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Unless you’ve been out of the country for the past few months, you’ve certainly heard about the Eric Garner case in New York City. Garner passed away after being arrested, having been put through take-down maneuvers upon resisting that arrest. His alleged crime was selling “loosies”: single cigarettes on the street without a license, although not at the time of the incident.

A bit of background:

  • Selling tobacco outside of packages, without a license and tax stamps is illegal
  • Officers are have every right to arrest an individual upon report of a crime by a citizen; they don’t have to witness the crime themselves
  • Garner has a criminal record that includes more than 30 arrests dating back to 1980 on charges such as assault, resisting arrest and grand larceny (he wasn’t unknown to police)
  • An official said Garner’s record included several incidents in which he was arrested for selling unlicensed cigarettes
  • Some sources claim Garner was attached to organized crime in the area, including cigarette smuggling and shakedowns/coercion of shopkeepers
  • Garner allegedly was not selling cigarettes or committing any other crime at the time he was approached, but reportedly had been in the same spot on prior occasions
  • Garner had multiple existing health issues, including obesity, asthma and hypertensive cardiovascular disease

Eric Garner

The above isn’t to disparage Garner or imply that “he deserved what he got” in any way; it is only to give a frame of reference. The police weren’t out just looking for random people to pick on, or merely arresting a man for selling a cigarette. They were well aware of Garner’s activities and he was well aware that they were keeping an eye on him and trying to catch him performing those activities. In short, none of what happened was a surprise to anyone, aside from the unfortunate conclusion.

On That Day:

Based upon recent complaints from shop owners, police attempted to place Garner under arrest, at which point he resisted, refusing to comply with officers’ instructions to place his hands behind his back and refusing to permit them to do so. While a very large man, he wasn’t offensively fighting; merely refusing to comply and put his hands behind his back, or let them take control of his hands to cuff him. He also wasn’t apparently even selling cigarettes at that time, which while illegal, certainly isn’t a felonious act; it’s a regulatory infraction and in no way rendered him a public danger on that day.

Garner may well have believed that officers had no right to arrest him on that day. Whatever unfairness he perceived, however, could only be settled in court; as much as people love to argue with police, nothing can be solved on the street. While we can certainly say our piece in protest, we cannot legally resist arrest and in the end we have a legal obligation to comply. Sadly, far too many seem to think (or at least react as if) compliance is somehow optional, which immediately escalates both the situation and the charges, creating the possibility of injury or worse; I’m just not convinced that it’s entirely the subject’s fault all the time, in every situation, as I will explain.

The police department had been tasked with cracking down on sidewalk cigarette sales due to numerous store owner complaints (including complaints about Garner), but while they did have the right to arrest Garner and to use force if he resisted, it sure seems excessive to do so without stopping to have a conversation and reason with him first; to explain that they’d gotten documented complaints; to explain that while he may or may not be charged with a crime, an arrest is imminent and legal, based upon those complaints. I think a lot of people get rushed by police aggressiveness into a fight-or-flight response and end up paying a dear price for succumbing to natural instinct. On Garner’s end, if he wanted to get them off his back sooner, he may have considered turning the tables on the police by offering to empty his pockets every time they walked by – until they were so annoyed with him that they just left him alone.

Although he explains it very well in his blog post regarding the grand jury decision, I don’t fully agree with famed defense attorney Norm Pattis on his assessment. Or, rather, I find it incomplete. I think he left out a few points:

  • That not everyone on the street fully understands every aspect and detail of the law; a lot of them understand very little and aren’t even aware of many laws
  • That it wouldn’t do any harm – especially in low/no risk situations (Garner certainly wasn’t sprinting off anywhere) to take a minute, let the subject cool down and calmly explain that even a phoned-in complaint is cause for arrest, which will be done momentarily and that they must comply or they actually will have committed a (2nd) crime, whereas they’re currently only suspected of one;
  • That an arrest, while legal, isn’t truly necessary when one poses no danger to public safety; they can merely issue a ticket and a fine (which is what would occur anyway in a regulatory event) and let them come to court to settle the matter.

Perhaps Pattis thinks that all goes without saying, but I think it may slip past many readers less familiar with the law than he (and honestly, nearly everyone falls into that category.)

I’m not saying the following actually happened in Garner’s case – I have no idea what occurred in the minutes prior to the video – but it sure does seem, sometimes, that some police officers may intentionally try get people agitated so that they can get some action and tack on more criminal charges to the arrest. That would be terribly wrong. That’s abusive.

Law enforcement’s mission should include helping citizens to better understand and obey the law, not manipulate them into breaking even more laws. This line should never be crossed.

Garner’s case is a horrible tragedy, no matter how you slice it. It should never have happened. It was wholly unnecessary and absolutely undeserved. They did have a right to arrest him, under local law and he did not have the right to resist, however mildly. Yes, he was a big guy and I’m aware that people often do “cry wolf” while being subdued, but when someone says they can’t breathe, with multiple people on top of them, they should be given the benefit of the doubt. At least pause long enough to assess the situation and determine whether or not they’re telling the truth and ensure that they actually can breathe. Eric Garner wasn’t trying to kill a cop. He didn’t attack a cop. He hadn’t even attempted to flee. As far as I can tell, there was no apparent necessity – in the moment or historically – for such use of force.

Yes, Garner could potentially have tossed and clobbered an officer or two had they let loose their grip. Where, though, is his history of attacking police in an attempt to escape? Surely, with nearly 3 dozen arrests, anyone who actually is a threat should have racked up quite a history of resisting or fleeing, no?  If not… and with no present circumstance warranting extensive use of force, then force is logically unwarranted, at least until after an explanation is given, the suspect has had the time to calm down; for rational thought to take over; to accept that arrest is imminent; the opportunity to concede. Given the time to gain some composure and clarity, the great majority of citizens will concede, however begrudgingly some may do so, understanding that any battle with the police would be futile; that their battle is actually with the law; the court.

I should hope we all can agree that the physical force that we citizens authorize police to use should follow some logical algorithm: demonstrated history + current behavior + nature of crime = current threat level (or degree of authorization.) We don’t know every detail of how he’s acted and what he’s done to police during prior arrests. However, present demeanor, behavior and nature of current crime should be weighted higher than history – people do change – but with no great history of violence toward police during arrest (probable cause to believe it will occur again) and no violent behavior at all in the present, the justification for use of force is prohibitively low. Rightfully, no person should be manhandled or treated like an animal until they behave like an animal… and up to that point, Garner did not appear to have done so.

Wearing a badge, on the other hand, should not bestow upon one carte blanche to use as much force as one likes – up to and including death – simply to avoid catching an occasional poke by a suspect or having to chase him 20 yards. Police are entrusted with our authorization of the use of force – force against us, under guidance of good judgment – and, in many cases, they appear to be overstepping their bounds and destroying our trust, without which the entire fabric of law enforcement unravels.  Sometimes that overstepping is within the laws and policies that we create for them; sometimes it is outside them. This area needs more respect and attention than it is currently receiving and necessary adjustments must be made.

While the grand jury reviewed four separate videos and I (and probably you) saw only one, I don’t personally believe that Eric Garner’s death was in any way intentional, nor do I believe that the officer should be charged with murder or manslaughter, because I don’t see a bit of evidence with which to convict him of either. I do believe, however, that it was an accidental outcome of an unfortunate situation in which the officers – while they appear to have been well toward the extent of their legal limits – remained within the rules and regulations set forth for them by the City and State of New York: Garner resisted, permitting them – according to the law – to use force. To suggest that an officer might somehow be charged with, much less convicted of murder or manslaughter when he hadn’t even broken departmental policy or current law is a complete failure in understanding. That isn’t thinking; it’s feeling… and acting upon feelings rather than rational thought is what gets people into all these messes in the first place.

  • Upon assessment, should those current policies and laws be found wanting – and a great many obviously feel that they are – the City and State of New York should absolutely be held accountable for Mr. Garner’s death;
  • If Mr. Garner was somehow willfully denied sufficient, available medical assistance, then that certainly is cause for prosecution, but not prosecution of the police officer.
  • If any such failure was due to the decision of an individual (breaking policy or law) then that individual should be prosecuted;
  • On the other hand, if it’s due to any policy or law, then the holder(s) of such policy or law – EMS, City or State – should be held liable and changes should be made to policy or law to keep such a tragedy from occurring in the future;
  • Should we feel that the City and State (or any other) aren’t hiring people with sufficient reason and judgment, then we should hold the City and/or State accountable for that as well and demand changes in their practices and training;

We cannot, however, retroactively change the rules and laws in order to create guilt in someone and exact some sort of vengeance. That is neither right, nor just; it is foolish and ignorant. We cannot permit our emotions to talk us into thinking time travel is possible. To make a practice of changing standing laws in order to make past events criminal (or not criminal), would be to undermine the rule of law itself. Instead, we must respect that individuals did follow policy, procedure and law as they stood at that point in time, and focus on improving them and removing any flaws so that such tragedies cannot occur in the future. This does not leave anyone immune to any liability, criminal or civil, under the law. It merely respects the rule of law, in spite of our feelings. Truly, if we allowed it, our emotions would have us each rewriting any law at will, to whatever benefits us best according to our current mood. That isn’t law; it’s the opposite of law. That’s the very reason humans had to come up with laws in the first place.  Animals do whatever they like; humans do whatever they should, after mutual agreement as to fair and civilized human behavior: those are our laws.

The Future: What Can Be Done to Improve?

I feel strongly that some sort of cool-down period – a minute or two of calm, rational conversation and explanation – would result in far more citizens voluntarily donning the cuffs and going along with the police without physical altercation. I think that measure of time would help a lot of people get their wits about them and separate the instincts they’re feeling from rational thoughts… and conclude that fighting or fleeing are definitely not valid (or wise) options. We’re all human and when terribly agitated, angry or fearful we lose our composure and fail to rationalize well. All that we’re left with is our adrenaline and innate animal instinct – our fight-or-flight response – and both options are illegal. Rushing and aggression results in mental entrapment. Beneath our intelligence, we are still animals and subject to our instincts. The better we understand and make reasonable accommodations to control those instincts, the better off we’ll be as a society. We can’t simply be expected not to have them. We all do, like it or not.

With the obvious exceptions or limitations for violent felony suspects, the armed & dangerous and those who are already fleeing or attacking, I’d like to see policies or laws ensuring that people are given fair notice (a la Miranda) that they have the right to take a “golden minute” to calm themselves and gain their composure, whereupon the officer will explain what is going to happen next.

Obviously the officers themselves are also human – subject to the same adrenaline and instincts – and could stand time to cool down, too. If the emergency itself has passed and nobody’s going anywhere, taking that time to settle down and establish some mutual understanding of the situation, the law and process could save a lot of trouble, injury and lives. It would also give people a chance to regain their composure and speak to one another respectfully; we could all use a lot more of that.

Any citizen, no matter how criminal, is still the employer and no matter who he is or what color he may be, treatment with utmost respect – for his title, if not his person – is warranted until his own actions eliminate the possibility of continuing to do so. The same goes for those we hire to enforce our laws.


In addition, we’ll discuss the need for real leadership.