Roberto A. Ferdman asks:
The answer might be because the department is not enforcing the rule stringently. A recent study (pdf) by the review board says that:
Put simply, during the last decade, the NYPD disciplinary decisions in NYPD administrative trials of chokehold allegations failed to enforce the clear mandate of the Patrol Guide chokehold rule. In response to these decisions which failed to hold offending officers accountable, the CCRB and NYPD Department Advocate’s Office [internal affairs] failed to charge officers with chokehold violations pursuant to the mandate of the Patrol Guide chokehold rule.
By failing to properly punish officers who have used a banned method of apprehension, the department effectively shapes the understanding of the rule by officers, the study says.
Josh Voorhees is unsurprised that Pantaleo wasn’t indicted:
While the officer’s use of the banned maneuver received significant scrutiny in the court of public opinion, it likely received much less in the court of law. As Eugene O’Donnell, a professor at the John Jay College of Criminal Justice, argued earlier this week, there is a difference between an act that is banned in the NYPD’s rulebook and one that is deemed criminal. “There is no explicit law that criminalizes the use of a chokehold on someone either by a police officer or someone else,” wrote O’Donnell.
Grand jury proceedings happen behind closed doors, so we may never know exactly what convinced at least 12 of the 23 jurors to vote against an indictment of any kind. But by deciding—despite the damning video—that there was not enough evidence to justify the case going to trial, the jurors are effectively declaring that Garner’s death was, at worst, a horrible mistake, one that might amount to misconduct but that falls short of murder or manslaughter.
Update from a reader:
I’m a lawyer in NYC (I hate it nearly as much as you do). You quoted Vorhees quoting a John Jay professor claiming “There is no explicit law that criminalizes the use of a chokehold on someone either by a police officer or someone else.” That’s just wrong. Section 121 of the Penal Law (pdf) provides:
§ 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 Garner grand jury certainly could have indicted for that. Note too that it doesn’t matter whether it was a chokehold, meant to impede breathing, or a headlock, meant to impede blood flow. Both are crimes. I’ve seen some chatter on Fox News making a big deal out of the difference, Hannity included.
Even with the NYPD’s history of killing people with chokeholds that violate policy, hundreds of non-lethal violations of that policy every year, indisputable video evidence of multiple officers blithely ignoring the fact that a colleague was violating that policy, and their subsequent dishonesty about the chokehold when filing a report on the incident, Police Commissioner Bill Bratton still had the brass to say earlier this year that “he would not support a law to make chokeholds illegal, insisting that a departmental prohibition is enough.” He also said, “I think there are more than sufficient protocols in place to address a problem.”
In context, that’s sufficiently absurd to cast a shadow over the man’s honor. It’s hard to believe it won’t come up when New York City is sued for negligence. At minimum it undermines Bratton’s credibility. “Every time this happens,” Hamilton Nolan observes, “there’s a lot of talk about ‘training’ and ‘changing the culture’ of the police.” Yet chokeholds persist. “What will change this situation,” he adds, “is putting police officers in jail for killing and abusing people. And it’s abundantly clear that our current laws are too lax to accomplish that. The laws need to change.”
Historical context suggests he is absolutely right.