Transparency, Causation, Eggshells, Trust : Seven More Ethics Issues In The Eric Garner Case


1. There is near unanimity in the response to the non-indictment by the Staten Island jury in the Eric Garner case. In light of the graphic video, it is hard to see how there wasn’t probable cause to indict. The coroner verdict of “homicide” would see to provide sufficient evidence all by itself. However, in the absence of the complete record of what the grand jury heard and saw, nobody can be certain that this was a miscarriage of justice. However, given the context of the case and its deleterious impact on faith in the justice system, that is no solace and scant mitigation. As in Ferguson, it is prudent and essential that the public see what the decision was based upon. It is true that those who are determined to see injustice, bias and racism will do so regardless of what the evidence shows–again, as in Ferguson—but the only evidence that has been made public, the various videos and the officer’s testimony–only makes the non-prosecution more suspicious.

2. Can the non-prosecution be justified? If so, the only reason I can see would be lack of proof of causation. Causation is tricky, and  juries get confused about how to analyze it. Since it is fair to assume Daniel Pantaleo did not intend to kill Eric Garner, the issues are a) whether his actions during the arrest were negligent, and b) whether they were the proximate cause of Garner’s death. That his conduct was negligent is not enough to sustain and indictment—that negligence had to be the reason Garner died. Remember, he was not choked to death. The medical examiner ruled that Garner died from a collection of factors: compression on his chest and throat, the position he was forced into, his obesity, weak heart, and asthma, all causing asphyxia.

  • If Pantaleo’s actions alone would not have caused Garner’s death, then it could be legitimately argued that he was not guilty of a crime. The other officers were given immunity for their testimony, which seems like either a bad decision by the district attorney, or intentional sabotage of the case against Pantaleo’s. If it was the collective action of the police that caused Garner’s death, it would be unjust to make Pantaleo the sole officer punished. If some of the testimony from the unchargeable cops made the case that it was another officer, or several, who really caused Garner’s death, that would explain the no indictment result.

In the widely seen video of the arrest, Pantaleo can be seen with his arm around Garner’s neck as Garner is taken to the ground and for some time thereafter, but in watching the video it’s difficult to determine whether Garner was in fact choked. And if he was, it did not appear it was long enough even to render him unconscious, much less kill him…I saw nothing excessive in the manner in which the officers subdued Garner. He was neither beaten with batons nor even punched. To me, it appeared to be a fairly typical scuffle with a large man who had clearly demonstrated his unwillingness to be arrested peacefully.

He misses the point. The question is whether the take-down was excessive for Garner, not some theoretical average arrestee. It is true that with a normal, healthy subject, what the officers did would not typically cause death….but Garner was obviously not normal, nor healthy. He was morbidly obese, and 350 pound middle-aged people tend to have the kinds of heath issues Garner in fact had. Nobody would argue that an elderly woman or a ten-year old girl or someone in a wheelchair should be manhandled like that. Such treatment was negligent for Eric Garner, and the deadly result could and should have been anticipated.

It is true that the officers couldn’t know that Garner had a weak heart and suffered from asthma, but it doesn’t matter: the rule in negligence is that “you take your victim as you find him.” If your negligence is the proximate cause of someone’s death, the fact that it wouldn’t have caused anyone else’s death is no defense. This is the so-called “Egg-shell Skull” rule.

Garner was an egg-shell perp.

3. Garner’s last words, transcribed off the tape, are difficult to reconcile with the police response:

“Get away [garbled] … for what? Every time you see me, you want to mess with me. I’m tired of it. It stops today. Why would you…? Everyone standing here will tell you I didn’t do nothing. I did not sell nothing. Because every time you see me, you want to harass me. You want to stop me (garbled) Selling cigarettes. I’m minding my business, officer, I’m minding my business. Please just leave me alone. I told you the last time, please just leave me alone. please please, don’t touch me. Do not touch me. [Video of the arrest shows four officers wrestling Garner to the ground and restraining him.] I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe.”

I’m not going to argue with anyone who feels that this shows a core disrespect for Garner by the police officers. No warning….no calming words…no regard for his dignity or welfare. Is it because he was black, because he was huge, or because the officers are trained not to think of citizens as human beings any more?

4. Many conservative pundits, Rush Limbaugh prominent among them, are attempting to deflect attention from the issue by shifting the topic to obtrusive big government, by blaming Garner’s death on the excessive tax on cigarettes in New York that invites petty crime like Garner’s peddling loosies. Talk about a flawed causation analysis: the law, dumb or imprudent or unfair as it may be, did not cause Garner’s demise. That debate should be tabled for another time when it will not muddle the issue at hand: trust in the police departments across the country and the use of excessive police force.

5. On “Meet the Press,” Garner’s admirably candid widow said:

“I feel that he was murdered unjustly. I really don’t feel like it’s a black and white thing. I feel like it’s just something that he continued to do and the police knew. You know, they knew. It wasn’t like it was a shock. They knew. You know? They knew him by name. They harassed us. They said things to us. We would go shopping. You know? “Hi Cigarette Man. Hey Cigarette Man Wife.” You know? Stuff like that. And I would just say, “Eric, just keep walking. Don’t say anything. Don’t respond. You know? Don’t give them a reason to do anything to you.” And he just felt like, “But baby, they keep harassing me.” And I said, “Just ignore them, Eric.” And he said, “But how much can I ignore them?” And I would say, “Just stay away from the block. You know? Just find something else to do.” And he’s like, “What else can I do? I keep getting sick.” He tried working with the Parks Department. But he had asthma. You know? He had issues. You know? Heavy guy. And he was very lazy. You know? He didn’t like to do anything. He wasn’t used to it, so.”

This raises the troubling question of what the police—and society— are supposed to do with people like Garner. Ignore his law-breaking, because it’s a “stupid law”?  Should being lazy, obese and having “issues” entitle someone to unimpeded lawbreaking?

6. Garner’s widow opined that this was not “a black and white thing.” Why would Eric Holder think otherwise? What element of this arrest, other than the skin color of the officers, suggest that a federal civil rights investigation was warranted? I know I’m repeating myself here, but I believe this is veiled anti-white racism at worst, divisive pandering to civil rights activists at best, and a waste of time, money and resources in either case…a waste, that is, unless the objective is to build racial distrust.

7. Finally, I have this question, which is the most ethically perplexing of all. Should District Attorney Daniel Donovan have taken the Ferguson grand jury backlash into consideration in deciding whether to seek an indictment against Pantaleo? The results of a non-indictment, locally, nationally and culturally, were obviously going to be horrific—bad for race relations, bad for police, bad for prosecutors, bad for national trust in the justice system…just bad. If he believed it was a close call whether or not to indict the officer—and with the video, how could it not be a close call—would the ethical course have been to go ahead and send the case to trial? Remember that the prosecutor’s client is the government and the people; his objective must be to do what is in their best interest. Yes: an indictment that could not ethically result in a conviction would never be conscionable; this was the situation facing the Ferguson grand jury. In this case, however, nobody could argue that there wasn’t sufficient evidence to indict. Under such conditions, shouldn’t the fact that an indictment would begin to heal the wounds of Ferguson and a non-indictment would exacerbate them be a legitimate factor for Donovan to consider?

My previous commentary and analysis compels me to say no, but I am not happy about it.


Pointers: Althouse, Legal Ethics Forum

Sources: National Review



10 thoughts on “Transparency, Causation, Eggshells, Trust : Seven More Ethics Issues In The Eric Garner Case

  1. Should District Attorney Daniel Donovan have taken the Ferguson grand jury backlash into consideration in deciding whether to seek an indictment against Pantaleo?

    You know the answer to that.


    The “greater good” should never be a consideration, just the facts of the case. You know that. I know that.

    I cannot imagine a situation where an indictment should not have been handed down. Just because I can’t conceive it doesn’t mean there might not be evidence I’m not privy to though. Perhaps a video of the victim walking around two hours after the arrest, showing his death happened later. That’s pretty much what it would take.

    • Let’s assume that the DA personally believed that the evidence was equivocal due to causation—that the guy died of natural causes, and his handling by the police could not be proven to have been the cause. Let’s say he also knows that a non-indictment will be the tipping point, ripping the nation in two and obliterating trust in the rule of law, law enforcement, the nation. Then isn’t it like the ticking nuclear bomb scenario that is the exception to the NO TORTURE, PERIOD absolutist restriction?

  2. The eggshell skull doctrine applies only if the conduct causing harm is wrongful in the first place. Thus, one is generally privileged to use reasonable force to prevent unwarranted interference with one’s person or property. If somebody grabs for your wallet and you push him away, and he croaks from a heart attack, no, you are not liable, civilly or criminally. There is no legal obligation to inquire into the medical history of an assailant before using reasonable force to defend oneself. Same thing for the police officers in the Garner case. They were privileged to use reasonable force in making the arrest. The case would be different if they knew that he would likely die from the force used. But they did not know that, so the case is not different.

    • I did not mean to suggest otherwise. But the force was not reasonable, if it involved a banned tactic like the choke-hold, and if the likely vulnerability of the victim should have been apparent, and it should have. If you are in the business of tackling people, then you have an obligation to know the kind of people tackling might kill.

      • What I wrote: “It is true that the officers couldn’t know that Garner had a weak heart and suffered from asthma, but it doesn’t matter: the rule in negligence is that “you take your victim as you find him.” If your negligence is the proximate cause of someone’s death, the fact that it wouldn’t have caused anyone else’s death is no defense. This is the so-called “Egg-shell Skull” rule.

        Note the repeated use of the term “negligence.” “Negligence” is by definition “wrongful in the first place.”

        • Just because some departmental regulation bans use of a choke hold does not mean that its use was unreasonable under the circumstances, as far as the law is concerned. Police departments can have whatever goofy rules they like, and enforce them with disciplinary action, but these rules do not alter the law. Assuming the force used was reasonable under the law, it was privileged, it use was not wrongful, and the eggshell skull doctrine does not apply.

            • Police are privileged to use what they reasonably believe to be non-lethal force in making an arrest — for shoplifting, battery, drunk driving, stealing from fruit stands, verbally harassing passers-by, etc., — no requirement that anybody’s life needs to be in danger to make an arrest. “Reasonably believe” is the key here. So again, the question is whether their use of force was lawful, and the grand jury, being instructed in the law and hearing the facts, said yes, it was. Eggshell skull doctrine is thus inapplicable.

              • What can I say? You’re wrong. A prima facie case the force was excessive is made by the fact that it killed the guy. People who are allowed to tackle people are obligated to know which people such tactics might harm, like morbidly obese people. The force used was excessive, thus unreasonable, thus negligent, thus the fact that the victim was vulnerable is relevant. You’re just rationalizing, why, I don’t know.

  3. To me, the video clearly establishes probable cause that a crime was committed, but falls short of proof beyond a reasonable doubt. If the grand jury had indicted the cop, the trial jury would very likely have acquitted him. The trial would have been a waste of prosecutorial and judicial resources.

    More significantly, I think that to most of the public, this incident seems like ancient history, and they probably weren’t even aware before today that an indictment was still being considered. Right now, the news story is that a few professional political types are expressing outrage. That story doesn’t have legs — people will have stopped talking about it two days from now. A trial, on the other hand, would have kept the story alive for months in the run-up to the trial, and then raised it to the very top of public consciousness during the days or weeks that the trial was being held, before finally the acquittal came down, outraging not just professional activists but a large portion of the public. I think the failure to convict under those circumstances would have had a more deleterious effect on faith in the justice system than today’s failure to indict.

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