VIDEO ANALYSIS: DOJ Correctly Declined Civil Rights Charges in Eric Garner Death

VIDEO ANALYSIS: DOJ Correctly Declined Civil Rights Charges in Eric Garner Death

Five years ago, on this exact date, Eric Garner died while violently resisting lawful arrest for a petty crime. Yesterday the Department of Justice announced that there would be no civil rights charges against the police officer most associated with that arrest (although numerous officers were involved).

This perfectly reasonable decision by the DOJ —- consistent with similar conclusions drawn by every other official review of this case, including that of a grand jury—has predictably led to confusion and outrage among the ill-informed, so it seems worth taking a moment to recollect the facts and law that apply to the Garner case.

On July 17, 2014, Eric Garner was observed by New York police officers to be engaged in the petty crime of selling “loosies,” individual cigarettes drawn from a pack that normally holds twenty.

New York City makes selling “loosies” a crime for a variety of reasons, primarily because it undercuts the city’s ability to collect taxes on sales of full packs of cigarettes, which bear a state tax stamp, and also because it competes with the lawful sale of cigarettes by local merchants, who are generally the people to call police on sellers of “loosies.”

Reasonable people can disagree as to whether this should be an offense subject to arrest, but that’s a decision for politicians and their constituents, not for individual police officers tasked with enforcing the laws passed by those politicians.

Garner’s conduct in violating this particular law had been particularly egregious—he’d previously been arrested 31 times, mostly for this particular offense, and his arrest took place directly in front of a store attempting to lawfully engage in the business of selling cigarettes—that it was no surprise that an NYPD task force in the neighborhood established specifically to arrest those engaged in this unlawful conduct observed Garner selling” loosies” yet again. Several police officers moved in to make a lawful arrest, including Police Officer Daniel Pantaleo.

Instead of the complying with the lawful arrest, the approximately 400-pound Eric Garner—massing far more than any of the individual officers seeking to arrest him—instead chose to violently resist lawful arrest.

It should go without saying that if suspects can avoid lawful arrest simply by deciding that they don’t want to be arrested that day, law enforcement would be a pointless exercise. Accordingly, the police making the arrest increased their use of force in order to accomplish their lawful goal. As is common today, and was already in 2014, video of the arrest was taken and widely distributed afterward.

We’re all aware that Eric Garner would end up dead following his decision to violently resist lawful arrest, and that’s certainly an unfortunate outcome given the stakes of a minor criminal offense.

What made Garner’s death major news, however, was the widespread claim that he was actually intentionally or negligently killed by the New York Police Department in general, and by Officer Pantaleo in particular.

The claimed method Officer Pantaleo used to kill Garner? A so-called “chokehold.”

An informed view of the actual facts and law that apply to this case, however, readily shows that the purported “chokehold killing of Eric Garner” is just as much a lie as that of Michael Brown being shot dead by police as he surrendered “hands up, don’t shoot” and that George Zimmerman got out of his vehicle to confront Trayvon Martin after being ordered not to do so by the police dispatcher.

All of these are lies of the most contemptible sort, not just for being lies but for being lies intended to falsely foster racial hatred and division within American society. (And it’s always worth asking in such cases that are built on outright lies, cui bono?)

It’s also worth noting that this case has been subject to numerous official reviews, including by a grand jury, as well as by Attorney General Loretta Lynch under the Obama administration, over a five year period, and none of them—zero, zilch, nada—have found cause for either criminal or civil rights charges.

Indeed, the real indictment of this entire process has been the five years wasted on it, during which Officer Pantaleo has been held in professional limbo. After all, it’s not as if any new evidence emerged in the last five years, yet it took until July 2019 for the Department of Justice to announce they’d not be charging Officer Pantaleo for non-existent civil rights violations.

Everything we know now that led to this perfectly appropriate decision by the DOJ has been known for years, so why the delay? Contemptible.

The general propaganda-induced claim of misconduct by Officer Pantaleo is that he killed Eric Garner by the application of an unlawful “chokehold” while making the arrest.

Given how often this claim has been uncritically echoed by the #fakenews media, the general public may be shocked to learn that no such “chokehold” ever occurred, or if it did occur transiently and incidentally did not induce the harm that would have been necessary to be the cause of Garner’s death.

This is not opinion, but demonstrable fact based on all the available evidence.

There are two forms of “chokehold” relevant to this case: a carotid chokehold and a respiratory chokehold. Either can cause death, and both are largely restricted or outright prohibited for use by police as non-deadly force in making an arrest.

Both are also very specific techniques with very specific physiological consequences. Merely throwing one’s arm around a suspect’s neck does not constitute any kind of chokehold, absent the required technique and absent the physiological consequence.

Let’s Go to the Video Tape

I’ve included in this post some screen captures from the most commonly viewed video of the Garner arrest, along with referenced time-stamps from that video which I’ve embedded here. (Note that throughout the video Officer Pantaleo can be identified as wearing the green T-shirt with “99” printed across the back.) The full-length video is included at the end of the video version of this post.

Garner was Not Killed by a Carotid Chokehold

A carotid chokehold involves the constriction of the carotid arteries of the neck in order to limit blood flow to the brain and induce unconsciousness. To accomplish this physiological effect the arm is placed around the neck such that the forearm is on one side of the neck and the bicep on the other. Typically then the free arm is used to apply pressure to the applicant’s hand or wrist so as to squeeze together the forearm and bicep, and apply pressure to the sides of the suspect’s neck.

It is notable that the inside of the applicant’s elbow is positioned over the suspect’s larynx, and that no pressure is applied to the suspect’s respiratory passage—this is what distinguishes the carotid chokehold from the respiratory chokehold.

The physiological consequence of the carotid chokehold is the rapid loss of consciousness by the suspect, typically within a few seconds. If pressure is released promptly, the suspect typically regains consciousness almost immediately. If the hold is maintained well past the loss of consciousness it is possible that the brain could be denied blood flow long enough to induce death, but this would require the continuous application of the carotid chokehold.

None of this—neither the required technique of the carotid chokehold nor the physiological outcome of death while the chokehold is being applied—is in evidence in the case of Eric Garner.

The video of the arrest does not show Officer Pantaleo applying a carotid chokehold, as the technique is properly understood and described above. In addition, Garner clearly does not suffer death while he was being engaged by Officer Pantaleo—Garner’s death occurred only later, and thus could not have been proximately caused by a carotid chokehold applied by Officer Pantaleo.

Even if one chose to believe, contrary to evidence, that Pantaleo applied a carotid chokehold to Garner, note that in the embedded video of Garner’s arrest, Pantaleo has affirmatively released Garner’s neck no later than 00:50 seconds into the video.

By that 00:50 second point Pantaleo has both palms holding Garner’s head to the sidewalk, and is no longer applying any “chokehold” of any sort to Garner.

Yet at this point Garner is conscious and resisting arrest.

Clearly, then, no carotid chokehold applied by Pantaleo, even had there been one, could have been the cause of Garner’s death. Garner was still alive after Pantaleo was no longer applying pressure of any sort to Garner’s neck.

Garner was Not Killed by a Respiratory Chokehold

But what about a respiratory chokehold? Did the application of a respiratory chokehold by Officer Pantaleo kill Eric Garner?

A respiratory chokehold is distinct from a carotid chokehold in that its effect is intended to target the respiratory, rather than the circulatory system.

The technique involves placing the forearm across the front of the throat, typically the area of the larynx, as opposed to the carotid chokehold which places the inside of the elbow over that same area. Thus the respiratory chokehold applies direct pressure to the respiratory system, whereas the carotid chokehold does not.

The physiological consequence of the respiratory chokehold is that the victim cannot—you guessed it—respire. That is, they cannot breathe. Naturally, if breath is denied for a long enough period of time, the suspect may die as a result.

The respiratory chokehold is commonly banned as a police use-of-force technique for two reasons. First, it is an ineffective means of inducing rapid compliance by a suspect—breath can be denied for as much as several minutes before a suspect loses consciousness. In contrast, the carotid chokehold has its affect within seconds. Second, it is remarkably easy to inadvertently cause permanent, life-ending trauma using the respiratory chokehold by crushing the larynx.

We know for a certainty, however, that Officer Pantaleo was not actually applying a respiratory chokehold to Eric Garner, or alternatively that even if such a chokehold was being inadvertently and transiently applied—or for that matter being intentionally applied—it was not inducing the harmful physiological effect of constricting respiration and thus could not have caused Garner’s death.

How do we know this? Because throughout Pantaleo’s application of force to Garner, while Garner was on the ground and being wrestled with by several officers attempting to lawfully arrest the non-compliant Garner, Garner was repeatedly heard stating “I can’t breathe.”

First of all, speaking requires breathing. It is simply not possible to speak unless one is able to pass air over one’s vocal cords. The fact that Garner was able to enunciated the statement “I can’t breathe” and to do so repeatedly is proof positive that he was, in fact, breathing.

Second of all, even if the statement “I can’t breathe” was instead meant to communicate that Garner was having difficulty breathing, rather than completely unable to breathe, there are obvious reasons why he might be having such difficulty in breathing that do not require a respiratory chokehold by Pantaleo.

Notably, the fact that the morbidly obese Garner, who knew he already suffered from asthma and cardiac disease, had compelled the police to put him on the ground, where he continued to resist arrest to the point that multiple officers were seeking to subdue him. That, however, is on Garner.

Further, even Garner himself is never heard to say that his difficulty in breathing was due to pressure on his neck—the phrase “You’re choking me” is never said by Garner.

Even if one chose to believe, contrary to evidence, that Pantaleo applied a respiratory chokehold to Garner, note that in the embedded video of Garner’s arrest, Pantaleo has affirmatively released Garner’s neck no later than 00:50 seconds into the video.

After the point at which Pantaleo is no longer applying pressure of any sort to Garner’s neck, Garner repeats the statement, “I can’t breathe” at least nine times. Clearly, he’s breathing.

By that 00:50 seconds point Pantaleo has both palms holding Garner’s neck to the sidewalk, and is no longer applying any “chokehold” to Garner.

Yet at this point Garner is still breathing and speaking: the “I can’t breathe” speech already discussed.

Clearly, then, there was no respiratory chokehold with life-ending physiological effect applied by Pantaleo to Garner, and thus no respiratory chokehold applied by Pantaleo could have been the cause of Garner’s death.

So What Was Pantaleo’s Arm Doing?

The question may naturally arise that if Pantaleo was not subjecting Garner to either a carotid or a respiratory chokehold, what was he doing with his arm around Garner’s neck?

The answer is that Pantaleo was attempting to employ a non-deadly force take-down method known as the “seatbelt” technique, a perfectly lawful non-deadly force technique on which he was trained while attending the NYPD police academy.

The seatbelt technique involves placing an arm around the suspect’s shoulder and diagonally across the suspect’s chest, much like a seatbelt would be positioned, and then using one’s weight to bring the suspect to the ground.

The seatbelt technique is a commonly approved takedown technique for use by police in dealing with non-compliant suspects and was an approved technique by the NYPD at the time of Garner’s arrest. Properly applied, the seatbelt technique has essentially zero risk of causing a suspect serious injury or death, and thus is properly understood as a non-deadly force technique.

The video shows Pantaleo’s application of this seatbelt technique was imperfect, at best, but any technique is going to be less than “academy perfect” when applied to a real violently non-compliant suspect in the real world than when applied in a sterile training environment. That’s on the violently non-compliant suspect, not on the officer seeking to make a lawful arrest using approved techniques.

In any case, we know that even this imperfectly applied seatbelt technique caused neither constricted blood flow nor respiration in the case of Garner, for the reasons already discussed in detail above, and thus could not have been the proximate cause of Garner’s death.

Death by Obesity, Morbidity, and Poor Judgment

The reason that Officer Pantaleo has never been criminally charged and why even the Obama Department of Justice declined to bring civil rights charges against him, despite the #fakenews media repeatedly and falsely claiming that Pantaleo had killed Garner unlawfully with a chokehold, is because criminal or civil rights charges would have required such claims to be made in the adversarial setting of a courtroom, where emotion and propaganda would be contested with actual facts and evidence, and where the chokehold false narrative would have met a swift and embarrassing end.

So if Eric Garner was not killed by chokehold, what did cause his death?

In short, Garner’s death was almost certainly caused by his own gross obesity—again, he weighed as much as 400 pounds—his own morbidity—he suffered from both pre-existing respiratory and cardiac disease—and his own poor judgment—deciding to violently resist, rather than comply, with a lawful arrest being made by multiple New York Police Department officers.

That doesn’t make Garner’s death anything but the tragedy it genuinely is.

It does, however, make Garner’s death the responsibility of Garner, and not of Officer Pantaleo or anyone else.

DOJ Explanation Supports This Analysis

The DOJ explanation of why charges were not brought follows a similar analysis to mine:

Cui Bono?

In closing, if you’re wondering why large groups of people, including the #fakenews media, continue to falsely portray the death of Eric Garner as if he were the victim of an unlawful killing by the police, I again recommend that you ask again, cui bono?

Who benefits?

Finally, as always, remember:

You have a gun so you’re hard to kill.

Know the law so you’re hard to convict.

— Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program

You can find almost daily self-defense law content by Attorney Branca, freely available, at his blog: lawofselfdefense.com.

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