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Judge Andrew Napolitano: Eric Garner Grand Jury Should Have Indicted NYPD Officer for Excessive Force

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Published on: December 10, 2014

FOX News commentator Judge Andrew Napolitano recently said that he believes New York Police Officer Daniel Pantaleo who applied a chokehold to Eric Garner, which later resulted in his death, should have been indicted by a grand jury for excessive force.

Appearing alongside FOX News’ Shepherd Smith, Napolitano voiced his opinion concerning the grand jury’s decision.

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Smith read from the New York City Police Handbook: “For more than twenty years the NYPD Patrol Guide has prohibited the use of chokeholds, relying on a police department rule that unequivocally forbids any pressure to the neck, throat or windpipe that may inhibit breathing. This rule was plainly intended to prohibit chokeholds. As defined, chokeholds, though not illegal, are ambiguously prohibited by the police department.”

“My thoughts are that this should have been an indictment,” Napolitano said. “And it should have been an indictment for some form of manslaughter. It’s not first-degree murder. It’s not second-degree murder, but it’s certainly reckless manslaughter because of the excessive use of deadly force on a person who posed no serious or material threat to the police.”

Napolitano confessed that he had not seen all of the reports, including medical reports, nor had he heard what the grand jury was given nor what the district attorney said to the grand jury.

However, he said that based on the video recording alone and the fact that Eric Garner posed no threat to the police, Napolitano believed the use of excessive force, which resulted in Garner’s death, was unjustified.

“Yes, he was resisting arrest,” Napolitano said. “But he had no means to threaten the police. He had no deadly force in his hands.”

The judge added, “This is not a case like in Ferguson where there was a struggle for the gun and the police ended up with the gun rather than the other person. This is a case of a poor, sorry individual doing nothing more than selling untaxed cigarettes and as a result of government intervention, he’s dead.”

“This is not a fair application of the law,” said Napolitano, reaffirming his caveat that his opinion was based solely on the video.

Smith pointed out that you could go just outside the FOX studios and find people within minutes who were selling loose untaxed cigarettes. Yet, when you watch the video, half a dozen police officers are taking Garner down for that.

While Garner did have a record, those things are not part of why the police were dealing with him at the time. They had arrested him on eight other occasions for selling “loosies.” He also had been arrested for assault and grand larceny.

Former New York City Police Commissioner Bernard Kerik told Newsmax, “You cannot resist arrest. If Eric Garner did not resist arrest, the outcome of this case would have been very different. He wouldn’t be dead today.”

Bryan Fischer made mention of the fact that Garner had asthma. He wrote, “Garner’s death likely should be attributed to the fact that he himself suffered from severe asthma, something the arresting officers had no reason to know. According to Garner’s friends, his asthma was severe enough that he was forced to quit his job as horticulturist for the city. He wheezed when he talked and could not walk so much as a city block without having to stop to rest. Garner “couldn’t breathe” because of his asthma, not because of a chokehold.”

Some have argued the police had no way of knowing of Garner’s condition, but with an arrest record covering three decades and eight of those arrests being for selling “loosies,” I can’t help but wonder who would not have known something of Garner’s health issues that would be aggravated in the circumstances of a chokehold. And yes, it was a chokehold, not a headlock. I’ve been in a headlock and what the officer performed was not a headlock. In a headlock the arm goes around the head, not around the neck as this picture demonstrates.


On a side note, both the Wall Street Journal and Newsmax claim this three decade arrest record. Garner was 43 years old. The claim is that his first arrest occurred in 1980, which would make him only 10 years old at the time. How is it that WSJ and Newsmax have these arrest reports on Garner, yet we can’t see Michael Brown’s juvenile record?

I believe Officer Pantaleo was violating the handbook, unless you don’t want to believe your lying eyes. I don’t think Officer Pantaleo sought to take Garner’s life, which is why Napolitano mentioned manslaughter, not murder.

Napolitano seemed to agree with an assessment that taking care of little “crimes” like the one Garner was allegedly involved in will end up taking care of the bigger problems.

What’s even more interesting is that less than a month after Garner’s death, the man who filmed the chokehold was arrested and police alleged that he slipped a .25 caliber handgun into an accomplice’s waistband. Lo and behold, he was indicted.

I’ll end by saying that if Garner had just gone along quietly, none of this would have ensued. However, by posing no threat, there was no reason for the excessive force used on him and video clearly indicates that he was unconscious for about 7 minutes after the incident. Perhaps the bigger issue in all of this is the taxation of the city and the means they use to enforce taxation and those attempting to get around it. I don’t seem to recall in Scripture God approving of dealing with anything resembling this in such a manner.

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