Vindicarre wrote:
The mere fact of advocating that the policemen's negligence should be mitigated because of the man's health begs the question. Police officers can and should be judged on their actions just like every other citizen. No citizen's negligence is mitigated by a victim's affliction. Police officers do not get legal protection from charges of negligence by law. They do, however, get protection from prosecution by those in the legal system.
No one has said that they should. The negligence in question, however, did not happen in executing the takedown maneuver, which was the matter presented to the grand jury. The officers were legally empowered to take Mr. Garner into custody; if he dies because of a medical condition he had that was aggravated as the result of actions needed to take him into custody he does not then get to claim that the officers were negligent in taking him into custody due to their actions that were necessary due to his own resistance.
Mr. Garner was a competent adult and knew perfectly well that the police could use force to take him into custody. He voluntarily assumed risk when he decided to resist arrest.:
NegligenceQuote:
Assumption of Risk Under the assumption of risk defense, a defendant can avoid liability for his negligence by establishing that the plaintiff voluntarily consented to encounter a known danger created by the defendant's negligence. Assumption of risk may be express or implied. Under express assumption of risk, persons agree in advance that one person consents to assume the risk of the other's negligence. For example, a skier who purchases a lift ticket at a ski resort usually expressly agrees to assume the risk of any injury that might occur while skiing. Thus, even if the ski resort negligently fails to mark a hazard on a trail resulting in an injury to a skier, the ski resort may invoke the assumption of risk defense in the skier's subsequent lawsuit
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Mr. Garner knew very well that there was a danger that the police would use force to apprehend him if he resisted arrest.
New York has a Negligent Homicide statute creating criminal liability when someone causes death due to CRIMINAL (not civil) negligence, so let's look at:
Definitions of culpable mental states in New YorkQuote:
4. "Criminal negligence." A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
The takedown by the officer did not meet this. He did not deviate from any standard of care a reasonable person would exercise in trying to apprehend a person who was resisting. He did not have the ability to perceive any "substantial or unjustifiable risk" resulting from that action. Garner's cries that he "couldn't breathe" don't matter because
people who cannot breathe cannot talk.Where he and all the other officers should have perceived such risk is in leaving Garner laying on the ground without attention for several minutes. The officers should have known about the risks of positional asphyxiation from their academy training and should have taken precautions to prevent it - but this was not the matter presented to the Grand Jury, and it is not acceptable to railroad the officer on the takedown as a substitute for presenting this matter, either because it's more spectacular, or because we want to subjectively asses that he stood around in a slightly more casual manner than all the others.
If you are going to argue the force was excessive, that's another issue - but again it was not the issue before the Grand Jury. that issue would be the subject of either A) departmental discipline or B) a Federal Civil rights investigation which is only just in the process of being started.
Leaving him laying on the ground afterwards for several minutes was not necessary and had nothing to do with taking him into custody - but that was not the matter presented to the Grand Jury so far as anyone can tell.
Moreover, Police officers in general DO NOT get protection from prosecution by the legal system. This occurs in SOME CASES. You do not get to make generalizations based on anecdotes. You also do not get to be outraged that the Grand Jury did not railroad on officer on the "any charge will do, as long as the officer is charged!" idea.
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Please don't presume to know me. Boalt Hall gave me a pretty good understanding of the law.
As for "presuming to know you", this is a bullshit complaint to distract from the issue at hand. You're making elementary mistakes. I don't really care what your credentials are; I care whether you can apply principles properly. Negligence has a lot more to it than the single idea you are cherry-picking. Then again, CNN has an endless parade of lawyers, some former prosecutors, who have found it convenient to forget how the Grand Jury process works because it didn't give the result they wanted, so perhaps you can look into getting a job as a legal analyst there. I hear going on TV and creating a moral panic is a great way to make a living.
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When one is unable to discern the implications of Double Jeopardy, at a glance, as it pertains to a Grand Jury, belies any claim one might make about their expansive legal knowledge.
Not really, and I did go back and check the information I had remembered and acknowledged that Double Jeopardy. Albert Einstein once acknowledged in an interview that he didn't offhand remember the speed of light, and when the reporter expressed surprise, Einstein told him "I know where I can look it up."
While I am by no means the Einstein of the legal world, I do know where to look things up, and I know how to apply those principles. People do occasionally make minor mistakes, you know. I try to make as few of them as possible, but if you're going to try the "I caught you in a minor error, therefore YOU OBVIOUSLY KNOW NOTHING!" then you're pretty much not worth the effort of talking to. Not remembering a fact "at a glance" does not in fact belie knowledge of anything.
You've been caught in major errors, most notably in this thread your whining that civilians in the Garner situation would have been charged. That's because civilians would have had no business arresting Garner at all. The fact that you would even make such an analogy speaks to a pretty poor grasp of our legal system. Don't tell me about your education either.
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The video that you're just now seeing has been out for months, and is the basis of many people's arguments (including mine).
Whether it's been available or not, it sure as hell has not been the basis of very many people's arguments, and if it's the basis of yours, you are not making that clear. I think it's more like now that I've addressed the later video, you don't like the fact that I'm undercutting you by pointing out that "yes, leaving him laying on the sidewalk is completely unacceptable"
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The one who did the take down was present and did nothing (even less than the poking and prodding done by the other officers) for the whole time Garner was unconscious. There's no way any of us can say the one who did the take down shouldn't have been in front of the Grand Jury, but it's plainly obvious that he's not the only one who should have been brought up for indictment.
Which I already said. We certainly can, however, say that the officer who did the takedown
should not have been in front of the GJ for doing the takedown. He was standing around afterwards and not doing much of anything for Garner like everyone else, so if there was to be a Grand Jury proceeding it should have been for that, not against him just for the takedown. The takedown was not negligent at all - unless you're going to suggest that unseen medical issues are somehow a license for people to resist arrest based on the fact that techniques used to make the arrest might aggravate them.
This is not how our legal system works. If someone suffers injury due to someone else's actions we proceed against them for the actions that were actually negligent or criminal. We do not just throw any old charge at them because it's generally related to the matter and the end result of a conviction or judgment will be the same.
I don't know why you're even arguing with me. My issue here is with the assertion that the takedown itself was negligent. It wasn't. The Grand Jury made the correct decision based on the matter that was presented to them. People should not be indicted or tried just because the community is outraged and thinks any old charge will do. If you're going to assert that the officer that did the takedown stood around in an even-less-interested-manner than his partners, that this was the matter that was presented to the Grand Jury and that they should have indicted this guy for that, then you've got an awfully steep hill to climb. It's pretty **** obvious that he was taken to the Grand Jury based on the takedown itself which is entirely a matter of what seems spectacular and shocking to the public.
Your argument here basically amounts to you desperately trying to make it appear that I'm somehow not acknowledging that the police did anything wrong. They did, and the prosecutor made it worse. I wish I could be amazed that you are arguing with me that I am not pointing out police misconduct in the way you want it to be pointed out, but I'm not. I'm apparently the only one that can be assed to look up any statutes, definitions, or statistics or anything other than posting a quick video link and hurf durfing about it, so your whining that a cop wasn't indicted when he wasn't taken to the Grand Jury on the correct charge in the first place - which I have demonstrated- doesn't get much traction.
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