Choking Justice: Eric Garner and Directionless Dialogue

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Amid widespread protests, U.S. Department of Justice investigations into state police departments, and abundant media coverage, the only commonality concerning the implications of unarmed police killings in American society is an ironic and confounding lack of consensus.

There is a schism between those that unconditionally support the police and others that are calling for complete policing reforms. Then there is the divide over whether or not the latest spat of police homicides are really about ‘race.’ Of course, discord and dissention in the wake of high profile police shootings of unarmed black men is the norm. However, many insist the case of Eric Garner represents a vital turning point.

The Eric Garner case has caused a meteoric uproar in both the numbers and intensity of nationwide demonstrations following the killing of Michael Brown. However the current societal shockwave is not new. Rather, it mirrors a pattern all too familiar.

In 1991, the killing of Rodney King sparked a furious round of protests followed by impassioned, but sterile conversations. King was savagely beaten by police officers after being pulled over. The police officers that beat King, though indicted, were ultimately found not guilty of all charges. The infamous Los Angeles riots, marked by days of looting and social unrest, erupted following the verdict. In 2009 Oscar Grant was shot in back as he lay handcuffed facedown after being apprehended in the early hours of New Year’s Day. Officer Johannes Mehserle was found guilty of involuntary manslaughter, the lightest of the charges brought against him for the death of Grant. Although ensuing protests were initially peaceful, at least 80 protesters were arrested.

The common denominator that forced the trials of the police officers involved in both cases, and in the case of Garner, was that each incident was caught on camera and sparked widespread condemnation.

According to a medical examiner Eric Garner died from ‘compression of neck (choke hold,) compression of chest and prone positioning during physical restraint by the police.’ The examiner ruled his death a homicide, meaning that it was caused by an external person or persons. Factors such as heart disease, obesity, and asthma also contributed but were not the primary and ultimate cause of death.

The use of the chokehold as a restraining technique was banned by the New York City Police Department (NYPD) in 1993. Even so, according to the New York City Civilian Complaints Review Board, complaints regarding the use of chokehold by the police force-particularly in black neighborhoods – is on the rise. The officer in question that placed Garner in the chokehold, Daniel Pantaleo, has a record full of civil cases filed against him alleging racial discrimination.

Garner can be heard in the video that took youtube by storm and brought the matter to the public attention saying ‘I can’t breathe’ as he is grappled to the ground in a chokehold. The second portion of the video shows Garner lying still on the pavement as witnesses in the crowd ask if any medical personnel will check on him. He shows no signs of breathing. Eventually a group of officers sloppily lift him onto a gurney, leaving one of his legs dangling from the side.

The police approached Garner for selling loose untaxed cigarettes. Although, according to people on the scene, he was not selling at the time he was apprehended. Like many others, Garner was stopped as a result of policing tactics directly related to the War on Drugs and aggressive crime reduction strategies in New York City. Selling loose cigarettes, or ‘loosies,’ is a Quality of Life Offense – a crime that may create physical disorder or demoralize community residents but, as in the case of Garner, may also be victimless.

A mobile phone camera shows how Garner was held in a chokehold until he went unconscious and was not examined by medical personnel in the immediate aftermath of the incident. This seemingly clear depiction of events has only made consensus about the case more elusive.

Within the past three decades the NYPD has embarked on a major campaign that heavily criminalizes previously low level offenses, such as possessing small amounts of marijuana.  These crimes required mandatory minimum sentences, as part of a larger federal strategy to reduce drug use and violent drug crime in urban areas. These War on Drugs policies have largely failed to decrease the rate of drug use and the proliferation of drug related crimes, particularly that of organized syndicates.

According to a federal legislative guide produced by the Drug Policy Alliance, a leading drug policy reform advocacy organization, these heavily militarized police tactics disproportionality target ethnic minorities and have failed to make illicit drugs less available. While Black and Latinos sell and use drugs at similar rates to whites, ‘they are disproportionately targeted for arrest, and punished more harshly at every step of the criminal justice system,’ the report said.

Furthermore the policy of ‘stop-and-frisk,’ whereby NYPD police officers exercise an immense deal of discretion in stopping and targeting individuals for drug or weapons related searches, was ruled unconstitutional by a federal judge because the tactic violated the constitutional rights of Black and Latino New Yorkers. During the case the court looked at 4.4 million instances of stop-and-frisk between 2004 and 2012. According to the Drug Policy Alliance ‘about 85% of those stopped were either Black or Latino, and more than 90% were not arrested or charged with any wrongdoing.’  The number one arrest resulting from a police stop in New York is marijuana possession, despite the fact that possession of small amounts of the drug was decriminalized in 1977. Stop-and-frisk is a cornerstone of ‘broken windows theory’ policing which aggressively pursues Quality of Life Offenses in order to prevent other major criminal offenses. The federal case remains ongoing despite New York Mayor Bill de Blasio’s promise to reform stop-and-frisk practices.

People are not at odds over the facts, but are up in arms over what the facts imply about American society and institutions. As was the case with Oscar Grant and Rodney King these divisions largely fall on demographic boundaries. However, the case of Eric Garner has caused a serious outcry among many from Generation Y, and is the first high profile police killing captured on film in the age of omnipresent social media. Despite these distinctions, a recent study from the Pew Research Center shows that the majority of White Americans believe race was not a factor in the failure to indict officer Pantaleo and Officer Darren Wilson, who shot and killed Michael Brown back in August.

A Staten Island Grand Jury convened for 9 weeks in order to determine if officer Pantaleo should be charged with a crime for the death of Garner. In an instance where Pantaleo gave testimony before the jury and mounds of evidence were presented, many are questioning how the jury managed not to indict Pantaleo.

Statistically speaking, police officers are rarely indicted for so-called ‘justifiable homicides.’ Federal and state police agencies do not keep robust data about police killings and do not keep any data about the racial demographics of these instances.  Also, many have argued that local prosecutors have an essential conflict of interest in indicting police officers, as prosecutors rely on police officers for cases and evidence. Even those that reject the assertion that bias is inherent in local grand jury tribunals admit that juries often find it difficult to indict police officers as intent to commit murder or serious deviation from norms of policing must be demonstrable.  According to many legal scholars, in cases that involve police shootings, jurors heavily rely on prosecutors to guide them through highly complex evidence and legal precedents.

Officer Randal Kerrick of the Charlotte-Mecklenburg Police Department in the state of North Carolina was indicted for voluntary manslaughter of Johnathan Ferrell, who was unarmed, by a second grand jury. Ferrell, who was African American, was shot and killed by Kerrick, who is White, after Ferrell ran towards Kerrick ostensibly seeking help after a car accident late at night. In this instance the local prosecutor was replaced by a state prosecutor. The lawyer representing Ferrell’s parents maintains that an indictment would not have been possible if the case had not been removed from the local level to the state level.

The current atmosphere wherein a great many Americans are dumbfounded by outrage over the death of Eric Garner and others is defined by an acute unwillingness to deal with social reality. Clear video and frank demands by those outraged over the killing can only be met with willful bewilderment aimed at shutting out any disclaimers about American exceptionalism. This particular aspect of the status quo has not changed in the last twenty years, and even in the midst of the current outcry, is not changing.

America, by and large, has chosen to speak no evil, hear no evil, and see no evil in the face of deep social divisions. The vitality of this tried and tested status quo is once again on trial for the world to see.

Ismaail Qaiyim is a freelance writer with an interest in politics, global affairs, religion, philosophy, and genuine critical engagement. He has a particular passion for issues of governance and ‘development’ in late industrializing countries. He holds an MSc in Violence, Conflict and development from SOAS, University of London and has spent time working for local civil society in West Africa. Follow him @IsmaailQaiyim.