Must-Know Facts About the Chokehold Killing of Eric Garner

Bipartisan Condemnation

The first thing to note about the police killing of Eric Garner in New York is that – despite what you may have heard – this is not a partisan issue.

Fox News commentator Judge Napolitano says that the Grand Jury should have indicted the NYPD police officer who applied the lethal chokehold for excessive force.

George W. Bush said that the grand jury decision was “hard to understand.”

And the Christian Science Monitor notes:

Many on the political right and left united to condemn the grand jury decision, a rare event in an age of acute polarization.

The cover of the conservative New York Post says: “IT WAS NOT A CRIME,” written in big, bold letters, accompanied by still frames of Pantaleo putting Garner in a chokehold.

Fox News syndicated columnist and contributor Charles Krauthammer called the grand jury’s decision “totally incomprehensible.”

“I think anybody who looks at the video would think this was the wrong judgment,” Krauthammer said.

“It defies reason. It makes no sense,” wrote Sean Davis at the Federalist. “Just going on the plain language of the law, the police officer who killed Garner certainly appears to be guilty of second-degree manslaughter at the very least … All we have to do is watch the video and believe our own eyes.”

Leon Wolf of the conservative blog Redstate wrote, “This decision is really and truly baffling to me, and infuriating besides.”

Conservative commentator Erick Erickson endorsed this statement from the conservative Ethics & Religious Liberty Commission of the Southern Baptist Convention. “[A] government that can choke a man to death on video for selling cigarettes is not a government living up to a biblical definition of justice or any recognizable definition of justice.”

Twitter also lit up with reaction, with many on the right uniting to condemn the decision.

For example, Noah Rothman – Associate Editor at Hotair – tweeted:

This is one of those moments where left and right could unite. Few seem comfortable with this outcome.

History of Violence and Choking

Time Magazine reports that chokehold complaints against the New York Police Department are the highest in a decade – 219 last year alone – despite being banned for last 20 years.

The NYPD police officer who applied the chokehold which killed Garner had been sued 3 times for violating African-Americans’ constitutional rights.

Prosecutor Did Something Very Unusual

The second thing you should know about Eric Garner’s grand jury is that the prosecutor did something very unusual.

Specifically, he let the accused officer testify directly to the grand jury.  (The same thing happened with the Michael Brown grand jury).

As the New York Times points out:

“In the majority of cases, defendants do not testify in front of a grand jury,” said James J. Culleton, who has represented police officers in high-profile police shootings, including those of Amadou Diallo and Sean Bell.

Marjorie Cohn explains:

In a normal grand jury proceeding, the prosecutor presents evidence for a few days and then asks the grand jurors to return an indictment, which they nearly always do. Of 162,000 federal cases in 2010, grand juries failed to indict in only 11 of them, according the Bureau of Justice Statistics.

***

Justice Antonin Scalia explained the function of the grand jury in United States v. Williams as follows:

[I]t is the grand jury’s function not “to enquire . . . upon what foundation [the charge may be] denied,” or otherwise to try the suspect’s defenses, but only to examine “upon what foundation [the charge] is made” by the prosecutor. [citations omitted] As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Every principle Scalia cited was violated in this case.

Moreover, the district attorney didn’t even ask the grand jury to consider a charge of reckless endangerment … which would have been much more likely to have resulted in an indictment.

Policy Choices

Policy choices and priorities are largely behind Garner’s death.

After all, the big looting is happening on Wall Street, not in poor black communities. But the government has decided not to lay a glove on those committing criminal fraud on Wall Street.

Rolling Stone’s Matt Taibbi notes:

After yet another non-indictment following a minority death-in-custody, the police suddenly have a legitimacy problem in this country.

***

Law-enforcement resources are now distributed so unevenly, and justice is being administered with such brazen inconsistency, that people everywhere are going to start questioning the basic political authority of law enforcement. And they’re mostly going to be right to do it, and when they do, it’s going to create problems that will make the post-Ferguson unrest seem minor.

***

The psychic impact of these policies on the massive pool of everyone else in the target neighborhoods is a rising sense of being seriously pissed off. They’re tired of being manhandled and searched once a week or more for riding bikes the wrong way down the sidewalk (about 25,000 summonses a year here in New York), smoking in the wrong spot, selling loosies, or just “obstructing pedestrian traffic,” a.k.a. walking while black.

This is exactly what you hear Eric Garner complaining about in the last moments of his life. “Every time you see me, you want to mess with me,” he says. “It stops today!”

This is the part white Middle American news audiences aren’t hearing about these stories.

***

The press and the people who don’t live in these places want you to focus only on the incidents in question. It was technically a crime! Annoying, but he should have complied! His fault for dying – and he was a fat guy with asthma besides!

But the real issue is almost always the hundreds of police interactions that take place before that single spotlight moment, the countless aggravations large and small that pump up the rage gland over time. [The same is true in Ferguson.]

***

This policy of constantly badgering people for trifles generates bloodcurdling anger in “hot spot” neighborhoods with industrial efficiency. And then something like the Garner case happens and it all comes into relief. Six armed police officers tackling and killing a man for selling a 75-cent cigarette.

That was economic regulation turned lethal, a situation made all the more ridiculous by the fact that we no longer prosecute the countless serious economic crimes committed in this same city. A ferry ride away from Staten Island, on Wall Street, the pure unmolested freedom to fleece whoever you want is considered the sacred birthright of every rake with a briefcase.

If Lloyd Blankfein or Jamie Dimon had come up with the concept of selling loosies, they’d go to their graves defending it as free economic expression that “creates liquidity” and should never be regulated.

Taking it one step further, if Eric Garner had been selling naked credit default swaps instead of cigarettes – if in other words he’d set up a bookmaking operation in which passersby could bet on whether people made their home mortgage payments or companies paid off their bonds – the police by virtue of a federal law called the Commodity Futures Modernization Act would have been barred from even approaching him.

There were more cops surrounding Eric Garner on a Staten Island street this past July 17th then there were surrounding all of AIG during the period when the company was making the toxic bets that nearly destroyed the world economy years ago. Back then AIG’s regulator, the OTS, had just one insurance expert on staff, policing a company with over 180,000 employees.

This is the crooked math that’s going to crash American law enforcement if policies aren’t changed.

***

When that perception sinks in, it’s not just going to be one Eric Garner deciding that listening to police orders “ends today.” It’s going to be everyone. And man, what a mess that’s going to be.

But don’t listen to Taibbi … he’s a muckraking journalist.

Let’s instead listen to one of the nation’s top criminologists – law school professor William Black, who led the nation’s enforcement against S&L executives who committed white collar crime, obtaining convictions on over 1,000 of them – who writes:

New York City exemplifies two perverse criminal justice policies that drive many criminologists to distraction. It is the home of the most destructive epidemics of elite financial frauds in history. Those fraud epidemics hyper-inflated the housing bubble and drove the financial crisis and the Great Recession. The best estimate is that the U.S. GDP loss will be $21 trillion and that 10 million Americans lost their jobs. Both numbers are far larger in Europe. The elite “C Suite” leaders of these fraud epidemics were made wealthy by those frauds through bonuses that measured in the billions of dollars annually.

The most extraordinary facts about the catastrophic fraud epidemics, however, is New York City’s reaction to the fraud epidemics. Not a single Wall Street bankster who led the fraud epidemics has been prosecuted or had their fraud proceeds “clawed back.” Not a single Wall Street bankster who led the fraud epidemics is treated as a pariah by his peers or New York City elites. New York City’s elected leaders have made occasional criticisms of the banksters, but Mayor Bloomberg was famous for his sycophancy for the Wall Street banksters that made him wealthy. In 2011, Mayor Bloomberg attacked the “Occupy Wall Street” movement for daring to protest the banksters ….

It is, of course, depraved to claim that because banksters are made wealthy through fraud and pays a small portion of that wealth in taxes they should not be held accountable for those frauds because they are important to local finances. The claim becomes all the more risible when we take into account that under Dimon’s leadership JPMorgan became infamous for engaging in and facilitating billions of dollars in tax evasion that cost many governments, including NYC, enormous amounts of tax revenues. As a final indignity, most of the purported amounts that JPMorgan paid in settlements with DOJ are actually paid by the U.S. Treasury because DOJ allowed JPMorgan to treat large amounts of those payments as tax deductible.

***
The reality was the Dimon and Blankfein were leading two of the world’s largest, most prestigious, and most destructive criminal enterprises. Nevertheless, as their repeated, massive felonies become more evident every month and as the Libor and FX conspiracies demonstrate that the CEOs of our largest banks are running criminal enterprises, their elite peers have not only failed to denounce the banksters but have instead demonized those who try to restore the rule of law in America as Nazis.

The crisis is marked by exceptional recidivism by these banks and banksters, the rapid progression of fraud in terms of severity and its spread through the elite banks, and the creation of a massively corrupt culture in banking and their political allies in which even the largest and most destructive frauds are ignored and the perpetrators are shielded from even the mildest forms of accountability. To sum it up, NYC exemplifies the moral depravity, endemic criminality, and resultant breakdown of the criminal justice system that “broken windows” theory predicts.

***

This class-based rush to shield elite white-collar criminals from even the mildest forms of administrative accountability (the SEC uses “broken windows” as a PR slogan, not a reality) while simultaneously adopting an ultra-aggressive policy of arresting mostly poorer Blacks and Latinos for the most minor of offenses (e.g., selling small numbers of cigarettes from broken packs). The proponents of using “broken windows” to arrest large numbers of minorities for minor property offenses almost never demonstrate any awareness of the obvious obscenity and disaster of allowing banksters to grow wealthy by defrauding with impunity. Eric Garner ends up dead because the police arrest him for selling goods without paying sales tax (amounting to several hundred dollars in lost government revenue over the course of a year). The fraud epidemics cost that drove the financial crisis and the Great Recession cost our Nation $21 trillion – and no senior banker who led the frauds in even arrested.

***

The proponents of mass arrests of disproportionately poor Blacks and Latinos for minor property offenses had a superb and unprincipled PR machine. Police Commissioner Bernard Kerik, eventually admitted his guilt to a series of felonies. The NYPD PR machine claimed that NYC’s reduction in reported crime was produced by “broken windows” policing. The reality was that most major municipal areas that did not employ “broken window” strategies reported substantial reductions in crime in the same time period. Further, the police in many cities were employing new strategies during this same time period, so attributing causality to the reported crime reductions (a) to police strategies in general or (b) any particular police strategy is generally unreliable. (Criminologists also know that reported crime levels are often unreliable. Local officials frequently game the numbers and Kerik later confessed to committing many acts of deceit in connection with other events.)

In addition to arresting large numbers of poorer, darker-colored citizens for mostly minor property crimes under the rubric of “broken windows,” NYC followed a strategy of massively increased “stop and frisks” of disproportionately poorer Blacks (50%) and Latinos (30%). By 2011, the NYPD was conducting 684,000 humiliating “stop and frisk” actions in a single year (nearly 1874 per day – with an average of 1500 of those being Blacks and Latinos). Only a small percentage of these humiliations result in successful prosecution. To its credit, the Cato Institute has excoriated the NYPD’s stop and frisk policies. The average large bank’s C Suite has a dramatically higher crime incidence than does a street in Harlem. All the property crimes committed cumulatively by Black and Latino residents of Harlem over the last 400 years were exceeded in the typical minute of the Libor fraud and cartel.

To this systematic anti-prioritization of criminal justice resources that causes the NYPD to ignore the most destructive property crimes in history that are (disproportionately) committed by elite whites and focus overwhelmingly on the least destructive property crimes committed in parts of the city (disproportionately) inhabited by Blacks and Latinos one must add “stop and frisk,” the outright racist effects of the sentencing disparity for powder v crack cocaine, and the emphasis on arresting drug sellers overwhelmingly in poorer areas inhabited disproportionately by Blacks and Latinos. Collectively, the strategy means that policing in NYC is aimed overwhelmingly at Blacks and Latinos, creates the constant humiliation of young Blacks and Latinos, makes it inevitable that large sections of these communities will view the police as the problem rather than the solution, and produces the self-fulfilling prophecy of leading to grossly disproportionate numbers of Black and Latino males having criminal records that impair their ability to get jobs and form well-functioning families. The resultant hostility between the police and much of the community means that both groups feel that they are under siege by the other.

***

Criminologists generally do not agree that research has demonstrated any such “necess[ity]” [for a broken window enforcement strategy]. Criminologists increasingly recognize the extreme costs inflicted on society of applying the racialized and class-driven counter-prioritization of “broken windows” strategy in the manner used by the NYPD.

Ironically, the “broken windows” strategy worked far better in the context of elite white-collar, e.g., in our response to the control fraud epidemic that drove the savings and loan debacle and our crackdowns on junk bond and liar’s loan frauds. “Broken windows” strategies against elite white-collar crimes have far fewer drawbacks than they do in the blue-collar sphere. Conservative proponents of “broken windows” strategies against blue collar crime, however, rarely mention elite white collar crime. Sadly, Sutherland’s observations about the unwillingness of elites to take elite white-collar crimes seriously and the resultant enormous cost of such crimes remains largely true 75 years later.

The “broken windows” strategy against blue collar crime and the related strategies that have made it inevitable that criminal justice enforcement will be unjust and will fail against elite white-collar criminals also makes it inevitable that large numbers of Blacks and Latinos and the police will be largely unable to understand each other and work together.

***

How many Blacks and Latinos must we incarcerate and even kill for trivial offenses in order to optimally improve the “quality of life” of Blacks and Latinos?

***

The Black and Latino communities have heard, ad nauseum, “politicians” “explain” why “quality-of-life enforcement” is supposedly “necessary” in their communities. They have heard the thunderous silence of the proponents of this claim – the failure to even attempt to “explain” why “quality-of-life enforcement” is not necessary on Wall Street. They do not accept the validity of the explanations and they know full well why the NYPD refuses to even try to enforce the rule of law on Wall Street.

***

Criminology can help. The mother of all serious crime “hot spots” in NYC can easily be mapped using Geographical Information System (GIS) software. The system would generate nice tight crimson circles around the C-Suites of the twenty largest Wall Street banks and bank holding companies.

Questioning Authority May Get You Killed

Garner’s real crime – the one that got him killed – was questioning the police.

Civil rights legal expert John Whitehead writes:

If you don’t want to get probed, poked, pinched, tasered, tackled, searched, seized, stripped, manhandled, arrested, shot, or killed, don’t say, do or even suggest anything that even hints of noncompliance. This is the new “thin blue line” over which you must not cross in interactions with police if you want to walk away with your life and freedoms intact.

***

Eric Garner, 43 years old, asthmatic and unarmed, died after being put in a chokehold by NYPD police, allegedly for resisting arrest over his selling untaxed, loose cigarettes, although video footage of the incident shows little resistance on Garner’s part. Indeed, the man was screaming, begging and insisting he couldn’t breathe. And what was New York Mayor Bill De Blasio’s advice to citizens in order to avoid a similar fate? Don’t resist arrest. (Mind you, the NYPD arrests more than 13,000 people every year on charges of resisting arrest, although only a small fraction of those charged ever get prosecuted.)

***

Clearly, when police officers cease to look and act like civil servants or peace officers but instead look and act like soldiers occupying a hostile territory, it alters their perception of “we the people.” Those who founded this country believed that we were the masters and that those whose salaries we pay with our hard-earned tax dollars are our servants.

If daring to question, challenge or even hesitate when a cop issues an order can get you charged with resisting arrest or disorderly conduct, you’re not the master in a master-servant relationship. In fact, you’re not even the servant—you’re the slave.

This is not freedom. This is not even a life.

This is a battlefield, a war zone—if you will—governed by martial law and disguised as a democracy. No matter how many ways you fancy it up with shopping malls, populist elections, and Monday night football, the fact remains that “we the people” are little more than prisoners in the American police state, and the police are our jailers and wardens.

There is obviously a giant racial component to the overwhelmingly white grand juries in New York and Ferguson acquitting white police officers who killed black men.

But – given that peaceful protest, dissent or questioning government policy are now labeled “terrorism” – it is really a power trip by the powers-that-be against anyone who would question them.

After all, numerous top U.S. government officials have all said we’re in or very near to becoming a police state.

Indeed, the militarization of police in modern America is  the exact thing the Founding Fathers fought the Revolutionary War to stop.

The question is whether we’ll stand up for one another.