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Eric Garner and the Dog Who Didn’t Bark
Amid the contention over the Eric Garner case — whether the force used against him was justified, how much his criminal and medical histories should bear on the events, etc. — two points have emerged with what should be crystal clarity: that the cigarette taxes that make selling “loosies” so profitable are absurd, and that the crime Garner was being arrested for at the time of his death is almost wholly a creation of these taxes.
To give a sense of just how crazy cigarette taxes are in New York City, consider that each pack of 20 is subject to $4.35 in state taxes, plus an additional $1.50 in city taxes: in all, a little over $0.29 per cigarette. Given that cigarettes are legally available within a day’s drive for less than the cost of the taxes, it’s little wonder that an estimated 57% of the cigarettes sold in the state are smuggled in (the highest rate in the nation; Lord knows how much higher the figure is for NYC itself). It’s even less of a surprise that street vendors like Garner and this fellow can make a living selling individual cigarettes for $0.70 each or $1 for two.
Now, given this situation — and the supposed concern for people victimized by overzealous law enforcement — you would think that at least someone in the Empire State or Gotham would call for a reexamination of the tax policies that directly led to Garner’s arrest and, indirectly, to his death.
What have we gotten? Nary a whisper. If Andrew Cuomo or Mayor de Blasio have said anything to that effect, it has escaped Google’s notice. Indeed, as recently as this past July (the month Garner died) Cuomo was heralding the success of the state’s anti-cigarette smuggling task force. NYT columnist Gail Collins — who wrote a piece just last year praising President Obama’s call for increasing national cigarette taxes — hasn’t made a peep on the matter. Even the wonderful Heather Mac Donald at the equally wonderful City Journal hasn’t commented on New York’s cigarette taxes in the three pieces she’s written that touch on Garner’s death, other than to cite his violations of them as broken windows in need of policing; the idea that the taxes themselves lead to criminality by incentivizing smuggling has not appeared in any of her work that I can find.
Meanwhile, in Washington State, Governor Jay Inslee launched a call for increasing the Evergreen State’s cigarette taxes by $0.50/pack in just the last few weeks; if successful, this would make the Evergreen State the home of the second-highest cigarette taxes in the nation (it’s currently at #6). Curiously — though not surprisingly — Washington currently has the fourth-highest rate of cigarette smuggling. Anyone want to make a bet which way that number goes if Inslee is successful?
Broken Windows is a solid theory with a good deal of empirical data to support it; one can endorse it in general while criticizing its specific application in enforcing laws that aren’t merely minor, but profoundly stupid.
Published in General
You’re being too cute here. The police only had cause to arrest Garner because he was known to them as a career criminal. They pretty clearly decided to off him, as they apparently weren’t too concerned about his well-being after the against-policy chokehold did its job.
“What you don’t see is any apparent urgency on the part of the police, even though Garner would die less than an hour later.”
I don’t buy the ridiculous argument that that number of policemen “feared for their safety” from an unarmed man in poor health. Some police seem to use that phrase as a get-out-of-jail card, as in this case.
It most certainly is not clear that they “decided to off him”. It’s also becoming clear that the choke hold (if that’s actually what it was – I suspect it wasn’t actually a choke hold and was more just a head lock) wasn’t THE cause of death; at best it was merely a contributing factor along with chest compression, positional asphyxia, and critical health conditions. As far as not being concerned enough: they released the hold as soon as Garner was in possession, they called the paramedics promptly, and Garner was still breathing when they showed up. What else did you want the officers to do?
This is simply an unserious argument to make. Sorry.
“The autopsy from the medical examiner attributed his death to homicide – meaning death at the hands of another party, not murder, in medical parlance – and stated that he died thanks to “Compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police.””
“The NYPD itself finally banned the use of chokeholds outright in 1993, following the 1991 death in police custody of Federico Pereira, a suspected car thief in Queens, of “traumatic asphyxia.” (One of the officers involved in Pereira’s arrest was tried for manslaughter and criminally negligent homicide but acquitted in 1992.4 The NYPD patrol guide admits of no circumstance where a chokehold is permissible:
“Members of the New York City Police Department will NOT use chokeholds. A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.5″
“Despite the complete prohibition in New York City, the use of chokeholds remains a persistent problem. The Civilian Complaint Review Board received over 1,000 chokehold complaints between 2009 and 2013; after fully investigating 462 cases, the board substantiated the claims in nine cases and lacked evidence to make a determination one way or the other in 206 cases. The newly appointed chairman of the board has announced a study “to discern why officers continue to use this forbidden practice” and “to shed light on the CCRB methodologies that led to such a large number of cases that are unsubstantiated.”6 Of the nine cases where an illegal chokehold was found to be used, the most serious sanction was a loss of vacation days….”
So the ban is not enforced, and cops are not trained to do it “correctly”. Then there’s the fact that it’s simply illegal in New York State…
“Three strangulation offenses were added to the Penal Law on Nov. 11, 2010: criminal obstruction of breathing or blood circulation, a Class A misdemeanor; second-degree strangulation, a Class D felony; and first-degree strangulation, a Class C felony. “
What are you sorry for? And no, it’s not “unserious”. That there is neck compression does not mean choking or strangling. I’ve had some direct personal experience with all of the following (I have two older brothers): head locks, sleeper hold, the pass out game, and strangulation*. How do you distinguish a head lock from a choke hold in order to arrive at the conclusion that such a suggestion is not serious?
You also left out the last sentence of the Breitbart article you quoted: “But the autopsy further noted that Garner died thanks to acute and chronic bronchial asthma, obesity, and heart disease.” So which is it? What actually caused Garner’s death? I’m surprised they left out air pollution, global warming, and the second gunman from the grassy knoll as contributing causes.
*While obviously we let go without causing damage, my brother and I during one of our brawls were actually strangling one another.
So your position is that Garner had heart attack that was entirely a coincidence, and the damage to his head that the coroner found had nothing to do with it? Yes, that’s an unserious argument to make.
I updated my comment. The cop did not obstruct his breathing, according to the coroner, but he did cut off blood flow to his head.
“Then there’s the fact that it’s simply illegal in New York State…
“Three strangulation offenses were added to the Penal Law on Nov. 11, 2010: criminal obstruction of breathing or blood circulation, a Class A misdemeanor; second-degree strangulation, a Class D felony; and first-degree strangulation, a Class C felony. “”
First, it’s seriously in dispute whether this was actually a choke hold or not. Second, your concluding sentence is contradicted by your own quoted section (there were investigations and disciplinary measures taken). If the nine cases of deemed choke holds were the result of insufficient training, accident, or flow-of-events and there was no serious injury or intent to harm then why would you expect anything more strict than additional training and minor disciplinary measures be taken?
No, that’s not my position. I readily admit that it may have been a contributing factor in Garner’s death.
My position is this:
No, it’s not. Who’s disputing it? Not the autopsy report, not the NYPD ban, and not the state law. All three agree that cutting off blood flow to the head is included under the definition of a chokehold, and that’s what happened.
And for anyone confused about that, they can go watch the video again.
“…why would you expect anything more strict than additional training and minor disciplinary measures be taken?”
I’m old-fashioned. I expect the police to follow the law, before anyone else does.
If strangulation is against state law, and Garner was clearly strangled (again, see the video, and the coroner’s report), then the police involved should have been held responsible for it.
The fact that they weren’t indicates that NYS and the NYPD is rotten to the core. But that’s hardly news for anyone who lives near it.
According to this link, the criminal obstruction of breathing or blood circulation statute requires intent to be applicable. I’m not sure of the requirements for the strangulation statutes, but I think that it’s seriously doubtful whether this is even close to qualifying as strangulation.
Of course it’s in dispute. Pantaleo, for one, is claiming that it wasn’t a choke hold. He’s certainly not alone. I tend to agree with him even after watching the video and even after reading the reports on the ME’s report (I believe the actual report hasn’t been released).
OK, if you do think that, then I understand why you might think the rest isn’t important. This is a quote from a Dr. on Hannity’s show:
“BADEN: But I think the autopsy itself — the medical examiner did a great job on this. There’s 27 pages in the report. And the female (ph), she found that there were 10 hemorrhages on the inside of the neck, in the muscles of the neck, petechial hemorrhages in the eye, hemorrhage in the tongue. And those are all evidence of neck compression. You’re right, chokehold has many different meanings in all. What we’re concerned at autopsy is was there pressure on the neck….
“…BADEN: That’s a distinction, but in this case, doesn’t make a difference to me because when we’re looking at the autopsy findings, the autopsy findings, whatever we call it, chokehold, headlock, there was enough pressure on the neck to prevent the blood flow —
“HANNITY: Right.
“BADEN: — that you talked about, to prevent air flow, and pressure on the chest and face, so that when he’s saying, I can’t breathe, he’s telling the truth.
“HANNITY: He said it 11 times.
“BADEN: And he died of not being able to breathe….
“…RIVERA: — a criminally negligent homicide.
“DIETL: No! That’s too far. You’re going too far!
“RIVERA: That’s as low as a homicide gets.
“DIETL: Well, I don’t believe this should be — homicide is by another, am I right, Doctor?
“BADEN: I love Bo Dietl, but Geraldo’s right.”
You are jumping to conclusions that aren’t supported by the evidence you presented. Did the panel find that the officers broke the law in those 9 cases? Or did they merely break department policy?
Which might carry some weight if we didn’t have a video of the chokehold. And an autopsy report detailing the effects of the chokehold.
And a bunch of words in the English language defining these things.
“More technical variants of manual strangulation are referred to as chokeholds, and are extensively practiced and used in various martial arts, combat sports, self-defense systems, and in military hand-to-hand combat application. In some martial arts like judo and jujutsu, strangles or chokes are regarded as a safe way to render the opponent unconscious as opposed to other attacks, e.g., strikes to the head.”
No, it’s not clear that Garner was strangled. The coroner’s report doesn’t mention strangulation, it mentions neck compression. That is not the same as strangulation.
Dr. Baden is the guy hired by Garner’s family. That doesn’t disqualify what he says any more than his being a doctor certifies what he says is truth. Baden needs to be taken with a grain of salt.
And there are doctors who take contrary positions to Baden’s.
Of course Pantaleo would claim it wasn’t a choke hold; he’s the one on the spot. It should be noted, however, that Pantaleo has a significant record of excessive force, including disciplinary actions. That makes some of Officer Pantaleo’s statements at least open for debate.
The disparity in height makes it highly unlikely that Officer Pantaleo actually applied a head lock, even if he meant to. The concept that cutting off Garner’s wind/blood flow would immediately reverse when the hold was released (and it was kept on on the ground while the others applied chest pressure, head pressure, and pulled his arms to his back to handcuff) may be OK for the cops to claim, but medically it probably set off the reaction that ended up with his demise. People who are seriously short of breath aren’t unable to speak – they are unable to hold a conversation because they run out of air before they can complete a sentence. AND they are VERY AGITATED as inability to breathe is one of the most frightening conditions of the human body.
It most definitely is.
Except that Pantaleo’s hold on Garner led to neither unconsciousness nor stopped breathing. He was both conscious and breathing when the hold was released.
Nothing in the video suggests the maneuver was intended to restrict blood or air as opposed to merely physically subduing the large man. Nothing about the move I saw on the video and how it was employed would have caused me to think its use carried substantial risk of death or was negligent.
Well, since you’re not familiar with the evidence, this makes for interesting reading (PDF):
“…As defined, chokeholds, though not illegal, are unambiguously
prohibited by Department policy.
“This report reveals that officers have continued to perform chokeholds and, based on the complaints the CCRB received from the public, the use of chokeholds appears to be increasing despite the Patrol Guide prohibition. It also reveals that this crystal clear prohibition has been degraded over the course of the last decade. Put simply, during the last decade, the NYPD disciplinary decisions in NYPD administrative trials of chokehold allegations failed to enforce the clear mandate of the Patrol Guide chokehold rule. In response to these decisions which failed to hold offending officers accountable, the CCRB and NYPD Department Advocate’s Office failed to charge officers with chokehold violations pursuant to the mandate of the Patrol Guide chokehold rule. In essence, in their respective charging decisions, the CCRB and the Department Advocate redefined a “chokehold” to require force to the neck during which an officer actually and substantially interfered with a complainant’s breathing rather than “pressure” to the neck which “may” interfere with breathing. In this respect
the chokehold rule “mutated” to adapt to the NYPD disciplinary process, rather than the disciplinary process following the NYPD rule.
“This pragmatic redefinition of the rule in response to the NYPD’s systematic refusal to impose discipline in all but the most severe chokehold cases, evolved into an unwritten, much less protective definition: actual and sustained interference with breathing was substituted for the Patrol Guide’s clear and unequivocal prohibition of any pressure to the neck which “may” inhibit breathing. In essence, inadequate disciplinary practices transplanted the heart of the chokehold rule during a period in which, as the number of chokehold complaints suggests, chokehold incidents were increasing. The NYPD’s blanket prohibition of chokeholds should be restored and uniformly enforced.”
I’d argue that they’re pretty clearly also illegal, as they’re obviously a form of strangulation.
“Your honour, I didn’t intend for the gun to go off!”
Please.
This argument you’re making is ridiculous. It’s made so by the fact that they guy died, and repeatedly said “I can’t breathe”. At any point the cop could have let go, but he didn’t until Garner was unconscious. Which was clearly the officer’s goal, and the point of a carotid submission hold.
Agreed. It’s all debatable. I think people have tended to attach too much certainty to their positions regarding this case. I have been saying that I wouldn’t have thought it an injustice if t he grand jury had decided to indict instead. I might have disagreed and have been discouraged had such an indictment ended with a conviction, but I wouldn’t have thought it all a miscarriage of justice.
That’s simply not true. Garner was conscious and breathing when Pantaleo let go.
Otherwise, any force has a risk of serious injury or death. Any. If Pantaleo had tackled Garner instead, and Garner died from hitting his head on the concrete during the fall would you still be claiming that Pantaleo committed a crime because the guy died and he had managed to scream “you’ll crack open my skull” on the way down? No. Death after the fact is not an indicator of whether the force actually applied would have or should have been considered lethal force prior to the extraordinary circumstances that unfortunately came together in this case.
Certainly plausible. That doesn’t mean the line between crime and accident during otherwise valid enforcement effort was crossed. I think we’d need more explicit evidence of intent or negligence to make that case. Perhaps a case for negligence could be made as is, but it’s not self-evident and the grand jury and many others disagree with that assessment.
Ok, so then these 9 cases involved actions contrary to department policy and not violations of law? My question in this context still stands: why are additional training and other disciplinary measures not enough for you in those cases? On what basis are you calling for terminations or even jailing?
First point, a chokehold is strangulation, which is against the law in NY. It’s also against NYPD policy, but that’s sort of beside the point now…
2011: “New York law now makes choking a crime, results in 2,000 arrests”
“Police and prosecutors, who in the past had difficulty prosecuting such cases because of the lack of visible physical injuries, said the law clearly was needed.”
Second point: we need to hold police to at least the same standards that we hold civilians to, preferably higher.
As we can see, the police regularly commit an act that’s a crime which would put a civilian in jail.
“Additional training” hasn’t worked, obviously, as the regulation was on the books for years before it became a crime.
Third point: can you imagine what would happen to a security guard if he killed a person while using an illegal technique? He wouldn’t lose vacation days…
A lot of NYPD consider themselves to be above the law. It’s not a good thing…
Well, I think you’re jumping to conclusions not supported by the evidence you’re presenting. Namely, that what was done in these 9 cases was strangulation, that what was done was illegal rather than merely against policy, that “police regularly commit an act that’s a crime which would put a civilian in jail”. I further disagree that there aren’t valid and meaningful distinctions between the various types of maneuvers and that a choke hold is always strangulation.
The thing that you quoted as evidence said that there was no illegality in the 9 cases. So either the moves used don’t count as strangulation, or there is some other technical distinction which makes it not a crime. Either way, if there was nothing illegal according to the findings then on what basis are you claiming that employee disciplinary measures are insufficient?
There was apparently no illegality in the 9 cases from the report you quoted. So this comparison is irrelevant.
In the Garner case, the illegality of the move is not self-evident and is very much disputed. As is whether it would normally be considered to be lethal force or negligent. As is the role this move actually played in the death and whether this was reasonably foreseeable or an unfortunate confluence of unforeseeable factors.
Or the NYPD just isn’t interested in pursuing cases against its officers—regardless of the facts. Which appears to be the case.
“Even more troubling is the NYPD dismissal out of hand of cases in which the CCRB has substantiated complaints of excessive force by police officers. Our analysis of CCRB reports reveals that in 2008 nearly a quarter of the reported cases dismissed by the NYPD involved substantiated force complaints.
“Not only have NYPD prosecutors started to dismiss without any action a large portion of CCRB-substantiated cases, they also have, for the remaining cases, effectively stopped pursuing trials against officers. In 2007 for instance, Department prosecutors took only 2.7 percent (8 out of 296 cases) to trial….”
Alright, I won’t get any deeper into this side line. Especially when you start linking the New York Civil Liberties Union. Undoubtedly, there is another side to the story which might dispute some of these quoted characterizations. Ultimately, there is a process and there are consequences. The CCRB you mentioned, according to its own website, can now issue more than simply recommendations for the most serious findings. Also, criminal prosecution is not forestalled. The trouble here is that you’re claiming crime when several authoritative bodies disagree with you (and I suspect that the actual wording of the laws you’re quoting would make it clear why that’s so).