FACT SHEET:
QUESTIONS AND ANSWERS FOR COLUMBIA LAW SCHOOL STUDENTS
ABOUT THE RICHMOND COUNTY (STATEN ISLAND) GRAND JURY IN THE
ERIC GARNER HOMICIDE
By Professors Jeffrey Fagan and Bernard E. Harcourt
Columbia Law School
This Fact Sheet supplements the December 1, 2014, Fact Sheet on Grand Juries and
addresses the decision of the Staten Island Grand Jury to no-bill the indictment of NYPD
Officer Daniel Pantaleo in the homicide of Eric Garner on July 17, 2014.
What is the grand jury process in Richmond County (Staten Island), New York?
In New York state, almost all felony indictments result from a grand jury process.[1] The
state constitution provides a defendant with the right to have a felony charge filed by way
of a grand jury indictment.[2] However, a county district attorney in New York State can
– but rarely does – elect to file a “superior court information” against a defendant in a
felony case through a preliminary hearing in the State Supreme (felony) Court.[3]
Preliminary hearings usually occur only with the consent of the defendant and where
there has been a pre-arranged plea bargain.
In New York State, grand juries are composed of 23 persons drawn from the county
qualified jury pool. A true bill of indictment requires a bare majority, or 12 of 23 votes in
favor of indictment.[4]
A New York grand jury is tasked with the decision whether there is sufficient evidence –
probable cause – to charge a person of a crime.[5] As the highest court of the state of
New York, the New York State Court of Appeals, has stated, “’[a] Grand Jury proceeding
is not a mini trial, but a proceeding convened primarily to investigate crimes and
determine whether sufficient evidence exists to accuse a citizen of a crime and subject
him or her to a criminal prosecution.’ That being so, the prosecutor need not tread too
lightly in pressing the People's case or rebutting the defendant's assertions.”[6]
The Governor of the state has the authority to appoint a special prosecutor in any criminal
matter.[7] In the rare instances where a special prosecutor has been appointed by the
Governor, it has occurred before the local district attorney begins his or her investigation;
however, there is no prohibition on the Governor appointing a special prosecutor after an
ordinary grand jury has no billed an indictment.
What evidence did the Richmond County Grand Jury receive in the Eric Garner
homicide?
The New York State Supreme Court of Richmond County released a limited set of facts
on the evidence presented to the grand jury and the factors that were to inform the
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decision of the grand jury.[8] The disclosure was limited to a statement of the following
facts:
1) The Grand Jury sat for nine weeks.
2) It heard testimony from 50 witnesses, 22 of whom were civilians. The rest were
police officers, emergency medical personnel, and medical professionals
including forensic experts.
3) Sixty (60) exhibits were admitted into evidence, including four videos,
documentation of NYPD policies and procedures, medical records describing the
treatment of the deceased, photographs of the scene, autopsy photographs, and
records describing NYPD training
4) The Grand Jury received, from the District Attorney, training on relevant
principles of law, including N.Y.P.L. § 35.30, the statute describing when an
officer can use physical force in making an arrest.
Four of the five police officers involved in the arrest and subsequent death of Eric Garner
were given immunity from criminal prosecution by the Richmond County prosecutor.
In addition to receiving the report of the Office of the City Medical Examiner, the Grand
Jury also received the report of a private medical examiner retained by the Garner family.
Both medical examiners agreed that Garner died as a result of neck and chest
compression; the NYC medical examiner also reported that Garner’s asthma, obesity and
heart condition contributed to his death.[9]
What were the questions before the grand jury in the Eric Garner homicide?
The medical examiner for the City of New York classified Eric Garner’s death as a
homicide.[10] The grand jury was tasked with deciding whether there was sufficient
evidence to believe that Officer Pantaleo (1) violated any of the homicide provisions of
the New York Penal Law and (2) whether Officer Pantaleo’s actions were justified as the
legal use of force by a law enforcement officer in effecting an arrest.
New York Penal Law § 125.00 defines several of classes of criminal homicide, ranging
from Class A to Class E felonies.[11] In the Garner death, the grand jury could have been
presented with the following criminal homicide charges:
§125.10 Criminally negligent homicide: “A person is guilty of criminally
negligent homicide when, with criminal negligence, he causes the death of
another person.” (Criminally negligent homicide is a class E felony).
§125.15 Manslaughter in the second degree: “A person is guilty of manslaughter
in the second degree when … he recklessly causes the death of another person.”
(Manslaughter in the second degree is a class C felony).
§ 125.20 Manslaughter in the first degree: “A person is guilty of manslaughter in
the first degree when … with intent to cause serious physical injury to another
2
person, he causes the death of such person or of a third person.” (Manslaughter in
the first degree is a class B felony).
§ 120.20 Reckless endangerment in the second degree: “A person is guilty of
reckless endangerment in the second degree when he recklessly engages in
conduct which creates a substantial risk of serious physical injury to another
person.” (Reckless endangerment in the second degree is a class A misdemeanor).
§121.11 Criminal obstruction of breathing or blood circulation: “A person is
guilty of criminal obstruction of breathing or blood circulation when, with
intent to impede the normal breathing or circulation of the blood of another
person, he or she (a.) applies pressure on the throat or neck of such person; or (b.)
blocks the nose or mouth of such person.” (Criminal obstruction of breathing or
blood circulation is a class A misdemeanor.)
The second question was whether Officer Pantaleo’s actions were justified, therefore
removing any criminal responsibility. Under NYPL § 35.30.1, a police officer is justified
in using physical force in making an arrest only when it is reasonable and necessary to
effectuate the arrest. Specifically, the New York statute provides:
“A police officer or a peace officer, in the course of effecting or attempting to
effect an arrest, or of preventing or attempting to prevent the escape from custody,
of a person whom he or she reasonably believes to have committed an offense,
may use physical force when and to the extent he or she reasonably believes such
to be necessary to effect the arrest, or to prevent the escape from custody,
or in self-defense or to defend a third person from what he or she reasonably
believes to be the use or imminent use of physical force.”[12]
Was there probable cause to indict for criminal homicide?
Yes.
First, the Medical Examiner (ME) for the City of New York conducted an autopsy and
concluded that the cause of death was a homicide—in other words, that the death was
caused by the acts of one or more other human beings.
Second, the ME ruled that Mr. Garner’s death was caused by “compression of neck
(choke hold), compression of chest and prone positioning during physical restraint by
police.”[13] The ME report, which we have physically seen, specifically states
“compression of the neck (chokehold)”.[14] The compression of Garner’s neck was a
result of Pantaleo’s arm around his neck. (Whether it was technically a ‘chokehold’ is in
dispute, [15] with Officer Pantaleo claiming it was a “take down maneuver.[16] What is
clear from the video is that Officer Pantaleo put his arm around Mr. Garner’s neck and
that Mr. Garner stated that he could not breathe while Officer Pantaleo applied neck and
chest compression. Despite the ban on ‘chokeholds’ by the NYPD, a 2014 report by the
3
Citizen Complaint Review Board shows that they continue to be used, and that officers
are rarely disciplined for doing so.[17])
Third, video evidence suggests, and the ME report confirms, that there was strong
pressure applied to Garner’s neck, characteristic of a “chokehold.”[18] Pressure was
applied around the neck of Mr. Garner by Officer Pantaleo.[19] The video evidence,
widely available on various media and websites, shows that at the outset of the encounter
between Mr. Garner and the five officers, Officer Pantaleo used force applied to his neck
area to subdue Mr. Garner while placing him on the ground.
Once subdued, the video shows that Officer Pantaleo continued to apply force using a
chokehold to Mr. Garner while he was on the ground. Throughout this time, both before
and after Mr. Garner was on the ground, he repeatedly said “I can’t breathe.” He said this
audibly 11 times during the encounter before Mr. Garner lost consciousness.
Although Officer Pantaleo was permitted by law to “reasonably” use “necessary force” to
effectuate the arrest of Mr. Garner, once Mr. Garner was on the ground and subdued, and
while he repeatedly stated that he could not breathe, the continued use of force was
objectively unreasonable. The standard on justification for police officers in New York
under NYPL §35.30 is an objective one. Reasonableness is to be determined from the
perspective of a reasonable police officer on the scene.[20] In this case, once the suspect
was subdued and no longer resisting, the continued application of force may have become
unreasonable. This would be a question for a petit jury at trial.
Are chokeholds banned under NYPD policy?
The use of chokeholds by police officers is banned by NYPD policy.[21] Chokeholds
were permissible until then-Police Commissioner Benjamin Ward sharply limited their
use pursuant to a 1985 order.[22]. The use of chokeholds was later banned by the NYPD
in 1993[23] by then-Police Commissioner Raymond Kelly following the 1992 death in
police custody of Federico Pereira caused by “traumatic asphyxia.”[24] The 1993 ban
made no distinctions between various types of holds, and also banned other restraint
tactics such as “standing on a suspect’s chest or transporting the suspect in a face-down
position that might impede his breathing.”[25].
In addition to the question of the continued and unnecessary use of excessive force, the
type of force used by Officer Pantaleo was – by virtue of its ban – unreasonable under
NYPD policy. Specifically, the video evidence shows that Officer Pantaleo used
sustained neck compression to initially subdue Mr. Garner, and then, according to
statements by his attorney, he used a “take down maneuver” to place Mr. Garner on the
ground.[26] Once subdued and on the ground, the video shows that Officer Pantaleo
continued to apply pressure to Mr. Garner’s neck and chest. Throughout second phase of
the encounter, Mr. Garner continued to repeat that he could not breathe. The video
evidence shows that he stated “I can’t breathe” 11 times.
What exactly is a “chokehold”?
4
Under NYPD policy regarding the use of force, contained in the NYPD Patrol Guide, “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.”[27]
According to a recent analysis by the New York City Civilian Complaint Review Board
of chokehold incidents, “the Department policy appears to be broad in its understanding
of respiratory neck restraints….The definition of a chokehold is a two-pronged test. The
first prong is the definition of a chokehold as ‘any pressure to the throat or windpipe.’
The second prong is the definition of any pressure that ‘may prevent or hinder breathing
or reduce intake of air.’ ”[28]
It has been said that there is a difference between a “chokehold,” a “headlock,” and a
“take down maneuver taught at the Police Academy.”
There are varying definitions of a chokehold. It is important to distinguish among these
types, as they can pose different threats to the life of a suspect. In particular, these
definitions differ on where the pressure from a forearm is placed around the suspect’s
neck. Specifically, chokeholds can be distinguished between “blood chokes” and “air
chokes.”
A “blood choke” is the application of force to the sides of the neck of the suspect to
constrict the carotid artery, thereby stemming the flow of blood to the brain. After a short
time, the suspect will go unconscious. However, if the officer and the suspect are not
stationary, the danger exists that the officer’s pressure will slip or move to the front of the
neck, constricting the windpipe and thereby stemming the flow of oxygen to the lungs
and the brain. That is, once the forearm is placed in the front of the suspect’s neck, the
chokehold becomes an “air choke.” This can cause death by stopping the suspect from
breathing. The NYPD use of force policy defines a “stay away from the neck” rule to
avoid just these situations, and is one of the central reasons why chokeholds are banned
by NYPD policy.
Whether the exact maneuver qualified as a chokehold or anything else would be a
question to be determined by a trial jury.
What might happen next?
The district attorney for Staten Island could convene a second grand jury to consider the
evidence. This has happened, for instance, in Staten Island, in response to contamination
of one of the grand jurors.[29] Also, a second grand jury was convened in a police
shooting in the Bronx in 2012, but only after the report of the first grand jury was ruled
invalid due to faulty instructions given by an Assistant District Attorney.[30]
The Governor of the state of New York could appoint a special prosecutor to present
evidence before another grand jury. Former Governor Mario Cuomo, for instance,
5
appointed a special prosecutor in 1986 after the Howard Beach incident.[31] However,
current Governor Cuomo immediately stated after the no bill that further investigations
into the Garner death should be conducted by federal authorities.[32]
The United States Department of Justice has announced a federal criminal civil rights
investigation.[33]
Why was Mr. Garner arrested in this incident?
The police officers were engaged in “broken windows policing”[34] and were arresting
Mr. Garner for a “quality-of-life” offense, the sale of individual cigarettes. No
alternatives to arrest were employed in the encounter with Mr. Garner. There is no
reliable evidence that “broken windows policing” is an effective law enforcement
strategy.[35] “Broken windows policing” was introduced under former Mayor Rudy
Giuliani and his first police commissioner, William Bratton, in 1994. It resulted in a 68%
increase in allegations of police misconduct to the CCRB over the following three
years.[36] “Broken windows policing” was reintroduced under Mayor de Blasio and his
police commissioner, William Bratton, in 2014.
Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law
Bernard E. Harcourt, Isidor and Seville Sulzbacher Professor of Law and Director, Columbia Center for
Contemporary Critical Thought
Columbia Law School
New York, NY
January 23, 2015 at noon.
NOTES
1
McKinney's Consolidated Laws of New York Annotated, Criminal Procedure Law §
1.20 (Definitions of terms of general use in this chapter) stating that “’Accusatory
instrument’ means an indictment, … an information, a simplified information, a
prosecutor's information, a superior court information, a misdemeanor complaint or a
felony complaint.”
2
N.Y. Const. art. I, § 6.
3
NY Criminal Procedure Law, §195.10; see generally NY Criminal Procedure Law §
190.05 & §190.25; see also David Anthony Conforti, “CPL § 195.10: Criminal
Defendant May Not Waive Grand Jury Indictment and Consent to Be Prosecuted by
Superior Court Information After Indictment Is Filed,” St. John's Law Review, Volume
62, Issue 4, (June 2012).
4
McKinney's Consolidated Laws of New York Annotated, § 190.25 (Grand jury;
proceedings and operation in general).
6
People v. D’Amico, 76 NY2d 877, 880 (1990) (ruling that "an order holding defendant
for Grand Jury action requires a judicial determination that probable cause exists to
believe the defendant committed a felony.”
6
People v Thompson, 22 N.Y.3d 687 (2014) (citing Lancaster, 69 N.Y.2d at 30, 511
N.Y.S.2d 559, 503 N.E.2d 990 [internal quotation marks and citations omitted]).
7
N.Y. Exec. Law § 63(2) (McKinney 1982) (requiring the state attorney general, at the
direction of the Governor, to supersede the authority of any district attorney in the
investigation and prosecution of a particular criminal proceeding or action). See,
Lawrence T. Kurlander and Valerie Friedlander, Perilous Executive Power – Perspective
on Special Prosecutors in New York, 16 Hofstra L. Rev. 35 (1987).
8
In the Matter of the Application of the District Attorney of Richmond County, for an
order Pursuant to C.P.L. 190.25(4) permitting the public disclosure of the nature of
certain Grand Jury evidence and the decision of the Grand Jury, Index 80294/14, Hon.
Stephen J. Rooney, December 4, 2014
9
See Giri Nathan, “Eric Garner Died from Chokehold While in Police Custody,” TIME,
August 1, 2014, at http://time.com/3071288/eric-garner-chokehold-death-nypd-medicalexaminer/. The police report states that Mr. Garner died from heart failure in the
ambulance on the way to the hospital. See “By Deborah E. Bloom and Jareen Imam,”
CNN.com, December 8, 2014, at http://www.cnn.com/2014/07/20/justice/ny-chokeholddeath/ (“Police said he suffered a heart attack and died en route to the hospital”). That
would be consistent with the ME’s report that the cause of death was neck and chest
compression. It is not clear from the two videos (the first here:
http://video.nydailynews.com/Staten-Island-man-dies-after-NYPD-cop-puts-him-inchokehold--26426042; the second here:
https://www.youtube.com/watch?v=vT66U_Ftdng) whether Mr. Garner was still
breathing and had a pulse before being placed in the ambulance. In consultation with a
cardiothoracic anesthesiologist at Columbia University Medical Center, Dr. Marc
Dickstein, we believe it is possible that Mr. Garner suffered heart failure before being
placed in the ambulance.
10
Giri Nathan, “Eric Garner Died from Chokehold While in Police Custody,” TIME,
August 1, 2014, at http://time.com/3071288/eric-garner-chokehold-death-nypd-medicalexaminer/.
11
New York Penal Law § 125.00
12
NYPL § 35.30.1.
13
This is a direct quote from the ME Report, first line of the final diagnosis (document
physically reviewed by Fagan and Harcourt); see also Giri Nathan, “Eric Garner Died
from Chokehold While in Police Custody,” TIME, August 1, 2014, at
http://time.com/3071288/eric-garner-chokehold-death-nypd-medical-examiner/.
14
Id.
15
See discussion below.
16
J. David Goodman and Michael Wilson, “Officer Daniel Pantaleo Told Grand Jury He
Meant No Harm to Eric Garner, New York Times,” December 3, 2014 (citing a
maneuver learned in training to take a suspect to the ground).
5
7
17
http://www.nyc.gov/html/ccrb/downloads/pdf/Chokehold%20Study_20141007.pdf
Id. For a detailed discussion of “chokes” or “chokeholds,” see
http://en.wikipedia.org/wiki/Chokehold
19
See video of incident at http://video.nydailynews.com/Staten-Island-man-dies-afterNYPD-cop-puts-him-in-chokehold--26426042.
20
Holland v. City of Poughkeepsie, 935 N.Y.S.2d 583 (2011). See, also, William C.
Donnino, “Supplementary Practice Commentary to McKinney's Penal Law § 35.00,”
stating that "[a] police or peace officer, having a reasonable belief that a person has
committed an offense, may generally use such physical force, short of deadly physical
force, as the officer reasonably believes necessary to effect that person's arrest, or to
prevent that person's escape from custody, or to defend himself or herself or a third
person from what the officer reasonably believes to be the use or imminent use of
physical force [Penal Law § 35.30(1)]."
21
New York City Civilian Complaint Review Board, “A Mutated Rule: Lack of
Enforcement in the Face of Persistent Chokehold Complaints in New York City,”
October 2014, at
http://www.nyc.gov/html/ccrb/downloads/pdf/Chokehold%20Study_20141007.pdf .
22
The order stated that: “(1.) Effective immediately, choke holds, which are potentially
lethal and unnecessary, WILL NOT be routinely used by members of the New York City
Police Department. (2.) Choke holds will ONLY be used if the officer's life is in danger
or some other person's life is in danger and the choke hold is the least dangerous
alternative method of restraint available to the police officer. See Interim Order No. 29,
N.Y.P.D., April 23, 1985 (emphasis in original).
23
The current NYPD patrol guide admits of no circumstance where a chokehold is
permissible: “Members of the New York City Police Department will NOT use
chokeholds. 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.” See N.Y.P.D.
Patrol Guide, Procedure No. 203-11, Aug. 1, 2013, at 1 (emphasis in original).
24
Joseph P. Fried, "Police Officer Is Acquitted In the Killing of a Suspect," N.Y. Times,
March 25, 1992.
25
Ian Fisher, “Kelly Bans Choke Holds,” New York Times, November 24, 1993, B1
26
Goodman and Wilson, supra note 16
27
See, Civilian Complaint Review Board, Chokehold Study, supra note 21.
28
Id. at ix
29
See, e.g., People v. Thompson, 22 N.Y.3d 687 (Court of Appeals of New York,
February 20, 2014) (“Defendant vigorously urged the second grand jury in this case to
have the People call a particular witness to testify”).
30
Daniel Beekman, Grand jury will not re-indict cop Richard Haste who shot Bronx teen
Ramarley Graham, New York Daily News, August 7, 2013, at
http://www.nydailynews.com/new-york/bronx/grand-jury-not-re-indict-shot-bronx-teenarticle-1.1420828
18
8
See, e.g., Joseph Fried, “Howard Beach Defendant Given Maximum Term of 10 to 30
Years,” New York Times, January 23, 1988, p. 1; Joseph Fried, “3 in Howard Beach
Attack are Guilty of Manslaughter,” New York Times, December 22, 1987, A1; Robert
McFadden, “Black Man Dies After Beach Beating by White in Queens,” New York
Times, December 21, 1986, p. 1; Charles J. Hynes and Bob Drury, Incident at Howard
Beach: The Case for Murder (New York: G.P. Putnam’s Sons, 1990); Alphonso Pickney,
Lest We Forget...White Hate Crimes: Howard Beach and Other Racial Atrocities
(Chicago: Third World Press, 1994.
32
Diane C. Lore, Eric Garner grand jury: Gov. Cuomo says New Yorkers must 'respect
the legal process and the law, December 3, 2014, at SILIVE.com,
http://www.silive.com/news/index.ssf/2014/12/eric_garner_grand_jury_cuomo_s.html
(stating that “….the justice system also allows for additional investigations and reviews,
and it may be appropriate for the federal government to do so in this case.”)
33
J. Freedom du Lac, Eric Holder’s Remarks on the Eric Garner Grand Jury Decision,
Washington Post, December 3, 2014, at http://www.washingtonpost.com/news/postnation/wp/2014/12/03/eric-holders-remarks-on-the-eric-garner-grand-jury-decision/
34
James Q Wilson and George L. Kelling "Broken windows." 249 Atlantic Monthly
3:29-38. (1982). See, also, Debra Livingston. "Police discretion and the quality of life in
public places: Courts, communities, and the new policing." 97 Columbia Law Review
551-672 ((1997). See, Ralph B. Taylor, Breaking Away from Broken Windows (2000).
See, George Kelling and Christine Cole, Fixing Broken Windows (1996).
35
Bernard E. Harcourt, “Reflecting on the Subject: A Critique of the Social Influence
Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance
Policing New York Style,” 97 Mich L Rev 291 (1998); Jeffrey Fagan and Garth Davies,
"Street stops and broken windows: Terry, race, and disorder in New York City." 28
Fordham Urb. L.J. 457 (2000); Jeffrey Fagan et al. "Street Stops and Broken Windows
Revisited." In Race, ethnicity, and policing: New and essential readings (White and Rice,
eds.) 309-348. (2010). Bernard E. Harcourt, Illusion of Order: The False Promise of
Broken Windows Policing (Harvard University Press 2001); Bernard E. Harcourt & Jens
Ludwig, “Broken Windows: New Evidence from New York City and a Five-City Social
Experiment,” 73 Univ. of Chicago Law Review 271 (2006). But see, Franklin E.
Zimring, The City that Became Safe (2011).
36
Harcourt, Illusion of Order, id. at 167.
31
9