Monday, December 08, 2014

Time for action on unjustified police homicides is NOW

Like many of you, I was willing to give the officer in the Ferguson case the benefit of the doubt.  It is more difficult to give it to officers in the NYPD Garner case.  The failure to indict the officers in the Garner case is highly questionable and has only fueled the fires and increased the need for action.  When an overweight suspect in a cigarette tax case who refuses to cooperate and says he “can’t breathe” it’s time to ease up.  I'm not presuming the officers committed a crime.  Obviously, it was not a murder, the more appropriate charge would be a reckless or criminally negligent homicide.  I don't know what other evidence the grand jury heard, maybe they are right.  However the effect on the public was devastating for police and the criminal justice system.  Legitimacy is crucial in democracies.  The government needs to take action, NOW.  Unfortunately, about the only time things get done by politicians is when, rightly or wrongly, there is massive public doubt and disruption.  Right now is a chance for meaningful reform.  The media, politicians and public have short attention spans.  We are talking about human life, public attitudes toward the police and system and, as mentioned above, the legitimacy so crucial to successful democracies. 
For an excellent short article on the Ferguson and Garner cases see Chavez.  She writes:

“The two cases are worlds apart in terms of the actions of the men who died and the officers who caused their deaths. Unfortunately, on both sides of the argument, proponents seem all too ready to adopt a narrative that fits their politics rather than examining the facts.

In Ferguson, the race hustlers and their enablers, from Al Sharpton to Eric Holder, turned an unfortunate confrontation that ended in the death of a black man into a cause celebre. Racism did not cause Brown’s death. Nor was he the victim of a police execution, as thousands of protesters try to convince us with their “hands up, don’t shoot” mantra.

What happened on the streets of Staten Island between Eric Garner and a group of police officers looks nothing like what happened in Ferguson. Moreover, we know what happened far more clearly because a bystander filmed much of the confrontation. Those images make the grand jury’s decision far less understandable. For all of the criticism of St. Louis County Prosecutor Robert McCulloch’s decision to release the transcripts and evidence from the grand jury, at least we have some idea of what led to the decision not to indict. In the New York case, we don’t have a clue.

What the video shows is a large black man arguing with police officers who are about to arrest him for the alleged resale of individual cigarettes. He is frustrated, angry even.

He accuses the officers of harassing him — he was arrested in an earlier incident on the same charge, the pettiest of offenses, a crime with no victims. But Garner is not a threat, although he resists arrest when a group of officers surround him, telling them not to touch him as he moves backward, not toward the police.

The video clearly shows Officer Daniel Pantaleo grabbing Garner from behind, with the officer’s forearm pressed against Garner’s neck, and wrestling him to the ground, the forearm against Garner’s throat the whole time. I doubt that Pantaleo intended to kill Eric Garner, but that does not mean Pantaleo was blameless. The audio also demonstrates that Garner pleaded with what were by then several officers who held him on the ground, including one who pressed Garner’s skull into the sidewalk. “I can’t breathe,” the asthmatic Garner begs over and over as a bevy of officers hold him down.

Police have difficult, dangerous jobs in which split-second decisions can have deadly consequences. But Eric Garner was no Michael Brown, and the officers who held down Garner — including, but not limited to, Daniel Pantaleo — had no reason to fear for their lives as Darren Wilson did.

To pretend that police never overreact or use excessive force is as wrong as to claim racism is usually to blame when a police officer kills a black or Latino suspect. Neither serves the public good."

 Massive protests, occasional violence, media coverage and public frustration are creating an atmosphere where momentum is building for change.  It is long overdue. Pres. Obama has called for millions of new federal dollars for local police training, increased use of police-community relations, body cameras, etc.  This is long overdue as the feds have been giving military vehicles and weaponry to local police departments for free.  Much of this equipment seems more appropriate for Iraq and Afghanistan than for America.  The influx of this equipment may have only exacerbated pre-existing problems which foster excessive use of force.  Body cameras are not a magic bullet, and increased “training” is the traditional, standard government response to questionable use of force by police.  I applaud these efforts, but it’s going to take much more than just federal dollars for these “fixes,” to have an appreciable effect.  I have taught in police academies, talked with officers, taught graduate and undergraduate courses of police corruption and “use of force.” The basic, underlying problems are deeper and more complex.  In many police agencies, there is a pervasive subculture that encourages and tolerates corruption and excessive uses of force.  Civil service rules, the “code of silence” and police unions make it extremely difficult to discipline and discharge bad cops.  Police internal discipline is often law and inconsistent.  Mayor, politicians and police executives wring their hands every time a questionable incident arises, but it’s usually only for show.  We need leaders who are willing to take the political risks of fixing a system that is clearly broken. There are very few criminal prosecutions of cops.  Prosecutors rely on the police and except in extreme cases, police cover-up for bad cops.  Juries may be too sympathetic to police.  Don’t get me wrong, policing can be extremely difficult and numerous officers die in the line of duty.  The U.S. Supreme Court has, in my opinion, too generous in establishing legal doctrines make it too difficult to obtain money damages against officer (e.g., qualified immunity) and governments/agencies.  There is little in the way of effective deterrence.  Unfortunately, there are too many Americans who tolerate police use of excessive force.  Many feel a need to come down hard on the “dangerous classes.”  There are additional problems and I don’t have an answers for all of these, but if we are going to get serious, we have to go beyond what Obama is calling for.   I am not calling for derogation of the constitutional rights of police officers of police unions. 

We don't need more racial polarization in this country. Please call or write your federal, state and local political leaders and demand that they get moving in a serious fashion on this nationwide curse that never seems to be addressed seriously.  Under the 14trh Amendment, Congress has power to legislate pursuant to the Amendment.  14th Amendment due process includes the Fourth Amendment which bans excessive use of force by police in arrest, stop and related situations.  This problem needs effective federal (nationwide) action.  The states and cities don't seem to really case.  Let’s take advantage of the momentum.


  1. Okay, it's Internet, but I have read that Garner had eight previous arrests for "loosies", and the police were responding to a store-keeper's formal complaint.

    This would have been Garner's 40th arrest for mostly petty crimes, with apparently only one at the felony level.

    He was obese and suffered from asthma. The autopsy showed no damage to throat or larynx. His "I can't breathe" referred to his problem with an asthma attack brought on by the circumstances. He was not killed by strangulation.


  2. Art:
    Thanks for the comment. The U.S. Supreme Court has repeatedly stated that under the 4th Amendment the seriousness of the offense (esp. violence) is a key factor in when the use of force is reasonable. No matter what the cause of his breathing problem, the officers should have had enough sense to ease up. His obesity was obvious. Obesity is one of the keys as to whether people die (without guns being used) during scuffles with the police. The obese often have other problems such as diabetes, heart problems, etc. Being obese is not a license or an immunity, it is a sign that this case may need special handling. (I will edit the original post and add some cautionary comments)

  3. Generalizing, when any person tries to resist an arrest, it becomes, "Shame on you!" time. Race is not an issue, from what I've seen or of which I've read. Granted, some cops go overboard.

    A cop buddy of mine, over thirty-five years ago, commented that when any sort of resistance is encountered, "We are not allowed to lose." He went on to say that with the small number of police vs. the large number of non-cops, they see no choice but to "not lose under any circumstances". If one person succeeds in forcefully resisting arrest, more will try.