Eric Garner Died Because He Resisted Arrest

By now, much of America is familiar with the video that Ramsey Orta recorded on his cell phone on the afternoon of July 17, 2014. Standing outside of a beauty supply store in the Tompkinsville neighborhood of Staten Island, New York, he captured, in unrelenting and heartbreaking detail, the final, tragic moments of his friend Eric Garner’s life.

The footage, which went viral after the New York Daily News picked up the story, begins in the middle of an encounter between Garner, a 43-year-old black man, and two white police officers, Justin Damico and Daniel Pantaleo. The confrontation began after the cops reportedly witnessed Garner illegally selling loose, untaxed cigarettes. Claiming that he was simply “minding his own business” after breaking up a fight, Garner is shown reacting angrily, raising his voice and flailing his arms while protesting his innocence. It is difficult to watch the events of the video unfold without feeling an overwhelming sense of sadness. We know what Garner does not: that he is moments away from losing his life, that his insistence that “This stops today” will soon prove gravely prophetic. As the officers, and their arriving backup, move in to arrest him, Garner resists, saying, “Don’t touch me,” while pushing their hands away. Pantaleo wraps his arms around Garner’s head and neck, causing the obese man to lose his balance before he is driven to the ground. The police swarm him, demanding that he put his hands behind his back while Pantaleo holds his head against the pavement. Garner begins pleading for mercy, urgently repeating, “I can’t breathe.” Now we cringe again, for this time we know what the cops do not: that the man on the ground is not attempting a charade or trying to effect an escape. He is simply begging for his life. After crying, gasping for air eleven times, Eric Garner falls silent.

Because the incident in Staten Island involved the death of an unarmed black man after an altercation with white police officers, it has been linked, in the eyes of many, with the shooting death of Michael Brown in Ferguson, Missouri. Most prominently, the Reverend Al Sharpton has sought to make a connection between the two events, meeting repeatedly with the families of both Garner and Brown, holding rallies for both men and attempting to paint their deaths as part of a national epidemic of white cops killing black men. It was not surprising, then, that, after the riots in Ferguson last week, many would react angrily to Wednesday’s announcement that Pantaleo would not be indicted for his role in Garner’s passing. Protestors took to the streets in cities across the nation, including Oakland, Philadelphia and, most notably, Manhattan, where demonstrators blocked the West Side Highway and attempted to disrupt the annual Rockefeller Center tree lighting ceremony. Many repeated the “Hands up, don’t shoot” slogan that has become emblematic of the Ferguson protests, while also repeating Garner’s final words: “I can’t breathe.”

Politicians, pundits and analysts of all stripes were quick to weigh in on the grand jury’s decision. Sharpton announced plans to lead a march on Washington D.C. on December 13, taking aim at what he believes are fundamental flaws in the legal system:

No amount of secret grand juries with local prosecutors that put up evidence that we do not know is going to stop people from raising the questions and demanding the answers … It is time for a national march to deal with a national crisis. Why a national march? Because we cannot be put around like social hamsters – one minute Ferguson, next minute New York, next minute Cleveland. No, we’re going to bring Ferguson, Cleveland and all of New York to the nation’s capital to say enough is enough … This is going to be a winter that we are going to freeze out police brutality in this country.

President Obama asserted that, “It is incumbent upon all of us as Americans, regardless of race, region, faith, that we recognize this is an American problem and not just a black problem or a brown problem or a native American problem. This is an American problem. When anybody in this country is not being treated equally under the law, that’s a problem and it’s my job as president to help solve it.” Obama indicated that he had spoken to Attorney General Eric Holder (whose Justice Department will be launching a civil rights investigation into the matter) and vowed that, “we are not going to let up until we see a strengthening of the trust and a strengthening of accountability that exists between our communities and law enforcement.” New York City Mayor Bill de Blasio spoke of the fears that he and his wife, who is African-American, have for their son: “Chirlane and I have had to talk to Dante for years, about the dangers he may face. A good young man, a law-abiding young man, who would never think to do anything wrong, and yet, because of a history that still hangs over us, the dangers he may face – we’ve had to literally train him, as families have all over this city for decades, in how to take special care in any encounter he has with the police officers who are there to protect him.”

Even amongst conservatives, who overwhelmingly supported the decision not to indict Officer Darren Wilson in the Ferguson case, there were many who believed that justice had not been served. Rand Paul, in speaking about the untaxed cigarette statute that precipitated the officers’ confrontation with Garner, remarked that, “for someone to die over breaking that law, there really is no excuse for it.” Charles Krauthammer, appearing on Fox News, argued that, “From looking at the video, the grand jury’s decision here is totally incomprehensible. It looks as if at least they might have indicted him on something like involuntary manslaughter, at the very least.” And Andrew McCarthy, a former U.S. Attorney writing for National Review, closed his analysis of the case by declaring that he “cannot in good conscience say there was insufficient probable cause to indict Officer Pantaleo for involuntary manslaughter or criminally negligent homicide.”

Clearly, there is much room for agreement in this case: blacks and whites, civilians and police, Republicans and Democrats can all concur that, when a dispute over untaxed cigarettes leads to a loss of life, a great tragedy has occurred. Everyone should feel profound sympathy for Garner’s wife and six children, who never could have suspected, as dawn broke on that July morning, that it would be the last day they would see their husband and their father. They are forced to relive his anguished final moments, captured in that video, over and over again, knowing that something so insignificant led to the loss of someone so essential to their lives.

And yet, if the events surrounding Eric Garner’s death are to have any lasting meaning, if history is to not repeat itself, then it is crucial to peer past the raw surface emotions and examine all of the factors involved. His story, like Michael Brown’s, can be instructive (as those demonstrating insist), but only if looked at honestly and truthfully, beginning with the circumstances that brought him face-to-face with the police in front of Ramsey Orta’s cell phone. What caused that confrontation? Was it, indeed, racism, as many of the protestors proclaim? Was Garner singled out for his low-level offense simply because he was black?

Far from it. It was, in fact, a directive issued by a senior, African-American police officer that led Damico and Pantaleo to approach Garner: Philip Banks, at the time, the Chief of Department, New York City’s highest-ranking uniformed cop, had called for a renewed focus on so-called “quality of life” crimes in Staten Island, including the law prohibiting the sale of untaxed, loose cigarettes. As the New York Daily News reports,

The sale of loosies had been on Banks’ radar since at least March, when it was discussed at a meeting at Police Headquarters about quality-of-life issues, a police source said.

Banks’ office also conducted surveillance on Bay St. and took pictures, one of which shows three men believed to be involved in an illegal cigarette sale. The News reviewed the photograph and Garner is not in it.

At around the same time, on March 27, a caller to the city’s 311 hotline complained about the issue, saying a group of men had been selling untaxed cigarettes, and sometimes marijuana, on Bay St. every day for the past three years, a second source said.

The caller identified one of the sellers as “a man named Eric.”

The next day, Garner was arrested for selling untaxed cigarettes, one of three pending cases before his death.

Sometime in early July, a memo was sent to the Staten Island borough command, a source said. The memo stressing the need to address quality-of-life issues was then forwarded to bosses in the 120th Precinct for “immediate attention,” according to the source.

While there were three cases pending at the time of his death, Garner had been arrested a total of eight previous time for selling loose cigarettes, part of a criminal record that included 30 busts dating back to 1980. Store owners in the Tompkinsville area had complained that he was hurting their business, undercutting their sales of heavily taxed cigarette packs by offering cheap, individual “loosies.” Garner was approached by police not because of the color of his skin but because he had willfully chosen to break the law, the same law, numerous times. Far from being a victim of unreasonable harassment, as he claims in the video, Garner had brought the attention upon himself by purposefully refusing to respect the authority of local police. Regardless of the actual merits of the law, and irrespective of his motivations (by most accounts, he was simply trying to support his family), Garner did not have the right to ignore the repeated warnings he had been given.

He was equally unjustified in his decision to turn what should have been a routine stop into a lengthy argument. As shown in Orta’s video, as the confrontation ensues, it is Garner, and not the police officers, who escalates it. While Damico speaks in a calm manner throughout, and Pantaleo remains silent, their suspect raises his voice and waves his arms in obvious anger and frustration. Almost completely ignored by those covering this story is the fact that the two cops do not appear to have initially wanted to arrest Garner. Although the officer’s words are muted, Damico does appear to ask him for his ID, as Garner responds, “I don’t have my ID on me.” Because he does not have identification, Damico then seems to indicate that he will have to “take him back” (presumably to the police station) to which Garner replies, “Take me back for what?” This would seem to counter those who have made the argument that a simple citation for this offense would have sufficed: Garner precluded that by being unable, or refusing, to show ID.

Despite Damico’s claim to have witnessed the illegal sale, Garner continues to protest his innocence. Rather than cooperate with the officers’ attempt to arrest him, he shows no sign of relenting, declaring that he’s “tired of it.” He then makes what any objective observer should view as a critical mistake, and a crucial factor in everything that follows: waving his arms emphatically, he announces that, “This stops today. It’s over!” It is important to keep in mind that, at 6’3″ and 350 pounds, Garner was far larger than either of the police officers trying to take him into custody peacefully. He has already, up to this point in their encounter, been consistently belligerent and uncooperative. It is not unreasonable to believe that he was now making a threat. It is not unwarranted to think that, in that moment, the two officers confronting Eric Garner were asking themselves the question: If this man is refusing to be arrested, to what lengths will he go to ensure that “this stops today”? Blessed with hindsight, we know now that Garner did not get violent; however, Officers Damico and Pantaleo did not have the benefit of such intuition. What they did see in that instant was a very large, increasingly agitated individual, refusing, in no uncertain terms, to accede to their repeated requests.

The video now cuts to its most controversial, and heartrending moments: As other police arrive on the scene, Officers Damico and Pantaleo move in to physically make the arrest. Again, rather than simply cooperating by allowing himself to be cuffed, Garner resists, raising his arms and saying, “Please, don’t touch me. Don’t touch me.” He continues to back away from the cops, moving his hands out of their reach rather than offering them, before Pantaleo makes the fateful decision: moving in from behind, he wraps his arms around Garner’s head and neck, holding on as the latter stumbles backward. Pantaleo then forces Garner to the ground as the other officers swarm, his arms still wrapped around the larger man’s throat. As the cops struggle to cuff Garner’s hands, he begins wheezing, before letting out the eleven exasperated gasps: “I can’t breathe.” He would later go into cardiac arrest while being transported by EMS to Richmond University Medical Center, before tragically dying at the hospital.

Much has been made of two highly publicized, and frequently misunderstood, facts in this case. The first is that the medical examiner ruled Garner’s death a “homicide.” Despite being commonly perceived as a synonym for “murder”, the word “homicide”, in its technical, medical sense, simply means that the actions of an individual resulted in the eventual death of another; it does not evidence, or even suggest, any sort of criminal intent. The second deals with the hold that Pantaleo applied while trying to subdue Garner. Many have labeled it a “chokehold” and have erroneously declared that such tactics are illegal in New York. While then-NYPD Commissioner Ray Kelly banned cops from using variations of the maneuver in 1993, there is no statute on the books that makes it criminal. While Pantaleo may face internal discipline from his NYPD superiors, he broke no laws simply by utilizing the submission move he employed. There is even disagreement over whether he actually used one of the variations of the hold that were barred: other cops and analysts have indicated that it was a “headlock” or “seatbelt hold.” A true banned “chokehold”, as defined by the NYPD, is one of the following: a bar-arm hold, where “the forearm is used to cut off the oxygen supply by crushing the larynx” or a carotid hold, in which “the crook of the arm is used to compress the carotid arteries and temporarily cut off the blood supply.” Had either of those moves actually been applied, Pantaleo’s defenders argue, Garner would not have been able to verbally indicate that he could not breathe.

An alternative explanation has been put forth by, among others, former FBI assistant director, and retired police officer, Tom Fuentes. He believes that, in the video, Pantaleo is simply attempting to grab a hold of Garner and “is trying to bring him down and, in the process of holding him, he does have his forearm across his throat and is choking him. And that is unfortunate.” While Pantaleo did not initially intend to apply a chokehold, in the ensuing melee, as the much larger man stumbled about, it became the end result. It was Garner’s fault that the situation became violent, Fuentes argues, by resisting arrest, by refusing to comply with the numerous requests of Officers Damico and Pantaleo. “At a certain point, they’ve got to touch him. That’s just the way it goes. And when you resist arrest — physically resist — bad things can happen.”

Professor Eugene O’Donnell, a professor at the John Jay College of Criminal Justice, supports and expands on Fuentes’ arguments, writing in the New York Daily News 

There is no explicit law that criminalizes the use of a chokehold on someone either by a police officer or someone else. The NYPD’s patrol guide forbids the use of such holds or any other move that can restrict an arrestee’s airway, but the clarity and unequivocal wording of this guidance has been called into question by some police use-of-force experts. And the NYPD has acknowledged that officers forced to make arrests often find themselves in a struggle to improvise in situations where they are never sure of the ending.

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.

Pantaleo and Damico had made a lengthy attempt to convince Garner to cooperate. When he did not provide identification, they indicated he would need to accompany them to the police station; he refused. When they initially tried to take him into custody, he resisted. Having heard the larger man make what could reasonably be viewed as a threat (“This stops today. It’s over!”), they attempted to take him into custody as quickly as possible. The police were not required to let Garner keep talking, or let him go with a warning; in fact, with regard to the latter, the highest-ranking uniformed cop in the city had ordered them to do exactly the opposite. They had no obligation to fight “fair”; when Garner physically resisted, they attempted to quell the situation as quickly as possible. They had no knowledge of Garner’s numerous physical issues, including diabetes and severe asthma (which the medical examiner later acknowledged played a role in his death). They had no foresight indicating that Garner was being honest when he stated he could not breathe; they had been trained to cuff and fully subdue a suspect first, knowing that other criminals lie in similar situations. There are reasonable arguments to be made that lesser force would have been sufficient to bring Garner down, or that less pressure should have been applied once he was on the pavement, but nothing in that video definitively indicates premeditated malice or intent to seriously harm on the part of the police.

And yet, the response to these events, like those in Ferguson, has been to attack the very foundations of the civil society: law enforcement and the legal system itself. Al Sharpton and his supporters claim that Garner’s death and its aftermath show that black lives are not valued. Did Officer Pantaleo not value Garner’s life? It is important to remember that Ramsey Orta and his cell phone camera were standing right in front of the police officers during the majority of their encounter with Eric Garner. Is it logical to believe that, knowing he was being filmed, Officer Pantaleo simply gave in to the supposed racist impulses coursing through his veins and attempted to murder or seriously injure a black man? Or is it more reasonable to think that he had encountered an individual physically resisting arrest, and he was simply using what he believed to be a reasonable amount of force to bring the situation to a quick end, thus preventing injury to himself or his fellow officers? Hateful white man gleefully murdering a black man on camera, or young cop making a spur of the moment decision that had tragic results? Which is more likely?

How about the other police on the scene? Were they the racists, cruelly letting Eric Garner expire on the pavement? If they are, someone should tell Kizzy Adoni, the female sergeant overseeing the arrest: as an African-American, she might be a bit perplexed by her intense hatred of black people.

Is the grand jury racist? The grand jury that is, as yet, faceless, just a collection of “14 whites” and “9 non-whites”? Is it more plausible that the majority of these 23 individuals, who sat for 9 weeks, saw dozens of exhibits (including four videos of the incident) and heard from 50 witnesses, are simply hate-mongers, or that they perhaps saw something that the legal analysts on Twitter and in the middle of the West Side Highway did not? Now that two grand juries have opposed Al Sharpton, and the liberals currently blocking traffic across America, should we just do away with the whole grand jury system? Should we simply turn everything over to the Prosecutor?

Maybe he’s the racist in this instance. Many believed Bob McCulloch was. What if it turns out that this District Attorney, Daniel Donovan, only sought specific charges, instead of letting the grand jury potentially choose from an array of options, as McCulloch did in Officer Wilson’s case? What if he picked the wrong charges? How did we reach a point where giving the people deciding a man’s fate all of the information available became evil? Do we upend the whole legal system until decisions start going the Left’s way?

And what of my fellow conservatives, who seemed eager to show how “fair-minded” they were as they voiced outrage over the decision not to indict: “I was in favor of the Ferguson decision, but this is completely different…” Many of those conservatives slammed President Obama a few weeks ago when he announced he would not enforce sections of the immigration law; yet now, they argue that cops should look the other way when it comes to New York’s cigarette statute? The so-called defenders of small business are focused on the absurdity of the state’s taxation; what about the convenience store owners who were losing money because of the actions of Garner, and other criminals in the area? Do they matter to Rand Paul? To the libertarians? Did these champions of the rule of law ever consider waiting until all of the evidence was released before condemning the 23 citizens simply doing their civic duty? Did they ever think that perhaps an edited video taken by the victim’s friend might not be the most unbiased account of the entire encounter?

I expected liberals to oppose the decision; I did not expect so many conservatives to join them. By claiming that the Eric Garner situation is different than the Michael Brown situation, I would argue that this latter group is making an enormous mistake. They are overlooking the thread that joins these two events, and missing the chance to highlight the real meaning that should emerge from these tragedies: Both men resisted arrest, and both men would likely be alive today if they had not. Neither of these men died because they were black. They died because they did not have respect for the law or the men and women who enforce it.

By saying that the cigarette law is meaningless, and implying that cops should not enforce it, conservatives are encouraging this contempt. As the supposed proponents of the Constitution, they should know better. Rather than focusing on the actions of the cops, and parsing whether Pantaleo used a “chokehold” or a “headlock”, or whether he was “criminally negligent” or guilty of “involuntary manslaughter” (both of which, the grand jury found he was not), conservatives should be focused on the very actions that precipitated the violence: Eric Garner’s refusal to hold out his hands and allow the arresting officers to perform their duties. Instead of lambasting the grand jury decision as “totally incomprehensible”, they should be preaching patience and encouraging the release of all of the case’s evidence. By taking the opposite approach, they are sending the same message to black Americans as the Left, even if unintentionally: The system is corrupt. You are being treated unfairly. You have a right to resist.

Conservatives need to realize that the lesson of Staten Island is no different than that of Ferguson: unless people are taught to respect the authority of police, these deaths will continue to occur. These incidents will happen not because white cops seek them out, but because we have defined deviancy down, told criminals that they are justified and made heroes out of people who acted irresponsibly.

Eric Garner’s death is a tragedy. So was Michael Brown’s. But they are tragic for a specific reason: not because they were the result of racial animus or an evil system, but because they could have easily been avoided.

If the deaths of these two men are to have a positive effect on future generations, that must be the message.