A DISAGREEMENT OVER THE DEATH OF ERIC GARNER

An attorney says I got it all wrong on the firing of NYPD Officer Daniel Pantaleo

By Howie Katz



My article “Progressives Are Waging War Against Those Who Protect Us” in Big Jolly Times generated some comments, one of which by ‘Tom’, an attorney, says I got it all wrong on the firing of NYPD Officer Daniel Pantaleo. Here is what Tom said:

Howie: You and I have agreed on a lot but we split the blanket with the Eric Garner case. He was being busted for a minor misdemeanor. He was a pain in a storeowner’s ass. I’m not familiar with New York law but I don’t think either selling single cigarettes or being an asshole is a capital offense there.

The picture you posted shows an officer using a chock hold — a hold forbidden by NYPD policy — while other officers have Garner on the ground and apparently under control. You seem to take the position that what happened to Garner was his own fault because he was resisting a legal arrest.

It has been the law in this country at least since the Tennessee v. Garner case (strange they had the same last name) in 1985 that it is an unreasonable seizure to use deadly force on a fleeing felon unless it is both necessary to prevent his escape and there is probable cause that the fleeing felon presents a threat of death or serious bodily injury to the police or someone else.

I don’t know why the officer was not indicted. For instance, while the use of a chock hold may be forbidden by NYPD policy, it probably isn’t illegal under New York law. New York law may be as poorly written for civil rights violations as Texas law, which prohibits only impeding a prisoner in the exercise of any right, privilege or immunity (if the defendant knows his action is illegal) or having sexual intercourse with a prisoner.

However, the officer violated a lawful policy adopted by NYPD. The New York Police Department, like any employer, has the right to fire someone who violates the employer’s policies. I do know that if, when I was an Army officer, if a soldier under my command violated the rules of engagement and someone died because of it, I would have had him in front of a court martial so fast you wouldn’t believe it. Former Officer Pantaleo showed incredibly poor judgment and a failure to follow lawful department policies in Garner’s death. The leadership had the right to fire him.

As for your statement about arrests and summons being down since Pantaleo’s firing, that probably is because the Police Benevolent Society (the police union) president said the police should summon a supervisor before issuing any arrest or summons. Arrests and summons are down due to a conscious choice of the rank and file police officers to have a slow down.

The bottom line is that Pantaleo violated his employer’s policies in making an arrest and someone died because of it. Even if his conduct was not illegal, he still had to follow his employer’s policies or face discipline.

Here is what retired Texas State Police Lieutenant Trey Rusk said in response to Tom’s comment:

Tom, Civilian police work isn’t even close to being in the military. You are talking apples and oranges. This is the second time you have referred to your military service as an officer in a comment relating to police work.

If you bothered to take a close look at the pic you could see that Pantaleo wasn’t using a choke hold. A choke hold requires the neck of the victim to be placed in the crook of the arm at the elbow. It is very effective because it is easy to apply. Once in place then squeeze to cut off blood to the brain. It will usually render a person unconscious in 8 seconds.

A choke hold is against departmental policy. The hold pictured is a bar hold that is regularly used in LE. It is harder to apply and maintain.

As far as responding to the store owner’s call goes, I doubt if NYPD officers will bother in the future.

Officer Pantaleo was sacrificed for political purposes by a man running for president. His political appointed hack of a Police Chief did his bidding.

Your stated bottom line is wrong. FYI, it’s also illegal to sell single cigarettes in Texas.

By the way, thank you for your service.

Here is what retired California DOC official Bob Walsh said:

Tom, I can’t agree with you on this. I looked at the photos closely, I did not see a choke hold.

Garner acted like a dickhead because he was mad, AND because he thought acting like a dickhead would get him a walk. The cops didn’t just drop in to hassle him. They were called for by a tax-paying business owner whose business he was interfering with.

All Garner had to do was sign his desk appearance ticket and move on. He refused. The cops reacted like they are paid to react. Had he refused to sign a jaywalking ticket or a fare evasion ticket the same thing would have happened.

Garner brought about his own demise, aided in large part by his self-generated medical problems.

My guess is that you personally have never been tasked with dealing with a non-compliant asshole who didn’t mind being non-compliant and didn’t mind being somewhat physical.

The theory and the practice are two very different things.

And here is my response to Tom’s comment:

Tom, you make a good argument, but it is the argument of an armchair captain, not a police officer trying to arrest a 395-pound giant who was resisting arrest.

Misdemeanor or felony, it doesn’t matter. The cops responded to complaints by business owners that Garner was selling loosies, an offense for which he had been arrested numerous times before and was out on bail when the officers tried to arrest him. And while you may consider the illegal sales of untaxed cigarettes a “minor misdemeanor,” let me assure you that the City of New York considers the sales of loosies a major misdemeanor.

When you say “while other officers have Garner on the ground and apparently under control,” you are giving us the perfect example of the standard of ‘how things look’ rather than ‘what things are.’ Before Pantaleo jumped in, Garner kept shoving the other officers away. The only reason Garner is on the ground is because of the action Pantaleo took. And it is arguable whether that was actually a choke hold.

And don’t pull that slick lawyer truck on us either. I happen to be quite familiar with Tennessee v. Garner and there is absolutely no relationship whatsoever between the Tennessee case and the Pantaleo case. That case involved an officer shooting a fleeing man, not a man resisting arrest. You make it sound like Pantaleo deliberately killed Eric Garner.

But you are right, I do believe Garner, not Pantaleo, was responsible for his own death! Had he not resisted arrest, we wouldn’t be having this discussion now.

Commissioner O’Neill said Pantaleo used bad judgement. You don’t fire a cop for using bad judgement. And you don’t fire a good cop for violating department policy either when that violation occurred in the heat of battling a giant lawbreaker. You reprimand him for it, or you give him a couple of days off without pay. But Pantaleo was made a sacrificial lamb for New York’s communist mayor, Obama’s buddy Al Sharpton, and all the other wolves, both black and white, that were howling for his blood.

Instead of getting fired, Pantaleo should have been commended for his part in the arrest. But because this was another case of a black man dying at the hands of white cops, it gave Al Sharpton another opportunity to be in the spotlight as one of the wolves howling for the blood of good cops just trying to do their job. It also gave Mayor Red Bill an opportunity to show ‘the community’ that he was on their side rather than on the side of the cops. And then, that gutless Commissioner O’Neill fired Pantaleo and even had the nerve to give Pantaleo faint praise in doing so.

Eric Garner’s death was tragic, but he was the victim of his own unlawful behavior. But Daniel Pantaleo, a good cop doing his job, was the victim of a grave injustice.

I’m sorry Tom, but your attitude is what makes it harder for the police to protect you and the rest of us. Having said that though, I know you mean well, and like Trey Rusk, I too appreciate your military service.

Now who do you believe … a slick lawyer defending Garner or Trey, Bob and me defending the cops? If you’re a Progressive, of course you’ll go along with Tom. But if you’re a reasonable person, you’ll agree that Garner was responsible for his own death and that Pantaleo was the victim of a grave injustice.