The NYPD’s commissioner of trials has recommended that Daniel Pantaleo, the arresting officer in the Eric Garner case, be dismissed. Now the case goes to Commissioner James O’Neill, who can overturn the verdict or uphold it and impose virtually any punishment he deems appropriate.
This is a tough call for the commissioner because the police rank-and-file think that Pantaleo is being scapegoated for doing his job, while his boss, Mayor de Blasio, and much of the rest of the political and activist leadership in this city want his scalp.
The facts of the Garner case undercut much of the rhetoric aimed at Pantaleo. First, there’s no evidence that he was motivated by race. Pantaleo and his partner were ordered to go to the scene where Garner was selling by an NYPD higher-up; the cops on the ground didn’t single him out for special treatment. The police were responding to a wave of merchant complaints that street sellers like Garner, who was hawking loosies (single cigarettes) in front of Staten Island shops, were siphoning off business and scaring away customers. This was his third confrontation with the police in 2014 alone.
Second, Garner resisted arrest. Given his pre-existing conditions — asthma and obesity — this was a fatal mistake. Had he cooperated, as the officers requested, the deadly confrontation never would have occurred.
“We can do this the easy way or the hard way,” Pantaleo’s partner had told him. When the police tried to grab Garner’s arms to cuff him, he started flailing. “Every time you see me, you want to mess with me,” he exclaimed. “I’m tired of it. It stops today.”
That’s when Pantaleo put his forearm around Garner’s neck and twisted him to the ground, probably the simplest way to subdue a 395-pound man. The neck-hold — characterized by the medical examiner’s office as a chokehold — lasted 15 seconds, including for a few seconds after Garner was brought down.
Third, supervising officers at the scene, including an African-American police sergeant, apparently didn’t think that Garner was being abused or that he was in medical distress. They watched the arrest and did nothing to interfere.
Nevertheless, Pantaleo violated the NYPD rule against chokeholds, so the legal basis for dismissal is clear. The problem is, the rule itself is inconsistently enforced, probably because a literal interpretation of it is impractical for real-life police work.
The Department’s Patrol Guide, Procedure 221-01, defines a chokehold as follows:
“A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.”
The key words here are “any pressure . . . which may” hinder breathing. Read strictly, this prohibits virtually any pressure at all (except some incidental touching) on the neck or throat.
Given the split-second demands placed on arresting officers, this strict interpretation is unrealistic. A sounder rule would ban neckholds that actually do obstruct breathing or are intended to. This would leave police free to use their discretion in dealing with an obstreperous suspect while aware of a clear line against excessive force.
Perhaps because the department’s rule is so unworkable, the sanctions for violations — when they were imposed at all — have been wrist slaps. From 2009 to 2014, a five-and-a-half-year period, the Civilian Complaint Review Board received 1,128 chokehold complaints. They were able to fully investigate 520 of these cases, of which 240 were deemed altogether unfounded. Of the remainder, only 10 cases were passed on to the department for trial.
Of those 10, we know of six outcomes. The department refused to prosecute in two, imposed retraining in three, and took away up to 10 days of vacation in one.
So the issue is whether Pantaleo is to be singled out for harsher punishment than other chokehold rule violators because of the storm of criticism surrounding Garner’s tragic death. Pantaleo has become a symbol of interracial police brutality, and though the facts don’t support the characterization, woe betide the man who becomes a symbol.
Latzer is emeritus professor of criminal justice at John Jay College.