In most cases the law is clear and the facts are contested, but in the Eric Garner case the opposite is true: the facts are clear, and the law is confusing. The 2014 death of Eric Garner on Staten Island resulted from a struggle between Garner and NYPD officer Daniel Pantaleo. When Garner resisted arrest, Pantaleo grabbed him around the neck and head to bring him to the ground. Pantaleo’s maneuver is generally characterized as a “chokehold,” but the term is fraught with complications. Pantaleo’s culpability for Garner’s death will probably be determined by how the police department treats the chokehold issue.

Procedure 221-01 in the NYPD’s Patrol Guide states that a chokehold “shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.” The key words here are “any pressure . . . which may,” which would seem to apply to all pressure to the throat or windpipe, since virtually any pressure (except some incidental touching) “may” hinder breathing. Under the rule as written, Pantaleo is in trouble—but this is not the way that the rule has been applied, at least up to now.

The department has tried 18 relevant cases since adopting the chokehold definition in 1993, and in each case, it has ignored the “any pressure” language. Instead, officials have looked at whether the civilian’s breathing was actually restricted. In these cases, the NYPD has proved unwilling to punish police officers merely for applying pressure to the neck. From 2009 to 2014, New York City’s Civilian Complaint Review Board received 1,128 chokehold complaints. It investigated 520 of these cases, eventually dismissing 240. Of the remainder, it passed only 10 cases on to the department for trial, recommending the most serious charges. But NYPD punished only one officer, taking away up to 10 days of vacation.

I suspect that most cops, and most of the public, think that a chokehold means a neck grip that cuts off the air supply or is held long and tightly enough to do so. That is not what happened to Eric Garner, though; he was held by the neck for about 15 seconds. He didn’t start saying “I can’t breathe” until after Pantaleo removed the pressure from his neck. When police apply force, they must act quickly, and shouldn’t be limited by constraints that make certain parts of the body off-limits. Officers probably see a blanket ban on neck pressure as too strict. On the other hand, when an officer actually cuts off breathing, the risk of serious and unnecessary injury becomes too great. Every officer and layman can understand a “no breathing rule,” and cops should recognize when they’ve crossed the line.

A chokehold itself is not a crime. Assault, however, is a crime—and assault could involve choking someone. In some circumstances, choking can lead to death, which would warrant criminal homicide charges. But as I’ve pointed out, a grand jury refused to indict Pantaleo for any of these charges, probably because of the officer’s strong justification defense. And while federal civil rights charges are pending, the case for them is weak; given Attorney General Jeff Sessions’s views on law enforcement, they’re not likely to go anywhere. What’s left are the NYPD charges. The CCRB, which handles excessive-force complaints against NYPD officers, has reportedly investigated the Garner case and recommended charges. Now it’s up to Police Commissioner James O’Neill to determine the appropriate punishment.

This is a classic situation of the law as written versus the law as applied. Legally speaking, to hold Panataleo accountable for a chokehold smacks of an ex post facto law (or its due-process equivalent): punishment for acts not clearly prohibited at the time that they occurred. Or, to use a sports analogy, penalizing Pantaleo for this offense would be moving the goalposts. Because the Garner case, tragically, led to a death, and because it was racially charged and heavily covered in the media, Pantaleo faces sanctions for conduct that has not been seriously punished in the last two and a half decades. And that’s simply unfair.

Photo by Andrew Burton/Getty Images


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