Choke Hold Death in NYC and the Nanny State

Off Topic Politics & World Issues
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[quote]mapwhap wrote:
People are getting all worked up over the fact that it’s a prohibited tactic for NYPD. That’s an administrative issue. Just because something is banned by NYPD, doesn’t make it ILLEGAL. A “chokehold” or neck manipulation, or whatever you want to call it isn’t banned by New York state law or city ordinance…it’s not ILLEGAL…it’s just against policy. There is a big difference, and you are smart enough, clearly, to understand that.
[/quote]

I’d agree there is a difference between a “statute” and a department “policy,” but for purposes of establishing criminal negligence, you are downplaying the significance of a use-of-force policy like this. The use-of-force policies are departmental judgments designed to meet minimum constitutional requirements for the amount of force authorized to effectuate a lawful seizure. Once the department determines that the hold is a use of deadly force that is banned absent a threat sufficient to justify deadly force, that is–at minimum–prima facie evidence that the hold is, in fact, a use of deadly force, and the officer can’t later claim this was just a “policy” that he was legally free to disregard.

Here, the facts are:

  1. The hold was banned as an unacceptable use of deadly force;

  2. The officer disregarded policy and used the hold (he was at least negligent);

  3. The hold was a substantial or contributing cause of death, i.e., the reason why the hold was banned came to fruition;

  4. The circumstances at issue did not authorize the use of deadly force.

In this case, in light of the above facts, to defeat a negligent homicide charge, I think the officer would need to show as a defense that he was authorized to use deadly force. All of the other facts being discussed might go to mitigation or punishment, but not criminal culpability. If he was not authorized to use deadly force, the officer was negligent in disregarding policy; the risk in disregarding the policy came to fruition; and the negligence resulted in a death. All of the legal elements of a negligent homicide are present.

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Well…using that information, I would submit the following:

  1. The biggest hurdle you are going to face as a prosecutor here is that there were numerous factors leading to his death. You can’t say definitively that the reason be died is because a “chokehold” was applied. You could just as easily attribute it to the other factors. Now, I realize this is not a trial, yet, but how am I going to prove, beyond a reasonable doubt that the chokehold was the PRIMARY cause? Looking into the future, you can easily see expert witnesses counter-arguing over that element alone sufficiently to cast plenty of reasonable doubt. As I said earlier…too much gray in the coroner’s report.

  2. We have proof that the “chokehold” was not restricting airway or blood…that is proven by my earlier point about his ability to speak, and that it did not render him unconscious in a few seconds. We can conclude from that one that the “chokehold” in question was not, in fact, a chokehold at all. At that point, based on the video evidence, his neck was being used as a handle to control his head. His larynx wasn’t crushed, he could breathe, and his blood was flowing to his brain. Ergo…it’s not a chokehold.

That would be my argument, anyway. Whether or not that’s what was presented is something else entirely. Further…I will have to read NY state law regarding negligent homicide. The elements are likely not as simple as we believe them to be. You may have more info on that.

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You mean like how the medical examiner determined that his death was caused from the chokehold?

I wrote this earlier, but it didn’t post for hours, not sure why.

[quote]MattyG35 wrote:

[quote]SexMachine wrote:

[quote] mapwhap wrote:

If you are able to say the phrase, “I can’t breathe.”, eleven times, even with people on top of you, then guess what?

YOU ARE BREATHING!!!

[/quote]

Bingo. I thought the same thing which is part if the reason I think this guy died as a result of a totality of circumstances; stress, asthma, his heart etc.[/quote]

You guys are talking about the “armchair experts” when the report from the medical examiner says otherwise. Take a look in the fucking mirror. Hypocrites. [/quote]

So this is what not being choked looks like. You guys are fucking incredible.

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For the record, I’m as shocked as everyone else that there was no indictment. I have no dog in this fight, and I figured they’d secure an indictment for sure. I’m just stabbing in the dark trying to guess how or why.

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[quote]mapwhap wrote:
For the record, I’m as shocked as everyone else that there was no indictment. I have no dog in this fight, and I figured they’d secure an indictment for sure. I’m just stabbing in the dark trying to guess how or why.

[/quote]

There is obviously a reason, though probably not a good one.

It looks like the cop’s testimony to the grand jury about his use of the choke hold doesn’t match what the video actually shows. Possibly this kind of inconsistency doesn’t become obvious without a cross examination and a prosecutor who wants to cast doubt on the testimony.

The whole process is fucked if it hinges on the competency or willingness of a single person, the prosecutor. Be it willful corruption or incompetence, the result is the same.

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Fine, Matty…explain how you can talk without breathing. Go ahead. I’ll sit here and wait. Explain how a person whose airway is restricted to the point of no oxygen is FUCKING SPEAKING !!!

Go ahead…please…educate us all, you wizened sage! Better yet, prove to us it can be done. Have someone apply their arm across your throat until you have no ability to pass oxygen, and say, “I can’t breathe” eleven fucking times, at the same rate he did it. Go ahead. Video, or it didn’t happen…

I can’t believe people like YOU, who are apparently so driven with emotion that you can’t accept one single fact that might counter your emotionally based opinion! Like I said…don’t let something like a fact get in your way…

And I’ve got over 23 years now of listening to people who have been pinned down, pepper sprayed, handcuffed behind their backs, and yes…even “choked” tell me they can’t breathe. I’m no hypocrite, and I’m no armchair warrior. I back my talk up with real world experience. And that experience tells me you can’t talk if you can’t breathe. Period.

And the medical examiner listed THREE primary causes…one of those being positional asphyxia, which is a scientific way of saying you’re so fucking fat, you can’t breathe when you are on your stomach. They never said it was ONLY the “chokehold”.

What!!! An actual self induced medical reason for not being able to breathe!!! Uh-oh!! Watch out Matty! Another fact coming around…better figure out how it was the cops’ fault that this dude was obese too!!!

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And by the way…the only medical examiner who ever got it right 100 percent of the time, and had no political agenda himself, was Quincy, M.D.

You probably think House was a real doctor…

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[quote]mapwhap wrote:
Fine, Matty…explain how you can talk without breathing. Go ahead. I’ll sit here and wait. Explain how a person whose airway is restricted to the point of no oxygen is FUCKING SPEAKING !!!

Go ahead…please…educate us all, you wizened sage! Better yet, prove to us it can be done. Have someone apply their arm across your throat until you have no ability to pass oxygen, and say, “I can’t breathe” eleven fucking times, at the same rate he did it. Go ahead. Video, or it didn’t happen…

I can’t believe people like YOU, who are apparently so driven with emotion that you can’t accept one single fact that might counter your emotionally based opinion! Like I said…don’t let something like a fact get in your way…

And I’ve got over 23 years now of listening to people who have been pinned down, pepper sprayed, handcuffed behind their backs, and yes…even “choked” tell me they can’t breathe. I’m no hypocrite, and I’m no armchair warrior. I back my talk up with real world experience. And that experience tells me you can’t talk if you can’t breathe. Period.

And the medical examiner listed THREE primary causes…one of those being positional asphyxia, which is a scientific way of saying you’re so fucking fat, you can’t breathe when you are on your stomach. They never said it was ONLY the “chokehold”.

What!!! An actual self induced medical reason for not being able to breathe!!! Uh-oh!! Watch out Matty! Another fact coming around…better figure out how it was the cops’ fault that this dude was obese too!!![/quote]

Who’s there?!

Reasonable Doubt, is that you?

209

[quote]mapwhap wrote:
I have skipped around a lot in this thread, and I’m sure I’m going to regret jumping in, but I would like to point something out…

Whether or not it was a chokehold, whether it was restricted by NYPD, etc, there is a factor I have yet to see brought up.

If you are able to say the phrase, “I can’t breathe.”, eleven times, even with people on top of you, then guess what?

YOU ARE BREATHING!!!

Was Eric Garner uncomfortable? Yup.
Was he probably in some pain? Yup.
Was he probably starting to panic becuase he felt his neck being constricted? Absolutely.

But I have news for some of you armchair experts on use of force…if a person is talking that much, their airway isn’t being restricted enough to stop the flow of oxygen. He WAS breathing, or he wouldn’t have been able to say that phrase 11 FREAKING TIMES!!!

But please…don’t let facts like that (or the laws of physics) get in the way of impassioned arguments.

Beyond that, I realize jumping in on internet threads isn’t going to change any minds. A grand jury reviewed the evidence, and decided to no-bill the officer. People can disagree all they want, but that’s how it is.

Will he likely be fired by NYPD? I imagine so. From what I saw, he’s certainly violating policy. I imagine he’ll lose any civil trial for wrongful death. But for those hoping and waiting for more criminal actions against him? Ain’t gonna happen. The feds can claim they are gonna investigate further, and they will, but there was no “civil rights violation”.

Anyway…my two cents. Your mileage may vary.

[/quote]

Yes, let’s ignore pesky facts, like how the coroner pretty much said it was the choke that killed him.

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[quote]MattyG35 wrote:

[quote]SexMachine wrote:

[quote] mapwhap wrote:

If you are able to say the phrase, “I can’t breathe.”, eleven times, even with people on top of you, then guess what?

YOU ARE BREATHING!!!

[/quote]

Bingo. I thought the same thing which is part if the reason I think this guy died as a result of a totality of circumstances; stress, asthma, his heart etc.[/quote]

You guys are talking about the “armchair experts” when the report from the medical examiner says otherwise. Take a look in the fucking mirror. Hypocrites. [/quote]

lol… yup

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[quote]NorCal916 wrote:

[quote]mapwhap wrote:
Fine, Matty…explain how you can talk without breathing. Go ahead. I’ll sit here and wait. Explain how a person whose airway is restricted to the point of no oxygen is FUCKING SPEAKING !!!

Go ahead…please…educate us all, you wizened sage! Better yet, prove to us it can be done. Have someone apply their arm across your throat until you have no ability to pass oxygen, and say, “I can’t breathe” eleven fucking times, at the same rate he did it. Go ahead. Video, or it didn’t happen…

I can’t believe people like YOU, who are apparently so driven with emotion that you can’t accept one single fact that might counter your emotionally based opinion! Like I said…don’t let something like a fact get in your way…

And I’ve got over 23 years now of listening to people who have been pinned down, pepper sprayed, handcuffed behind their backs, and yes…even “choked” tell me they can’t breathe. I’m no hypocrite, and I’m no armchair warrior. I back my talk up with real world experience. And that experience tells me you can’t talk if you can’t breathe. Period.

And the medical examiner listed THREE primary causes…one of those being positional asphyxia, which is a scientific way of saying you’re so fucking fat, you can’t breathe when you are on your stomach. They never said it was ONLY the “chokehold”.

What!!! An actual self induced medical reason for not being able to breathe!!! Uh-oh!! Watch out Matty! Another fact coming around…better figure out how it was the cops’ fault that this dude was obese too!!![/quote]

Who’s there?!

Reasonable Doubt, is that you?[/quote]

You guys are cracking me up. Have you even once had a guy on your back trying to choke you out? How about while 5 other guys were on top of you? It’s scary and anyone that says otherwise, even in a controlled setting, is full of shit.

Obviously he was getting some air, which is how he was able to say what he said. He also was obviously not getting enough. You guys seem to be overlooking a pretty obvious fact, HE DIED and I don’t think it was just “his time.”

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[quote]mapwhap wrote:
Well…using that information, I would submit the following:

  1. The biggest hurdle you are going to face as a prosecutor here is that there were numerous factors leading to his death. You can’t say definitively that the reason be died is because a “chokehold” was applied.

The prosecutor doesn’t have to prove sole cause or even primary cause; just that the hold “substantially contributed” to the chain of events that caused the death, i.e., “when that conduct forged a link in the chain of causes which actually brought about the death – in other words, when the conduct set in motion or continued in motion the events which ultimately resulted in the death” . . . “if a person’s conduct is an actual contributory cause of the death of another, then it does not matter that such conduct was not the sole cause of the death, or that a pre-existing medical condition also contributed to the death, or that the death did not immediately follow the injury.”

Here is the actual NYC pattern jury instruction on causation:

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[quote]mapwhap wrote:
Fine, Matty…explain how you can talk without breathing. Go ahead. I’ll sit here and wait. Explain how a person whose airway is restricted to the point of no oxygen is FUCKING SPEAKING !!!

Go ahead…please…educate us all, you wizened sage! Better yet, prove to us it can be done. Have someone apply their arm across your throat until you have no ability to pass oxygen, and say, “I can’t breathe” eleven fucking times, at the same rate he did it. Go ahead. Video, or it didn’t happen…

I can’t believe people like YOU, who are apparently so driven with emotion that you can’t accept one single fact that might counter your emotionally based opinion! Like I said…don’t let something like a fact get in your way…

And I’ve got over 23 years now of listening to people who have been pinned down, pepper sprayed, handcuffed behind their backs, and yes…even “choked” tell me they can’t breathe. I’m no hypocrite, and I’m no armchair warrior. I back my talk up with real world experience. And that experience tells me you can’t talk if you can’t breathe. Period.

And the medical examiner listed THREE primary causes…one of those being positional asphyxia, which is a scientific way of saying you’re so fucking fat, you can’t breathe when you are on your stomach. They never said it was ONLY the “chokehold”.

What!!! An actual self induced medical reason for not being able to breathe!!! Uh-oh!! Watch out Matty! Another fact coming around…better figure out how it was the cops’ fault that this dude was obese too!!![/quote]

You’re right. Garner should have said “If you continue what you’re doing, I will have no oxygen and die.” You changed my mind on this.
(eye-roll)

214

[quote]mapwhap wrote:
And by the way…the only medical examiner who ever got it right 100 percent of the time, and had no political agenda himself, was Quincy, M.D.

You probably think House was a real doctor…[/quote]

Except at a probable cause hearing there should not have been any competing medical evidence and this evidence would have been entitled to a presumption of truthfulness. The time to attack the medical evidence is at a trial on the merits in open court, not in a secret grand jury proceeding.

215

[quote]mapwhap wrote:
And the medical examiner listed THREE primary causes…one of those being positional asphyxia, which is a scientific way of saying you’re so fucking fat, you can’t breathe when you are on your stomach. They never said it was ONLY the “chokehold”.
[/quote]

Assuming the truth of everything you said in this post, as a matter of law, the banned chokehold was a legal and contributing cause of death. You don’t have to prove sole or even primary cause to prevail on the issue of causation.

216

[quote]mapwhap wrote:
Well…using that information, I would submit the following:

  1. We have proof that the “chokehold” was not restricting airway or blood…that is proven by my earlier point about his ability to speak, and that it did not render him unconscious in a few seconds. We can conclude from that one that the “chokehold” in question was not, in fact, a chokehold at all. At that point, based on the video evidence, his neck was being used as a handle to control his head. His larynx wasn’t crushed, he could breathe, and his blood was flowing to his brain. Ergo…it’s not a chokehold.

That would be my argument, anyway. Whether or not that’s what was presented is something else entirely. Further…I will have to read NY state law regarding negligent homicide. The elements are likely not as simple as we believe them to be. You may have more info on that.[/quote]

All neck restraints were banned holds because the department determined that they created an unreasonable risk of death. And the elements are pretty straight forward. This is the pattern jury charge:

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I’m sorry Matty and USMC…it’s very unfortunate that it can’t be both ways, huh? You can’t say, “oh my God…those officers choked him to death” and then also say ," oh…well yeah, he was breathing, but he was still choked to death". He was choked, or he wasn’t. Unfortunately, your very own sacred video proves the man was breathing and getting oxygen.

But thank you both for proving my point…that most folks already have their minds made up, and nothing is going to change it. Frankly, it matters little what I, or you, think. For whatever reasons, the grand jury returned a no bill. For the most part, it’s over with.

Jjackkrash…while I can appreciate the legal points you are making, and to an extent agree with your analysis, I just don’t know what was said in there that was convincing enough to get a grand jury to no bill him. I just don’t. We may never know. The only thing I can assume, and the points I tried to make with you earlier, is that it is clearly not as “open and shut” a case as people have been led to believe.

I’m not going to buy into conspiracies, because I doubt nine black grand jurors are all going to be convinced to participate in that kind of conspiracy. It’s counter-intuitive. Clearly, they were told something we weren’t.

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[quote]usmccds423 wrote:

[quote]NorCal916 wrote:

[quote]mapwhap wrote:
Fine, Matty…explain how you can talk without breathing. Go ahead. I’ll sit here and wait. Explain how a person whose airway is restricted to the point of no oxygen is FUCKING SPEAKING !!!

Go ahead…please…educate us all, you wizened sage! Better yet, prove to us it can be done. Have someone apply their arm across your throat until you have no ability to pass oxygen, and say, “I can’t breathe” eleven fucking times, at the same rate he did it. Go ahead. Video, or it didn’t happen…

I can’t believe people like YOU, who are apparently so driven with emotion that you can’t accept one single fact that might counter your emotionally based opinion! Like I said…don’t let something like a fact get in your way…

And I’ve got over 23 years now of listening to people who have been pinned down, pepper sprayed, handcuffed behind their backs, and yes…even “choked” tell me they can’t breathe. I’m no hypocrite, and I’m no armchair warrior. I back my talk up with real world experience. And that experience tells me you can’t talk if you can’t breathe. Period.

And the medical examiner listed THREE primary causes…one of those being positional asphyxia, which is a scientific way of saying you’re so fucking fat, you can’t breathe when you are on your stomach. They never said it was ONLY the “chokehold”.

What!!! An actual self induced medical reason for not being able to breathe!!! Uh-oh!! Watch out Matty! Another fact coming around…better figure out how it was the cops’ fault that this dude was obese too!!![/quote]

Who’s there?!

Reasonable Doubt, is that you?[/quote]

You guys are cracking me up. Have you even once had a guy on your back trying to choke you out? How about while 5 other guys were on top of you? It’s scary and anyone that says otherwise, even in a controlled setting, is full of shit.

Obviously he was getting some air, which is how he was able to say what he said. He also was obviously not getting enough. You guys seem to be overlooking a pretty obvious fact, HE DIED and I don’t think it was just “his time.” [/quote]

I don’t want to speak for Mapwhap, but neither of us are agreeing with the grand jury’s decision. I think he was raising points that the grand jury may have considered.

Playing Devil’s Advocate. Speculating.

I think a law was likely broken, given what I know and have seen. But I still leave my mind open until we have the full findings. I am not defending the cop at all. I just want to hear all sides.

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And by the way Matty…roll your eyes all you want. You can’t answer my question and you know it, so you are trying to deflect. Oh, damn you logic and laws of nature!!!

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Obviously Garner had also been breaking the New York’s soda laws. What a serial offender! He was asking for it!