Treyvus & Konoski position on the Eric Garner NYPD Choke case. To Watch the Video, click here: https://youtube/watch?v=SOHOB7abbLM Because of all of the media focus, as well as the online debates, here at Treyvus & Konoski we decided it was important to interject our opinion into the discussion. However, upfront, so you know more about our background in reaching our opinion, we do practice police misconduct litigation. What that means, is that we sue police officers for misconduct perpetrated in the course of the execution of their duties as officers. However, we also have a family member who is an officer. And, because of the importance of evaluating cases fairly, we do reject more than 90% of all case inquiries we receive. We only take very qualified police misconduct cases. Nonetheless, we receive many, many inquiries. And, there are, unfortunately for society at large, many qualified police misconduct cases out there. And, we do readily defend citizens from illegal and improper police conduct when it occurs by bringing civil lawsuits. Like a medical malpractice lawyer will sue doctors for their negligence, we sue police for their “malpractice” as well. This does not mean we dislike police. Not at all. Police, like doctors, lawyers, and other professions, are all extremely important to the existence of our civilized society. However, when police cross the line, it is important that someone stand up and remind everyone that we still have a Constitution and that the line should not have been crossed. That is where police misconduct lawyers, like us, come in. So, here’s our analysis: To start: Would we have accepted Eric Garner’s lawsuit if his family asked to hire us? Yes. Is the police officer guilty of a crime? No, probably not. Should the police officer be fired for his actions? Maybe. It depends on the view of the evidence. But, at a minimum he should receive job related punishment. We are not going to pass judgment on what that punishment should be. But, the NYPD has a clear anti-choke hold policy, which he clearly violated. So, the First important question is: was there police misconduct in this case? The short answer is, yes, there probably was. There are a number of assumptions that I am reaching here. First, there will be witnesses who observed this take place. I also assume those witnesses will report that Mr. Garner broke up a fight shortly before he was taken into custody. Also, from Mr. Garner’s own statements, it would seem that the police were nearby and observed what took place. Mr. Garner’s statements at the beginning of the video seem to corroborate that he was initially breaking up a fight before the police arrived, which is consistent with what the witnesses are saying took place. The police are apparently now claiming that they tried to stop Mr. Garner for selling untaxed cigarettes. This was something he may have had a criminal history for in the past. Not a serious crime at all. Selling loose cigarettes on the street for a buck or two is certainly nothing serious as compared to other crimes, such as selling crack, which he is not alleged to have been doing. This dichotomy between versions of events will create some issue of fact as to what actually transpired. The police will claim they had probable cause to stop him for selling cigarettes. And, the witnesses will paint a picture where probable cause did not exist because Mr. Garner had done nothing wrong – he had simply broken up a fight. Could the police be lying? Certainly possible. If Mr. Garner was selling cigarettes then the police would be lawfully arresting him with probable cause. In order to have laid a finger on Mr. Garner, the police needed probable cause. If they realized the problem with what happened, this would be a good “cover” story. If, however, Mr. Garner was breaking up a fight, then it’s highly unlikely there was any probable cause whatsoever to have arrested him and physically touched him at all. Breaking up a fight is not disorderly. In fact, it’s the opposite of disorderly. And, thus, no crime or violation of the penal law would have been committed. Because of the statements by Mr. Garner as the video starts, coupled by what I expect witnesses are claiming in this case, I’m apt to believe that the police arrived when they saw the fight. In my opinion, the police did not arrive because of sold cigarettes. To claim they saw cigarettes being sold is a simple and easy way to try and create probable cause where none otherwise existed – besides, he had a history for that to begin with. Now, assuming that the police arrived because of the fight, which was a fight Mr. Garner was not a part of, then they had no probable cause to arrest him. The police did seem to issue an order to put his hands behind his back, which Mr. Garner resisted. It does appear he resisted the police. However, if the police had no probable cause to arrest him, then the order to put his hands behind his back was not a lawful order. Under New York law, a citizen has a legal right to resist arrest when the arrest is unlawful. Therefore, Mr. Garner had actually committed no crime and engaged in no misconduct at all by resisting the unlawful arrest. It was his legal right to resist (WARNING: It is not a good idea to ever resist, even an unlawful order. It creates more problems, not less, as is the case even here). The officer that choked Mr. Garner had no lawful authority to put his hands on him. Moreover, the officer violated NYPD’s ban on using choke holds. As a result, if he triggered an asthma attack and/or heart attack, which ultimately resulted in the death of Mr. Garner, then the officer is civilly responsible for that death. You take the victim as you find them, in the condition that you find them. It’s called the “egg shell plaintiff” rule. The officer’s actions set in motion everything that transpired after he grabbed him in a choke hold. From a civil perspective, the officer killed Mr. Garner. And, any officer that touched Mr. Garner is also civilly responsible. Any officer that failed to intervene to prevent the unlawful arrest is also responsible. Because it appears that the officers had no lawful authority to touch Mr. Garner, any injuries flowing from that are civilly the responsibility of the City of New York and all of the officers that were there. However, even if you believe that Mr. Garner was selling loose cigarettes, a version I am not currently crediting, then there is still an issue that the police have to deal with. That issue is whether the use of the choke hold was still excessive. That issue may be more murky from this perspective since Mr. Garner was very large. However, his resistance was not significant at that point. And, NYPD choke holds are banned. They are banned for a reason. Because they can cause significant injuries and death – exactly what happened here. So, if he was selling loose cigarettes, it may not be a false arrest to have tried to take him into custody, and there is an argument that the use of force was then warranted when Mr. Garner refused handcuffing. But, the problem the police face is that the mere use of the choke hold may, in itself, have been excessive. So, it is my opinion that the City of New York will have no choice but to settle this claim This claim will never see a trial. It will settle beforehand. Even in a light most favorable to the police, it’s not a great case for the police. The choke hold is a problem even if the police lawfully used some level of force. And, if you believe the independent eye-witnesses, it’s an absolutely horrible case for the police. The case will settle. I have little doubt in that. But, the next question is whether the officer’s conduct was criminal? I know many may expect that, as an attorney practicing police misconduct, I would believe that he is criminally liable and that he should be promptly fired. No, I don’t believe the officer is criminally responsible. He did use a barred technique, but I don’t think he knowingly, intentionally, recklessly, or negligently killed Mr. Garner – from a criminal perspective. He did not know his actions would cause Mr. Garner’s death. He did not know of Mr. Garner’s medical condition, presumably. And, from the looks of the video, it appears that shortly after Mr. Garner said he could not breathe, the officer may have released the choke hold. Maybe not as quickly as he should have. But, quickly enough to show a lack of intent to seriously injure him. The officers called for medical assistance and turned his body on his side. There is just not much for me to conclude that this is a “murder” type of scenario. Not in the criminal sense. The question of whether the officer(s) should be fired will likely turn on whether they arrived on the scene because of a fight, or because of the selling of cigarettes. If it was because of the fight, which Mr. Garner was not a part of, then there is a strong argument that the officer’s punishment could rightfully include termination since they knew that they had no probable cause to have touched this man, and their actions killed him. But, there is a pretty significant issue of fact on that point. Knowing how the NYPD, internal affairs, and CCRB investigate, I would say that they will find the issues too murky to fire him. They will side with the officer internally and he will likely keep his job. But, you never know. The officer is embroiled in an awfully heated political case. But, civilly, like I said above, all the officers are likely responsible. And, Mr. Garner’s family will be financially compensated for their loss. A loss they should never have endured. I’d like to finish by noting that whether Mr. Garner had a job, did not have a job, had a criminal history, or did not have a criminal history, is all irrelevant to the equation. The question is whether or not the conduct of the officers was unlawful or not. If it was, then Mr. Garner, regardless of his criminal history or his financial status in society, had a right to be free from an unlawful arrest and excessive force. That is the right given to every citizen of the United States. It is given to all of us, including Mr. Garner, by the United States Constitution. I would also like to finish by saying that although I have formed the above opinions, I do note that my information is limited right now – as is all of ours. I reviewed the video a number of times and read some accounts in the press. But, I do not have any evidence and did not speak to any witnesses. While this is my initial opinion, I do also recognize that all investigations, both criminal, civil, and internal administrative at the NYPD, should all take their course through the proper channels. All of the issues here will be adjudicated in some forum, somewhere, and those adjudications will be based off of more information than we have here. Feel free to comment below.
Posted on: Wed, 23 Jul 2014 18:36:12 +0000
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