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Calling John Yoo . . .
And anyone else who thinks Eric Garner was choked to death by the police. I have a new piece up at PJ Media in which I again address Mr. Garner’s fatal enounter with the NYPD. In it, I take on the uninformed commentary I’ve heard on the matter, including some from Ricochet’s own John Yoo. Mr. Yoo is in good company with Charles Krauthammer and George Will, but they’re all wrong. A sample from the piece:
As I’ve followed the aftermath of Mr. Garner’s death, I’ve been struck by the ignorance displayed by so many ordinarily sensible people offering commentary on the matter. I use the term “ignorance” not as an insult but rather in the benign sense that they are simply uninformed on the facts of the case. Charles Krauthammer, for example, called the Staten Island grand jury’s decision not to indict the NYPD officer implicated in Garner’s death as “totally inexplicable.” George Will took things a qualified adjective further when he labeled the decision as “inexplicable and probably inexcusable.” And Berkeley law professor and former U.S. deputy attorney general John Yoo, discussing the incident on a recent Ricochet podcast (relevant portion at about 57:00), revealed himself as no more informed on the issue than the two columnists. “Looking at the video of what happened,” said Mr. Yoo, “I don’t see any reason why force was required there. With the guy selling loose cigarettes, I don’t see the need to use deadly force to restrain him.”
I have nothing but admiration for Dr. Krauthammer and Messrs. Will and Yoo, but I don’t think I’m going too far out on a limb here in speculating that none of these men, for all their accomplishments, has ever had the experience of trying to arrest a 350-lb. man who has made it clear he does not wish to be arrested. I have, and I offer here a few lessons gleaned from that experience.
As is most often the case, the comments over there have turned into something of a cesspool, but I’m always grateful to hear input from my fellow Ricochetti.
Published in General
From the PJ Media Piece:
Honestly, what always bugged me was how quickly Pantaleo went from grabbing a hand to the full-nelson/chokehold from behind and wrestling him down to the ground from there.
A crucial point from your article:
The police were going to have him answer for the charge in court, and no amount of sidewalk protestations was going to prevent that from happening. When the police have made the decision you are going to jail, you are going to jail.
Based on a few (ahem) youthful indiscretions, I can tell you, it really isn’t that difficult to get safely arrested. Put your hands behind you, get in the back seat, and go get your picture taken and put on the orange jumpsuit.
Arguing with a cop on the sidewalk is pointless after she has thrown down the words, “I’m placing you under arrest.”
Tom:
With someone of Garner’s size, you can’t let it turn into a dance contest. The large windows behind Garner were only the most obvious hazards presented. Once someone makes it clear he’s not going to go without a struggle, the goal is always to get the guy to the ground and handcuffed quickly.
This issue, Officer Dunphy, is that while Yoo, Krauthammer, and Will are brilliant in their fields they have ZERO experience with violence. To observe a situation of street violence and try and dissect it like a debate is to announce to the entire world that you have no idea how quickly these things go to full throttle and how out of control they become in mere seconds. They are wholly unqualified to comment and it shows.
I have to admit that I couldn’t bear to finish listening to a recent Law Talk podcast after the professors delivered themselves of their opinions on Garner’s death.
If you think whatever experience you have with violence makes the behavior by the cops in that video OK, you should take a good long look at your own biases. Rag on the writers all you want, but they are hardly the only reasonable people who disagree with you.
Using terms like “uninformed” or “wholly unqualified to comment” is not good faith argument, and probably has the opposite effect of what you intend. I have not formed a strong opinion about Eric Garner, but Dunphy and Monaghan make me think that there aren’t a lot of good arguments excusing the police.
Only analyzing the moves of the police officer and ignoring any of the surrounding context (according to Garner’s family, a lot of ongoing police harrassment of Garner for petty offenses) is pretty selective. And, it strikes me as a similar argument as “the video of Michael Brown in the convenience store has no relevance to what happened later.”
Having dealt with very large, disruptive kids for many years, I am slow to judge the action of cops based on what appears in the press. We have seen repeated attempts to portray so-called victims as innocent and far younger and smaller than they actually were. In my last year of teaching I was attacked from behind by a student who repeatedly pummeled me in the temple with his fist before I was able to get out of my chair and wrestle him to the floor where I restrained him until our resident police officer came to classroom and, with a good deal of difficulty, removed him.
The student was 15 years old. He had been in my class for approximately a month before the assault took place. His teacher file had been carefully purged of all information about his numerous assaults on previous teachers, so I was taken completely by surprise.
What didn’t surprise me was the immediate reaction of my principal and the parents of the student who wanted to grant him victimhood for the assault on me. Fortunately, there were 8 other students and two adults in the room who witnessed the assault and were able to testify that I did nothing more than was necessary to protect myself and end the attack.
This student was approximately 5’8″ tall and weighed about 150 pounds. The first person to arrive on the scene was the school security guard. When I attempted to turn the student over to him, he was unable to control him, so I resumed my restraint position. When the police officer arrived and cuffed the student he was barely able to control him. The student kicked and destroyed a computer monitor while being carried from the room.
This was an adolescent, not a 350 pound man. I cannot imagine what it would be like to try to control someone that large and powerful. However, it is very easy for those who have never attempted such a feat to judge one who has when the results are as tragic as they were with Mr. Garner. No one who did not sit through the entire grand jury trial has a right to judge the final verdict of that trial. It is only in the context of full disclosure that one can make that judgment, and full disclosure is something the media never does.
I have known a lot of police officers. We often had to deal with the same element. Many of my students had been subject to arrest for various crimes. We were always limited in how we could respond to aggressive behavior, I more so than they. However, no matter the circumstances it seemed that our response was always more suspect than the behavior of the subject. It is difficult to understand why it is that people do not grasp the inherent danger faced by anyone attempting to restrain someone who is out of control until they themselves are put in a situation where their lives are in danger.
Police face that on almost a daily basis. Teachers in rough schools less frequently, but far from rarely. I don’t know exactly what happened with Eric Garner, but I do know what must have been going through the mind of the arresting officer, the simple desire to go home at the end of his day, safe and uninjured.
Not having followed the whole Garner situation very closely, I did gather that he was making a nuisance of himself and the shopkeepers complained. My sense of it is the police used “selling ‘loosies'” as the pretext for arresting him. They needed a reason to move him along and that was it. [I’m not saying this to be critical of the police BTW, even here in the mean streets of Naperville Illinois it took a couple years to move an eccentric bum out of his downtown squat right in the busiest part of the central business district. Only in Naperville do the homeless have WiFi, but that’s another story. Anyway, between that experience and my observations commuting to downtown Chicago of what a nuisance and drag on tax-paying business street people can be, I understand why it’s necessary to keep them moving and not interfering with people trying to go about their lives]. If it wasn’t selling loosies, it would have been something else.
They had to move him along, arresting him. A scuffle ensued. My observation of the few photos I’ve seen, it wasn’t a chokehold (which seems to have been supported by the autopsy, lack of bruising and the trachea wasn’t crushed). The police may have been remiss keeping him on the ground as long as they did after handcuffing him, but that seems like a judgment call area.
I’m with officer Dunphy on this one.
I don’t have a strong opinion on the Garner case, and I haven’t watched the video. However, anyone with a rudimentary understanding of physiology should know that if you can say ‘I can’t breathe,” that means you can breathe. We make new babies cry to confirm that they are breathing. Humans cannot vocalize without breathing.
Certainly he may have had difficulty breathing, but if you’re really being choked, you shouldn’t be able to breathe at all.
But doesn’t that argue against pulling someone that big down from behind (and toward the window, no less)?
Just to be clear, I don’t think the officers involved are horrible people, and I think they were put in a bad situation by Garner through his breaking of the law (however silly that law is), his size, uncooperativeness, and poor health. I don’t think they had any particularly good options available to them. To my (very inexpert) eye, however, a chokehold/takedown from behind seems like a reckless escalation. Again stipulating my inexperience, the decision to do so seemed wholly Pantaleo’s.
The situation had already been escalated by Garner. Because of Garner’s choices the cops were at the point of having to use force to arrest him. Once you’re at that point there is a non-zero, and I’d guess too-high-for-me, risk of injury or death to one of the people involved. At that point, apprehending him quickly is the least reckless option. Does one move* in a lightning fast interaction really make the difference between accident during discharge of lawful duty and negligent recklessness?
* Which apparently didn’t even end up causing the death or even contributing much to it specifically.
Is that the only evidence of “harassment”? The family’s description of it as “police harassment for petty offenses”? An alternative description might also be that the police were doing exactly what we pay them to do; it might also be described as Garner having a penchant for ignoring the duly enacted law and causing trouble for other members of his community. While it’s certainly possible that he was being harrassed, the place to hash that out is in court and the court of public opinion and not on the street when the duly authorized officers are attempting to arrest you in a peaceful manner.
Forgive my ignorance, but do we know those words were uttered? They are not on the video.
The question of whether or not he was ever officially under arrest has always been the key piece of ambiguous information for me, where this case is involved.
I read Jack Dunphy’s first Ricochet post on this matter, and found it illuminating. I’m frustrated that even conservatives who would have reason to get all the facts have not, especially that Garner was not choked to death. That still is not widely known.
So there is some doubt that he was being placed under arrest?
Can someone please identify the autopsy you guys are referencing, because the actual one by a New York medical examiner, and the follow-up by a forensic expert completely disagree with you on this point.
Fact: It was an illegal choke hold.
Fact: That illegal choke hold killed Garner. Responding that this illegal choke wouldn’t have killed most people is a completely unsatisfactory answer.
Fact: It arguably was against NYPD policy but it was not “illegal.”
I have yet to read any report of the incident that makes it clear that he had been explicitly told, “you are under arrest”.
That does not mean it didn’t happen, or that it hasn’t been reported.
Mr. Dunphy’s insight and analysis is the missing piece in this discussion. I admit to having a typical conservative “pro cop” bias, but I couldn’t understand how a grand jury could watch the video and not return an indictment. Mr. Dunphy’s analysis does not put the whole matter to rest, but it does the critical task — and it is embarrassing that the media didn’t even pretend to fulfill it — of explaining how a non-racist grand jury could have decided not to return an indictment.
The article begins, “Gentle readers, repeat after me: “Eric Garner was not choked to death. Eric Garner was not choked to death. Eric Garner was not choked to death.” You may now count yourselves among that small but distinguished minority of Americans who know this to be true.”
I tend to have a pro-cop anti-lawbreaker-resisting-arrest bias, but that kind of patronizing language annoys me. I have a short attention span: if he wasn’t choked to death, how did he die? Make your point, simply: why didn’t the grand jury indict the cop? Why was it ok to do that? I am open to persuasion, I am grateful for cops who do a dangerous job to keep me safe, I would love good ammo to argue against the “I can’t breathe” shirt-wearing folks.
Regardless of the details of the event, the overarching story remains: a man who had not committed a violent crime, who resisted arrest in a very passive manner, and who was greatly outnumbered was killed during the arresting process.
And while there may be solid legal reasoning as to why the officers were not prosecuted, I can still say unequivocally: the police should have used less force, and society should condemn the outcome of this case.
I haven’t heard anyone argue that there was no way of subduing Garner without killing him (as appears to be the situation in the Ferguson case). In other words, Garner’s death, while perhaps justifiable or legally defensible, could have been prevented by the police.
That doesn’t mean heads have to roll or laws and SOPs need to be rewritten. Police need to be able to ensure their own safety, and our laws will always have to err in favor of the police. But that doesn’t take common sense and humanity out of the equation.
I’ve been saying from the start: If you say, “I can’t breathe” then you can breathe. You can’t make words without breath.
The problem is too many invested in the narrative that Garner was choked to death. Upon finding out that was wrong, they just don’t want to say they invested incorrectly.
That would take true courage the race-baiters just don’t have.-
Jack Dunphy, thank you.
I’m a former cop. I’ve never had to deal with a 350 pound man, but I have experienced a wide range of unexpected behaviour, including physical strength in one arrestee I would have considered unbelievable had I not experienced it myself.
One particularly disappointing view on the matter was expressed by Jay Nordlinger. The man who has time and time again praised the policing policies which he holds responsible for making the streets of New York safe, the no-broken-window, zero tolerance policies, the ones he fears the new Mayor will abandon. This man flips instantly into saying that the police shouldn’t have even tried to arrest Garner, presumably because they should have anticipated things would go wrong.
Whaaaaaaaaa?
Enforcement of the law is not harassment!
I have experience with violence and with choke-holds. For the record, I have a black belt in Goju-Ryu karate, where such techniques are learned.
The first thing you need to understand about a choke hold is that it is very dangerous. Dangerous enough that it should be considered to be potentially deadly force, and people have been convicted of manslaughter for using it. This is why it’s not an approved procedure for restraining an individual who is not an imminent threat to anyone.
There are two major kinds of choke hold, and they both carry significant risk to the recipient:
The vascular choke hold or ‘blood choke’ is done by applying pressure to the carotid artery, cutting off blood supply to the brain. This works very fast – much faster than merely passing out from preventing breathing. The recipient can be unconscious in seconds. But it also means the brain is starved of oxygen almost immediately, and brain death can occur quickly if the hold is not released. Another risk of that hold is that on rare occasions the carotid artery will not re-open when pressure is released, and the person will die.
Using such a hold requires serious training, and an untrained person using it may think it takes minutes to ‘knock a person out’ completely, thinking that it’s like holding your breath. So they continue to apply the hold until the recipient suffers brain damage or death. In my small town of 70,000, we had two such deaths in the space of a couple of years due to bar bouncers using the holds on unruly patrons.
The respiratory choke-hold or ‘air choke’ requires significant pressure to the front of the neck to cut off the air supply – enough pressure that it can cause damage to the trachea or larynx and prevent the recipient from breathing properly after the hold is released. As far as I know, no police forces allow that type of hold because of the damage it can do to a critical part of the body. If that was the type of hold used, it might explain why the victim was saying he couldn’t breathe afterwards.
Aside from dying from the effects of the hold, grasping a struggling man around the neck can lead to other damage – the neck has a lot of delicate structures in it. If a 350lb man falls with a 200lb officer on his back with arms around his neck, bad things can happen. In addition, both holds have been known to cause heart attacks in people with previous conditions.
Since these holds are not permitted procedures in New York, I assume that the offers are not trained and certified in their application. Even in other jurisdictions where they are allowed they are considered to be potentially lethal and only for use when there is no other option and the person is an imminent threat.
So, what I saw in the video was a person who was no threat to the public, and had no history of violence, merely arguing with some officers. Something you can see a million times on YouTube or on [i]Cops[/i]. He had his hands out in front of him and obviously empty. He was not threatening anyone, or attempting to manhandle anyone. It was the equivalent of a motorist getting angry and gesticulating after getting a traffic ticket.
I would like to know why the officers escalated that situation. Given that he wasn’t an imminent threat to anyone, they should have given him some space, let him calm down, then written him a citation. That’s what cops usually do in such situations. They attempt to talk the person down and defuse the situation, perhaps back away from him to keep their guns out of his reach, etc.
And since this guy was identified, another option they had was to just let him go and then serve him a summons or arrest him at home where there were no innocent bystanders. But instead they decided to ‘take him down’ using potentially deadly force. Maybe they were innocent and there are details we’re not aware of – but that’s what court cases and juries are for.
New York City has a policy of arresting people breaking the law, even minor laws. Some attribute to this enormous reduction in major crime. That’s why he was arrested. It was their policy.
If Police decide not to arrest because it’s too hard, then they are making an announcement: resist and we will back down. The streets will be chaos within months. Actions have consequences. Failure to take action has consequences.
And finally, yes, ‘that’s what court cases and juries are for’. The Grand Jury considered the entirety of the evidence and found no case against the officer. They would have seen everything any of us saw, plus a great deal more. Are we now saying the Grand Jury was biased?
Frank, the quotes from Baden have to be taken with a grain of salt – he’s the guy the family hired. Not saying he’s wrong, but he does have some interest in advancing that line. One report I saw indicated no damage to the trachea or neck bones.
Otherwise, the reports I’ve seen (which have been predictably poor and sensationalistic) have the coroner’s report indicating that compression of the neck, compression of the chest, and prone positioning during physical restraint by police contributed to the death. So, even if the coroner’s report isn’t flawed and the headlock maneuver did contribute to the death – and I’m not dead set against that possibility – that’s still not the same as being “choked to death”. That would be where someone is choked until they die. Garner died of cardiac arrest in the ambulance on the way to the hospital.
Max, the only reason the American people put up with the ridiculous number of laws in this country is because the vast majority of them are not enforced the vast majority of the time. It’s easy to be self-righteous about that (“Just don’t violate the law and you won’t have any problems!”), but do you really think all of the laws in America are (1) right and just and (2) enforced equally against all people?
Regardless of the details? Yes, the overarching story must be maintained regardless of the details.
You say this as if the cops did something which would likely lead to Garner’s death, as if there was some intent or recklessness. But that’s not how it was. They took him down quickly, and Garner’s poor physical condition triggered the rest. If they had used some other physical maneuver, yet Garner hit his head on the sidewalk and died anyway, would you still be saying the same thing? Otherwise, what other way of subduing him carried zero or low risk of death?
It was an unfortunate and exceptional case. I don’t see how the police could have prevented it, nor how they could have prevented employing reasonable means which have some risk of injury or death to all involved. It’s not like they hit him with batons, or punched and kicked, or strangled him. They used force sufficient to subdue and restrain him, then they stopped and called the paramedics.