Wednesday, July 30, 2014

The tragic death of Eric Garner: Resisting arrest or resisting harassment?

By Charles Brooks

Last week, the body of Mr. Eric Garner was laid to rest after funeral services were held in Brooklyn, New York. Mr. Garner was the latest victim of NYPD's use of excessive force. His death attracted international attention and triggered considerable outrage for several reasons. Mr. Garner was an unarmed African American,  accused for selling cigarettes individually out of the pack – a long time practice called selling “loosies” – or as media reports state – selling untaxed cigarettes. For that, he was placed in an illegal police maneuver, the notorious chokehold.  Although NYPD officials say he “resisted arrest”, the question that needs to be asked is whether Mr. Garner was actually resisting repeated police harassment?   

Mr. Garner is the latest victim killed by police in general, and by NYPD in particular. Across the country, there have been countless incidents of brutality and murder – just in recent weeks alone there have been several incidents caught on video for all to see.  Both black men and women viciously attacked by the police - a disregard of their humanity - and their human rights. Mr. Garner's case is one that simply unnerves you a bit because of that gnawing question around whether Mr. Garner’s death have to happen - was his death  preventable? With his last gasps of life - he cried out that he couldn’t breathe - several times, hoping the police officers would have some sense of humanity and allow him to regain his breathing. 

No - the officers refused to hear Mr. Garner’s call for them to recognize his humanity as he struggled to breathe his last gasps of air. He finally died after the officers pressed their collective weight on a seemingly dying body.  There was a video tape and although the Police Benevolent Association Union president says the tape is not enough – he is wrong.  It didn’t take long at all for NYPD’s Patrolmen's Benevolent Association President Patrick Lynch to warn against reading too much into videos of arrests.  Mr. Lynch stated: "Videotapes never present all of the facts in a situation.  They never capture the criminal act or offense that brings police action to the scene.  They present an isolated period of a police interaction but never the entire scenario.  That's why it is necessary when video tapes surface to have a complete review of the facts in every case before arriving at any conclusion." Mr. Lynch also said that officers cannot walk away when they have to make an arrest and that what people are interpreting as a chokehold is actually the officers bringing a non-compliant arrestee to the ground in order to rear cuff him and that no conclusions can be drawn until all the facts are determined by an investigation.

But the tape shows us enough to know what happened in the critical moments before Mr. Garner was met with a violent death. 

In the few seconds before Mr. Garner was placed in an illegal chokehold and wrestled to the ground, you can see one of the officers with handcuffs in hand and approaching Mr. Garner. Perhaps it’s the low audio of the videotape but what is not clear is the officers’ adamant demand that he turn around and place his hands behind him. 

In the beginning of the incident, you can slightly hear the officer say to Mr. Garner that they were going to take him in – and Mr. Garner’s reaction to that. But the officers clearly were not moving in on Mr. Garner at that point – they let Mr. Garner say his peace – while maintaining their distance.  The question here is what was the turning point – what was said to Mr. Garner in those critical moments before the officers became violent. The video indicates that Mr. Garner is reacting to the officers moving in on him – and his hands, his open palms were in clear view – and were not used to assault the police officer.  Mr. Garner’s resistance to arrest is not so evident but his resistance to the apparent harassment – the stop and frisk encounters – is clearly evident.  Furthermore, what is not so clear - why was the illegal chokehold used on Mr. Garner? Was there no other way to secure and contain Mr. Garner without the inevitable loss of his life?

NYPD’s Patrol Guide clearly states: “Members of the New York City Police Department will NOT use chokeholds. A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.”The Patrol Guide code also states: Members of the service are required to maintain control or intervene if the use of force against a subject clearly becomes excessive. Failure to do so may result in both criminal and civil liability. EXCESSIVE FORCE WILL NOT BE TOLERATED. All members of the service at the scene of a police incident must:

a. Immediately establish firearms control
b. Use minimum necessary force
c. Employ non-lethal alternatives, as appropriate.

But we can see from the video there is also some history between Mr. Garner and the officers in question: “…Every time you see me you want to wrestle with me. I’m tired of it…it stops today…I’m minding my own business officer, please leave me alone…I told you the last time, please leave me alone…”  The ‘it’ reflects the harassment that Mr. Garner was subjected to or targeted for.

This is what we know: Medical examiners have not yet determined the cause of death, but police said he went into cardiac arrest on the drive to the hospital. Daniel Pantaleo, the officer who killed Mr. Garner with the illegal chokehold has had his gun and badge taken away and he’s reassigned to desk duty; Mr. Pantaleo was sued twice for alleged civil rights violations; the other officer, Justin Damico has been taken off street duty but still holds his gun and badge; four emergency workers have been suspended without pay; the investigation is being conducted by the Staten Island District Attorney, NYPD Internal Affairs Bureau, New York Inspector General of police and the Civilian Complaint Review Board.  The Wall Street Journal has reported the  U.S. Attorney General Eric Holder saying the Justice Department is "closely monitoring" these on-going investigations into the Mr. Garner’s death. In addition, NYPD Police Commissioner Bill Bratton has ordered a “thorough review” of NYPD’s training procedures.

We also know that NYPD banned chokeholds in 1994 after the death of Anthony Baez, who was killed by an officer who used the illegal maneuver. 

But we also know that in despite of the ban against the illegal chokeholds, there were nevertheless over one thousand complaints filed with the NY Civilian Complaint Review Board (CCRB) in the last four years between 2009 and 2013.  The CCRB has announced they will conduct a comprehensive study of the chokehold complaints.   

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