I’ll tell you what I know about the Eric Garner case: it’s a horrible tragedy, and it’s got nothing to do with race but a lot to do with bad laws — specifically, the law that criminalizes the sale of untaxed individual cigarettes. I want to get into those two points, but first I suppose I’m expected to render a verdict on the grand jury’s opinion. On that end, I can say this for sure: I’m not sure.
Certainly, the video is brutal and difficult to watch, especially knowing how it all turned out. This one isn’t Ferguson. Eric Garner isn’t Michael Brown. Eric Garner wasn’t a violent thug who went out of his way to provoke a violent encounter with a cop and then tried to take the cop’s gun while assaulting him in his patrol car. That’s not what happened here; there simply aren’t any comparisons to be made.
Now, admittedly, I approach this as someone who — unlike virtually every single person on Twitter and Facebook today, not to mention every pundit on cable news — is not an expert in criminal law, nor an authority on acceptable law enforcement tactics. I am shamefully the last remaining human being in America without a law degree and extensive experience in the criminal justice system, it would seem. Moreover, as of this writing, I haven’t seen all of the evidence presented to the grand jury, nor heard all of the witness testimony, nor do I know exactly what charges they were considering, nor what instructions they were given on those charges, nor do I really know anything else about the process. There’s plenty I don’t know, leaving me with only the video, my own capacity for critical thought, and 300 million people who are all quite certain that this cop should be put on trial.
They might have a point, but it’s a tragedy in its own right that we are so unwilling to talk about things in this country. We draw conclusions and if enough people share that conclusion, no further discussion will be allowed. In fact, last night I took to Twitter to ask, very sincerely and for my own edification, how exactly a police officer is supposed to arrest an uncooperative suspect who’s over 6 feet tall and weighing in at some 400 pounds. I’m perfectly willing to accept the argument that they used excessive force, but first I need to understand what kind of force they should have used. A reasonable question, I thought, and one that will help me understand this issue. But I was attacked for even asking it.
No conversation will be permitted. No deeper investigation will be tolerated. There is widespread agreement that the grand jury got this wrong. Everyone from Al Sharpton to Charles Krauthammer believes that a great injustice has occurred, and so that’s it. End of story, I’m told.
Maybe so. But before I move on to the points I am sure about — that this has nothing to do with race and everything to do with bad laws — let me spell out the argument that I’ve been having with myself all night over this:
One part of my brain agrees with the protesters. Not with their racial narrative, but with the basic reaction of outrage and frustration. Eric Garner was not committing a violent crime. He was selling untaxed cigarettes, an act our Founding Fathers likely would have considered quite patriotic. He did not assault those police officers. Yes, perhaps he ‘resisted’ but only in a stubborn, uncooperative way; not a threatening or dangerous way. In the video, they try to grab his hands to cuff him. He pulls back. Fine, there’s your resistance. But do you leap right from trying to cuff him to tackling him to the ground with your arm around his neck? Do you immediately transition from ‘let’s take his arm and handcuff him’ to ‘let’s all five of us jump on him, throw him to the ground, kneel on his head, and apply pressure to his chest and neck as he screams that he can’t breathe’? Maybe you do if he’s under suspicion for murder, or rape, or armed robbery, but for selling untaxed tobacco products? Really? And then, perhaps most damning of all, he laid on the pavement as the cops waited for medical help to arrive. During that time, nobody tended to him or tried to treat him. Why not? Surely, whatever other evidence there may or may not be, all of this alone, caught on video, is enough to constitute probable cause, isn’t it?
But the other part of my mind isn’t all the way convinced. The video doesn’t tell the full story. How long were those cops there trying to get this guy to peacefully surrender? Reports indicate that Garner had been arrested over 30 times, and at least 9 times for this same crime. Petty or not, this man has a long history of breaking the law. That doesn’t justify killing him, but does it explain why they weren’t going to stand there for three hours asking him nicely to come to jail? And what were the cops supposed to do once he made it clear that he’s not going to cooperate? ‘Well, OK then, have a nice day!’ All of the criticism of these police officers, but much of it lacking in substance because few of the critics have suggested an alternative path. If he will not comply, you still have to execute the arrest, don’t you? And this is a very large man being arrested by men less than half his size; how are they supposed to bring him down? Everyone seems quite certain that they used an ‘illegal’ chokehold, but that is nowhere near settled. It looked an awful lot like takedown moves I’ve seen plenty of times before. It’s tragic that it all resulted in the man’s death, but his preexisting health problems were as much to blame as the physical altercation itself. There’s absolutely no question that this was not some act of premeditated murder. But was it criminal negligence? Was it manslaughter? He did say that he can’t breathe, but isn’t that the best evidence that, at that point, he could breathe? People who can’t breathe can’t say ‘I can’t breathe.’ Further, people often scream that they’re being hurt or injured while being arrested. The cops have likely heard that a thousand times. Are they supposed to call timeout mid-arrest? I guess all of this boils down to how reasonable or unreasonable the police response was, and whether they could have or should have known that this might result in a fatality. On those points, I just don’t share everyone’s confidence. Neither did the grand jury, apparently.
Ultimately, I’m in the awkward spot of feeling that there was likely reason to indict, but likely not enough reason to convict. Or maybe I’m wrong about that. I don’t know, and I’m willing to admit that I don’t know.
I do hope (in vain) that wherever you fall on this, you make an attempt to be honest about it. Lies and sensationalism won’t help your argument. Ultimately, that’s what turned everyone against the Ferguson protestors (well, that and the whole burning down buildings thing). Make your case, but make it honestly. And that means you have to stop saying that he was ‘choked to death.’ He wasn’t. He wasn’t choked at all, and the medical examiner’s report makes that clear. The takedown by the police, combined with the health problems relating to his morbid obesity, resulted in his death. But he wasn’t choked to death. This is a fact. He wasn’t choked to death. The hold, chokehold or not, contributed to his death, but he wasn’t, in medical terms, choked to death.
And on that chokehold thing — there are many knowledgeable people who have argued very forcefully that this was not a chokehold. It was a submission hold, perfectly in keeping with legitimate law enforcement practices. I don’t know enough about the difference to take one side or the other. Do you? Be honest. Do you? One thing we know is that the chokehold, if it was a chokehold, isn’t ‘illegal.’ It’s against department policy, but that doesn’t make it illegal. It isn’t a criminal act, in other words. This is important. We have to be honest.
And we have to be honest about the term ‘homicide.’ I saw talking heads on TV last night essentially argue that the death was ruled a homicide — and therefore it’s murder. No, wrong. That’s just not true. Homicide only means that the death was caused, or partially caused in this case, by another person. It doesn’t speak to the criminality of the act. It’s just a technical term meant to confirm that this was not a death by natural causes.
Honesty. Let’s be honest. If you can’t win the argument with integrity, you can’t win it. So, while we’re at it, please stop passing articles like this around. I’m sure you’ve seen these all over Twitter and Facebook: “The cop who killed Eric Garner wasn’t indicted — but the man who filmed it was!” Obvious insinuation here being that he was indicted for filming the incident. But in actuality, the man who filmed the encounter was indicted for an unrelated weapons charge, which happened completely separate and apart from all of this. So the fact that he was arrested is absolutely irrelevant, and any attempt to make it relevant is, again, dishonest. It weakens your position. It discredits you. Don’t do it.
While we’re on the subject, let’s stop using phrases like ‘he was killed for selling cigarettes.’ When you say that, you are accusing the cops of purposefully executing him as retaliation for selling unsanctioned tobacco. That just isn’t honest. It isn’t true. It’s sensational. It tells me that your case isn’t strong enough to rest on the facts of the matter. And, yes, the facts of the matter still matter.
But most of all, it’s dishonest to bring race into this. Call this an injustice all you want; as I said, I think you have a compelling case. But racism? It’s only racism if the cops (some of whom were black, by the way) only enforced the law in this instance because a black man broke it. To call it racism is to claim that a white man could have stood on that same sidewalk in that same town committing the same crime and gotten away with it. Do you have an proof of this? Does it make sense? Or it could be racism if you have reason to believe and evidence to support the claim that they would have used a different strategy to implement the arrest had the man been white. Maybe it would have been different if he’d been 200 pounds lighter, but I doubt they’d say to themselves, ‘alright boys, this guy’s got white skin, let’s go easy on him.’
There’s an important argument to be made that cops can sometimes get too high on their own power. OK, that’s not just an argument, it’s an undeniable reality. But you undermine that argument when you pretend that the extent to which they get high on their power depends on the skin color of the other concerned party. The Mayor of New York took to the cameras yesterday to connect the Garner case to ‘centuries of racism.’ How unbelievably irresponsible. He flat out accused these cops (again, even the black ones) of targeting Garner because of his race. Don’t you need some kind of evidence for that accusation?
Look, if a white guy can be pulled out his car by a pack of black teens in St. Louis and beaten to death with hammers, and we’re willing to see this as a ‘colorblind’ crime, then shouldn’t we extend even a smidgeon of that leeway to a situation like this? Particularly when the baseless and unprovable racism charges only distract from the issue at hand.
And the talk about that issue needs to include a very serious discussion about the laws themselves. We spend so much time criticizing the people tasked with enforcing the laws, but somehow the laws being enforced, and those who legislate them, escape scrutiny.
We are indeed a nation of laws. Too many laws. And dumb ones. But they are laws all the same, and the thing about a law is that, in order to justify itself, it must be enforced. And the thing about law enforcement is that it can never be anything but forceful, by definition. So anytime you make a law, you do so with the explicit knowledge that men with guns will go around forcing people to obey it. If it is not a law worthy of such compulsion, then it is not a law worthy of existence.
I think we ought to keep this in mind whenever someone is killed in an altercation with police over some minor legal infraction. Assess the cop’s responsibility all you want, but do not absolve the politicians who will shamelessly denounce and condemn police for enforcing the horrible laws those same politicians wrote.
‘Killed over selling untaxed cigarettes. What a shame!’ Yes, it is a shame, but who decided to make it a crime to buy a box of cigarettes and sell a few of them? Who decided that depriving the city and state of tax revenue ought to be a criminal matter? Who decided to ruthlessly track down and punish anyone who cheats the government out of a few pennies? Who decided to employ cops as fundraising agents for the State? Who made it nearly impossible for an average Joe to afford cigarettes in New York with the rationale that the average Joe shouldn’t smoke in the first place? Who turns petty acts into crimes and then allocates police resources towards prosecuting those crimes? Who goes around thinking of ways to meddle in every aspect of American life? Who made the Nanny State?
Not the cop on the street, I can tell you that.
Eric Garner is dead. I don’t know if his death is a crime, but I do know it’s awfully sad. My hope is that we can learn from this incident in a way that might prevent future incidents like it. We won’t learn anything, however, if we are determined to stick to narratives instead of looking at the reality. Garner’s death was a perfect storm of many factors, all of which warrant further discussion. He wouldn’t be dead if the police had used a different tactic, and he wouldn’t be dead if he didn’t resist, and he wouldn’t be dead if he hadn’t broke the law, and he wouldn’t be dead if the dumb law he broke wasn’t a law to begin with.
Most people will insist that we only inspect one or two of these facts. These days we always look for the quick and easy answers.
I just don’t think there is a quick or easy answer this time.