A New York City grand jury’s decision to not indict officer Daniel Pantaleo in the suffocation death of Eric Garner has sparked firestorm of media attention, covering numerous angles from police militarization to racial inequality. However, one critical component of the story has been overlooked — namely, the shifting interpretations of excessive force law in the United States that has allowed police officers to engage in.
The Garner case puts the significant influence police exercise over their own investigations on display, along with the cozy relationships they often enjoy with prosecutors. Police have substantial influence, if not the outright power to write, the regulations on when and how they may use force. By law, police must follow their police manual procedures, which in many cases are also municipal regulations. However, the police are too often the government actors responsible for the content of these manuals. This widespread practice of the police writing or having pervasive influence over the regulations that govern them can cause problems for the public in several ways.
In the Garner case, there was an internal agency review done by the New York City Police Department to see if the officer used a chokehold, which has been banned by regulations since 1993. At that internal review level, the rules regarding excessive force have been interpreted such that coming up behind someone and choking him with your arm is not a chokehold, but a headlock. The apparent logic is that by teaching officers exactly what not to do (a standard chokehold), they are free to do a similarly forceful move (a headlock) with impunity.
In police manuals around the country, police officers are told not to shoot to wound, but to shoot for “center mass.” This policy has the benefit of reducing risk to officers and bystanders to some extent, but it also has the effect of giving officers significant discretion on when to kill over a perceived threat, which they appear to be exercising more and more liberally. These manuals cover more than just when to shoot but also when and what type of physical force may be used.
A grand jury is supposed to be a procedural safeguard against malicious prosecutions and provide oversight of public prosecution. It has oversight power to force the prosecution of politically unpopular cases that run counter to the ambition of a public prosecutor and temper a district attorney’s personal ambition in popular cases — a form of equal protection against the popular politics of prosecution. Prosecutors who can usually “indict a ham sandwich” manipulate the process to allow police to avoid trial. If a case can miraculously survive these procedures and go to trial, it more often than not ends in acquittal, as the conviction rate for officers is half that of the general public.
What happened to Eric Garner was a classic case of criminally negligent homicide or reckless endangerment — by that I mean enough to get by a grand jury. When the officer who came up behind Eric Garner put his arm around Garner’s neck, Garner had his hands in the air. The most resistance he was offering was making it difficult to grab his arms, and saying “don’t touch me.” Mind you, there is little dispute amount accounts of the incident, as the encounter is all on video. Faced with this minimal resistance, the police were much more comfortable using aggressive force than they should have been.
In this case, the district attorney did not attempt to get an indictment on a lesser charge of reckless endangerment, for which there assuredly would have been an indictment. Furthermore, the criminally negligent homicide indictment managed to fall in the minuscule percentage of cases where the grand jury does not return a true bill. It should come as no surprise that when grand juries fail to indict the defendants are usually police. The process of justice and equal protection of the value of human life seems to have broken down at the grand jury level.
As a result, police feel empowered by the law being interpreted and written so that the they have broad discretion in effectuating an arrest. For the sake of protecting human lives, this prosecutorial cronyism needs to end.
Randal John Meyer is a Young Voices Advocate and legal research fellow living in New York City.