Why wasn't the police officer who killed Eric Garner indicted?

[wolfpup]

@Bone

How does not being able to get the same level of defense as the wealthy equal to class discrimination? Am I being discriminated against because I can’t afford a McLaren F1 or a week long vacation in Bora Bora?

Do you not pledge allegiance to a nation that supposedly guarantees “liberty and justice for all” as a fundamental right? Is that just a lot of hot air? Justice that is only available to some is not justice at all. You seriously see the constitutional right to justice as equivalent to luxury goods?

@Bone

I agree there is no justice open to Garner since he is dead. He was not murdered in the legal sense - or how normal people use that word. His death was not unlawful.

That his death was not deemed unlawful is precisely the problem. It’s not a moral exoneration but quite the opposite, it means that the arbitrary use of excessive police force with no regard for proportionality and no accountability will continue unabated.

[Bricker]

@jtgain

I disagree. The scienter requirement applies to the intentional acts, not to the knowledge of the legality of the arrest or the reasonable fear or lack thereof the arrestee is in.

Huh?

If Officer Kripke arrests you for carrying a loaded weapon, handcuffs you pursuant to the arrest, and then learns that he was mistaken about the recently-changed requirements of state law, which now forbid only a loaded weapon with more than ten rounds (and you were carrying a loaded six-shot revolver) are you endorsing the claim that this is an assault or a battery in the criminal context?

It’s absolutely not. His reasonable mistake of fact negates his criminal intent – even though his knowingly and willingly touched you against your will.

If this was the case then the only thing Zimmerman would have to show (or put better, the state would have to disprove beyond a reasonable doubt) that he subjectively thought his shooting of Martin was legal.

Or in the assault context, I could swing at you with a baseball bat so long as I mistakenly thought it was legal.

The scienter requirement only applies to the gunshot and the swinging of the bat, respectively.

No. Although I suppose Zimmerman could claim his mistake of fact was both subjectively sincere and objectively reasonable, yeah.

[Bricker]

@wolfpup

Do you not pledge allegiance to a nation that supposedly guarantees “liberty and justice for all” as a fundamental right? Is that just a lot of hot air? Justice that is only available to some is not justice at all. You seriously see the constitutional right to justice as equivalent to luxury goods?

There is no constitutional right to “identical” justice, at least to the extent that means that both rich and poor defendants are entitled to precisely the same level of legal skill, investigative resources, and bail commensurate with wealth. Where did you get the idea that this right existed?

The Pledge of Allegiance, by the way, from which your quoted snippet of poetry is taken, is not a source of substantive law.

[Bone]

@wolfpup

Do you not pledge allegiance to a nation that supposedly guarantees “liberty and justice for all” as a fundamental right? Is that just a lot of hot air? Justice that is only available to some is not justice at all. You seriously see the constitutional right to justice as equivalent to luxury goods?

Are you actually trying to explain your statements? Generally if you are asked questions, answering questions with more questions isn’t responsive. I’m not sure if this is intentional or not but I will operate under the assumption that you misunderstood. Here is the question:

@Bone

How does not being able to get the same level of defense as the wealthy equal to class discrimination?

Your response is asking me if I recite the pledge, if the pledge is hot air or not, a pithy saying, and what I think is a willful misunderstanding of an analogy. The pledge is a non-sequitur and the comparison to luxury goods is an example used to try and flesh out your position. I can use other examples if you’d like.

Barry Scheck probably won’t come defend me against an alleged shoplifting charge. I’m sure if I paid enough he would, but I can’t afford him. How does not being able to get a high priced lawyer that others can afford equal to class discrimination? Please try to answer in the form of statements rather than questions.

*As a side note, the pledge does not carry the force of law and the phrase “liberty and justice for all” is not a fundamental right. You may be thinking of the equal protection clause of the 14th amendment. In any case, your questions in response don’t make any sense.

[Malthus]

@Bricker

You’re wrong.

An illegal arrest is any arrest not supported by probable cause.

A police officer who mistakenly but genuinely believes he has probable cause does not commit a crime with his arrest, even though the arrest lacks probable cause.

An illegal arrest is not an assault “by definition.” Assault has a scienter requirement which does not necessarily exist with an illegal arrest.

Perhaps you should take up the argument with my local Court of Appeal then. They are of the opinion that an illegal arrest is an assault, and who am I to say that I know the law better than they do?

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.**

2006 CanLII 38165 (ON CA) | R. v. Plummer | CanLII

This is from the majorty decision in R. v. Plummer, (2006) 83 O.R. (3d) 528 - Ontario Court of Appeal. As far as I know, it is still good law.

[Malthus]

@Bricker

Huh?

If Officer Kripke arrests you for carrying a loaded weapon, handcuffs you pursuant to the arrest, and then learns that he was mistaken about the recently-changed requirements of state law, which now forbid only a loaded weapon with more than ten rounds (and you were carrying a loaded six-shot revolver) are you endorsing the claim that this is an assault or a battery in the criminal context?

It’s absolutely not. His reasonable mistake of fact negates his criminal intent – even though his knowingly and willingly touched you against your will.

Again, read R. v. Plummer, which was basically your hypothetical. Cops failed to make a required alternative resquest for ID at a traffic stop (which I think we could all agree is a highly technical violation - the Court of Appeal had to carefully parse the legislative history to determine what the “trigger” of the arrest power was, there was absolutely no conclusion that the cop knowingly violated anything).

Yet as the trigger was not properly activated, the arrest was not legal and was therefore classified as an “assault” on the arrestee.

This conclusion follows automatically, contrary to your analysis.

[Bricker]

@Malthus

Perhaps you should take up the argument with my local Court of Appeal then. They are of the opinion that an illegal arrest is an assault, and who am I to say that I know the law better than they do?

2006 CanLII 38165 (ON CA) | R. v. Plummer | CanLII

This is from the majorty decision in R. v. Plummer, (2006) 83 O.R. (3d) 528 - Ontario Court of Appeal. As far as I know, it is still good law.

I’m sure it is. But you’re conflating the tort of assault, which is certainly made out here, with the crime of assault. The opinion is also dicta on the point and makes no effort to discuss a mistake of fact, which makes sense because it’s not describing a crime.

And, of course, my comments were based on U.S. law and should have included a disclaimer to that effect.

[Malthus]

@Bricker

I’m sure it is. But you’re conflating the tort of assault, which is certainly made out here, with the crime of assault.

Huh? There is no indication that the Court of Appeal was discussing tort law here. In context, that would hardly make sense, as they were stating that the fact that the cops committed assault was justification for the arrestee’s right of self-help vs. the undoubted crime of “resisting arrest”.

Since the appellant was unlawfully assaulted he had a lawful right to resist the arrest.

Edit: disagree that it was dicta, as it forms the reasoning for why the accused was not guilty - in the above-noted sentence.

Also, while of course Canadian law, I’ve seen no indication - other than your opinion - that it is different in the US.

[Bricker]

@Malthus

Again, read R. v. Plummer, which was basically your hypothetical. Cops failed to make a required alternative resquest for ID at a traffic stop (which I think we could all agree is a highly technical violation - the Court of Appeal had to carefully parse the legislative history to determine what the “trigger” of the arrest power was, there was absolutely no conclusion that the cop knowingly violated anything).

Yet as the trigger was not properly activated, the arrest was not legal and was therefore classified as an “assault” on the arrestee.

This conclusion follows automatically, contrary to your analysis.

On re-reading, perhaps I jumped the gun by assuming you meant criminal assault. I see your original claim said 'tortious OR criminal." If so, the mistake is mine alone.

[Malthus]

@Bricker

On re-reading, perhaps I jumped the gun by assuming you meant criminal assault. I see your original claim said 'tortious OR criminal." If so, the mistake is mine alone.

It would apply to both.

The “intentionality” element of the offence is the intent to commit the action of assaulting. It is not, as far as I am aware, vitiated by a mistaken but sincre belief that the action was lawful. Although as a matter of prosecutorial discretion, such a case may well never be pursued.

[clairobscur]

@Bricker

There is no constitutional right to “identical” justice, at least to the extent that means that both rich and poor defendants are entitled to precisely the same level of legal skill, investigative resources, and bail commensurate with wealth. Where did you get the idea that this right existed?
.

I think this is a problem, really. All citizens should be equal before the law, and your wealth should have as little bearing as possible on the outcome of a prosecution/trial. It’s not practical, but we should aim towards this goal. You can’t give everybody the best criminal lawyer of the country, but for instance payments to public defenders could be raised so that they can spend more time on the case, reasonnable investigations by the defense could be publicly funded, and so on…
(I assumed that bail was commensurate to wealth. Is it not the case?)

[Bricker]

@Malthus

Huh? There is no indication that the Court of Appeal was discussing tort law here. In context, that would hardly make sense, as they were stating that the fact that the cops committed assault was justification for the arrestee’s right of self-help vs. the undoubted crime of “resisting arrest”.

Edit: disagree that it was dicta, as it forms the reasoning for why the accused was not guilty - in the above-noted sentence.

Also, while of course Canadian law, I’ve seen no indication - other than your opinion - that it is different in the US.

OK, good. No mistake about your meaning criminal law, then.

But then my original objections remain. The court’s comments are dicta; they don’t explain why a mistake of fact defense would be unavailable to an officer in that position.

It certainly is dicta – because the issue was not the criminal liability of the officer. An on-point decision would be one in which an officer is charged with assault for making an arrest based on reasonable but mistaken belief of the existence of probable cause.

“Other than my opinion?”

Sheesh. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F. 2d 1339, 1348 (Second Circuit 1972):

It is a Defense to Allege and Prove Good Faith and Reasonable Belief that the Arrest and Search Were Lawful and Reasonable . . . . The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. And so we hold that it is a defense to allege and prove good faith and reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted. We think, as a matter of constitutional law and as a matter of common sense, a law enforcement officer is entitled to this protection.

Kind of a famous case. (In the U.S.).

[Bricker]

@Malthus

It would apply to both.

The “intentionality” element of the offence is the intent to commit the action of assaulting. It is not, as far as I am aware, vitiated by a mistaken but sincre belief that the action was lawful. Although as a matter of prosecutorial discretion, such a case may well never be pursued.

Well, I make no claims as to any particular knowledge of how Canadian law might evaluate such a criminal charge, so I’ll defer to you.

However, in the U.S., criminal assault would not exist when a law enforcement officer mistakenly but reasonably believes probable cause exists for an arrest and in furtherance thereof commits an act that would, absent the arrest, be a criminal assault.

[wolfpup]

@Bone

“liberty and justice for all” is not a fundamental right.

That’s an absolutely fascinating assertion, and I think you need to give some thought to what you just said. You should think about what it implies about your view of the justice system and the whole principle of justice – and thanks for eliminating any possible trace of ambiguity by carefully explaining with your Barry Scheck example that you believe justice is a commodity that should be bought and sold, and that a person’s financial means should have direct bearing on the likelihood of being acquitted in a criminal trial. The funniest part is that you don’t even seem to think this is controversial. The argument about class discrimination is now over.

@Bone

How does not being able to get a high priced lawyer that others can afford equal to class discrimination?

Because it is, as you’ve just demonstrated. Because high priced lawyers are much better at winning acquittals than public defenders. That’s why they’re high priced. That’s why OJ won and so many poor people lose. That’s the main glaringly obvious point. There’s also the facts that the poor are more likely to get arrested and charged in the first place, are more likely to endure police harassment and police violence, are less likely to get bail, have little to no capability to hire their own investigators and expert witnesses, and are not only much more likely to be found guilty but tend to get longer sentences when they are. Does that help? A few of the stats are here, others have been cited before.

[Malthus]

@Bricker

OK, good. No mistake about your meaning criminal law, then.

But then my original objections remain. The court’s comments are dicta; they don’t explain why a mistake of fact defense would be unavailable to an officer in that position.

It certainly is dicta – because the issue was not the criminal liability of the officer. An on-point decision would be one in which an officer is charged with assault for making an arrest based on reasonable but mistaken belief of the existence of probable cause.

“Other than my opinion?”

Sheesh. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F. 2d 1339, 1348 (Second Circuit 1972):

Kind of a famous case. (In the U.S.).

Other than your opinion until you posted this, of course.

You characterize this as a “mistake of fact”, as in Bivens (that you cited). However, what was going on in the case I cited was not a “mistake of fact”, but a “mistake of law” - that is, the police officer did not ask the right questions needed to trigger the arrest power, because he did not know it was necessary through ignorance of the law.

Ditto the hypothetical you mentioned upthread:

If Officer Kripke arrests you for carrying a loaded weapon, handcuffs you pursuant to the arrest, and then learns that he was mistaken about the recently-changed requirements of state law, which now forbid only a loaded weapon with more than ten rounds (and you were carrying a loaded six-shot revolver) are you endorsing the claim that this is an assault or a battery in the criminal context?

While mistake of fact may be a defence, mistake of law rarely is unless a statute makes it so - Ignorantia juris non excusat.

In short, these cases would not fall under the ambit of Bivens.

[Bone]

@wolfpup

Does that help?

Not at all, actually.

That’s an absolutely fascinating assertion, and I think you need to give some thought to what you just said. You should think about what it implies about your view of the justice system and the whole principle of justice – and thanks for eliminating any possible trace of ambiguity by carefully explaining with your Barry Scheck example that you believe justice is a commodity that should be bought and sold, and that a person’s financial means should have direct bearing on the likelihood of being acquitted in a criminal trial. The funniest part is that you don’t even seem to think this is controversial. The argument about class discrimination is now over.

Do you often draw ridiculous conclusions based on passing figments of thought in your mind? I can’t afford a particular lawyer is not equivalent to thinking that justice is a commodity that should be bought and sold. I question whether you honestly believe this is a fair interpretation or even makes sense to you. The argument may be over, but that is simply because you never actually made an argument. This started with a request to define your terms, which you’ve chosen not to do. If you wish to make an actual argument rather than declaration that’d be helpful to understand your point.

[Bricker]

@Malthus

Other than your opinion until you posted this, of course.

You characterize this as a “mistake of fact”, as in Bivens (that you cited). However, what was going on in the case I cited was not a “mistake of fact”, but a “mistake of law” - that is, the police officer did not ask the right questions needed to trigger the arrest power, because he did not know it was necessary through ignorance of the law.

Ditto the hypothetical you mentioned upthread:

While mistake of fact may be a defence, mistake of law rarely is unless a statute makes it so - Ignorantia juris non excusat.

In short, these cases would not fall under the ambit of Bivens.

The existence of probable cause is a mixed question of fact and law. McCain v. Commonwealth, 545 SE 2d 541 (Va 2001). I agree that my Officer Krupke example did not highlight this.

[BOOM]

@Bricker

There is no constitutional right to “identical” justice, at least to the extent that means that both rich and poor defendants are entitled to precisely the same level of legal skill, investigative resources, and bail commensurate with wealth. Where did you get the idea that this right existed?

Holy sheeet!

Inequality before the law ingrained by ommision? More American Exceptionalism.

[astorian]

Just for a moment, forget about indictment. Let’s all assume, for a moment, to assume that Officer Pantaleo does’t deserve to go to prison.

Can even Panatleo’s supporters at least agree that Pantaleo screwed up royally and ought to be booted from the police force? That, intentioally or not, Pantaleo took dangerous actions that led to the death of a petty criminal who wasn’t doing anything NEARLY bad enough to deserve death?

I really want to know whether Pantaleo’s defenders just want to keep him out of jail or seriously believe he was justified in his actions.

I asked essentially the same question following the trial of the LA cops who beat Rodney King. Even if those cops didn’t belong in prison, couldn’t/shouldn’t the LAPD have taken acion to kick those guys off the force?

[Malthus]

@Bricker

The existence of probable cause is a mixed question of fact and law. McCain v. Commonwealth, 545 SE 2d 541 (Va 2001). I agree that my Officer Krupke example did not highlight this.

Well, “probable cause” certainly is typically a question of mixed fact and law.

However, the narrow question here addressed is: is an illegal arrest, illegal because the officers failed to undertake the formalities required to make an arrest, a mistake of law or a mistake of fact?

I would state that, if it is based on a mistake (or deliberate error) of law, it is an “assault” - and fits more within the principles of * R. v. Plummer* than those of Bivens (ignoring, for the sake of argument, that they are from different jurisdictions).

This is because it is a general legal principle that mistake of law is typically not a defence (though mistake of fact can be).

In the various situations described upthread (and indeed this debate) grew out of the following proposition: that in the State of New York (as in many other places), there exist certain formalities required to secure a legal arrest: notably, that the person must be informed of the reasons why he or she is under arrest. It was posed that, should these formalities not be complied with, there would be no consequences.

Not that the arrest was mistaken because the police lacked “probable cause”, but that the arrest was not legal because the requirements for a “legal arrest” were not followed (either through mistake or otherwise).

Ignoring again for the sake of argument that the formalities may well have been complied with “off tape” (we simply do not know), what would be the legal status?

We know in New York that resisting arrest would still be an offence, because the statue makes it so. However, absent some equivalent statutory intervention concerning the defences available to police officers (which may well exist - I have not looked), the police officers would have committed an “assault” (though obviously whether any charges would be laid, or damages sough for torts or for violations of rights, would very much depend on the circumstances).

Again, as far as I can see, where an arrest was “not legal” in this sense, a finding of assault follows - as its legality in these cases is a matter of law and not fact or mixed fact and law (other than the “fact” of whether or not the formalities were complied with).