A flyer with a picture of Eric Garner hangs in Staten Island, August 22, 2014. (Spencer Platt/Getty)

The grand jury may have gotten it wrong.

Several news organizations have reported that a New York grand jury in Staten Island has voted against indicting Daniel Pantaleo, a New York City police officer, in the choking death of Eric Garner. The decision is to be announced officially on Thursday. Clearly, this No True Bill is more difficult to justify than the St. Louis grand jury’s vote against filing homicide charges against Ferguson police officer Darren Wilson in the shooting death of Michael Brown.


Officer Pantaleo, who is white, is being investigated for killing Mr. Garner, a 43-year-old black man who was physically imposing but unarmed, and who was resisting arrest (for a nonviolent crime, the illegal sale of untaxed cigarettes) but not overtly threatening the safety of the police. As National Review Online reported on Wednesday, the confrontation between Garner and the police was captured on videotape.

NYPD guidelines ban a form of chokehold. Contrary to some reporting, however, even that technique is not illegal per se. In fact, it used to be part of police training before concerns about accidental death convinced the NYPD to prohibit its use. Much of the coverage I have heard assumes that the chokehold Pantaleo applied is one that the guidelines ban (and, so the narrative goes, is illegal). This is hotly disputed by some police advocates, who claim that what Pantaleo did was more in the nature of a headlock or a wrestler’s swift takedown. Obviously, we do not yet know what, if any, testimony the grand jury heard on this point.

In any event, others counter that Garner could be heard repeatedly telling the police he could not breathe. While this actually undercuts the claim that a banned chokehold was used (since, if it had been, Garner would have had great difficulty speaking so audibly), Garner’s pleas suggest that the police used excessive force — a problem that makes the chokehold debate nearly irrelevant. In the absence of any apparent threat to the police, critics forcefully ask, shouldn’t Pantaleo have stopped whatever hold was being applied?


There is no doubt that Pantaleo aggressively handled Garner around the neck and then pressed his head to the ground. Soon after, Garner died. On top of that, the state medical examiner (ME) concluded that a homicide occurred. Sounds cut and dried, especially given that grand juries need merely find probable cause in order to return an indictment.


But it’s not that simple. Carefully examined, the ME’s homicide finding may have hurt more than helped the argument for indictment. As New York law makes clear, homicide does not necessarily mean murder or some other criminal form of taking human life. A homicide finding simply means that some form of conduct — which could be innocent — caused death to occur.

More importantly, many media reports about the ME’s homicide finding assert that it means that the police conduct alone caused Garner’s death. That is apparently not the case. Other reporting indicates that the ME also concluded that Garner’s asthma, heart problems, and obesity were contributing factors. That certainly complicates things.


Plus, even if the ME had said that police conduct alone was responsible for Garner’s death, the grand jury would not have been bound by that conclusion. Indeed, they could have concluded that Garner’s physical ailments were more of a factor than the police conduct. At this point, we don’t know.


Nevertheless, let’s again bear in mind that the evidentiary standard for indictment is mere probable cause, not the more demanding “proof beyond a reasonable doubt” standard that applies at trial. It is unlikely that the grand jury would have completely rejected the ME’s conclusion that Garner’s death was a homicide caused by police conduct — even allowing for other contributing factors. When one looks at the video, it is hard to imagine that the grand jury decided not only that the ME’s homicide finding was an overstatement but that it was so clearly erroneous as to preclude probable cause of a crime.

So the question is, was the police conduct — Pantaleo’s in particular — justified? We must thus assume that the grand jury was persuaded against indicting Pantaleo by something in New York State’s justification statute (Section 35.30 of the state’s penal code). This is the provision that controls the use of physical force.


It provides that if a person has committed a crime, a police officer who is attempting to effect that person’s arrest, or prevent that person’s escape from custody, may “use physical force when and to the extent he or she reasonably believes such to be necessary” to those ends. The officer may also use physical force to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force.

I highlight references to reasonableness in order to stress that we are dealing with an objective test. It is not enough that the police officer subjectively believed the force he used was necessary. That belief must have been reasonable – i.e., consistent with what a reasonable police officer would have thought necessary under the circumstances. (The standard should not be what any reasonable person would have thought, but what a reasonable person with a police officer’s training and experience would have thought.)

The justification statute distinguishes physical force from deadly physical force. The latter may be used only if the officer reasonably believes that the subject has committed a violent felony, is armed with a deadly weapon, or is about to use deadly physical force against the officer or someone else. Based on what we know at the moment, Garner did not fit any of these categories: The untaxed cigarette sales police observed were not violent crimes; he was reportedly unarmed; and, though the video shows him resisting arrest, his resistance was along the lines of waving his arms in a manner that made it difficult for police to cuff him. He does not appear to have menaced the police. Indeed, it looks as if he may not even have seen Pantaleo before the latter came up from behind him while he was evading the grasp of other officers.

Does the fact that deadly physical force was not justified necessarily mean Pantaleo’s use of force was unreasonable and excessive? No, because it is not clear that Pantaleo’s choke/takedown technique constituted deadly force.

Remember, it is disputed whether the chokehold applied was one the NYPD has banned. It is quite possible that Pantaleo used a different technique, or that he assaulted Garner with nothing like the intensity or duration of the prohibited chokehold. If that is the case, it could credibly be argued that Pantaleo did not use deadly force. The fact that Garner died is not dispositive of the “deadly force” issue. If, for example, A shoves B, causing B to trip on the curb, hit his head, and die, A has obviously used force that caused death, but he has not used deadly force — as he would have if, say, he shot B with a gun.


Understand that intent matters critically in a criminal case. In civil cases, a person who negligently or recklessly injures someone is said to “take his victim as he finds him.” Let’s say A does not know B has a heart condition and intentionally frightens B, who proceeds to suffer a heart attack. A is responsible for all B’s damages, even if they are far heavier than would have occurred if B were an average person. By contrast, the criminal law usually does not hold a person liable unless he intends, or at least should have foreseen, the natural consequences of his actions.

Officer Pantaleo plainly did not intend to kill Mr. Garner; he applied force he judged necessary to take Garner down to the ground so Garner could be cuffed. That this ended up killing Garner was unexpected and tragic, not intentional or willful.

So let’s assume Pantaleo did not use deadly force. That still leaves open the question at the heart of the matter: Was the force that he did use reasonable under the circumstances? This is why I think the debate over the chokehold is mainly an academic diversion. The salient issue is reasonableness. Even if we assume that a banned chokehold was not used, it is still entirely possible that the forcible tactics Pantaleo did employ were excessive.

It is here that the grand jury’s conclusion that there was no probable cause to indict is most vulnerable to attack. Again, we do not know all the evidence in the record so it is perilous to opine. But as the confrontation is depicted on the video, there is a good argument that Officer Pantaleo used more force than was reasonably necessary to effect the arrest, prevent flight, or prevent injury to himself or other officers.

Here, bear in mind that murder was not the only potential homicide charge at issue. The grand jury would also have been considering such offenses as involuntary manslaughter (i.e., recklessly causing the death of another person) or criminally negligent homicide. To be criminally culpable, the officer need not have intended to kill or even seriously injure Garner. If there is probable cause that Pantaleo acted recklessly or with criminal negligence — i.e., if he acted with an unreasonable degree of force — an indictment for a grade of criminal homicide less serious than murder would be the appropriate result.

Finally, I should note something about New York’s justification statute that struck me as potentially confusing for a grand jury. It states in part:

The fact that a police officer . . . is justified in using deadly physical force . . . does not constitute justification for reckless conduct by such police officer . . . amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody. [Emphasis added.]


We are thus told that even if a police officer is in such dire straits that deadly force is permitted, he still will not be excused for taking reckless action that ends up harming innocent third parties he is not trying to arrest. Fair enough. But isn’t it also fair to infer from this that the officer will be excused for reckless action that ends up harming the non-innocent person he is seeking to arrest?

The suggestion is that what is reckless (which by definition is unreasonable) is nevertheless permissible in some contested arrest situations. That muddies the waters, but should we really be surprised? Most people realize that the police must have wide latitude in judging the amount of force that seems necessary to subdue a suspect. This is not an exact science. We are talking about snap judgments. If the law regulates them too tightly, cops will be paralyzed — they simply will not take the measures necessary to arrest violent criminals. Criminals would still be using force, but innocent citizens who expect to be protected and served by the police would be on their own.

Still, we all know there is a line, and police sometimes cross it. You don’t have to buy the race-obsessed demagoguery about white cops’ having it in for black men to acknowledge this.

I don’t think race had anything to do with what happened between Eric Garner and the police. I intend to keep an open mind until we learn all the evidence the grand jury relied on. And I continue to believe the NYPD is the best police force there is. But I also know, as good cops know, that there is a difference between resisting arrest by not cooperating, as Garner was doing in Staten Island, and resisting arrest by violent assaults and threats of harm, as Michael Brown did in Ferguson. Police deserve a very wide berth in responding to the latter, but less of one with the former. I thus cannot in good conscience say there was insufficient probable cause to indict Officer Pantaleo for involuntary manslaughter or criminally negligent homicide.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.