Eric Garner Sealed His Own Fate
So, with the question of probable cause settled, we turn now to whether the force used by the officers was reasonable. Contrary to John Yoo’s assertion quoted above, “reasonable force” is not determined by the severity of the crime for which officers are seeking to arrest a person but rather by the level of resistance he offers. It is unclear from the video how long the two plainclothes officers spoke to Mr. Garner prior to moving in for the arrest, but it seems apparent it was long enough for other officers to respond to a request for assistance. It is true that, up to a point, Mr. Garner had offered only verbal objection to being arrested, but when the additional officers arrived on scene it became clear to him that the time for talk had ended. As noted above, he had been arrested many times and knew what to expect. The officers made the simple and routine gesture of trying to grab his arms, but Mr. Garner was having none of it.
Until someone invents and produces a device that will levitate a 350-lb. man to jail without touching him, officers will be left with few options in situations like the one those cops faced that day on Staten Island. When talking has failed, it’s time to go hands-on. We all know how it turned out, so let’s examine what other force options might have been available to the officers. They might have used pepper spray, but even a man who’s been blinded by pepper spray still has to be wrestled into handcuffs, a task that’s often made more difficult by the residual effects the spray can have on the officers themselves. And pepper spray can impair breathing even in a healthy man. What effect might it have had on Mr. Garner, who was obese and suffered from asthma and heart trouble?
Or perhaps the result might have been different had the officers used a Taser, a device that shoots two barbed darts into a person’s skin and delivers 50,000 volts of electricity, resulting in momentarily incapacitating muscle contractions. Given Mr. Garner’s medical condition, wouldn’t the risk to his heart from such a shock have been just as great as that from the method actually employed?
And what about that chokehold? Yes, the video shows that Officer Daniel Pantaleo had his arm around Garner’s neck, but it is far from clear that he was “choking” him as the term is commonly understood. Which brings us to a point that must be made clear if one is to form an educated opinion about what happened to Mr. Garner. There are two types of chokeholds, one that restricts breathing by compressing the trachea, and one that restricts circulation of blood to the brain by compressing the carotid arteries on either side of the neck. (For a more thorough explanation of these techniques from a pair of martial arts instructors, see this YouTube video.) From what I can see in the video, Officer Pantaleo’s arm was not correctly positioned to cut off circulation in Mr. Garner’s carotid arteries. If instead he was crushing the man’s trachea, how is it that the autopsy showed no sign of injury to Mr. Garner’s neck?
I was trained in both of these techniques in the police academy, and I had both performed on me many times during that training as we recruits paired off and took turns choking each other. I can say without question that the method that restricts breathing is by far the more painful and terrifying of the two, and it presents the greater risk of injury. Either technique can render a person unconscious and, if applied for too long, cause death, but Eric Garner was still alive and conscious after Pantaleo was no longer touching his neck. Had Mr. Garner been choked to death, or even into momentary unconsciousness, he would not have been able to speak those now famous words, “I can’t breathe.”
It’s also important to note that, as most any police officer will tell you, everyone who has been manhandled to the ground as Garner was complains that he can’t breathe. It’s when someone stops saying it that officers need to guard against the risk of positional asphyxia by moving him into a position that allows for unimpaired breathing. If this was not done, or was not done quickly enough, it would be a lapse exposing the NYPD to a claim of civil liability, but it would not mean that the force used to subdue Garner was excessive or unwarranted.