For the second time in less than two weeks, a grand jury has declined to indict a white police officer in the death of an unarmed black man.

In Staten Island on Wednesday, the decision involved police Officer Daniel Pantaleo, who used a chokehold while trying to restrain Eric Garner, who died.

“The grand jury kept interviewing witnesses, but you didn’t need witnesses,” Garner’s widow told the New York Daily News, referring to the fact that her husband’s death was caught on camera. “You can be a witness for yourself.”

The decision comes a little more than a week after a St. Louis County grand jury declined to indict Darren Wilson, the officer who shot and killed Michael Brown in Ferguson, Mo.

It’s impossible not to pair the two cases. Both involved a white officer who took the life of an unarmed black suspect. Both prompted public demonstrations that forced authorities to press forward with legal proceedings they might not otherwise have undertaken. Both featured a protracted grand jury hearing that saw the defendant take the witness stand to tell his side of the story. And both concluded with the jurors deciding there was not enough evidence to indict the officer.

As frustrating as the grand jury outcomes may be, however, neither should come as a surprise. The default setting for our criminal justice system is to believe that an on-duty officer who takes another person’s life is justified in doing so. Unless that baseline assumption changes, we should expect the same result the next time a cop takes someone else’s life in the line of duty. Even when the killing is caught on video. Even when the police officer uses a chokehold that’s been barred by his department.

Our laws give officers broad leeway to use force, either when they fear their lives are in danger or when they are making an arrest. The Supreme Court cemented the scope of that authority in 1989’s Graham v. Connor, in effect barring courts from scrutinizing most of the split-second decisions a cop makes in the heat of the moment.

Even so, while few observers expected Wilson to be indicted, Pantaleo’s fate was less certain. In Ferguson, there were conflicting reports about what happened in the moments before Wilson opened fire. There was much less dispute on Staten Island, where the incident was caught on camera. The cellphone video shows Pantaleo placing Garner, who police allege was illegally selling cigarettes, in a chokehold after he resisted the officer’s attempts to put his hands behind his back. Garner is then forcibly taken down and pinned to the ground by a handful of cops. An asthmatic, he can be heard on the recording uttering what would turn out to be his final words: “I can’t breathe.”

Pantaleo contends that he didn’t use a chokehold — he says it was a takedown maneuver he was taught by the police department. With the exception of the police union, no one seems to have bought that claim. “It looked like a chokehold to me,” New York City Mayor Bill de Blasio told reporters this summer after viewing the video. The coroner’s report came to the same conclusion, ruling that Garner’s death was a homicide caused by “compression of neck (chokehold), compression of chest, and prone positioning during physical restraint by police.”

That’s important. NYPD officers have broad authority to use force to apprehend a suspect, but the department explicitly bars officers from using chokeholds, which have been blamed for the deaths of untold suspects over the past several decades.

In Garner’s case, the officers’ lives did not appear to be in danger, nor is there anything to indicate that Garner is attempting to flee. He resists arrest only in the strictest sense of the term. He can be heard yelling, “Please, just leave me alone!” and, eventually, attempts to keep the officers from forcing his hands behind his own back. But Garner was unarmed and does not strike any of the officers as they take him to the ground.

Why then, if chokeholds are banned by the NYPD, wasn’t Pantaleo indicted?

As Eugene O’Donnell, a professor at the John Jay College of Criminal Justice, argued earlier this week, there is a difference between an act that is banned in the NYPD’s rulebook and one that is deemed criminal. “There is no explicit law that criminalizes the use of a chokehold on someone either by a police officer or someone else,” wrote O’Donnell.

Grand jury proceedings happen behind closed doors, so we may never know exactly what convinced at least 12 of the 23 jurors to vote against an indictment of any kind. But by deciding — despite the damning video — that there was not enough evidence to justify the case going to trial, the jurors are effectively declaring that Garner’s death was, at worst, a horrible mistake, one that might amount to misconduct but that falls short of murder or manslaughter.

The only reasonable way the jurors could come to that conclusion is if they focused on the twin questions of intent and expectations. When Wilson fired his weapon at Brown in Ferguson, the officer knew the likely fatal outcome. It’s tougher to say whether Pantaleo should have reasonably expected his chokehold to end Garner’s life. “It is never my intention to harm anyone, and I feel very bad about the death of Mr. Garner,” the officer said in a prepared statement following Wednesday’s announcement.

With the system we have in place, Pantaleo’s assurances could have been all that was needed to convince the grand jury. In the United States, cops get the benefit of the doubt in almost all circumstances. If you believed that a case where an unarmed man was choked to death might be a rare exception to that rule, then you were wrong.

Josh Voorhees is a senior writer for Slate.com, an online current affairs and culture magazine owned by The Washington Post.


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