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 online National Review, Jack Dunphy uses the video to conclude that there was nothing wrong with Garner’s take-down:

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. Continue reading →