Axulus
Veteran Member
I'm sorry, but what? Clearly this officer is guilty of illegal use of force/excessive force. The question is whether he is guilty of manslaughter or second degree murder. There seems to be no evidence he was trying to kill the man, so murder one is out.
Murder two is also easy to dismiss: the act must constitute depraved indifference, which is defined as "the defendant's conduct must be 'so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting.
In one case, People v Register, 60 NY2d 273, 469 NYS2d 599 (1983),while exploring the meaning of "depraved indifference recklessness" the Court of Appeals ruled that intoxication is not a defense or excuse to "depraved mind murder," although it may be to intentional murder. Its analysis started with distinguishing reckless manslaughter from the "depraved indifference recklessness" necessary for murder:
"to bring defendant’s conduct within the murder statute, the People were required to establish also that defendant’s act was imminently dangerous and presented a very high risk of death to others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind. . . . . The crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct." 60 NY2d at 274."
http://definitions.uslegal.com/d/depraved-indifference/
It would be nearly impossible to demonstrate his mind was in a "depraved state" or he had a wanton indifference. The most likely explanation for his actions were that he was trying to subdue the man for arrest and choose a very stupid method to do so, not that he was trying to punish the man by putting him in a situation for high risk of death, and was not consciously aware that "my conduct could lead to the death of this man".
To secure a manslaughter charge in the first degree, you have to prove intent to cause serious injury. It is _not_ 100% clear that he _intended_ to cause injury. The more plausible explanation is that he intended to subdue the man for arrest and chose a stupid and illegal method to do so.
To secure a manslaughter charge in the second degree, he has to recklessly cause the death of another person.
The two elements that must be proven was that he was reckless in his actions and that the actions caused the death of the man.
Typically, to demonstrate an action was the cause of something, the "but for" test is used. "But for the choke-hold, the man wouldn't have died". In this case, this would be very difficult to demonstrate. The man was in poor health. Perhaps it was the actions of the other officers that triggered his heart attack (his chest was compressed as the other offers were on top of him trying to arrest him). The autopsy report says that his compressed chest was a contributory factor. May he have stilll had the heart attack and died in the absence of the choke-hold? It is _not_ 100% clear like you seem to imagine.
The other aspect that would need to be proved is whether his actions were "reckless".
According to Section 15.05 of the NY State Penal Code, a person acts "recklessly" with respect to a result or circumstance when he or she is "aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists." The risk that the person creates must be of such nature or magnitude that his or her disregard of it constitutes a "gross deviation from the standard of conduct that a reasonable person would observe in the situation."
Even this would be hard to prove beyond a reasonable doubt, although I think it is easier than proving that the chokehold was the cause of the death. The action is a gross deviation from the standard of conduct police officers are supposed to engage in. However, the hardest part to demonstrate is the "awareness and conscious disregard of a substantial and unjustifiable risk". This can probably be proven if he was trained to not use chokeholds and was trained in other methods to deal with the situation.
In conclusion, your "100% clear" claim is baseless. The legal system has lots of protections for the accused, whether they are a cop or an ordinary citizen.
Even still, I'm baffled as to why some sort of assault or illegal use of force charge is not being pursued. Illegal use of force should at least deserve a firing and some prison time.
