A few points of clarification that might help some put these types of "use of force" issues in context.

"Unarmed" is as irrelevant as the color of someone's skin when it comes to judging whether force applied is reasonable or unreasonable. Unarmed people can pose a legitimate threat of serious injury or death to officers and the public at large. Likewise, it is possible for armed people to pose no threat whatsoever.

The standard of "reasonable" that is applied by the courts is defined in a few landmark cases, the most important of those being Graham vs. Connor. In Graham vs. Connor the court went to great length to define what is reasonable with regard to applications of force required to affect and arrest or mitigate a threat.

The key elements that came out of this case say that some level of force "may" be reasonable when weighed against these factors:

1. The seriousness of the crime
2. Whether the subject posed an immediate threat to officers or others.
3. Whether the subject was resisting arrest
4. Whether the subject was fleeing to avoid arrest.

The line between reasonable and unreasonable will be drawn by the judge or jury based on the facts of the case.

Fact finding and determination is the goal of these grand jury proceedings. The grand jury hears testimony and evaluates evidence to determine if there is "probable cause" that a crime was committed. Probable cause is a standard that has a strict definition and the standard is either met, or it is not, there is no gray area.

Looking at severity of the crime in both the Ferguson case and the Eric Garner case. At first both were fairly benign. One was jaywalking and the other was selling cigarettes. As events unfolded and more information was gathered the severity of the crime changed. In the case of Ferguson the new and more serious crimes were assault, robbery, and assaulting a police officer. In NYC the new crime was resisting arrest.

Defining the crime is important because it is not fair to say cops killed someone for selling cigarettes or for walking down the middle of the road. As an isolated event with compliant subject neither of those "crimes" would have resulted in any use of force let alone deadly force. The crimes later committed in those contacts were much more serious and the courts have obviously stated that some application of force will be reasonable to in response.

The Ferguson case has been well dissected and I won't dive back into that one. Instead lets take a quick look at the Garner NYC case as it seems like most here are taking the stance that they are OK with Ferguson but think Garner is different and the cops actions were unacceptable and intolerable.

I'll admit I haven't looked too deeply into the facts. I've seen a few articles here and there that piqued my interest and I just recently watched the video clip. Prior to watching the video, I had a pretty different mental picture of the events. The media snippets I saw had the usual drama inducing descriptors like "unarmed black man choked to death by white cop, etc."

Before I watched the video I expected to see a fairly prolonged and violent struggle, which I would think would have to be the case for an individual to be choked "to death," but that wasn't the case at all. The period of time that Garner was in a "choke hold" was fairly brief and has been pointed out, when you can't breathe, it is impossible to say "I can't breathe. As one who has been choked and who has applied these types of holds both in training and in personal pursuits of mixed martial arts I will say with absolute confidence that when your airway is obstructed/occluded to the point of not being able to breathe, speech is impossible.

Putting aside of whether he was choked to death or not for now, lets revisit the Graham factors to determine what level of force might be appropriate.

1. The severity of the crime. The crime for which force was applied was resisting arrest. Resisting falls into two categories, actively resisting and passively resisting.

Passive resistance is easy to define. The person resisting takes no physical action but rather is verbally uncooperative and won't comply with commands. Any physical action or threat thereof qualifies as an application of force and the only reasonable one for someone passively resisting is to grab their hands and put them in handcuffs.

Active resistance covers a range from simply physically non-complaint (pulling arms away, walking away) to more serious active resistance that could be considered combative or assault, which again ups the severity of the crime ante.

What I saw in the Garner video was active resistance. When passive resistance turn to active, the amount of force needed to affect an arrest will necessarily increase in response. What level is appropriate and reasonable will depend on the facts.

The size of the subject vs. the size of the officer or officers in question is another element of Graham vs. Connor but it is not one of the key elements. The duration of the struggle is another. Garner was a huge dude that was obviously physically imposing. The officers by comparison were relatively small. Common sense would say that it is probably going to take a few guys trying pretty hard to get a guy the size of Garner into handcuffs if he doesn't want them on, let alone if he decides to fight. Likewise the courts have also said that when these disparities exist a higher level of force can be reasonable as compared to when the playing fields are more level.

Once his passive resistance turned active after the officers initial attempt to get him in cuffs, he forced an escalation. As a general principle, more force applied earlier in struggle generally means less damage to all in the end. In other words, letting these struggles go on for long periods of time is generally bad news for everyone and getting the fight over quickly is in everyone's best interest.

Looking at the methods used by the officers, grabbing someone who is actively resisting or fighting around the neck in order to subdue them is a commonly used takedown in law enforcement. It sounds like that technique may not be supported by NYPD policy, but the questions at hand here are those of law and not policy and so the agency policy isn't relevant.

The law says is that the implement of force applied and the resulting injuries suffered are of no consequence as long as the level of force is reasonable. Should a choke hold be considered deadly force? Again looking at the law, deadly force is defined as force that is likely to cause serious injury or death. I would submit that when a choke hold is applied for a relatively short period of time it does not and should not fit the definition of deadly force. I don't believe any facts of this case would show deadly force to be reasonable and I don't believe deadly force was applied.

So to the question at hand, was this method of subduing the subject reasonable? Based on the facts of the case I would say that it is. When the outcome is considered, Garner dying, it can certainly seem otherwise but these things are judged from the perspective of a reasonable officer, on scene working with the facts that they had at the time.

I don't think any reasonable officer would conclude that the duration of the hold around Garners neck was likely to cause serious injury or death. This is further supported by the autopsy which pointed to the causes of death being related to heart disease, and an asthmatic condition and there was no trauma to the subject that would suggest airway damage or dysfunctionality.

Obviously these things were exacerbated by the struggle but no reasonable officer could have known of those conditions. The force applied in this case would not have caused the same outcome in most other individuals of a similar size and shape let alone someone who was fit and healthy. Though the struggle was a catalyst, Garner wasn't choked to death as the headlines would have you believe.

Please don't read this analysis as me defending the cops or saying that there wasn't a better way to handle this contact. I am merely trying to illuminate some aspects of the process and the manner in which these events are judged for a more complete understanding. Few realize the level of scrutiny that officers are held to and how well established some of these legal standards are. Because we can't see behind closed doors and/or don't take the time to research it is easy to cry foul and point to conspiracy.

I spend a lot of time reading through case law and court opinions and I have a fair amount of faith in the system and it's ability to be fair and consistent. It takes a lot for me to say that as generally I don't trust government.

Are there abuses of power that take place. Absolutely and I've been a victim of those as many have and it sucks. As a society we can't paint all enforcers of the law with a broad bush of badness based on events that are relatively rare by comparison.