Eric Garner: A Tragedy, but Not a Murder

by Enza Ferreri12/13/14

As the protest over his death has reached London, we can say that what happened to Eric Garner, whatever his faults, is certainly, tragically terrible. If I had been a police officer I probably would have stopped holding him down when I heard “I can’t breathe!”, but then I’m not a police officer used to dealing with criminals lying all the time, including Garner himself who – as is shown in a distressing video that includes his altercation with the police before his arrest – had possibly been lying to the police until a few seconds earlier, when he was claiming he was doing nothing. It was probably a case of cry wolf.

And New York City policeman Daniel Pantaleo was supposed not to let go of Garner, it was his job not to do so.

Garner did not die from strangulation. According to city medical examiners, he was killed by neck compression, along with “the compression of his chest and prone positioning during physical restraint by police”. The cops were holding him down by sitting on him, with an arm around his neck, which contributed to, but did not cause, his death.

Contributing factors were his obesity and various ailments, including bronchial asthma, heart disease, hypertensive cardiovascular disease. Without them, as Rep. Peter King said, he would not have died.

After Garner was handcuffed and had passed out, the police did no Cardiopulmonary resuscitation (CPR) on Garner because, they say, he was still breathing, and it would be improper to do CPR on someone who was breathing on his own.

The police maintain that, before Garner passed out, there was no reason to believe that he was in serious condition, because they assumed that, if Garner was unable to breathe, he would also have been unable to speak. The medical examiner found no damage to Garner’s windpipe or neck bones.

He was put in an ambulance, where he suffered cardiac arrest, and was pronounced dead at the hospital about an hour later.

This is what Pat Buchanan says in “Racist Cops—or Liberal Slander?”:

Why would a Staten Island grand jury not indict Pantaleo for murder or manslaughter in the death of Eric Garner? In a word, intent. Did Pantaleo intend to kill Eric Garner when he arrived on the scene? Did Pantaleo arrive intent on injuring Eric Garner? No and no.

Pantaleo was there to arrest Garner, and if he resisted, to subdue him and then arrest him. That was his job. Did he use a chokehold, which the NYPD bans, or a takedown method taught at the police academy, as his lawyer contends? That is for the NYPD to decide. The grand jury, viewing the video, decided that the way Pantaleo brought down Garner was not done with any criminal intent to kill or injure him, but to arrest him.

Garner’s death, they decided, was accidental, caused by Pantaleo and the other NYPD cops who did not intend his injury or death, with Garner’s asthma and heart disease as contributing factors. Now that grand jury decision may be wrong, but does it justify wild allegations of “racist cops” getting away with “murder”?

This reflexive rush to judgment happens again and again.

I think that the New York case – Garner’s death – is more nuanced than the Ferguson one, but the grand juries’ decisions were right in both cases.

Given the outrage that dominates much of the mainstream media over a grand jury’s decision not to indict officer Pantaleo in the death of Eric Garner, here are 11 crucial facts about the Eric Garner case that the media are not going to tell you:

1. There is no doubt that Garner was resisting an arrest for illegally selling untaxed cigarettes. Former New York City Police Commissioner Bernard Kerik put it succinctly: “You cannot resist arrest. If Eric Garner did not resist arrest, the outcome of this case would have been very different,” he told Newsmax. “He wouldn’t be dead today.

“Regardless of what the arrest was for, the officers don’t have the ability to say, ‘Well, this is a minor arrest, so we’re just going to ignore you.'”

2. The video of the July 17 incident clearly shows Garner, an African-American, swatting away the arms of a white officer seeking to take him into custody, telling him: “Don’t touch me!”

3. Garner, 43, had history of more than 30 arrests dating back to 1980, on charges including assault and grand larceny.

4. At the time of his death, Garner was out on bail after being charged with illegally selling cigarettes, driving without a license, marijuana possession and false impersonation.

5. The chokehold that Patrolman Daniel Pantaleo put on Garner was reported to have contributed to his death. But Garner, who was 6-foot-3 and weighed 350 pounds, suffered from a number of health problems, including heart disease, severe asthma, diabetes, obesity, and sleep apnea. Pantaleo’s attorney and police union officials argued that Garner’s poor health was the main cause of his death.

6. Garner did not die at the scene of the confrontation. He suffered cardiac arrest in the ambulance taking him to the hospital and was pronounced dead about an hour later.

7. Much has been made of the fact that the use of chokeholds by police is prohibited in New York City. But officers reportedly still use them. Between 2009 and mid-2014, the Civilian Complaint Review Board received 1,128 chokehold allegations.

Patrick Lynch, president of the New York City Patrolmen’s Benevolent Association, said: “It was clear that the officer’s intention was to do nothing more than take Mr. Garner into custody as instructed, and that he used the takedown technique that he learned in the academy when Mr. Garner refused.”

8. The grand jury began hearing the case on Sept. 29 and did not reach a decision until Wednesday, so there is much testimony that was presented that has not been made public.

9. The 23-member grand jury included nine non-white jurors.

10. In order to find Officer Pantaleo criminally negligent, the grand jury would have had to determine that he knew there was a “substantial risk” that Garner would have died due to the takedown.

11. Less than a month after Garner’s death, Ramsey Orta, who shot the much-viewed videotape of the encounter, was indicted on weapons charges. Police alleged that Orta had slipped a .25-caliber handgun into a teenage accomplice’s waistband outside a New York hotel.


EnzaEnza Ferreri is an Italian-born, London-based Philosophy graduate, author, and journalist. She has been a London correspondent for several Italian magazines and newspapers, including Panorama, L’Espresso, La Repubblica. She is in the Executive Council of the UK’s party Liberty GB.

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10 Responses to Eric Garner: A Tragedy, but Not a Murder

  1. Brad Nelson Brad Nelson says:

    I’m sort of in Nik’s and Mr. Kung’s corner (probably Timothy’s as well) in that it is more than okay to view these things on a case-by-case basis and that we need not be reflexively pro-cop or pro-victim. Let me address these 11 points. I may be wrong on some or all of them. But it’s how I reflexively see it:

    1) Bullshit. “If you did not resist arrest, he wouldn’t be dead today.” That sounds like the making of a police state. That’s not a good mindset to have.

    2) Given how obviously zealous at least some police are, what the hell’s wrong with someone saying “Don’t touch me?” We’re supposed to respect the law, but now turn into jello when confronted by police. And we need to see this in the context of a state that has grown way too big. There are too many laws. At any time the police (as directed by any of the various agencies) can be at your door demanding your “cooperation” for whatever minor violation.

    3) His previous arrests are irrelevant to giving a guy a choke-hold for selling cigarettes. Had he been selling child porn, illegal drugs, home-made bomb vests, or something of the type, then go ahead and treat him roughly. But, Jesus, do cigarettes now rise to that level?

    4) Irrelevant. I’m not saying this guy was a angel. I’m saying that the cops are increasingly becoming inhuman and overzealous.

    5) and 6). It seems like that choke hold was pretty severe. You don’t escape responsibility because he was in an already weakened condition.

    7) How is this relevant to anything? Seems like someone is adding bullet points to try to buttress a case that is weak.

    8) Ditto

    9) Ditto

    10) I’m not saying this cop should be tried for murder. But someone ought to come to the conclusion that spending police time on truly minor nanny-state violation is the real problem.

    11) Irrelevant.

    • Kung Fu Zu Kung Fu Zu says:

      Brad,

      Point 1. I agree with you. Some forty years ago, I remember my father being stopped for speeding on a highway in Colorado. Being from Texas, our car had the appropriate license plates. The policeman issued the ticket and told my father he had to follow him to the local courthouse and go before the local judge. My father said, “no I don’t, and I’m not going to do it. I’ll pay the ticket by check.” So according to Enza’s logic, my father was resisting arrest and the policeman would have had the authority and moral right to put him in a choke hold. Bullshit. I am amazed at how easily conservatives are willing to play dead with those in authority even when the authority is wrong. As it happened, the cop grumbled and let my father go. Of course, maybe it was because my father was white, 6’2″ and clearly well to do. But maybe it was because the cop knew he shouldn’t be doing what he tried to do and had his bluff called by someone who could fight (legally) the system.

      Point 3. Did Garner have a history of violently resisting arrest? If so, were the arresting officers so informed? I would bet the answer is no. If so, the previous arrests should not color the last arrest except perhaps the cops might have been a little ill disposed to him because they knew he was a repeat offender.

      Point 11. This is worse than irrelevant, it is disingenuous as it tries to invalidate a video by condemning the person who took it. The fact that the person who took the video was later indicted means nothing as regards the video. In fact, being somewhat skeptical of those in power, I wonder if the police wanted to make an example of the man.

      I am generally friendly to the police, but I have seen too many abuses by the police to think they are all pure as the driven snow. Over the last year or so, numerous cases have arisen where police become aggressive with bystanders who happen to take a video of arrests. I have also seen a video of a policeman shooting a mentally disturbed man who in no way threatened him. There is another case where a female policeman shot a man in a car several times without having seen any weapon.

      While I am no libertarian, I do believe Judge Andrew Napolitano when he writes about police often overstepping the line. As police are given the authority to use force by the State, I believe they should, in fact, be held to a higher standard than the rest of us. We are only allowed to use force in defense of property or person, but even there we must be very careful and are rarely given the same deference as the police.

      • Brad Nelson Brad Nelson says:

        Good points, Mr. Kung. And what an experience your father had. And an apt one. Imagine living in a nation purporting to be free where “You’re under arrest” supersedes every other consideration. That would be a police state, literally.

        You should only arrest people when there is a vital need to do so, not because there is some cog in the machine slightly out of order…such as some guy selling single cigarettes. This situation is no different, in principle, from some cop putting a choke hold on a kid with an “illegal” lemonade stand.

        And proof again that we can handle such issues just fine as conservatives without the idiot philosophy of libertarians.

      • Timothy Lane says:

        There is the Georgia case involving a child burned by a flash grenade, and the recent Ohio case involving a boy playing with a toy gun who was shot and killed (and the police version of the incident contradicted videotape evidence). Perhaps the most egregious examples of general police misconduct (more at the management level) involve asset forfeiture. I would call this a disaster waiting to happen, except that for some people that disaster has already happened. As long as this process exists, we truly have a kleptocratic government.

      • NAHALKIDES NAHALKIDES says:

        I agree with you, KFZ. But rather than being held to a higher standard than the rest of us, the police in the State of New York are held to a much lower standard when it comes to using lethal force: lethal force “may be used only if the officer reasonably believes that the subject has committed a violent felony, is armed with a deadly weapon, or is about to use deadly physical force against the officer or someone else. ” (Andrew McCarthy, discussing the statute on NRO).

        If I’m reading that correctly, it means the police will be exonerated for using lethal force even if the arrestee is in lawful possession of a deadly weapon (unlikely given NY’s insane anti-gun laws, but possible) or is believed (nothing having yet been proven) to have committed a violent felony!

        What would happen to any of us if we used lethal force just because we thought someone had committed a violent felony but was not, at the moment we killed him, an imminent threat to anyone? We’d be lucky to get off with 15 years in prison for voluntary manslaughter, and could wind up doing life for second-degree murder.

        And notice that even by this debased standard, the police in the Garner case are not in the clear, for Garner was not armed, was not wanted on suspicion of a violent felony, and was not about to deploy lethal force against anyone else.

        • Timothy Lane says:

          “Power tends to corrupt, and absolute power corrupts absolutely.” We have to give the police a lot of power, and we must be careful to provide proper oversight and accountability. Power without accountability (the liberal ideal, as demonstrated by the Fascist Messiah) is the basic point of the Fuehrerprinzip. as Hermann Goering described it to Dr. Gilbert at Nuremberg.

  2. Timothy Lane says:

    I can see a case for involuntary manslaughter, but nothing stronger. Even that might be difficult; in practice, juries are reluctant to indict or convict the police absent clear evidence of serious misconduct (which evidently wasn’t the case). I should note that it apparently only takes 12 of 23 grand jurors to make a decision, so that in theory the whites could all have refused to indict and the blacks’ views would have been irrelevant. Of course, we have no way of knowing if that happened.

    One interesting suggestion I’ve read about this is the need for better police training about the dangers of chest compression for the obese. I had an anal fistulectomy back around 1987, which required operating while I was prone (like Garner), and they had to verify that I could breathe adequately under those circumstances (particularly since I was under sedation).

  3. NAHALKIDES NAHALKIDES says:

    Enza,

    First, in regard to Buchanan’s response, he was only refuting the insane ravings of the lunatic Left that racist police had “murdered” Garner. Thus the obvious lack of intent to do Garner harm only clears the police of murder charges, but does not by itself exonerate them from negligent homicide, which requires no intent to kill.

    Second, you claim that “The cops were holding him down by sitting on him, with an arm around his neck, which contributed to, but did not cause, his death.” But the ME came to the exact opposite conclusion: it was Garner’s various ailments that were listed as contributing factors, while the cause was indeed the actions of the officers – that is why he ruled the death a homicide. It’s true that either a grand or petit jury might decide that those contributing factors were so great that the police should be relieved from any responsibility, but that’s by no means a certainty.

    Finally, in regard to the 11 points raised by Jim Meyers, I see that Brad has already addressed them. Normally, I’d leave it at that, but since I had refuted them even earlier over on Frontpage Magazine, I’ll repeat here what I wrote over there:

    1,2. No one is arguing that Garner was right to resist arrest, even though his resistance basically consisted of raising his arms and backing away. But that doesn’t justify the use of lethal force by police.

    3. Garner’s record is not relevant here. The issue is whether or not the police used excessive force, which Meyers is clearly evading by bringing this up.

    4. Garner was out on bail at the time – again, so what? Even if he had been convicted of those offenses, which he hadn’t, police don’t get to declare open season and go hunting. More smoke from Meyers.

    5, 6. Here Meyers is trying to conceal the cause of Garner’s death as given in the ME’s report. While it is true that Garner’s physical condition was given as a contributing factor, the actual cause of his death was “compression of his neck (chokehold), compression of his chest and prone positioning during physical restraint by police”. It is for this reason the ME classified the death as a homicide.

    7. Whether the “takedown” technique was a “chokehold” or not depends on the precise definitions of those terms. Whether the technique was within departmental guidelines is an administrative matter. As far as a possible criminal violation goes, the question is whether what the officers did was lethal force. I contend it was: what they did to Garner killed him, whether it was the “chokehold” or piling on his chest so that he couldn’t breathe, and a reasonable person would have realized this could kill him, especially since Garner complained of being unable to breath. This to me constitutes negligence – a key component of negligent homicide.

    8. All right, not all the testimony has been made public. But the video and the ME’s report between them are damning, and the only excuse I can think of for not indicting anyone is that it may not have been clear to the grand jury which of the officers actually caused Garner’s death.

    9. The racial makeup of the grand jury proves it wasn’t racist, but no one except Leftist agitators ever suggested it was. I don’t think the police were racist either, but I do think their reckless actions caused a man’s death, and that they should have to answer for it.

    10. As explained earlier, the police caused Garner’s death by compressing his neck and chest. Any reasonably prudent person would realize that doing so could cause the death of a person even in normal health. Thus the standard for negligence was met.

    11. More smoke! So Orta, who shot the video, was arrested on “weapons charges,” i.e. he possessed a gun, which in a free society is not a crime. (NYC is of course not a free society with its draconian anti-gun laws). I guess we should forget everything on the video then.

    • Timothy Lane says:

      A very good analysis, but I should point out that police defenders have made a reasonable point that criminals being arrested can lie about such things as claiming not to be able to breathe. (The fact that he could say it would seem to support their case, though I have seen an explanation based on compression of the chest — air being exhaled would allow him to speak, but he couldn’t inhale. The policemen may not have realized this, but if so their training needs to be improved.)

      • Kung Fu Zu Kung Fu Zu says:

        I am not overly moved by Garner’s saying “I can’t breath” exactly for the reason you mentioned. But given the video and the nature of panic, I would say an observant policeman could determine that Garner was having trouble which was exacerbated by the panic which can come on when one is jumped by several people who drag one to the ground with extreme force. The black female sergeant was the police official who should have noticed this and made a call to change the officers’ actions.

        Does anyone on this string believe they wouldn’t panic and hyperventilate in similar circumstances? I would think that would be the very least they might do.

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