City Journal

September 19, 2017


An Officer Doing His Job

The prosecution of Daniel Pantaleo in the Eric Garner case is unjust.

By Barry Latzer

On July 17, 2014, in what normally would have been a routine action, police arrested an illegal street vendor. He resisted arrest, and police wrestled him to the ground. Given his poor health—he was asthmatic, obese (395 pounds), and suffered from heart disease—that resistance proved a fatal error. The vendor suffered cardiac failure in the ambulance on the way to the hospital, where he died.

Most people are familiar with the details of the Eric Garner case and its ensuing outrage, but three years later, the case against the arresting officer, Daniel Pantaleo, remains unsettled. At the end of August, he received a letter informing him that New York City’s Civilian Complaint Review Board was recommending the harshest punishment possible: departmental charges that could lead to suspension or dismissal. And the U.S. Justice Department continues a civil-rights investigation that could culminate in criminal charges.

Context is everything here. The Garner case became a cause célèbre because Garner was black and Pantaleo was white, and the death fit a media narrative about interracial law-enforcement confrontations—which, after the shooting of Michael Brown in Ferguson, Missouri, a few weeks later, became a national obsession. But the facts of the Garner case demonstrate that the incident bears little resemblance to such characterizations. An NYPD lieutenant directed Pantaleo and his partner to arrest Garner, so charges that the officer singled him out because of his race are nonsense. The arrest order was issued because this part of Staten Island—near the ferry docks—was the subject of repeated complaints about illegal street vendors diverting customers from shops and even selling drugs. The spot at which the Garner arrest took place had been the site of at least 98 arrests, 100 criminal court summonses, 646 calls to 911, and nine complaints to 311 in 2014 alone. Garner had had at least three previous encounters with police that year; he had been arrested twice and given a warning. At the time of the fatal incident, he was free on bail for offenses including selling untaxed cigarettes, driving without a license, marijuana possession, and impersonation.

The case against Pantaleo rests on the supposed chokehold that he used to make the arrest. He never sought to choke Garner to death, or even injure him. He was doing his job, taking a resisting man to the ground, as NYPD regulations provide. Had Garner been cooperative, as the officers requested, the confrontation would never have happened. “We can do this the easy way or the hard way,” Pantaleo’s partner had told him.

Garner resisted when the police tried to grab his flailing arms. “Every time you see me, you want to mess with me,” he exclaimed. “I’m tired of it. It stops today.” Pantaleo put his forearm around Garner’s neck and twisted him to the ground, probably the simplest way of subduing a man of Garner’s girth. Pantaleo then held Garner’s head down to the sidewalk. The neck-hold—characterized by the Medical Examiner’s office as a “chokehold”—lasted 15 seconds. Pantaleo released it once Garner was down on the sidewalk.

At this point, Garner repeatedly said “I can’t breathe,” the words that immortalized the incident and became a Black Lives Matter mantra. But when Garner said that, Pantaleo already had released his neck-hold; Garner probably was having breathing difficulties because of his asthma. 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 did nothing to interfere.

Pantaleo was taken before a grand jury in September 2014, presumably to consider criminal-homicide charges. After months of testimony, the grand jury refused to indict. Pantaleo had a compelling defense. New York Penal Law Article 35.30 expressly states that a police officer justifiably uses physical force “when and to the extent he or she reasonably believes such to be necessary to effect the arrest.” Garner’s arrest was lawful because Pantaleo reasonably believed that force was needed—Garner was uncooperative. It was Garner’s preexisting conditions that made the confrontation lethal, not wrongful excessive force on Pantaleo’s part. 

Federal civil rights charges are even more problematic. The government must prove that Pantaleo willfully deprived the victim of a constitutional right—that he intended to deprive the victim of his rights. But the evidence supports only Pantaleo’s intent to make an arrest.

Police should not be afraid to carry out their duties. The Pantaleo case tells cops that, even if they’re just doing their job, they can’t count on institutional support if the incident becomes a media sensation. New York City’s safety, like that of any city, depends on police feeling secure in performing their duties. It’s time to end Officer Pantaleo’s ordeal. NYPD chief James O’Neill and U.S. Attorney General Jeff Sessions should step up to the plate and dismiss the unwarranted charges against him.

Barry Latzer is Emeritus Professor of Criminal Justice at the John Jay College of Criminal Justice and author of The Rise and Fall of Violent Crime in America.