"Hands Up, Don't Shoot," "I Can't Breathe"; Not So!

Dec. 29, 2014 - PRLog -- Two slogans - "Hand Up, Don't Shoot" and "I Can't Breathe" - have propelled tens of thousands to take to the streets protesting and blocking traffic, as well as tangling with and occasionally assaulting police.

      But both of these powerful slogans, which have been so widely adopted, are false or at least very misleading and over simplified, which is one reason why they are so dangerous, says public interest law professor John Banzhaf, who had predicted that in both the Brown and Garner cases the grand juries would refuse to indict.

The slogan "Hands Up, Don't Shoot" strongly implies that an officer should not shoot when a violent suspect approaches him with his hands.  But this is completely contrary both to police training and to common sense.

        Police are routinely trained never to let a suspect get so close to them that, if he suddenly rushed towards the officer, he might be able to reach him before the cop had time to perceive the threat and put at least two bullets into the attacker.  These shots, if accurate, may stop him before he is able to reach his intended target, and cause him serious bodily injury.

        If the officer's firearm is holstered, this distance has been calculated to be at least 21 feet.  If his firearm is already unholstered, the distance would be about half.  But even this may not be enough, since successfully shooting a suspect does not always immediately stop him.

        But in no event, says Banzhaf, should an officer allow a suspect to get close enough to possibly cause injury, regardless of the position of his hands and/or his claim that he wishes to surrender.

        That's why officers are trained to order suspects to drop to their knees when surrendering, and, under no circumstances, to permit the suspect to simply walk up to them.

        The fact that Michael Brown's hands were up as he walked towards the officer makes him - especially as a very powerful and tall man - even more dangerous than if he had simply kept his arms and hands at his sides, notes Banzhaf.  Hands overhead can be brought down quickly and forcefully enough to break an officer's nose, one or both collar bones, etc.

        In short, Officer Wilson was correct - and certainly not criminally wrong - when he shot a very large strong man coming towards him when the suspect refused to stop and drop to his knees as instructed.

        That's how he and his fellow officers are trained, and it’s an entirely appropriate if not absolutely necessary - and perfectly legal - way to protect himself from serious harm.

Although many commentators have stated that the officer used an “illegal” tactic or hold, and therefore should be found guilty of a crime, that is not correct. A practice may be prohibited by NYC police policy, and therefor open officers who violate the policy up to departmental discipline, yet, without more, not be a violation of any criminal statute, notes Banzhaf.

        For example, some police departments require officers to use only a certain type of gun and/or ammunition. So if Officer X uses a different type of gun or ammunition, he has violated police policy and may be disciplined (e.g., docked pay), but he cannot be arrested and tried for a crime.

        If he does shoot someone in the line of duty, he is not automatically guilty of a crime simply because he used prohibited guns and/or ammunition. Rather, he would be guilty of a crime only if, under all the facts and circumstances, his use of his firearm were found - beyond a reasonable doubt - not to be justified by self defense.  Whether or not he used a prohibited gun or ammunition probably would not be relevant.   Indeed, although there are hundreds of complaints each year about NYC police using choke holds, they are handled administratively, and not as criminal matters.

        To convict the officer of a crime, it would have to be proven that he acted “recklessly,” with “criminal negligence,” etc.  But, although the NYC Police Department, like other police around the country, has prohibited the use of choke holds by its officers, many police forces do not prohibit them.

        “It would be very difficult to prove  - especially beyond a reasonable doubt - that any tactic or maneuver still in use by many police departments falls within the narrow category of “reckless” behavior or “criminal negligence,”  says Banzhaf, noting that Tasers and the PIT maneuver (to stop escaping cars) have caused deaths, but are still widely used, and therefor likewise can hardly be considered “reckless.”

While some choke holds can cause death, such results apparently are somewhat rare, and seem to occur primarily when using the bar-arm hold or the carotid hold, neither of which appears from the video to have been used here.  Indeed, the tactic used here may not even constitute a “choke hold” which NYC defines as “any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air,” but which in practice seems to be limited to a hold intended to restrict breathing.

Thus a neck restraint or neck takedown, where someone is grabbed by the neck from behind as part of a takedown, but there is virtually no pressure directly on the windpipe might likewise not be prohibited here.

For a homicide indictment to succeed, the prosecutor must also prove, beyond a reasonable doubt, that the defendant’s actions were not only illegal but also the cause of the death of another.

        Here, although the official cause of death does list “compression of neck (chokehold),” it also lists “compression of chest and prone positioning during physical restraint by police,” and that Garner’s acute and chronic bronchial asthma (severe enough to cause him his job), obesity and hypertensive cardiovascular disease were also contributing factors.

        Since the videotape appears to show one or more other officers on top of Garner and contributing to the “compression of chest and prone positioning,” and Garner appears to be stating “I can’t breathe” after the neck hold is released, it’s not clear that his breathing problem was caused by the neck hold - even if it were a prohibited “choke hold.” That’s because  it may be difficult to isolate the effect and contribution of the neck hold as a factor in causing the death, especially beyond a reasonable doubt.