do I n ow the details of what happened. Just what I saw