I understand this just as much or more than you do. But I also knew if I was to use excessive force I would be criminally charged because I damn well should have known better.
We aren't talking about an officer that makes a split second decision with a kid and a toy gun that had the safety orange removed. We're talking about a conscience decision to escalate the use of force continuum to a level that led to a man's death. And continued application of force even when the suspect was on the ground. And ignoring the remaining less than lethal tools at their disposal. I can flat guarantee you the application of a Taser would have brought compliance to the subject. Was it used? And I'd really hope this as a question asked by the jury in that hearing. And I'd love to know what the justification was for not using it.
The law is quite clear that alternatives to use of deadly force are not relevant to the reasonableness of deadly force. That is, if you are justified in firing your gun, then even if an argument could be made that you might have been able to fend off a threat with less lethal alternatives, that is not relevant.
In this case, its less clear. The choke hold lasts for, at most, two seconds. Gardner is then down on the ground and is actually still resisting. They get him down and the problem was that he was massive and face down, with his head tilted to the side. That's why he couldn't breather. Not because of the choke hold.
If they tasered him, what happens when his diseased heart gives out? Then the police are criticized for that. If they whallop him with asp batons and that's on video, out come the Rodney King comparisons.
It started with Gardner defying police verbally. Then raising his hands, then pulling away, and physically resisting throughout. Any pain compliance technique would have been blasted by the critics, whether it be by Gardner himself in a civil suit, or by supporters had he died some other way.
Again, I agree that it was excessive and against policy and should yield civil liability. I am however more reluctant than others to call it criminal.