Because we all rush to be the first to publish these days, I’m going to field my opinion on the Garner case in the form of the following stream of thought, as opposed to a polished article.
Chokehold, chokehold, chokehold. Wrong focus.
This was a failure to render first aid case. Jack McCoy would’ve gotten the indictment.
Everybody just loves the buzz of “chokehold.” (Ooh! Sounds like brutality!) As a result, we left the most persuasive theory of the crime — the failure to rescue — out of the spotlight. That was a mistake.
“But the chokehold was against NYPD rules,” you say.
Yes, it was. But it didn’t choke him out (it couldn’t possibly do so in such a brief application), so it ultimately places the grand jury’s focus back on Garner’s health (which, given his morbid obesity, is obviously poor).
But Garner had a solid chance of living — if the cops and EMTs didn’t stand around, chatting obliviously, for all those minutes Garner laid there, cuffed and unresponsive.
Ironically, the parts of the video in which very little appears to be happening is where the real evidence of criminal negligence is.
Here we have a large number of cops, and not one of them is specifically paying attention to Garner’s vital signs after taking him into custody.
Also, that the chokehold was against the rules is a police discipline issue. It doesn’t, ipso facto, create legal liability. It’s almost as if people are trying to invoke the “negligence per se” doctrine — except (1) that is a civil doctrine, and (2) it applies to violations of statutory law, not to violations of internal police agency rules.
“But the Medical Examiner said that the chokehold and police action were the cause of death,” you say.
Well, I think they were very indirectly a cause of death. But you’ll notice that after the chokehold was released, Garner was still talking. If you can talk, you can breathe.
Now, this may sound trivial to some, but it does seem to come into play here, so I’ll put it on the table for your consideration:
In addition to being a lawyer, I am also a high-school wrestling official. In that line of work, we have to recognize all kinds of situations and holds that can cause injury.
We also have a good idea as to how long it would take to actually “choke somebody out,” and what that might look like.
So I was surprised when watching the video for the first time a few months ago, because what I expected to see was a chokehold applied for an obscene amount of time, and for Garner to be unresponsive immediately upon its release.
However, it would simply be impossible for the chokehold that was applied to even get close to causing unconsciousness at that duration.
When officiating matches involving some of the younger kids, they’ll sometimes try to say (usually if they’re in danger of being pinned) “I can’t breathe.”
And while we watch such situations very closely, to be sure, an official also would rarely stop a match on that basis because, like I said, if you can talk, you can breathe.
It’s where somebody can’t talk, or the noises indicate a true blockage of the windpipe (e.g., faint wheezing), that you’d immediately stop a match (perhaps after giving a stern command to “get off his throat now!” or something like that). In any case, wrestling would be stopped within, say, 1 to 2 seconds at that point if no correction were made.
Now, that doesn’t make me a medical examiner or a doctor, of course, but that, combined with my expertise as a lawyer, told me right off the bat that the chokehold thing was actually not a significant part of this equation.
Accordingly, at first I thought “no manslaughter here.” But then I saw Garner lying there, cuffed, with his vitals totally unmonitored by anyone, for an inordinate amount of time. That clearly would have been the time frame where his respiratory system shut down. Had someone been monitoring his vitals, they would have caught that instantly, and could have begun CPR or other first aid measures immediately. That most likely could have revived him until paramedics could arrive.
It’s hardly the “sexier” theory of the case. But it would convince a grand jury, and likely a trial jury, because it places squarely on the police officers how avoidable Garner’s death really was here.
Picture it: You just count off the hundreds of seconds (right in front of the grand jury) that Garner went without vital, life-saving first aid while those cops and EMTs just chatted it up. There was such a significant time gap before anyone even seemed to view this as a life-threatening medical emergency.
One could say that the real police policy that applies here (though probably not explicitly written) is that you never take your eyes off of a handcuffed individual. That particular level of custody and control imposes a special, heightened duty on the part of law enforcement.
Add to this that the officers were on actual notice of the potential for respiratory distress because of what Garner said during the arrest (to wit, that he couldn’t breathe — which was probably better understood as “I am having some trouble breathing”), and you quickly arrive at the conclusion that at least one cop should have remained at arm’s length, visually scanning for signs of distress, at all times. And if such distress was recognized, to start life-saving first aid immediately. Instead, they searched his pockets.
Moreover, when a morbidly obese man says he can’t breathe (and is, therefore, having some degree of trouble breathing), any reasonable first responder would know to call for paramedics immediately (even if they aren’t ultimately needed and/or an ambulance trip to an emergency room is ultimately unnecessary).
All of this took a backseat to this silly chokehold/brutality narrative. Sensationalism as usual. The result? Justice denied.
A grand jury basically expects to see Rodney King-level shit before they indict a police officer for homicide in the line of duty. Something really egregious. This absolutely, positively wasn’t it.
The angle I discussed here changes the game to something nobody can defend. Why is that?
Because they — the cops, the EMTs, all of them — literally stood around and let this man die.