Prosecutorial Ethics: Not Charging The Police In The Eric Garner Case Is The Right Ethical Decision…

…and trying any of the officers involved would be unethical.

Naturally, Eric Garner’s family immediately is attacking  the decision of the Justice Department today not to bring federal charges against  the New York police officers whose ugly and violent arrest of Eric Garner in 2014 led to his death. This incident came in the midst of several high-profile police shootings following the triggering Trayvon Martin killing, and led directly to the emergence of Black Lives Matters as well as launching one of several catch phrases connected with the movement, “I can’t breath.”

The Department of Justice took a long time reviewing the incident and the evidence, and could not determine that Officer Daniel Pantaleo willfully committed misconduct, an “essential element necessary to bring federal charges,” a senior department official told reporters at a briefing today. Considering all the elements of the  crime required to be proven under the law, the DOJ official said, the conclusion was that  the police conduct did not “fit within the statute.”

In deciding not to bring charges, U.S. Attorney General Bill Barr sided with federal prosecutors in Brooklyn. The  Justice’s Civil Rights Division had favored bringing charges.

The main problem facing the Justice Department and the New York prosecutors was that a conviction would be unlikely, making a prosecution more of a show trial than a real one, much like the George Zimmerman trial for allegedly murdering Martin. That trial was brought unethically to slake activist thirst for vengeance against Martin’s shooter, despite the glaring  evidence indicating self-defense. Prosecutors may not use the process itself to punish citizens. If a trial can’t be won, or if the justification for charges are dubious, then it is professional misconduct to bring them.

Were police negligent and reckless in using such aggressive measures to bring down a suspect who was resisting arrest? Absolutely, and this was addressed, as it should have been, in a civil trial. (Garner’s family was awarded 4 million dollars from the city.) Did the cops intend to kill Garner? It takes real anti-police bias to conclude that. The video shows a huge, morbidly obese man resisting arrest by a group of much smaller officers, who pretty evidently over-reacted. Although the ME attributed Garner’s death to “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police,” the defense in a criminal trial will have no trouble finding persuasive expert testimony to the effect that what ultimately killed Eric Garner was his weight and poor health.

The fact that the grand jury in 2014 refused to charge the police is a large and ominous clue that a trial jury would be similarly ambivalent.

The caterwauling  from Kamala Harris, Bill DeBlasio and Al Sharpton with others sure to follow in the wake of this news should be interpreted as cynical and expedient political theater, and not legitimate dissent. De Blasio has already demonstrated that there was never an accusation against his police he didn’t support; Harris made a habit of over-zealous prosecution, and as we all know, Al made his name demanding indictments for an imaginary crime. Democrats and Black Lives Matter, meanwhile, have made it clear they only support due process when it reaches their desired result.

Now this will be one more thing for Megan Rapinoe and Colin Kaepernick to kneel about. That’s none of the Justice Department’s concern either. What a jury was likely to find, as in too many of the police related deaths, was that the primary cause of a tragedy was the deceased’s irresponsible decision to resist arrest. That factor is perhaps more glaring in Garner’s case than in most.

[My previous examination of the Garner case is here.]


Source: AOL


8 thoughts on “Prosecutorial Ethics: Not Charging The Police In The Eric Garner Case Is The Right Ethical Decision…

  1. What people, like Eric Garner, fail to understand is that there are consequences to their choices and physically resisting arrest is an absolutely RIDICULOUS choice for anyone to make.

    The best I can tell; Eric Garner had been completely brainwashed by his environment into believing that physically resisting arrest was an appropriate action to take against police that are giving commands. It doesn’t matter one damn bit whether the individual being arrested likes the commands or likes the reasons behind the commands, follow the damn commands and don’t resist arrest; every action taken by a person being arrested that’s outside of those two simple things are WRONG!

    It’s very, VERY simple people:
    1. Follow police commands.
    2. Don’t resist arrest.
    3. Have your day in court.

    Lastly; I think both the arresting police and Eric Garner overreacted. The difference between their actions is that what the police did was not illegal and not racist, however, Eric Garner’s actions leading up to the incident and then physically resisting arrest was illegal.

    There will be some people, even some long time friends, that will probably come real close to hating me for writing that but the facts are the facts and I refuse to react to this incident with emotional bull shit.

    • I don’t disagree with your general position, and I don’t disagree with the Justice Department’s decision not to prosecute the police officers. I have some doubts about what happened? My question in this affair is whether the police officers’ commands were justified – clearly a basis for civil liability but maybe not criminal. I mean, this fellow was wasn’t necessarily perpetrating a violent crime. He was engaged in a stupid activity (selling single cigarettes after he was asked by the owners to leave, which he didn’t do because, well . . . Black Lives Matter), and things escalated way too quickly when the police arrived. The police knew him and he had a history with the police – it wasn’t his first ride at the rodeo so he should have known the drill. Rather than comply, he fought back. And he fought back a lot, causing a number of officers to pounce on him. That choke hold, though improper under New York law (apparently) contributed to the guy’s death, which may have been important for civil settlement purposes but did not rise to the level of criminal intent.


      • “My question in this affair is whether the police officers’ commands were justified…”

        Justified? I suppose it’s all based on how someone defines justified for themself.

        I think the point is that the commands were not illegal commands and therefore they should be obeyed, which makes justification for the commands irrelevant at the moment of the commands. The justifications for the commands will be argued in a court not on a public sidewalk in the middle of an arrest.

  2. “No justice, no peace!” “I can’t breathe!”
    Cue the BLM and Antifa mobs. Staten Island ablaze by the weekend. Di Blasio may hurl the first torch. Film at eleven!

  3. While I agree with your analysis and Steve’s,comment, I don’t understand how the reasoning, or the explanation of the reasoning, is any different than that Accosta used in the Epstein case. The text “Considering all the elements of the crime needing to be proven etc. etc.” seems similar to the statement Accosta made ; not exactly but close.

    I suppose the question I am asking is are we evaluating such decisions to prosecute or not based on the nature of the offense or the perpetrators? I seriously hope not.

    • I’m glad you raised this, but I think the two cases are too materially different to make any analogies. In one case the defendants are police engaged in law enforcement and the victim is habitual scofflaw who was resisting arrest. In the other you have 40 victims, a pattern of illegal and disgusting conduct, the danger of continued crimes, and a defendant who is a privileged billionaire.

      • Agreed. The two are materially different. In the Garner case, the charges would have been official oppression, civil rights denials, murder (and/or some form of manslaughter). Those crimes require a mens rea, or criminal intent on behalf of the accused to commit that crime,and the standard of proof is beyond reasonable doubt, not a preponderance of the evidence. The facts did not support a prosecution.


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