PROCEDURAL AND LEGAL
THE ERIC GARNER CASE
It was Thursday, July 17. On a sidewalk in front of a beauty salon in the Tompkinsville section of Staten Island, N.Y., a forty-three year old man, Eric Garner is approached by police officers. It is their belief that Garner has been selling "loosies", individual cigarettes that have been removed from packs of cigarettes that has not had the state tax stamp affixed to it.Witnesses have said Garner had just broken up a fight outside the beauty salon, and that the two individuals who were fighting had left the are before police arrived. One witness, Ramsey Orta, a friend of Garner's, shot cell phone video of the incident. Here's what took place:
Near the end of this video, at approximately 2:25, a suited police supervisor tells people to move back because it is now a crime scene. It sure is a crime scene. The police would have you believe the crime was solely resisting arrest, committed by Garner. While resisting arrest is a crime, the other, and far more serious, crime here is the unnecessary murder of Garner by the New York Police Department.
The officer who came up from behind on Garner is Daniel Pantaleo, an eight-year veteran of the N.Y.P.D. His tenure has not been free of controversy, however, as Pantaleo was the subject of two civil rights cases brought just last year. One lawsuit resulted from two black men who claimed Pantaleo subjected them both to a "humiliating and unlawful" strip search on the street, being ordered to "pull their pants and underwear down, squat and cough", being charged, and being detained overnight. The other lawsuit alleged that Pantaleo, along with other officers, had misrepresented facts in a police report and related documents in order to substantiate charges against the individual.
In both cases, all charges against the citizens were dropped.
With New Yorkers dealing with high taxes on cigarettes from both the city and the state of New York, the sale of loosies has become much more widespread. In January of this year, a new law was adopted (Local Law 97, "Sensible Tobacco Enforcement") with the following penalties:
A first violation resulting in a fine of up to $2,000
A second violation resulting in a fine of up to $5,000
(Local law 97 also includes a revoking of license and a closing down of a store that sells tobacco products illegally.)
We will never know if Eric Garner would have been arrested and assessed a fine for the alleged violation because he was murdered. In New York, selling loosies is a misdemeanor, which does not include murder as punishment. Resisting arrest is illegal, but Eric Garner's manner of resisting was not threatening any officer, or anyone else for that matter. As such, the response of murder was unwarranted.
It has been said by Officer Pantaleo, the N.Y.P.D., and the Policemen's Union that the hold Pantaleo applied to Garner was not a chokehold.
Add to this that the use of chokeholds by N.Y.P.D. officer has been banned for eleven years. In November of 1993, then-Police Commissioner Raymond Kelly officially banned their use as a "clarification" of an order eight years earlier. In 1985, chokeholds, which were described in the '85 order as "potentially lethal and unnecessary", were not to be "routinely used", with the only exceptions being an officer's life is in danger or the maneuver was deemed the "least dangerous alternative method of restraint" in a situation. Commissioner Kelly's policy, still on the books today, allows no exceptions. To clarify, banned means illegal.
Even if Commissioner Kelly's still-standing policy was not in effect, how did Eric Garner pose a threat to the officers' lives? How was the use of a chokehold, including holding Garner down in the prone position, the least dangerous method of restraint in this situation?
Its use was flatly unwarranted, and Garner's death was undeniably unnecessary.
The grand jury was instructed to apply New York Penal Code section 35.30, which addresses the use of physical force by a police officer:
The officer must "reasonably [believe it] to be necessary to effect the arrest, or to prevent the escape from custody, 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".
What was reasonable about thinking that putting a chokehold on an unarmed and non-threatening individual was necessary?
Within that belief, the officer must know or believe at least one of the following:
That the offense is "a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; or
kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime"
There was no felony committed or attempted -- again, selling loosies is a misdemeanor -- and there was no use, or threat of use, of physical force by Garner. Additionally, there was no kidnapping, no arson, no escape, and no burglary committed or attempted.
OR
"The offense committed or attempted by such person was a felony
and
that, in the course of resisting arrest therefor or attempting to
escape
from custody, such person is armed with a firearm or deadly weapon"Again, no felony, or attempt of a felony, occurred and Eric Garner was unarmed.
OR
"Regardless of the particular offense which is the subject of
the
arrest or attempted escape, the use of deadly physical force
is
necessary to defend the police officer or peace officer or
another
person from what the officer reasonably believes to be the use
or
imminent use of deadly physical force"If Officer Pantaleo believed that Garner was using, or was about to use, deadly physical force, I am unconvinced that such a belief was reasonable.
And yet, a grand jury that had convened for more than two months going over all the evidence, including the cell phone video (above), came back on December 3 with a no indictment decision against Officer Pantaleo. Later that same day, Attorney General Eric Holder announced the U.S. Justice Department will conduct its own investigation into the matter.
Terry
TOMORROW
PUBLIC OUTCRY
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