This probably wasn’t the best time for another high-profile grand jury to return no indictments against a white police officer who killed a black citizen. The New York Times reports on the new controversy, which erupted just a week after police officer Darren Wilson received no indictments for the shooting of Michael Brown in Ferguson, Missouri:
A Staten Island grand jury on Wednesday ended the criminal case against a white New York police officer whose chokehold on an unarmed black man led to the man???s death, a decision that drew condemnation from elected officials and touched off a wave of protests.
The fatal encounter in July was captured on videos and seen around the world. But after viewing the footage and hearing from witnesses, including the officer who used the chokehold, the jurors deliberated for less than a day before deciding that there was not enough evidence to go forward with charges against the officer, Daniel Pantaleo, 29, in the death of the man, Eric Garner, 43.
Officer Pantaleo, who has been on the force for eight years, appeared before the grand jury on Nov. 21, testifying that he did not intend to choke Mr. Garner, who was being arrested for allegedly selling loose cigarettes. He described the maneuver as a takedown move, adding that he never thought Mr. Garner was in mortal danger.
It apparently didn’t make much of a difference to angry demonstrators when Officer Pantaleo said he “felt very bad about the death of Mr. Garner,” although it might have been duly noted by the grand jury:
During the proceedings, jurors were shown three videos of the encounter, and in his testimony Officer Pantaleo sought to characterize his actions as a maneuver taught at the Police Academy. He said that while holding onto Mr. Garner, he felt fear that they would crash through a plate glass storefront as they tumbled to the ground, said Stuart London, his lawyer. One of the officer???s arms went around Mr. Garner???s throat, as Mr. Garner repeatedly said, ???I can???t breathe, I can???t breathe.???
Appearing with the Rev. Al Sharpton in Harlem, Mr. Garner???s widow, Esaw Garner, said she did not accept the officer???s apology.
???Hell, no,??? Ms. Garner said. ???The time for remorse for the death of my husband was when he was yelling to breathe.???
She said that while she mourned, the officer could go home to his family.
???He???s still feeding his kids,??? she said, ???and my husband is six feet under and I???m looking for a way to feed my kids now.???
Mostly peaceful protests ensued, and they were mostly more peaceful than what happened in Ferguson, but the New York Post reports that a mob gathered outside Rockefeller Center and tried to disrupt the famous annual tree-lighting ceremony with cries of “No justice, no tree!” and “F–k the tree!” The police kept them away from the Christmas tree, but the crowds were able to block rush-hour traffic and interfere with passage through the Lincoln Tunnel. The narrative snowball just keeps rolling downhill and getting bigger, as these protesters used the false “Hands Up, Don’t Shoot” salute that has become an indelible part of Ferguson mythology, no matter what any mountain of evidence and testimony says:
Hundreds more gathered in Union and Times squares, carrying signs that said, ???Black lives matter,??? ???Fellow white people, wake up??? and ???Once again, no justice,??? and chanting slogans like, ???I can???t breathe??? and ???Hands up, don???t shoot.???
Earlier, dozens swarmed the street outside the Staten Island shop where Garner was busted.
???They should react in an uproar. Just like they failed Ferguson, they failed us,??? seethed Heather Ewig, 46, who called Garner a friend and ???a teddy bear in the community,??? as the crowd started to build on Bay Street.
???You gotta be kidding me!??? shouted Linder Hampton, 59, who was wearing a T-shirt with Garner???s last words, ???This ends today??? and ???I can???t breathe.???
There seems to have been quite a bit of enthusiasm on the streets, and in social media, for burning down the Rockefeller Center Christmas tree, which would seem unrelated to the Garner case by any reasonable standard. Some of the protesters said they wanted to target the tree because its lighting was the biggest event in the city that night, so it provided a good opportunity to command attention. I suspect the usual anti-capitalist and class-warfare narratives will be folded into this crusade to send city authorities and white middle-class society a little tree-mail. As I said with respect to the Hong Kong democracy protests yesterday, the key to successful demonstrations is avoiding the kind of action that decisively turns public sympathy against the movement, but that’s exactly the kind of action desired by those who want to force the rest of the populace to listen to them.
Attorney General Eric Holder swiftly announced a Justice Department investigation for civil-rights violations, as reported by Fox News:
Holder said this is one of “several recent incidents that have tested the sense of trust that must exist between law enforcement and the communities they are charged to serve and protect.” Both cases have put law-enforcement officers under a microscope on how they use excessive force to arrests minorities.
“This is not a New York issue or a Ferguson issue alone,” Holder told reporters late Wednesday. “Those who have protested peacefully across our great nation following the grand jury’s decision in Ferguson have made that clear.”
Separately, New York Mayor Bill de Blasio said he had spoken with Holder and Loretta Lynch, the U.S. attorney for the eastern district of New York who has been nominated as Holder’s successor, and was told that the federal investigation into the death will now move forward.
The investigation was announced Wednesday night, hours after the Staten Island grand jury???s decision not to indict Officer Daniel Pantaleo. The grand jury could have considered charges ranging from murder to reckless endangerment.
Holder’s trying to make it sound like this investigation is a bigger deal than the cursory review of Wilson, which was just a Bright Shiny Object to distract the Ferguson mob, but it’s actually the same thing, and it’s likely to end the same way. Federal civil-rights trials are not double-jeopardy exercises to fish out indictments that grand juries declined to issue. The malevolent intent that must be proven requires a considerably higher burden of proof, and nothing in the infamous video of Garner’s death provides proof of such intent. If the grand jury couldn’t even find reason to indict Officer Pantaleo for the negligent use of excessive force, DOJ probably isn’t going to be able to prove he was a racist monster, and they won’t even bring charges they feel highly uncertain about prosecuting successfully.
Critics of the Pantaleo grand jury think they missed the boat by refusing to indict on such lesser charges, but that’s not the kind of “mistake” federal civil-rights prosecutions are supposed to correct. They have a much more serious charge to prove, and a tougher job doing it. However, the New York Daily News notes that Pantaleo “is also being investigated by police Internal Affairs and faces possible departmental charges that could end his career with the NYPD,” and is has been placed on a “modified assignment” that seems to amount to administrative leave. The half-dozen other officers who were present at the scene of Garner’s death are also under investigation. It’s unlikely that even the toughest sanctions from the NYPD would mollify those who demand criminal prosecution, but consequences may yet be coming Pantaelo’s way.
These promises of federal vengeance always turn out to be delaying tactics to mollify protesters, and give the Attorney General a chance to do a little moralistic grandstanding. It’s not at all helpful that Holder (and, in his own statements, President Obama) portray the Garner and Brown controversies as part of some drive for collective cosmic justice, rather than individual cases bound by specific legal procedures. Contrary to Holder’s grandstanding, this is a “New York thing,” and an entirely separate “Ferguson thing.” Whether Officer Pantaelo should be tried or not depends solely and entirely on the facts of his particular case. He should not be railroaded to appease a mob, or sacrificed on the alter of “social justice” because some people think a long-gestating problem with the use of force by police officers demands that somebody get convicted of something, pronto.
It’s not good that the Attorney General of the United States understands none of this, or chooses to set aside his understanding in order to make a political point. It’s also not good that he’s pretending the Ferguson mob was “peaceful.” We’re supposed to forget about all the vandalism, looting, and disregard for civic ordinances and pretend the past week has been nothing but neat, clean, polite demonstrations in the vein of the Tea Party, huh? During confirmation hearings, would Republicans please make sure that the next Attorney General is at least capable of seeing crime?
There’s a little something in the Garner case for everyone on the political spectrum to feel uncomfortable about. The charge for which Garner was confronted by the police, selling unlicensed individual cigarettes, is a perfect example of the hyper-regulatory State gone mad. The outcome of the encounter is a rather vivid demonstration of a libertarian point that statists don’t usually take seriously: the end result of every law is, potentially, a fatal encounter between resisting citizens and law enforcement. That’s not an argument against having laws – it’s the logical and inevitable consequence of enforcing even the lightest legal burden upon any society – but it’s a good argument against having too many of them.
Pantaleo is not without his defenders, including some who think he ultimately handled the encounter badly – and perhaps should have faced some charges for it – but say some responsibility for what transpired must be assigned to Garner, who physically resisted arrest. Beat cops don’t make the laws, so hassling them and refusing to comply is not an effective, or safe, method of protesting foolish laws. This particular law is a 2010 product of Barack Obama’s Food and Drug Administration, and as Bryan Preston at PJ Media notes, Garner’s loosie cigarette sales amount to tax evasion. Isn’t that a serious offense, liberals? Or are we going to have a penumbra of nominal tax laws that kinda-sorta don’t apply to some people? The common rejoinder to such questions is that Garner “didn’t deserve to die” for what he was doing, but that’s a false connection that ignores what actually happened: he had been confronted by the police in the past and told to stop, but he kept breaking the law, and during the final encounter he resisted an arrest that was not intended to kill him.
It’s fair to ask questions about the techniques the police use at such moments, but Pantaleo maintained he wasn’t deliberately using an illegal choke-hold maneuver – and the 23-person grand jury largely, but not unanimously, believed him. Tying all of this into broad, heatedly-asserted narratives about police racism obscures the particulars of what seems to have been a very tough decision by a divided grand jury, and were doubtless aware of what the public reaction to their decision would be. What are we supposed to replace grand juries with, if such tough decisions are unacceptable? (Given what I’ve seen of the case, I personally would have thought the most likely outcome was indictment for the lesser charges, followed by a trial that Pantaleo had a good chance of winning – an outcome that probably wouldn’t have made any protesters happier, but would have opened up some space between this case and Ferugson. I’m reluctant to decisively second-guess the grand jury without seeing all the evidence and testimony they saw, but apparently a sizable number of people don’t share my reluctance.)
The New York Times observed that this case might throw a bit of cold water on the enthusiasm for police body cameras as the solution to contentious encounters, since Garner’s death was recorded on video. Pictures don’t always tell the whole story. They can increase anger and frustration among those who see the pictures and insist they do tell the whole story, without considering the other evidence available to a grand jury. There have been steps taken to release the rest of that evidence in the Garner case to the public, but with anger and distrust already stoked to such high levels, it might not make much of a difference. Collectivism is all about erasing individuality. Collective “justice” cares little for the facts of individual cases.
Update: Sean Davis at The Federalist makes an impassioned case that Pantaleo should have been indicted for second-degree murder, whose statues he lays out in detail. It’s a good summary of the argument that must be refuted by whatever grand jury evidence is eventually released to the public.
Update: Attorney Shelby Emmett of the black conservative group Project 21 zeroed in on the absurdity of the law that led to Garner’s fatal confrontation with police: “A man died over cigarettes and tax revenue. Eric Garner died because of an all too powerful state. We must ask ourselves what exactly we want the police enforcing with such deadly strength. These officers confronted Garner because he was selling single cigarettes and was thus depriving the government of revenue. He was not threatening anyone???s life, starting fires or even holding up traffic. He was not suspected of a violent crime, so such force should never have been justified. Any person concerned with individual liberty should be disgusted.”
This argument doesn’t seem to be emanating from the Garner protest movement, which is entirely concerned with the events captured in the video of Garner’s death, not the circumstances leading up to it. It would be interesting if they began making some connection between the excesses of the mega-government they generally support, and the incident they are protesting. Those who agree with Shelby Emmett’s take have their work cut out for them convincing the crowd, however, because they tend to regard the police as somehow separate from the institutions of government they support. That’s partially a result of the way they’ve been taught to see Big Government as a dispenser of benefits and guarantor of social justice, rather than the executor of compulsive force.
Update: Andy McCarthy at National Review lays out a meticulous case for why the grand jury might have decided not to indict – noting that critics of the decision often misunderstand the NYPD’s rules for choke holds, the video doesn’t clearly demonstrate that a prohibited choke hold was used, and that Garner’s “asthma, heart problems, and obesity were contributing factors” to his death – but concludes there was enough probable cause to indict anyway, because there was reason to view the degree of force used against Garner as unreasonable:
Officer Pantaleo plainly did not intend to kill Mr. Garner; he applied force he judged necessary to take Garner down to the ground so Garner could be cuffed. That this ended up killing Garner was unexpected and tragic, not intentional or willful.
So let???s assume Pantaleo did not use deadly force. That still leaves open the question at the heart of the matter: Was the force that he did use reasonable under the circumstances? This is why I think the debate over the chokehold is mainly an academic diversion. The salient issue is reasonableness. Even if we assume that a banned chokehold was not used, it is still entirely possible that the forcible tacticsPantaleo did employ were excessive.
It is here that the grand jury???s conclusion that there was no probable cause to indict is most vulnerable to attack. Again, we do not know all the evidence in the record so it is perilous to opine. But as the confrontation is depicted on the video, there is a good argument that Officer Pantaleo used more force than was reasonably necessary to effect the arrest, prevent flight, or prevent injury to himself or other officers.
A nuance often missed in grand jury controversies is that the standard for bringing charges is much lower than the burden of proof required for conviction. As McCarthy explains, the relevant statues contain some ambiguous language that should have cleared a path to indictment, but might have made conviction extremely difficult, which is how I thought this case was likely to turn out before the grand jury decided not to indict at all.