Andrew C. McCarthy: The Staten Island Decision

staten

Andrew C. McCarthy writes: Several news organizations have reported that a New York grand jury in Staten Island has voted against indicting Daniel Pantaleo, a New York City police officer, in the choking death of Eric Garner. The decision is to be announced officially on Thursday. Clearly, this No True Bill is more difficult to justify than the St. Louis grand jury’s vote against filing homicide charges against Ferguson police officer Darren Wilson in the shooting death of Michael Brown.

Officer Pantaleo, who is white, is being investigated for killing Mr. Garner, a 43-year-old black man who was physically imposing but unarmed, and who was resisting arrest (for a nonviolent crime, the illegal sale of untaxed cigarettes) but not overtly threatening FaithlessExecutionthe safety of the police. As National Review Online reported on Wednesday, the confrontation between Garner and the police was captured on videotape.

[Order Andrew C. McCarthy’s book “Faithless Execution from Amazon.com]

NYPD guidelines ban a form of chokehold. Contrary to some reporting, however, even that technique is not illegal per se. In fact, it used to be part of police training before concerns about accidental death convinced the NYPD to prohibit its use. Much of the coverage I have heard assumes that the chokehold Pantaleo applied is one that the guidelines ban (and, so the narrative goes, is illegal). This is hotly disputed by some police advocates, who claim that what Pantaleo did was more in the nature of a headlock or a wrestler’s swift takedown. Obviously, we do not yet know what, if any, testimony the grand jury heard on this point.

In any event, others counter that Garner could be heard repeatedly telling the police he could not breathe. While this actually undercuts the claim that a banned chokehold was used (since, if it had been, Garner would have had great difficulty speaking so audibly), Garner’s pleas suggest that the police used excessive force — a problem that makes the chokehold debate nearly irrelevant. In the absence of any apparent threat to the police, critics forcefully ask, shouldn’t Pantaleo have stopped whatever hold was being applied?

There is no doubt that Pantaleo aggressively handled Garner around the neck and then pressed his head to the ground. Soon after, Garner died. On top of that, the state medical examiner (ME) concluded that a homicide occurred. Sounds cut and dried, especially given that grand juries need merely find probable cause in order to return an indictment.

But it’s not that simple. Carefully examined, the ME’s homicide finding may have hurt more than helped the argument for indictment. As New York law makes clear, homicide does not necessarily mean murder or some other criminal form of taking human life. A homicide finding simply means that some form of conduct — which could be innocent — caused death to occur.

More importantly, many media reports about the ME’s homicide finding assert that it means that the police conduct alone caused Garner’s death. That is apparently not the case. Other reporting indicates that…(read more)

National Review Online

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution.



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