On Wednesday, a New York grand jury refused to indict Officer Daniel Pantaleo in the death of 43-year-old Eric Garner. Pantaleo is white; Garner is black. That one fact meant that the President of the United States and the Mayor of New York City took to the microphones to denounce American racism. President Obama talked about the “concern on the part of too many minority communities that law enforcement is not working with them and dealing with them in a fair way.” De Blasio went further, of course, calling for “action” and suggesting that the incident represented the culmination of “centuries of racism.”
Unlike the Michael Brown killing in Ferguson, Missouri, there is excellent cause for concern here. But that concern does not mean that facts of the case ought to become irrelevant.
The Case. The incident was caught on tape by a friend of Garner’s, and shows Garner, who weighed some 400 lbs., being confronted by police over distributing unlicensed cigarettes (colloquially called “loosies”). The video shows Garner resisting arrest, although not violently so – he shouts at officers, “Every time you see me you want to arrest me, I’m tired of this, this stops today…I didn’t do nothing…I’m minding my business, officer…” while waving his arms animatedly — before Pantaleo comes up behind him and places his left arm around Garner’s neck, bringing his right arm up below Garner’s right arm. Garner raises his hands, falling backwards, at which point three other officers physically grab Garner. He falls to the ground, Pantaleo hanging onto his back with his arm still around Garner’s neck. The officers tell Garner to put his hands behind his head, and Garner complains that he cannot breathe. Pantaleo forces Garner’s head to the cement. It is clear that witnesses do not believe Garner has been put in mortal danger.
Garner died a few minutes later.
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.” But the autopsy further noted that Garner died thanks to acute and chronic bronchial asthma, obesity, and heart disease.
The Charges. First off, it is vital to note that nobody knows exactly the charges filed with the grand jury against Pantaleo. According to ABC News, the charges could have included “second-degree manslaughter, criminally negligent homicide, felony assault, reckless endangerment.” The charges matter, since each individual charge carries with it requirements for different elements. As Professor Eugene O’Donnell of the John Jay Criminal College of Criminal Justice wrote in The New York Daily News:
As a practical matter — on the basis of past cases — the grand jury would likely indict only if it found malice or some intention to hurt Mr. Garner or that a gross disregard for Mr. Garner’s well-being is what created the tragic ending during this routine arrest. Finding that the officer was careless or that the arrest was bungled will not rise to the level of a crime.
The Arrest. It is vital to separate out the actions of the police from the rationale for their action. That’s because by virtually any logic, it is the height of irresponsibility and depravity for a man to end up dead for selling loose cigarettes. The law that led to this confrontation was pressed forward by former New York Mayor Michael Bloomberg; Garner had been arrested some eight times for selling “loosies.” As Lawrence McQuillan reported in The Washington Times:
In January 2014, tough new penalties for selling untaxed cigarettes took effect in New York City. In July, emboldened by the new law, the city’s highest-ranking uniformed cop, Philip Banks, issued an order to crack down on loosie sales days before Garner died.
So in terms of police cracking down on Garner, the real responsibility lies with Bloomberg and NYPD Chief Bill Bratton. Idiot laws lead to meaningless deaths.
The “Chokehold.” At issue in this case is the so-called “chokehold” used by Pantaleo. Chokeholds have been banned by the NYPD entirely since 1993; chokeholds are typically defined as holds that prevent people from breathing. Thanks to the video showing Garner stating that he cannot breathe, many pundits have wrongly suggested that Pantaleo was “choking” Garner by depriving him of air from his windpipe. Bratton himself suggested that Pantaleo used a “chokehold,” which is defined by the NYPD as “any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.”
That does not appear to have been the case. Garner did not die of asphyxiation, as the head of the Patrolmen’s Benevolent Association noted at the time. The preliminary autopsy showed no damage to Garner’s windpipe or neck bones.
So what was Pantaleo doing? He was applying a submission hold, which is not barred by the NYPD, and is designed to deprive the brain of oxygen by stopping blood flow through the arteries. So say the experts on submission holds.
It appears that the so-called chokehold was instrumental in triggering Garner’s pre-existing health problems and causing his death, but Garner was not choked to death, as the media seems to maintain. According to Garner’s friends, he “had several health issues: diabetes, sleep apnea, and asthma so severe that he had to quit his job as a horticulturist for the city’s parks department. He wheezed when he talked and could not walk a block without resting, they said.”
Excessive Force. There is no clear and concise guideline available on excessive force. According to Mark Henriquez, project manager for the National Police Use of Force Database Project at the International Association of Chiefs of Police, only .44 percent of all force complaints were considered excessive from 1994-1998.
So, in deciding whether a grand jury should have indicted Garner, we should assess the following questions:
- Was there any intent by the officers to kill Garner? That would certainly be an uphill case to make, as the grand jury likely found.
- Did the “chokehold” kill Garner, or did his pre-existing health conditions kill him? If Garner had otherwise been healthy, would he have died from use of the “chokehold”?
- If not, would use of the “chokehold” have been reckless?
- Was the use of the “chokehold” reasonable use of force rather than excessive use of force? Was the “chokehold” necessary to subdue him?
Unfortunately, in situations like the Garner case, our gut tends to overwhelm our assessment of the facts. We are sickened, as we should be, by the idea that a man died over sale of loose cigarettes – which is an indictment of the law, rather than of the police. We are sickened by the fact that a man died while warning officers he could not breathe – but we must assess whether that death was caused by the officers, or intervening medical conditions.
When people’s lives are at stake, it is worthwhile to actually examine those facts, rather than pre-conceived narratives constructed for political gain. And it is worthwhile noting that even if the police did use excessive force against Garner – which, of course, is quite possible – that still does not establish that they did so for racial reasons.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the new book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). He is also Editor-in-Chief of TruthRevolt.org. Follow Ben Shapiro on Twitter @benshapiro.