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

[Malthus]

@Bricker

It’s not simply the unambiguous law – I specified that the law had recently changed. So the question was, in my hypo, whether it was reasonable for the officer to be mistaken about a just-changed law.

So let’s take another hypothetical, one which isn’t a hypothetical at all, but actual facts from an actual case.

Jerry’s car gets into an accident – his car is wedged into another one. The police are called, and the officer summons a tow truck to detach them. Jerry refuses to pay the tow truck driver’s charge. The officer, attempting to mediate, advises Jerry he has to pay, and if he continues to refuse the officer will arrest him for defrauding a garage keeper. Jerry refuses, and the officer arrests him. Jerry is tried on the charge and acquitted; the officer mistakenly believed that the “” statute included the word “services” and made a crime of a motorist’s refusal to pay a garageman’s towing fee. It did not. As a matter of law, then, the conduct the officer witnessed did not constitute a crime.

Jerry then sues the officer, claiming both false imprisonment and an assault and battery as a result of the arrest.

I certainly can’t imagine you will claim that that the officer has civil immunity because of a good-faith mistake of law, but somehow is criminally liable. Right?

You are referencing DeChene v. Smallwood.

However, more modern authority demonstrates that this appears not to be followed by the majority of courts in the US.

https://www.courtlistener.com/opinion/2299007/gilmore-v-state/

133 A majority of courts have held that an officer’s mistake of law, no matter how reasonable, cannot provide objectively reasonable grounds for a stop. See United States v. Lopez-Valdez, 178 F.3d 282 [288-89] (5th Cir.1999) [(because there was a ten-year old appellate opinion on point holding that a damaged tail light could not serve as the basis for a traffic stop, “no well-trained Texas police officer could reasonably believe that white light appearing with red light through a cracked red taillight lens constituted a violation of traffic law”)]; United States v. Miller, 146 F.3d 274 [279] (5th Cir.1998) [(flashing turn signal without turning or changing lanes is not a violation of Texas law and did not create probable cause for the stop)]; United States v. Urrieta, 520 F.3d 569 [574-75] (6th Cir.2008) [(officer’s mistaken belief that defendant was not allowed to drive in Tennessee with a Mexican driver’s license did not justify an extended detention)]; United States v. McDonald, 453 F.3d 958 [962] (7th Cir.2006) [(officer’s mistaken belief that using a turn signal while rounding a bend in the road was illegal could not support probable cause for arrest)]; United States v. King, 244 F.3d 736 [741-42] (9th Cir.2001) [(officer’s mistaken belief that a placard hanging from a rearview mirror violated the law could not form the basis for reasonable suspicion to initiate a traffic stop)]; United States v. Twilley, 222 F.3d 1092 [1096] (9th Cir.2000) [(officer’s mistaken belief that an out-of-state car lacking a front license plate violated the law did not constitute reasonable suspicion required for a traffic stop)]; United States v. Lopez-Soto, 205 F.3d 1101 [1105-06] (9th Cir.2000) [(officer’s mistaken belief that a registration sticker was required to be visible from the rear of a vehicle did not provide objectively reasonable basis for the stop of the vehicle)]; United States v. Pena-Montes, 589 F.3d 1048 [1053-54] (10th Cir.2009) [(officer’s mistaken belief about the lawful use of dealer plates did not provide reasonable suspicion to justify detention)]; United States v. Tibbetts, 396 F.3d 1132 [1138] (10th Cir.2005) [(holding that the “failure to understand the law by the very person charged with enforcing it is not objectively reasonable”)]; United States v. DeGasso, 369 F.3d 1139 [1145] (10th Cir.2004) [(Oklahoma traffic law regarding use of fog lights did not provide trooper with objectively justifiable basis for the stop)]; United States v. Chanthasouxat, 342 F.3d 1271 [1280] (11th Cir.2003) [(officer’s mistaken belief that law required an inside rear-view mirror cannot provide reasonable suspicion or probable cause to justify a traffic stop)]. See also People v. Ramirez, 140 Cal. App.4th 849 [854], 44 Cal.Rptr.3d 813 [816] (2006) [(a suspicion founded on a mistake of law cannot constitute the reasonable basis for a lawful traffic stop)]; Hilton v. State, 961 So.2d 284 [298-99] (Fla.2007) [(small crack in lower right windshield did not render defendant’s vehicle unsafe or provide a particularized and objective basis for the stop)]; Martin v. Kan. Dep’t of Rev., 285 Kan. 625 [639], 176 P.3d 938 [948] (2008) [(officer misunderstood and misapplied ordinance regarding how many rear brake lights on a vehicle had to be functioning and thereby lacked constitutional authority for the stop)]; State v. Anderson, 683 N.W.2d 818 [823-24] (Minn.2004) [(officer’s mistaken interpretation of a statute may not form the particularized and objective basis for suspecting criminal activity necessary to justify a traffic stop)]; State v. George, 557 N.W.2d 575 [578-79] (Minn.1997) [(officer’s mistaken belief that defendant’s motorcycle had three 134 headlamps did not provide an objective legal basis for the stop)]; State v. Kilmer, 741 N.W.2d 607 [611-12] (Minn. App.2007) [(a mistaken interpretation of the law cannot provide the requisite objective basis for suspecting a motorist of criminal activity even if the officer believes, in good faith, that the driving conduct that prompted the stop was illegal)]; Couldery v. State, 890 So.2d 959 [965-66] (Miss.App.2004) [(officer had no reasonable basis to believe that defendant committed a traffic offense by driving in left lane of traffic and, therefore, lacked a reasonable basis for the stop)]; State v. Lacasella, 2002 MT 326 [¶ 32], 313 Mont. 185 [195], 60 P.3d 975 [982] (2002) [(because license plate was taped to windshield, officer did not have particularized suspicion to conduct stop)]; Byer v. Jackson, 241 App.Div.2d 943 [944-45], 661 N.Y.S.2d 336 [338] (1997) [(traffic laws did not require motorist to signal a turn from a private driveway and officer’s good faith belief that there was a violation of the traffic laws did not provide reasonable suspicion to justify the stop)]; State v. Williams, 185 S.W.3d 311 [319] (Tenn. 2006) [(where motorist was not obstructing traffic, officer lacked reasonable suspicion to justify a stop)]; State v. Lussier, 171 Vt. 19 [37], 757 A.2d 1017 [1029] (2000) [(where rear license plate was properly illuminated, the State failed to articulate a reasonable and articulable basis for the stop)]; State v. Longcore, 226 Wis.2d 1 [9], 594 N.W.2d 412 [416] (1999) [(when an officer relates facts to a specific offense, it must be an offense; a lawful stop cannot be predicated upon a mistake of law)].
Although the Eighth Circuit has taken the minority position [see United States v. Martin, 411 F.3d 998, 1002 (8th Cir. 2005) (concluding that “a misunderstanding of traffic laws, if reasonable, need not invalidate a stop made on that basis”)], it is not alone in this view. See United States v. Southerland, 486 F.3d 1355 [1359], 376 U.S.App.D.C. 235 [239] (D.C.Cir.2007) [(even though officers erroneously believed license plate had to be affixed to the front bumper, the license plate was on the dashboard and not affixed to the front of the car as required by Maryland law, and stop was objectively reasonable)]. See also Travis v. State, 331 Ark. 7 [10-11], 959 S.W.2d 32 [34] (1998) [(officer reasonably, but erroneously, believed license plate was required to display expiration stickers)]; People v. Teresinski, 30 Cal.3d 822 [839], 180 Cal.Rptr. 617 [626-27], 640 P.2d 753 [762-63] (1982) [(although detention was illegal because curfew law had not been violated, a robbery victim’s testimony was admissible)]; People v. Glick, 203 Cal.App.3d 796 [803], 250 Cal.Rptr. 315 [319] (1988) [(officer’s stop of New Jersey vehicle was reasonable even though based on officer’s erroneous understanding of New Jersey registration laws)]; Stafford v. State, 284 Ga. 773 [774-75], 671 S.E.2d 484 [485] (2008) [(officer erroneously believed it was illegal to stop in the middle of a residential street, but a statute made it illegal to park in the middle of a two-way roadway, which provided a sound basis for the officer’s stop)]; State v. McCarthy, 133 Idaho 119 [125], 982 P.2d 954 [960] (1999) [(even allowing for reasonable mistakes of law by police, stop could not be upheld)]; Harrison v. State, 800 So.2d 1134 [1139] (Miss.2001) [(in addressing validity of probable cause in light of a mistake of law, if probable cause is based on good faith and a reasonable basis, then it is valid)];* DeChene v. Smallwood, 226 Va. 475 [479], 311 S.E.2d 749 [751] (1984) [(arrest resulting *135 from mistake in law should be judged by same test as one stemming from mistake in fact; that is, whether the arresting officer acted in good faith and with probable cause)]. **

https://www.courtlistener.com/opinion/2683898/state-v-antonio-d-brown/

11 We acknowledge that a minority of the state courts that
have addressed the issue have taken a contrary position. See,
e.g., State v. Heien, 737 S.E.2d 351 (N.C. 2012); Moore v.
State, 986 So. 2d 928, 935 (Miss. 2008); Travis v. State, 959
S.W.2d 32, 34 (Ark. 1998); McConnell v. State, 374 S.E.2d 111,
113 (Ga. Ct. App. 1988); DeChene v. Smallwood, 311 S.E.2d 749,
751 (Va. 1984).

The reason why the majority of courts take the contrary view and treat “mistake of law” different from “mistake of fact” is explained in US v. Tibbetts:

http://caselaw.findlaw.com/us-10th-circuit/1375262.html

We have consistently held that an officer’s mistake of fact, as distinguished from a mistake of law, may support probable cause or reasonable suspicion necessary to justify a traffic stop.  DeGasso, 369 F.3d at 1144;  see also United States v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir.1992).   But we have also held that failure to understand the law by the very person charged with enforcing it is not objectively reasonable.

Admittedly these are all “traffic stop” cases and not “officer liability” cases - but, as can be seen from these decisions, these courts treat the principles as interchangeably applicable.

[Bricker]

@Malthus

You are referencing DeChene v. Smallwood.

Yup!!

However, more modern authority demonstrates that this appears not to be followed by the majority of courts in the US.

Gilmore v. State, 42 A.3d 123, 204 Md. App. 556, 2012 Md. App. LEXIS 42, 2012 WL 1424669 – CourtListener.com

https://www.courtlistener.com/opinion/2683898/state-v-antonio-d-brown/

The reason why the majority of courts take the contrary view and treat “mistake of law” different from “mistake of fact” is explained in US v. Tibbetts:

http://caselaw.findlaw.com/us-10th-circuit/1375262.html

Admittedly these are all “traffic stop” cases and not “officer liability” cases - but, as can be seen from these decisions, these courts treat the principles as interchangeably applicable.

I don’t agree that officer civil liability is interchangable with criminal liability. Again I ask: has there been a single case holding an officer criminally liable for the assault inflicted on a subject he mistakenly arrests?

You found me a parade of cases discussing traffic stops, and I concede that the reasoning covers civil liability. How about criminal?

[Morgenstern]

@Smapti

Are NYPD cops legally obligated, or even equipped, to provide medical aid to a man in Garner’s condition?

They should have tazed the cop strangling Garner. Defense of others.

[Sam_Stone]

IMO, the cop should have been indicted. Also, I would demand a thorough examination of the training those cops get. The choke-hold was not an approved procedure, but I wonder if they are taught just how dangerous that hold is?

Every year, numerous people die from choke holds. Mostly at the hands of bouncers in bars, I believe. We had two choke-hold deaths within a couple of years in the small city I grew up in, and in one case the bouncer was charged with manslaughter.

A common misconception is that a choke hold is like making someone hold their breath, causing them to eventually pass out. But that’s not the case. A vascular choke hold actually cuts off blood flow to the brain, which can cause brain damage and death very quickly. It’s an extremely dangerous thing to do, and should never be used in less than a life-threatening situation.

[treis]

@iiandyiiii

Are you saying that police standing around a dying man doing nothing to help him are doing nothing wrong?

See it’s comments like this that make me wonder about people. In the video I saw, the cops put Garner on his side and monitored his breathing. That’s exactly what they are supposed to do and all they would be capable of. What exactly do you think they should have done?

[Malthus]

@Bricker

Yup!!

Sadly, this is more fun than the work I’m supposed to be doing. But I really have to stop …

I don’t agree that officer civil liability is interchangable with criminal liability. Again I ask: has there been a single case holding an officer criminally liable for the assault inflicted on a subject he mistakenly arrests?

You found me a parade of cases discussing traffic stops, and I concede that the reasoning covers civil liability. How about criminal?

Well, that would take more searching than I have time for at the moment, even though, as I said, it is fun … I merely point out that it makes a certain amount of sense for the test to be the same - that is, if an officer lacks “probably cause” because of a mistake in law (as opposed to fact), they would potentially be liable civilly or criminally - though obviously in the latter case the excercise of presecutorial discretion would, I would imagine, preclude filing of charges in all but the most egregious cases; hence one would expect that the number of such cases would be vanishingly small (as opposed to cases in which evidence is thrown out or the like).

The fact that the case you cited is listed in at least a couple of modern “traffic stop” cases as standing for the minority principle that mistake of fact and law has the same test, seems to me, is at least some evidence that the majority principle would be applied in other types of cases.

[Smapti]

@rat_avatar

Heck one officer is even even wearing jackboots!!!

Are we indicting the police for their fashion sense now?

re you seriously saying this is the only way to deal with tax evasion? Do they send five aggressive officers to applebee’s to take down a waiter who under-reports his tips?

Or how about the person who buys an item off craigslist but doesn’t pay sales tax? Do they get cornered and tackled?

Or are these people only a “threats” that need to be “neutralized” when the tax scofflaw is poor, mentally ill, or a person of color?

No, I’m saying it’s an appropriate way of dealing with a physically imposing person who is resisting arrest. The reason he was being arrested is a red herring. When a suspect resists arrest they are a threat that needs neutralizing regardless of whether they were being arrested for murder or for littering.

[iiandyiiii]

@treis

See it’s comments like this that make me wonder about people. In the video I saw, the cops put Garner on his side and monitored his breathing. That’s exactly what they are supposed to do and all they would be capable of. What exactly do you think they should have done?

In this video, the cops do pretty much nothing for 7 minutes afterwards.

[iiandyiiii]

@Smapti

When a suspect resists arrest they are a threat that needs neutralizing regardless of whether they were being arrested for murder or for littering.

And yet, in a ratio that seems disparate, the police seem to choose force as the method to “neutralize” this threat when it’s a black suspect, while using other means (like talking) to neutralize such a threat with a white suspect.

[treis]

@iiandyiiii

In this video, the cops do pretty much nothing for 7 minutes afterwards.

I repeat: What exactly do you think they should have done?

[Evil_Economist]

Thought some of you might find this interesting: Reddit comment on why you can say “I can’t breath” while suffocating. Relevant summary:

So remember, when you hear someone say “If you can speak you can breathe” know that they are full of shit. Believe the person who is claiming they can’t breathe, because otherwise you could end up killing someone.

[iiandyiiii]

@treis

I repeat: What exactly do you think they should have done?

CPR, perhaps, or call for medevac, or both, or something else… something beyond standing around a dying man.

[Evil_Economist]

@iiandyiiii

CPR, perhaps, or call for medevac, or both, or something else… something beyond standing around a dying man.

Relevant quote from the Reddit quote I linked earlier:

Personal Experience - I have personally been in this situation before. After I had the person handcuffed and on the ground for about 20 seconds, they began to wheeze. This is an immediate symptom of them not being able to breathe. I asked if he was having trouble breathing. I let him stand up, get some breaths, and then sit down. If I had simply knelt on his back during this time, I could have killed him. Instead, I eased off, stood him up to get him some air, and all was well.

Basically, a competent human being could have prevented the death.

[treis]

@iiandyiiii

CPR,

Wrong. Garner was breathing and you should not perform CPR on a breathing patient.

@iiandyiiii

perhaps, or call for medevac, or both,

They did call EMS who showed up in under 10 minutes.

@iiandyiiii

or something else… something beyond standing around a dying man.

Ah yes, the mythical something else.

The reality is that the cops did exactly what they were supposed to do. They put Garner on his side, monitored his breathing, and waited for EMS.

[iiandyiiii]

@treis

They did call EMS who showed up in under 10 minutes.

That’s pretty damn long for an urban area.

The reality is that the cops did exactly what they were supposed to do. They put Garner on his side, monitored his breathing, and waited for EMS.

Had they eased him up, even into a sitting position, he might not have died.

[iiandyiiii]

One of the factors that killed Garner, according to the medical examiners, was “the compression of his chest and prone positioning during physical restraint by police”. Getting him up from the prone position might have saved his life.

[treis]

@iiandyiiii

That’s pretty damn long for an urban area.

And this is the cops fault?

@iiandyiiii

Had they eased him up, even into a sitting position, he might not have died.

Wrong again. They had Garner on his side, which is the best position for people having difficulty breathing.

Please do us all a favor. If you come across someone in distress, stay away and let someone else help because you have no idea what you’re talking about.

[treis]

@iiandyiiii

One of the factors that killed Garner, according to the medical examiners, was “the compression of his chest and prone positioning during physical restraint by police”. Getting him up from the prone position might have saved his life.

:smack:

Lying on your side is not prone.

[iiandyiiii]

@treis

And this is the cops fault?

It could be – when did they call for assistance? Were there other options, like a helicopter?

Wrong again. They had Garner on his side, which is the best position for people having difficulty breathing.

According to the MEs, the prone position contributed to his death. Getting him up might have prevented his death.

Please do us all a favor. If you come across someone in distress, stay away and let someone else help because you have no idea what you’re talking about.

No u

[Smapti]

@iiandyiiii

And yet, in a ratio that seems disparate, the police seem to choose force as the method to “neutralize” this threat when it’s a black suspect, while using other means (like talking) to neutralize such a threat with a white suspect.

I would not have objected if Pitts had been shot.