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I Rise in Defense of the NYPD
Many on the right — including some of my colleagues on Ricochet — have taken up the theme that Eric Garner died because he committed “a tax crime.”
I’m not sure whether to call this line tendentious obfuscation or opportunistic grandstanding. But it’s got to be one of those things. Maybe both.
Saying Garner died because of a tax crime is a bit like saying John Lennon was killed because he decided to pick up a guitar: technically correct, but devoid of context.
Eric Garner died as a direct result of his decision to resist arrest. The use of a chokehold on a suspect is banned by the NYPD patrol guide, but not illegal for an officer of the law in New York State. So while the cop who choked Garner will surely lose his job, there were no grounds to indict him for a criminal act. The law grants cops wide latitude in the performance of their daily duties, which often result in unexpected or unavoidable violence. Maybe the violence here was avoidable, but that’s a different argument — though a more honest one — than saying he died because of a tax crime.
Many on the right, I know, see the Garner case as just another example of militaristic cops gone wild.
That’s nuts.
This business about tax crimes and militarized police obscures a central fact about recent New York history: 25 years ago, cops looked the other way for so-called petty crimes like selling loose cigarettes, urinating in public, and smoking weed in the park. I know these are theoretically victimless crimes. I know there are some libertarians who think such things should not be considered crimes.
Well, here in New York, we’ve seen that movie. Twenty-five years ago, you could walk down the street in midtown Manhattan smoking a joint and the cops wouldn’t lift a finger. To some, I know, that sounds like paradise. For most New Yorkers — and visitors — it was hell.
Twenty-five years ago the NYPD left certain neighborhoods alone. They were too much trouble to police. The risk of getting into an avoidable altercation with a thug was just not worth it.
And do you know what happened? The thugs and petty criminals went on to terrorize their own neighborhoods. Good people in bad neighborhoods stayed indoors. Tourists from Utah got stabbed and killed on the subway. Smart people stayed out of Central Park after nightfall. The beating heart of the world’s great city became a cesspool of vice and violence.
Those so-called victimless crimes did in fact have a victim: the civic life of the city. Watch Taxi Driver. It was real. It happened. And not by accident.
It happened because disingenuous politicians and rabble-rousing mouthpieces said just what many are saying now: the police are the problem and need to be reined in. Until poverty — today we call it “inequality” — is solved, they say, there’s nothing the police can do anyway. Somebody make these racist cops stand down, they said.
That’s the way it was 25 years ago. Former New York Post editorial page editor Bob McManus called it the age of the “permanent panhandler.” In Bob’s neighborhood, the guy’s name was Tony. He was vaguely menacing, and the cops wanted no part of him.
Things reached their lowest point in the late 1980s. It wasn’t so much that nobody wanted to restore order as it was that nobody knew how to. The politicians were ineffective. The NYPD itself was a big part of the problem. Its leaders had no blueprint for dealing with disorder and its rank-and-file had no appetite for engaging the disorderly.
Ah, the good old days.
But then something changed. Some policy makers came along with a different message: let’s allow the police do their jobs. Let them arrest the bad guys, even for so-called petty crimes — especially for so-called petty crimes — and let them protect the good people of New York City, even those who lived in bad neighborhoods, from aggressive and lawless predators.
I’m not saying Eric Garner was a predator. I’m saying that the police could not have let him off the hook for the crime that they say he committed. Garner could have argued his innocence in court, yes, and the police would have had to prove his guilt, yes. But the cops that day could not have turned a blind eye to his crime, no matter how petty it seems in retrospect.
Former cop Ernie Naspretto in today’s Daily News:
The public has every right to question why Eric Garner died while being arrested, particularly for such a minor infraction. But once a police officer determines an arrest is warranted, he can’t change his mind and not arrest someone simply because the infraction is minor and the individual doesn’t want to go.
Let’s put another myth to rest: The NYPD does not prey on black people. The cops in New York City go where the crime is. My City Journal colleague Heather Mac Donald, analyzing media distortions about crime and race in 2010:
You cannot properly analyze police behavior without analyzing crime. Crime is what drives NYPD tactics; it is the basis of everything the department does. And crime, as reported by victims and witnesses, sends police overwhelmingly to minority neighborhoods, because that’s where the vast majority of crime occurs—by minority criminals against minority victims.
The NYPD is not a militarized, steroidal junior varsity SEAL team. On the contrary, the NYPD’s broken windows policing philosophy is the reason why crime has fallen to historic lows and made New York the safest large city in America. The NYPD is the reason why a Norwegian can come to Brooklyn and open a “cozy and cluttered bakery that makes its own bread, simmers its own jam and even churns its own butter” just a few blocks from the once-gritty waterfront in Greenpoint. The NYPD is the reason that Times Square is a safe place for you and your family to visit and see a show.
It doesn’t have to be this way. New York can easily revert to what it was. In fact, a lot of New Yorkers don’t like what the city has become. Many are eager to see the broken windows philosophy discredited and tossed aside like an old shoe.
How long would it take to undo the progress of the last 25 years?
If things go on like this, we’ll soon find out.
Image Credit: Flickr user Debra.
Published in General
There weren’t five on patrol. The large number comes from those called on back-up.
What other option, though? He wasn’t going to allow himself to be arrested. He was a remarkably big dude. He was remarkably agitated. He was a remarkably agitated big dude who wasn’t going to allow himself to be arrested. Here are some alternative responses I could envision; cops, please jump in with suggestions too. None of these are likely to have resulted in death (though, I didn’t think it was excessive the way it actually went down either). Do you think any of these qualify as excessive?
Wait a bit longer and keep talking to him does indeed seem pretty reasonable to me when trying to arrest a(n apparently) non-violent suspect for the crime of selling individual cigarettes.
The idea that impatience justifies the use of force when trying to enforce such a ridiculously minor crime seems ludicrous to me. In the video I saw, at the moment they tackled him, all he was doing was talking.
We apparently have some additional facts.
The Chief of Police is black. The sergeant in charge was a black woman. The local merchants (?black) apparently complained about Garner selling loose cigarettes (which they can’t) and asked “something be done about it”.
So I would say that this is NOT a racial issue.
But it still is excessive force. Civilians are not allowed to use deadly force unless their lives or the lives of those around them are directly in danger. I don’t think anyone would argue that Mr. Garner presented such a situation.
This was not some quirk episode where someone died for really strange reasons. This was a guy who was choked. He complained about not breathing. It turns out he was asthmatic (or so I understand). which may have been exacerbated by the choke, but it was, in the end, a choke hold. If any of you doubt that is deadly force, come visit me, and I will have you out in <10 seconds with a choke hold. Marines taught it, and we each had it done on us, and believe me, you would be flabbergasted in how quickly it works.
Applying force in an arrest is one thing. Applying deadly force is another altogether. From the arguments here supporting this action, I am presuming those would be perfectly OK with the cops just hauling out their pieces and shooting this guy when he began to “resist arrest”. Not the society I want to live in.
No, resisting peaceful attempts to enforce the duly enacted law is what justifies force. Impatience has nothing to do with it.
How long should they have talked with him?
Is punching someone in the stomach deadly force? What about pepper spray on someone who is severely allergic to peppers (unbeknownst to the sprayer)?
How do you define deadly force?
Otherwise, my understanding is that the actual cause of death isn’t quite clear from the reports I’ve seen. It doesn’t seem that he was choked to death; did he die of an asthma attack? Did the choke hold have anything to do with that asthma attack?
As far as the hold, there is cutting off air and there is cutting off blood to the brain. I’ve been “passed out” too and it is quick. That doesn’t seem to be what happened here, though. He was able to talk so he was getting air.
I don’t view the move as deadly force; I view it as a take down. It wasn’t as if the officer applied this move intending to kill the guy or even contemplating that there was a good chance it would end up in the guy dying.
How much longer should they wait? They waited until backup and supervisors arrived. This isn’t immediately clear, of course, because the time jumps in the video.
And they were talking to him. What evidence is there that they were getting anywhere? What a lot of people seem to forget is that just because someone is talking, doesn’t mean they are listening.
Talking, for criminal suspects, is a delaying tactic that they are more than happy to use. If talking means they aren’t being arrested, they’ll talk forever. They’ll make Rand Paul look like a piker. I have often found that talking to suspects in situations like this is basically like arguing politics on Facebook, with the added frisson that you might get punched in the face. Garner even repeatedly states that he doesn’t intend to cooperate (“This ends now.”). What conclusion, exactly, were the police supposed to draw from that statement?
Most police academies teach an Ask – Tell – Make continuum for arrest situations. In its classic form, it goes as follows:
First, you make a reasonable request. It’s not, strictly speaking, actually a request, but you phrase it like one, and oftentimes that is enough. “Look, you know the drill, I have to take you in. Why don’t you turn around, and place your hands behind your back?”
If that doesn’t work, you give an order. If the order doesn’t work, you then have to physically make them comply. Even if it didn’t follow the formal academy pattern, we can pretty safely say that the police had made their intention clear, and Garner had likewise made his intention not to cooperate clear.
The other thing to consider is that these situations do not happen in a vacuum, and (depending on the neighborhood) the longer a situation like this draws out, the more the environment will not favor the police. Cops are not the only ones who can summon backup. There was already at least one person filming, whose sympathies were clearly with Garner. Garner makes reference to “everybody standing here”, which indicates a crowd gathering.
So, to sum up: the cops tried talking. They got nowhere. Garner made clear he wasn’t going to be talked into cuffs. The longer they let it drag on, the worse it was likely to get. They decided to end the situation, and they were reasonable in that decision.
It was how they did it that, in my view, creates the problem.
Yeah, I’m open to the discussion of whether the specific move was correct. I do not accept, though, the argument that it was the same as shooting the guy. Nor do I accept the argument that attempting to forcefully apprehend him was excessive.
Looking at the video, I suspect that Officer Pantaleo’s intent wasn’t to choke Garner into unconsciousness (note that Garner is still talking when Pantaleo releases his neck), but instead to bring Garner off balance, which given his size was a smart idea. There is an old saying in judo that “Where the head goes, the body follows,” and that seems like it was what Pantaleo was trying to accomplish.
The problem is, by wrapping his arm round Garner’s neck and moving him that way, you risk collapsing the airway. On the video you can see that when Garner goes to the sidewalk, the position of his chin indicates that Pantaleo’s arm is across the windpipe.
Still, the autopsy report mentions “the compression of his chest and prone positioning during physical restraint by police,” as one cause of death. My perception is that positional asphyxia is more of a big deal here than the chokehold. Given his size and health problems, combined with the awkwardness of his handcuffed position face down, this seems like it could have caused his death even absent the chokehold.
They should have sat him up or at least rolled him to his side. It’s true that this isn’t necessary in the vast majority of cases, but in this guy’s it was. People focus on the chokehold because it’s dramatic, and feeds the narrative of brutal racist cops, but it’s what they did (or didn’t do) after he was cuffed that seems to make the real difference.
FWIW — From Wikipedia, “Garner had been previously arrested and was out on bail for selling untaxed cigarettes, driving without a license, marijuana possession, and false personation. Garner had a criminal record that includes more than 30 arrests dating back to 1980 on charges such as assault, resisting arrest, grand larceny. An official said the charges include multiple incidents in which he was arrested for selling unlicensed cigarettes.“
Did the police in the area know Garner? It appears that this is nothing new to him.
Also, FWIW, Mayor DeBlasio is reported to have called for stricter enforcement of the cigarette tax compliance statutes, and the NYPD so instructed their beat cops.
In the video, Garner says to the contact officer, “I told you last time” and complains about the officer always harassing him. It seems likely he was known to police already.
As for Mayor DeBlasio’s role, expect to see that little nugget wash down the memory hole sooner rather than later.
Of course you don’t – you’re a cop. No cop will dispute other cops’ actions.
But the fact is that a particular type of “physical restraint” if you will, was applied, and it has the very real and likely result of being deadly. In wrestling we had a rule: “If you remove an opponent from the mat (as in lifting him up) you were responsible for his safereturn.” Didn’t ask why you did it, or how – just that you MUST return him safely.
There are certainly enough physical issues in police work, but you know that going into it. You are not a store clerk checking out iPhones. One expects cops to act in certain ways. Some times you will have to be physical in arresting someone. But choke holds should be OUT. Period. It is akin to drawing your weapon. You can say what you want about this or that, but there is little doubt that the victim’s problems began with the choke hold – which never should have been applied.
No one is arguing the guy shouldn’t have been arrested (well, in another thread, perhaps – but it’s another argument). All that is being hotly debated is the choke hold. It never should have happened. Let’s face it – there are numerous ways to take this guy down without choking him.
?Did the guy intend to kill Garner – no. But then, we have involuntary manslaughter as a charge that accounts for the fact that it was not intentional. There may be other similar charges – I am not a lawyer. But NO charges is simply unreasonable here. The officer did something he never should have done and the victim died. That victim was in the custody of the officer – that makes THEM (the police) responsible for him. He didn’t just spontaneously die on the street.
As much as I want to respect the rule of law, when the law shouldn’t be the law, it’s very hard to change it.
Clark Niely of the Institute of Justice argues that the courts have abdicated their responsibility to check the power of the state and prevent legislative overreach.
http://www.ij.org/staff/cneily
http://www.amazon.com/Clark-Neily/e/B00E93GZCG
I commented on Fred Cole’s thread before seeing this one, but would like to add a few points:
The “tax crime” argument – I agree selling loosies shouldn’t be a crime, neither should selling a Big Gulp at 7 11 [thanks Mayor Bloomberg] but to argue tax crimes are so different that they don’t deserve enforcement leads to a very ugly place. Aren’t squeegie men only trying to make a living? Pan-handlers?
How tall was this policeman that was talking to Garner? The reason his colleague had to jump up behind the guy and put his arm around his neck [it seems to me] was because of the danger to the little guy when Garner put his hands up in an aggressive manner. NYC pays it’s police very well – if we could amend the rules so some common sense was applied to recruitment of guys that would not be intimidated by Garner, rather than doing their hiring by civil service exams only, we could get more racial balance on the force and less frustration from the community.
I’m not a cop. Not even close.
Any physical force has the potential to be deadly. Any. Some non-choke-hold scuffle could easily result in the men toppling over and one hitting their head on the concrete. Is otherwise non-deadly force classified as deadly force simply because some non-zero percent chance of death exists?
Actually, there seems to be much doubt that victim’s problems began with the choke hold.
Furthermore, I disagree that a choke hold the way it was applied here is akin to drawing a weapon or using a weapon. How are they the same?
If there was no intent to kill and there was no reasonable expectation that the specific method used to subdue Garner would result in his death, then why should charges be brought? Where is the crime?
It’s not the courts. Voters have it well within their power to correct the situation.
Who wouldn’t be intimidated by Garner? Besides, aside from intimidation and whether that was an element or not: there are practical considerations to subduing a man that large and agitated. Safety is an issue whether intimidation is involved or not.
Even without intent to kill, recklessness or failure to exercise due care can be enough to result in a criminal charge, typically involuntary manslaughter or the like.
Oddly enough, I just watched a match between Burroughs and Dake today. Dake essentially suplexed Burroughs very roughly – and he was awarded three points for it. Not only did the move carry more than a little risk of serious injury, even though it began at the edge of the circle it was completed well outside the circle and they came awfully close to being suplexed into the scorekeepers table.
“Safe” appears to be subject to a fair amount of interpretation even in wrestling.
“Even without intent to kill, recklessness or failure to exercise due care can be enough to result in a criminal charge, typically involuntary manslaughter or the like.”
Even if there was no reasonable expectation that the specific method used to subdue Garner would result in his death?
That’s what I meant when I said “there was no reasonable expectation that the specific method used to subdue Garner would result in his death”. I just don’t see evidence of recklessness or failure to exercise due care. It’s beginning to seem as though the death was unrelated to the choke hold and only incidental (unfortunately) to the chest being compressed as they held him on the ground for too long it turns out in hindsight.
Possibly. If you know (or should know) that chokeholds that block the airway are restricted by Department policy due to the risks of in-custody death, then use of such a technique could be considered reckless.
Ditto for their leaving him in a facedown posture where positional asphyxiation could become a risk.
I confess that I am not a lawyer, much less a New York lawyer familiar with their specific involuntary homicide statutes. Still, I’m basically with Andy McCarthy on this: there is definitely room for reasonable doubt, and people throwing around words like “murdered” and “executed in cold blood” are irresponsible idiots; but it still seems like there’s enough there that an indictment would have been reasonable.
Agreed; I wouldn’t have thought it a miscarriage of justice if there were an indictment on some charge like manslaughter (or whatever is equivalent to recklessness resulting in death). But there’s also enough doubt so that a lack of an indictment is reasonable too, IMO.
If the grand jury had returned an indictment, given the politics of the Garner death, what are the chances that a trial , and it’s outcome, would be any less contentious than the present circumstance?