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If that is true, Pantaleo apparently did not have the requisite criminal intent ("mens rea") for a crime, and therefore cannot be legally disciplined, suggests public interest law professor John Banzhaf, who staged an actual demonstration to test whether Pantaleo's lawyer's claim is realistic.
Banzhaf says that was able to find a volunteer who is very big but still slightly smaller than Garner - about 6 ft 4 in and 300 lbs - and who agreed to stand perfectly still while the professor tried to execute the approved seat belt maneuver on him.
This maneuver requires that the arresting officer extend one of his arms over the perpetrator's [perp's] shoulder while the officer's other arm goes under the perp's opposite armpit.
Then, to use this maneuver to bring a reluctant perp to the ground, the officer clasps or interlocks both his hands across the perp's chest so that the perp can held tightly, and then thrown to the ground. In other words, the officer's two arms resemble a seat belt holding the perp firmly in place.
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At no time is there any intent to choke the victim, or to otherwise restrict his breathing.
The "choke hold" which is prohibited is defined as "any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air."
Strangely, a key witness for the prosecution, Deputy Inspector Charles Barton, admitted on cross examination that he did not know the definition of the hold which is prohibited, and about which he testified as an expert witness.
What Banzhaf - who at 5 ft. 10 in. is slightly above average male height - found was that in trying to execute the seat belt maneuver or take down, he could not bring his two hands together, much less securely clasp or interlock them across the perp's chest. Thus he could not control a perp and throw him to the ground, even though this huge volunteer had agreed not to struggle.
Banzhaf says that, because of the perp's very large chest, he was not able to control him at all, much less lock his hand's together in a simulated seat belt to throw him to the ground. This meant, Banzhaf says, that he had to suddenly and unexpectedly alter the configuration of his arms in such a way that it might seem to be a choking maneuver.
If, as in Garner's case, the perp had struggled and resisted the seat belt hold being put on him, the officer would have no choice - to protect himself, the other officers, and even Garner from harm, especially from falling into a plate glass window immediately behind them - but to alter the configuration of the approved seat belt hold, argues Banzhaf.
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Banzhaf suggests that TV and other reporters who have doubts that this might happen find a volunteer about the size of Garner and have another volunteer Pantaleo's size try to execute the approved seat belt maneuver and bring him down, especially if the perp struggles as Garner clearly did.
If he can't, it helps prove the validity of Pantaleo's theory of the case, although obviously it cannot conclusively establish that he was not guilty of a crime, suggests Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf
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