# Why wasn't the police officer who killed Eric Garner indicted? **URL:** \ **Category:** Great Debates\ **Created:** [December 4, 2014, 12:06am UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271 "2014-12-04T00:06:47Z")\ **Posts on this page:** 20\ **Page:** 14
**Author:** ![Hooleehootoo](https://avatars.discourse-cdn.com/v4/letter/h/eada6e/32.png) [@Hooleehootoo](https://boards.straightdope.com/u/Hooleehootoo)\ **Post date:** [December 5, 2014, 5:59pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/261 "2014-12-05T17:59:52Z")
> [@Bricker](#): > > The eggshell skull doctrine applies to torts committed by police, and the equivalent criminal law principle – that one must take one’s victims as one finds them – is equally applicable. I don’t understand this. I thought that a tortfeasor was liable for actions that harm a particular person when those actions would not harm a normal person, but that LEO’s just get judged by “reasonableness” and “excessiveness”. However you mention an equivalent criminal law principle. Can you expand on that? ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [December 5, 2014, 6:08pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/262 "2014-12-05T18:08:27Z")
> [@you\_with\_the\_face](#): > > I will concede that the distance isn’t as close as I suggested they were. But do you agree that my overall argument still stands? Why would I agree on your overall argument, when we both know the actual facts you attempted to use to prove it are not true? The usual way things work is that, if the facts demonstrate what I said was true, that you should agree with _my_ argument. > [@](#): > > Can you read what I posted [here](http://boards.straightdope.com/sdmb/showpost.php?p=17951820&postcount=223) and respond to it? How likely is it that cops would tell us the truth about how Garner died if they hadn’t been filmed? Do you think, perhaps, their story would be quite like Wilson’s tale of woe? “A big scary black man tried to attack me and so I had no choice but to kill him to save my life?” It’s a script that is old and moldy. So why it is so irresistible by some? No, I agree with you on that point. Which is exactly _why_ I would contend that Garner and Rice make better cases - among other things, they were filmed. > [@](#): > > Maybe it would get a little local airtime, but no, it is stupid and naïve to think it would be covered like it has been. > > You really seem to be having a hard time believing this but it’s very critical that you do–Garner’s death is not a unique or a new thing. The black community has been seeing this kind of stuff play out since the days of yabba dabba do. In recent years, with smartphones, there is more opportunity to tape these episodes. But even this isn’t new. Rodney King’s taped beating happened in the 90’s after all. Why do you keep saying that I don’t believe that these episodes are common? I believe the opposite of what you appear to think I believe. My point was that, being common, any one of them could (and eventually would) be the trigger. It is mere chance that this particular one was (aided by the fact that, at least intitally, the account was so disgraceful and the police reaction so inept). > [@](#): > > Without Ferguson putting this issue on center stage, Garner’s video would likely be treated like all those other videos that have been floating around on youtube since youtube’s inception. As isolated little vignettes that no cares enough to put on the news. Without Ferguson putting this issue on center stage, eventually another such incident would. Which, for those of us who want the issues to be aired and to affect real change, I submit would have been preferable. ---
**Author:** ![Hooleehootoo](https://avatars.discourse-cdn.com/v4/letter/h/eada6e/32.png) [@Hooleehootoo](https://boards.straightdope.com/u/Hooleehootoo)\ **Post date:** [December 5, 2014, 6:08pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/263 "2014-12-05T18:08:56Z")
> [@Ibn\_Warraq](#): > > Well, it’s not quite the same, but there was the case of the white homeless guy beaten to death by cops… I was going to add to this thread by mentioning [Kelly Thomas](http://en.wikipedia.org/wiki/Death_of_Kelly_Thomas). One thing that case shows is that undue emphasis should not be put on the “choke hold”. (I put in the scare quotes because there is a difference between compressing the carotid arteries and the windpipe). AFAIK it was not a choke hold, but the officers sitting on Thomas that contributed to him not being able to breathe. Garner would have faced the same thing without the choke hold. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [December 5, 2014, 6:10pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/264 "2014-12-05T18:10:08Z")
> [@Bricker](#): > > Thirty-six other states have similar laws. Then it is a very strange law in thirty-six other states. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [December 5, 2014, 6:14pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/265 "2014-12-05T18:14:17Z")
> [@Malthus](#): > > Then it is a very strange law in thirty-six other states. Does it really strike you as “very strange” that so many states make it illegal to violently resist the police? ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [December 5, 2014, 6:18pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/266 "2014-12-05T18:18:47Z")
> [@x-ray\_vision](#): > > i don’t think so. I’ve seen plenty of incidences IRL and on video of people resisting arrest because they think the arrest isn’t warranted. Resisting arrest ends up in a physical altercation and as we know by now, that’s not a good thing. Often these folks are wrong and the police are making a legal arrest. IME, most people are way off on what their legal rights are and aren’t knowledgeable enough to determine when an illegal arrest is occurring. > > The more people that are aware that the law says that you have to comply even if you believe the arrest is unwarranted and that you should let the police arrest you and you can fight that later, the better off everyone will be. I thought it was pretty obvious to everyone that getting into a physical altercation with a police officer is stupid, but I guess I was wrong. > :rolleyes: Getting into a physical altercation with cops is stupid. So is getting into a physical altercation with the Hell’s Angels. The stupidity or otherwise of the action isn’t the point - the issue is whether _after the fact_ a person should be subject to legal penalites for it! Assume you have actual bad racist cops (presumably, you will admit such exist). Assume some make a habit, in some places, of simply arresting Black people and, when the cuffs are on - putting the boot in. A sort of “stay out of my beat” message. Then they dump their victims at the edge of town. Now assume you are a Black man. You see a cop you know to be one of these bad, racist cops. You have done nothing wrong. The cop yells at you “Stop - you are under arrest!” and pulls out the cuffs. The cop isn’t even alleging you committed any crime. You strongly suspect he’s simply going to beat you up. So you push the cop away and run. You get arrested. Under this law, you running - _even if you can prove without a doubt all of the above_ - is “prohibited”. This strikes you as fair? ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [December 5, 2014, 6:19pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/267 "2014-12-05T18:19:37Z")
> [@treis](#): > > So why exactly are we punishing the enforcer? Because (we think) he used excessive and illegal force in doing so. “You must enforce the law” does not equate to “anything you do to enforce the law is a-ok.” > [@](#): > > The elected officials of New York are the ones that choose to criminalize petty behaviors and place emphasis on enforcing lifestyle/broken windows crimes. It’s simple math. If there are X people are caught selling looses, Y% of them are going to resist, Q% are going to be in poor health, and in Z% of them the cop is going to screw up. Agreed, wholeheartedly. > [@](#): > > Why are we supposed to throw that unlucky cop into jail? We aren’t, if it’s an honest screw-up. I don’t think Darren Wilson should go to jail. The Garner case, IMO, is at least arguably not merely an honest screw-up. I’m not going to build a legal case here, since there’s no actual legal evidence, but I see negligent manslaughter in that video. I certainly see probable cause for a trial on charges of it. YM obviously V ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [December 5, 2014, 6:24pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/268 "2014-12-05T18:24:40Z")
> [@Smapti](#): > > Does it really strike you as “very strange” that so many states make it illegal to violently resist the police? Because under this law the police are the ones breaking the law when they are being “violently resisted”? To my mind at least, it is the law - not the uniform - that ought to be the subject of deference. If a person wearing the uniform is him or herself breaking the law at the time they are wearing it, they are not subject to deference any more than anyone else. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [December 5, 2014, 6:33pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/269 "2014-12-05T18:33:14Z")
By way of contrast - here in Canada, it is well-established that one has a right in law to defend oneself against unlawful arrest. A recent appellate decision: > **[2006 CanLII 38165 (ON CA) | R. v. Plummer | CanLII](https://www.canlii.org/en/on/onca/doc/2006/2006canlii38165/2006canlii38165.html)** > > Access all information related to judgment R. v. Plummer, 2006 CanLII 38165 (ON CA) on CanLII. > [@](#): > > Impact on the arrest > > [48] Because there was no power of arrest, the arrest of the appellant was unlawful. The appeal judge observed in obiter that it would have been better had the appellant submitted to the arrest and not resorted to self-help. No doubt, it would have been better, but a person is entitled to resist an unlawful arrest, even where the unlawful arrest is attempted by a police officer. In the circumstances of this case, if the arrest was unlawful, the officer was not in the execution of his duty and thus the offence of assaulting an officer in the execution of his duty was not made out. See R. v. Delong, [1989] O.J. No. 206, 47 C.C.C. (3d) 402 (C.A.), at p. 411 C.C.C. > > [49] Further, in attempting to arrest the appellant without legal authority, the officer unlawfully assaulted him. The appellant was [page545] therefore not guilty of the included offence of assault. Section 34(1) of the Criminal Code gave him the right to resist the unlawful assault by the officer provided the force used was not intended to cause death or grievous bodily harm and was no more than necessary to defend himself. There was no suggestion that the force used by the appellant in resisting the arrest was capable of depriving him of the defence in s. 34(1). A similar analysis applies to the other charge of assault with intent to resist arrest. Since the appellant was unlawfully assaulted he had a lawful right to resist the arrest. The logic of this seems to me unassailable. If the areest is unlawful, the police are not acting within the scope of their duties, and so the special protections provided to police in law cannot apply. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [December 5, 2014, 6:38pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/270 "2014-12-05T18:38:24Z")
> [@furt](#): > > We aren’t, if it’s an honest screw-up. I don’t think Darren Wilson should go to jail. > > The Garner case, IMO, is at least arguably not merely an honest screw-up. Are you suggesting that the officer intended to kill Garner? ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [December 5, 2014, 6:41pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/271 "2014-12-05T18:41:21Z")
> [@Malthus](#): > > Getting into a physical altercation with cops is stupid. So is getting into a physical altercation with the Hell’s Angels. > > The stupidity or otherwise of the action isn’t the point - the issue is whether _after the fact_ a person should be subject to legal penalites for it! Yes, I know what the issue is. I gave my rationale for why resisting arrest should be illegal twice already. > [@](#): > > Assume you have actual bad racist cops (presumably, you will admit such exist). Assume some make a habit, in some places, of simply arresting Black people and, when the cuffs are on - putting the boot in. A sort of “stay out of my beat” message. Then they dump their victims at the edge of town. > > Now assume you are a Black man. You see a cop you know to be one of these bad, racist cops. You have done nothing wrong. The cop yells at you “Stop - you are under arrest!” and pulls out the cuffs. The cop isn’t even alleging you committed any crime. You strongly suspect he’s simply going to beat you up. So you push the cop away and run. > > You get arrested. Under this law, you running - _even if you can prove without a doubt all of the above_ - is “prohibited”. > > This strikes you as fair? Getting dumped off at the edge of town after being booted is not an arrest. Yeah, if you are in fear of this happening you should run. No, it’s not “fair.” There are bad people in the world and it’s not fair. In your situation you said you can prove without a doubt what would have happened. Then I’m fairly certain you won’t be charged with resisting arrest as what you described is not an unlawful arrest- it isn’t an arrest at all. If extreme hypothetical situations are all you have to offer to persuade me that resisting arrest should be illegal, you’re going to fail at persuading me. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [December 5, 2014, 6:42pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/272 "2014-12-05T18:42:39Z")
> [@Malthus](#): > > Why would I agree on your overall argument, when we both know the actual facts you attempted to use to prove it are not true? > > The usual way things work is that, if the facts demonstrate what I said was true, that you should agree with _my_ argument. Your argument isn’t supported by me slightly overstating some numbers, though. Mike Brown, in your view, should not be the “cause celebre” because whatever happened to him wasn’t obviously unjust or egregious in your eyes. But if almost 30% of the board disagrees with this opinion, that supports my assertion that your opinion isn’t reflective of everyone’s and that the protests have been effective in making people who otherwise would be oblivious, aware and sympathetic. > [@](#): > > No, I agree with you on that point. Well at least we agree on that. The optimist in me hopes that people who vilify Brown but are sympathetic to Garner are courageous enough to consider how video–or the lack thereof–can shape their impressions about an individual. Not so that they start requiring that there be video evidence for public outrage to be justifiable, but so that they become less susceptible to the cops’ narrative in the instances when abuse occurs and _there is no video_. Because if Garner and Rice (and plenty of other stories) tell us anything, it’s that cops generally can’t be trusted to tell the truth when they commit homicides. > [@](#): > > Why do you keep saying that I don’t believe that these episodes are common? I believe the opposite of what you appear to think I believe. Because you’re acting like people have the luxury of sitting back and picking “examples” of things to complain about. As if people haven’t been complaining about these things for years and receiving a big cup of STFU. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [December 5, 2014, 6:50pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/273 "2014-12-05T18:50:14Z")
> [@Malthus](#): > > Getting into a physical altercation with cops is stupid. So is getting into a physical altercation with the Hell’s Angels. > > The stupidity or otherwise of the action isn’t the point - the issue is whether _after the fact_ a person should be subject to legal penalites for it! 100% cosign with this. This puts innocent people in a lose-lose position. The idea that a person can’t even exercise self-defense if a cop is physically battering them, lest they be guilty of resisting arrest, is too Orwellian to take seriously. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 5, 2014, 7:01pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/274 "2014-12-05T19:01:31Z")
> [@Malthus](#): > > Then it is a very strange law in thirty-six other states. If it helps, here’s a Michigan case in which the rationale is briefly discussed: > [@](#): > > Courts and legislatures in other jurisdictions have found the right to resist an unlawful arrest to be outmoded in our contemporary society. For example, in State v. Valentine, 132 Wash.2d 1, 935 P.2d 1294 (1997), the Washington Supreme Court examined the common-law right to resist unlawful arrest and found that the policy concerns that once supported the right were, for the most part, no longer serious concerns. Specifically, the court noted that the right arose at a time when mere imprisonment often resulted in death or serious physical harm. Id. at 14-16, 935 P.2d 1294. Our modern judicial processes have been reformed so that arrestees enjoy the right to reasonable bail, the right to counsel at critical stages of the trial, and the right to a prompt judicial determination of probable cause. State v. Thomas, 262 N.W.2d 607, 611 (Iowa, 1978). According to the Valentine court, since 1966 the number of states permitting resistance to an unlawful arrest has declined from forty-five to twenty. Valentine, supra at 17-18, 935 P.2d 1294. In those states where the common-law rule has been overturned by judicial decision rather than statute, courts have regularly voiced concern that allowing this kind of “outmoded common law rule … fosters unnecessary violence in the name of an obsolete self-help concept…” Thomas, supra at 611. However, I’ll correct myself above. The last time I looked at this issue in detail was several years ago. At that time, the case I am quoting above (People v. Wess, 597 NW 2d 215 (Mich Ct App 1999)) was good law in Michigan. Since then, it’s been overruled by People v. Moreno, 814 NW 2d 624 (Mich 2012). So contrary to my earlier claim, not all the states that still permit resisting an illegal arrest are in the South. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [December 5, 2014, 8:07pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/275 "2014-12-05T20:07:23Z")
> [@x-ray\_vision](#): > > Yes, I know what the issue is. I gave my rationale for why resisting arrest should be illegal twice already. Not what I am commenting on. I am commenting on the notion that “resisting the cops is stupid”. Yes, it is stupid. It is stupid mainly because you will likely be hurt. The cops are far more powerful than you. However, this same “stupidity” applies regardless of whether the people attacking you are cops or not. Resisting anyone obviously more powerful than you is “stupid” for the same reason. > [@](#): > > Getting dumped off at the edge of town after being booted is not an arrest. Yeah, if you are in fear of this happening you should run. No, it’s not “fair.” There are bad people in the world and it’s not fair. In your situation you said you can prove without a doubt what would have happened. Then I’m fairly certain you won’t be charged with resisting arrest as what you described is not an unlawful arrest- it isn’t an arrest at all. > > If extreme hypothetical situations are all you have to offer to persuade me that resisting arrest should be illegal, you’re going to fail at persuading me. Huh? What’s the difference between “an unlawful arrest” and one that “isn’t an arrest at all”? An arrest that is not lawfully justified is “an unlawful arrest”, and up here in Canada, as I have posted, it is considered an “assault” and people have the right, here, to exercise self-defence against that assault. There is no need to prove that “it isn’t an arrest at all” (and how would they do that anyway?) The hypothetical I provided is hardly an “extreme” as things like that actually happen - even up here in Canada (though here, the victims are more likely to be native Canadians and not Blacks). Indeed, this is not really different from cases of self-defense generally. Yes, it is preferable for people not to resort to “self help” when bad shit happens. In a perfect world, they would not have to. However, the issue is whether - after the fact - they ought to be held legally liable for doing so. It is bizzare for the law to, in effect, reward wrongdoing and punish otherwise-legitimate self-defence, just because the wrong-doer is a cop. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [December 5, 2014, 8:19pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/276 "2014-12-05T20:19:52Z")
> [@Bricker](#): > > If it helps, here’s a Michigan case in which the rationale is briefly discussed: > > However, I’ll correct myself above. The last time I looked at this issue in detail was several years ago. At that time, the case I am quoting above (People v. Wess, 597 NW 2d 215 (Mich Ct App 1999)) was good law in Michigan. Since then, it’s been overruled by People v. Moreno, 814 NW 2d 624 (Mich 2012). So contrary to my earlier claim, not all the states that still permit resisting an illegal arrest are in the South. Very interesting. The policy rationale is, in my opinion, unconvincing in the extreme. It is true that the reasons why people may wish to resist unlawful arrest have nothing to do with a fear of the consequences of being brought before the courts, but rather with a fear of the personal consequences to their well-being before they ever get before the courts - and recent events have, I think, amply demonstrated that such fears are hardly “outmoded in our contemporary society”. In short, whatever the historical reasons why such a common-law right existed in the first place, its contemporary relevance is not a reason to eliminate it. The more simple calculus, as articulated by the Ontario Court of Appeal, owes nothing to a policy analysis of the historic origins of the right - it is that an unlawful arrest = an assault, and people generally have a right to self-defence against an assault. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [December 5, 2014, 8:30pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/277 "2014-12-05T20:30:18Z")
> [@furt](#): > > No. There were eyewitnesses that corroborated Wilson’s account. There were also eyewitnesses that contradicted Wilson’s account. Thus, “disputed.” But if there was video showing as clear as day what really happened, we wouldn’t have any disputed eyewitness accounts. Objective evidence wins out over liars and exaggerators. People stories’ would more than likely match up with the video, because they wouldn’t have just their memories to go off on. > [@](#): > > And we DO have video of Brown robbing the store and shoving the owner aside. Which is 1) still disputed and 2) has nothing to do with whether his death was justified. The more that I think about Brown, the more I see the similarities to Garner. What was Brown accused of stealing? Cigars. What did Garner’s purported offense involve? Cigarettes. Tobacco products, yall! Even if we accept as true that both men had done something unlawful, these crimes do not merit capital punishment and are not synonymous with violent thuggery. > [@](#): > > If there was evidence that confrontation with Garner began with him committing a “real” crime – something with a victim, not cigarette tax BS – I think people would be less sympathetic. There very well could be evidence…that doesn’t change whether his death was unjustified. Like I said before, thinking otherwise gives cops permission to treat petty criminals and other “undesirables” like wild game. It’s the stuff of dystopias. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [December 5, 2014, 8:33pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/278 "2014-12-05T20:33:33Z")
Also of note is that the Michigan case cites State v. Valentine, which was confined to resisting arrest where all that was ats take was a loss of freedom: > [@](#): > > In sum, we hold that, **although a person who is being unlawfully arrested has a right, as the trial court indicated in instruction 17, to use reasonable and proportional force to resist an attempt to inflict injury on him or her during the course of an arrest,** that person may not use force against the arresting officers if he or she is faced **only with a loss of freedom**. [http://caselaw.findlaw.com/wa-supreme-court/1250487.html](http://caselaw.findlaw.com/wa-supreme-court/1250487.html) So, even under this rationale (if not under the statutes of NY), in the instant case - where the “resisting” was done in the course of the cops inflicting injury, the man would have the legal right to resist by force - if the arrest was unlawful. ---
**Author:** ![Typo\_Negative](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/typo_negative/32/484_2.png) [@Typo\_Negative](https://boards.straightdope.com/u/Typo_Negative)\ **Post date:** [December 5, 2014, 8:36pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/279 "2014-12-05T20:36:34Z")
> [@treis](#): > > Are you suggesting that the officer intended to kill Garner? I doubt he intended to kill Garner. But the whole reason the hold has been banned for use by LE is that people kept dying when it applied on them. And then the departments got the poo sued out of them. LAPD banned their use in 1980. NYPD banned them in 1985, then reaffirmed in 1993. NY Police Commissioner said this: > [@](#): > > At a police promotion ceremony at One Police Plaza, Police Commissioner Raymond W. Kelly characterized the ban not as a new policy but as clarification of a 1985 order. That order said that “ **choke holds, which are potentially lethal and unnecessary** , will not be routinely used.” An exception was when an officer’s life was in danger and the choke hold was the “least dangerous alternative method of restraint.” The new policy allows no exceptions. Bolding mine. > [@](#): > > Chief Timoney said the city policy specifically did not distinguish between various types of holds, but rather banned them categorically. It also prohibited other restraints or tactics – like standing on a suspect’s chest or transporting a suspect in a face-down position – which might impede breathing. > > “Basically, stay the hell away from the neck,” he said. “That’s what it says.” So a police officer used a technique specifically banned by his department because it’s _potentially lethal and unnecessary_ and the hold resulted in a foreseeable death. > [@](#): > > Three elements must be satisfied in order for someone to be found guilty of involuntary manslaughter: > > Someone was killed as a result of act by the defendant. > The act either was inherently dangerous to others or done with reckless disregard for human life. > The defendant knew or should have known his or her conduct was a threat to the lives of others. > > - See more at: [http://criminal.findlaw.com/criminal-charges/involuntary-manslaughter-overview.html#sthash.74ViGChJ.dpuf](http://criminal.findlaw.com/criminal-charges/involuntary-manslaughter-overview.html#sthash.74ViGChJ.dpuf) **Some was killed as a result of the act.** _Garner’s dead_. Check. **The act was inherently dangerous**. _Banned by NYPD because it was too dangerous._ Check. \*\* The defendant knew or should have known… \*\*_Officer knows or is supposed to know what techniques are specifically banned and why._ Check. To this layman, it seems pretty cut and dried case of involuntary manslaughter. Garner’s resisting arrest need not even enter the discussion. But if we must, then we add the obvious that he was resisting arrest on a penny ante misdemeanor and that many other less-dangerous techniques were available to the officers. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [December 5, 2014, 8:37pm UTC](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271/280 "2014-12-05T20:37:43Z")
> [@you\_with\_the\_face](#): > > The more that I think about Brown, the more I see the similarities to Garner. What was Brown accused of stealing? Cigars. What did Garner’s purported offense involve? Cigarettes. Tobacco products, yall! Even if we accept as true that both men had done something unlawful, these crimes do not merit capital punishment and are not synonymous with violent thuggery. Neither man was killed because of tobacco. They were killed because they violently resisted arrest. By your logic, if an officer in my state saw a man smoking a cigarette within 25 feet of the entrance to a restaurant, the man responded by yelling “DIE, PIG!” and pulling out a gun, and the officer shot him dead, it would be “capital punishment for a minor offense”. [Previous page](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271.md?page=13) [Next page](https://boards.straightdope.com/t/why-wasnt-the-police-officer-who-killed-eric-garner-indicted/706271.md?page=15)