John Banzhaf

John Banzhaf

*WASHINGTON, D.C. – Although many find it inexplicable that police officer Daniel Pantaleo, clearly shown on a videotape using a choke hold which is prohibited by police policy, was not indicted even though the resulting death of Eric Garner was determined to be a “homicide,” there are at least two legal reasons why criminal charges may not be warranted, says public interest law professor John Banzhaf.

First, although many commentators are stating that the officer used an “illegal” tactic or hold, that conclusion is not correct. A practice may be prohibited by N.Y.C Police policy, and therefor open officers who violate the policy to departmental discipline, yet without “more,” not be a violation of any criminal statute, notes Banzhaf.

For instance, some police departments require officers, for the primary purpose of uniformity and interchangeability, to use only a certain type of ammunition in their service sidearms. If Officer X uses a different form of ammunition, he has violated police policy and may be disciplined (e.g., docked pay), but he cannot be arrested and tried for a crime. If he shoots someone in the line of duty, he is not automatically guilty of a crime simply because he used unapproved ammunition. However, he may be guilty of a crime if under all the facts and circumstances, there is something “more” suggesting that his action in shooting in the line of duty was “reckless.”

To convict the officer of the easiest charge to prove – second-degree manslaughter – Section 125.15 requires a showing that the defendant acted “recklessly.” While some choke holds can cause death, such results apparently are somewhat rare, and seem to occur primarily when using the bar-arm hold or the carotid hold, neither of which appears from the video to have been used here.

Moreover, although the N.Y.C. Police Department, like other police around the country, has prohibited the use of choke holds by its officers, many police forces do not prohibit them.

“It would be difficult to prove – especially to prove beyond a reasonable doubt – that any tactic or maneuver still in use by many police departments falls within the narrow category of “reckless” behavior, says Banzhaf, noting that Tasers and the PIT maneuver (to stop escaping cars) have caused deaths, but are still in wide use, and therefor are not necessarily considered to be “reckless.”

For any indictment to succeed, the prosecutor must also prove that the defendant caused the death of another. Here, although the official cause of death does list “compression of neck (chokehold),” it also lists “compression of chest and prone positioning during physical restraint by police,” and Garner’s acute and chronic bronchial asthma, obesity and hypertensive cardiovascular disease were contributing factors, the medical examiner determined.

Since the videotape appears to show one or more other officers on top of Gardner and contributing to the “compression of chest and prone positioning,” it may be difficult to isolate the effect and contribution of Garner’s choke hold as a factor in causing the death, especially beyond a reasonable doubt.

Thus, while many might see today’s decision as just another outrage following the events in Ferguson, and hold it up as proof that even cop-cams might not be effective, there arguably are legal reasons why the grand jury may have refused to indict this cop for homicide.


Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA / @profbanzhaf