So let’s assume Pantaleo did not use deadly force. That still leaves open the question at the heart of the matter: Was the force that he did use reasonable under the circumstances? This is why I think the debate over the chokehold is mainly an academic diversion. The salient issue is reasonableness. Even if we assume that a banned chokehold was not used, it is still entirely possible that the forcible tactics Pantaleo did employ were excessive.
It is here that the grand jury’s conclusion that there was no probable cause to indict is most vulnerable to attack. Again, we do not know all the evidence in the record so it is perilous to opine. But as the confrontation is depicted on the video, there is a good argument that Officer Pantaleo used more force than was reasonably necessary to effect the arrest, prevent flight, or prevent injury to himself or other officers.
Here, bear in mind that murder was not the only potential homicide charge at issue. The grand jury would also have been considering such offenses as involuntary manslaughter (i.e., recklessly causing the death of another person) or criminally negligent homicide. To be criminally culpable, the officer need not have intended to kill or even seriously injure Garner. If there is probable cause that Pantaleo acted recklessly or with criminal negligence — i.e., if he acted with an unreasonable degree of force — an indictment for a grade of criminal homicide less serious than murder would be the appropriate result…
I don’t think race had anything to do with what happened between Eric Garner and the police. I intend to keep an open mind until we learn all the evidence the grand jury relied on. And I continue to believe the NYPD is the best police force there is. But I also know, as good cops know, that there is a difference between resisting arrest by not cooperating, as Garner was doing in Staten Island, and resisting arrest by violent assaults and threats of harm, as Michael Brown did in Ferguson. Police deserve a very wide berth in responding to the latter, but less of one with the former. I thus cannot in good conscience say there was insufficient probable cause to indict Officer Pantaleo for involuntary manslaughter or criminally negligent homicide.