Opinion

Opinion and analysis on the Eric Garner case

If you work in politics for awhile, and you don't drink first thing in the morning, you can't help but see the tactical patterns of your opponents. They're rarely tricky or oblique. Both parties have fairly straightforward playbooks to appeal to core voters. 
Some people label the Democrats' tried-and-true method "identity politics." In New York City, it's also sometimes called "tribal politics," although that term is mercifully falling from fashion. Either way, the Democrats' divide-and-conquer strategy works consistently well for left-of-center elected officials and their busy network of affinity groups. 
In essence, and this is hardly an insight, Democrats rile up key voting blocs by convincing them that they're suffering some type of injustice. 
Once the group is targeted, the well-oiled propaganda machine kicks in. Not-for-profit 501 (c)(3) and 501 (c)(4) organizations drop news releases and place stories in friendly and powerful news outlets; news conferences and demonstrations are organized and covered in the media, and then, when the desired anger within that group is ginned up to a critical pitch, the villain is identified: Republicans in Congress, the state senate, state house, town or city council -- name your legislative body. 
To get there, legislation is introduced in those bodies by Democrats knowing full well that it will never be passed by Republicans. Parts of a bill might be reasonable -- the name of the bill always sounds good -- but tucked somewhere into the legislation is a poison pill or two that will guarantee its demise among Republicans. That's the play. When the bill doesn't pass, Republicans can be labeled as impediments to "progress." 
Republicans do this with their constituencies, too -- think repeated Obamacare repeal votes -- but they rarely target voters by ethnicity and gender. That lies almost entirely in the Democrat domain. 
The wedge issue provides a stable platform on which Democratic political operatives can engineer sustained rhetorical assaults. Flashpoint anger only lasts so long; you can build a multiyear campaign around a bill or, more dramatically, an "Act" (e.g., "The Women's Equality Act" in New York State, a section of which I have worked against.) 
I raise this because I see part two evolving in the latest Democratic Party campaign to stir up African-American discord in time for the 2016 election cycle. Part one involved organizing demonstrations against police officers, a reliable target in high-crime communities, using unpopular grand jury decisions as the rallying cry. Part two will involve the legislative "remedies." We're seeing only a fraction of them now. But trust me, more are on the way. 
In the New York City Council, a bill has been introduced that would make it illegal for employers to ask employees whether they've been convicted of a crime. That's actually supposed to appeal to African-Americans, not insult them. State Senate Democratic Leader Andrea Stewart-Cousins of Yonkers just introduced a bill that would strip local district attorneys of the right to prosecute local police officers. Her bill would hand prosecution to the state attorney general, suggesting that local prosecutors can't be impartial in cases involving police. 
Expect legislation in New York State to hold police officers personally liable in civil suits for actions on the job, something recently pushed through in New York City. And any day now, look for the big federal bill -- a creatively titled omnibus package that will become integral in the lead-up to the 2016 presidential and congressional elections. Someone, somewhere, is already stitching the battle flags together for that one. 
The African-American vote is nothing to sneeze at. For years, black voters turned out at rates far below that of white voters. But as Wall Street Journal editorial writer Jason L. Riley points out in his powerful new book, "Please Stop Helping Us: How Liberals Make it Harder for Blacks to Succeed," African-Americans, as a demographic, turned out at a higher rate than any other group when they supported President Barack Obama for re-election in 2012 with 95 percent of their vote. (Bill Clinton won 84 percent of the black vote in his 1996 re-election.) 
You already see headlines predicting the importance of the African-American vote in 2016, like the one this week in National Journal: "[Hilary] Clinton Will Need to Win Over the Black Voters That [defeated Louisiana Sen. Mary] Landrieu Couldn't." 
These organized demonstrations in black communities come on the heels of Obama's unilateral decision to grant work visas to people in this country unlawfully, most of them Latino.&nbsp;A lot of unemployed African-Americans were very unhappy about that decision, with good reason. There had even been grumblings among some black leaders that the African-American vote had to stop being so monolithic. 
A stone-cold cynic might suggest that what's going on in the wake of Ferguson might just have something to do with that. 
William F. B. O'Reilly is a Republican consultant.

Columnists

William F. B. O'Reilly

OPORE11

Democrats enter Phase II of 2016 election play

O'Reilly: Dems playing identity politics for 2016

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Profound sadness can only begin to summarize the indescribable heartache rippling across the country in the wake of two grand juries deciding not to indict the two police officers in the killings of unarmed African-American men, Michael Brown and Eric Garner. But undaunted typifies the resolve of the NAACP and millions across the world who will not allow these tragic events to dissuade us from pursuing justice. 
I learned that a grand jury declined to indict NYPD Officer Daniel Pantaleo in the Garner case while on our 134-mile "Journey for Justice" from Ferguson to Jefferson City, Missouri. At that point, our marchers were trudging up icy hills with boots often filled with bloody and blistered feet. 
For seven days, from sunup to sundown, protesters joined us as we marched through harsh weather for the cause of justice. We called for reforms of police practice and culture across the country. 
Racial epithets were thrown our way from passersby, but we marched. A mob shattered the window of our support bus after some threatened to shoot us, yet we continued. And after marching 134 miles, we were in no way tired. 
In no way was our trek from Ferguson to Jefferson City designed to be a solution. It was a continuation of the many demonstrations designed to make clear to the country and the world that the NAACP and our allies will not stand down until we see systemic change, accountability and justice in cases of police misconduct. 
That march is completed, but we as a nation must continue to march forward. We march to arrive at a day when my two teenage sons and black men and women across this nation will be judged by the content of their character, not the color of their skin. We march forward to establish a national ban on racial profiling and an end to the overaggressive "broken windows"-style of policing that has become common in communities of color. We press on to achieve a criminal justice system that holds officers accountable for their misconduct and strengthens police departments to work with residents to keep all communities safe. 
Today young black men are 21 times as likely as their white peers to be killed by police, according to the news organization ProPublica, and about 1 in 4 young black men said he had been treated unfairly in dealings with the police, according to a Gallup poll. 
The NAACP, throughout its 105-year history, has stood at the forefront of combating policies and practices that undermine the civil and human rights of law-abiding people. In fact, it was founded to combat lynching, which was often done by law enforcement officials aided by mobs. 
Having nearly ended lynching in the last century, we can and must end profiling in this century. Since our inception, black lives have mattered. Indeed all lives matter. As the NAACP "Born Suspect" report on stop-and-frisk abuses shows, profiling is based not only on race, but also religion, sexual orientation and ethnicity -- making it all the more morally and legally unacceptable. 
As we approach a new year, we have a resolve to move forward and we need your help. Join us in calling on our local, state and federal elected leaders to advance systemic reform and fundamental change in how policing is conducted throughout our communities, which includes requiring police to use body cameras, revising the equipping of police with military hardware, promoting diversity on the force and ending the use of major force in cases involving minor offenses. 
While we are frustrated and deeply disappointed, we know that these grand jury decisions do not mean crimes were not committed in Staten Island or in Ferguson, and it does not mean we are done fighting. 
Cornell William Brooks is president and chief executive of the NAACP.

Commentary

OPBRO12

Undaunted, we march forward to demand police reforms

Opinion: We march to demand police reforms

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New York Attorney General Eric Schneiderman's bid to be named special prosecutor for all cases in which police kill unarmed civilians is an attempt to reverse the crisis of confidence in the criminal justice system laid bare by Eric Garner's death. 
But this is not a problem that lends itself to quick fixes, such as substituting one prosecutor for another. It demands a more comprehensive, systemic reform of how the criminal justice system treats blacks, including how it handles cases arising from deaths at the hands of police. 
That should include an evaluation of how and when we use grand juries in this state and at the very least address the secrecy of the grand jury process, which undermines confidence in decisions not to indict. That was certainly the case with Garner. The grand jury's "no true bill" was completely at odds with the video of his death due to an apparent chokehold, which was the evidence the public saw. 
Reformers should also take a critical look at how grand jury presentations are handled when the subject is a police officer who has killed. In routine criminal cases there is usually an arrest followed by a grand jury in which prosecutors seek an indictment. NYPD Officer Daniel Pantaleo was never arrested. And the grand jury heard testimony for months, which is unusual when its only job is to determine if there is reasonable cause to believe a person committed a crime. Such special handling invites cynicism. 
Having the governor name a special prosecutor on a case-by-case basis may be part of the solution. If so, the attorney general is the clear option. But designating Schneiderman now to fill that role temporarily until the State Legislature acts would dampen the urgency for comprehensive reform. If the legislature fails to act, tapping the attorney general might then be the best alternative. 
Gov. Andrew Cuomo has promised a broad, comprehensive review of the problem with an eye to crafting meaningful reform. That effort should include public input solicited through a series of hearings around the state. 
The governor and the legislature must see this through, even when there are no longer protesters lying "dead" in the streets.

Editorials

VPSPECIAL11

Editorial: New York must act to reform killings by police

Editorial: NY must reform killings by police

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What can explain a Staten Island grand jury's refusal to indict police officer Daniel Pantaleo for the chokehold death of Eric Garner? Even if any answer is speculative and inconclusive, asking the question is an appropriate and maybe cathartic effort - one that can help prosecutors address these difficult cases in a more effective way that inspires public confidence in the outcome. 
The police confrontation with Garner, captured on video, is a powerful and horrifying image, especially to people who remember the vicious beating of Rodney King by Los Angeles police in March 1991, also captured on videotape, and the powerful emotions and riots that followed the jury's acquittal of those officers. The fact that the New York protests have been relatively peaceful is a tribute to the good sense and restraint of New Yorkers, who while outraged by the grand jury's inaction, hope that significant changes in police practices will be forthcoming. 
Any effort to decipher the unknown numerical vote of the grand jury, reportedly composed of 12 whites and nine African-Americans and Hispanics, and why they voted the way they did, has to make some reference not simply to demographics but to the nature and politics of the community. Staten Island has long been considered an outlier among the other boroughs, described as a "conservative bastion in a liberal city." It's unclear whether that conservatism may have contributed to the grand jury's decision. What is clear, however, is the image of troubled race relations in Staten Island. A few years ago, the Department of Justice monitored racial tensions and police responses after the savage beating of a Mexican immigrant in Port Richmond, and in 2008, there was a race-motivated election night rampage, in which a group of white youths vented their anger at President Barack Obama's election by brutally beating an African-American man with a metal pipe and police baton. 
As former prosecutors assigned to prosecute police cases, we are well aware of attitudes the public holds about police officers, especially as revealed by grand jurors and trial jurors asked to hold police officers criminally liable for their misconduct. Jurors are not very tolerant of police officers who take bribes, steal drugs, and lie. Jurors don't have to put themselves in a police officer's shoes to know that such conduct is dishonest, reprehensible, and should be punished. But jurors don't share this intolerance when it comes to an officer's use of force in encounters with possible wrongdoers who may be seen as endangering the police officer and others. Here the juror is not being asked to assess the officer's honesty; she is being asked to assess the officer's judgment. In this situation, jurors tend not to second-guess the officer's often split-second judgment that a forceful response was required in a typically tense, volatile, and dangerous encounter. These jurors trust the police to protect their property, their well-being, and even their lives from violent predators in their community. When a police officer is accused of using excessive force, even lethal force, jurors and the public in general typically give the officer the benefit of the doubt. 
We do not know at this time the nature of Officer Pantaleo's testimony in the grand jury. We do know he was the last witness, and we also have a sense of what he said from the remarks of his lawyer, who likely prepared his testimony very carefully. 
Based on what we do know, we can assume that Pantaleo appeared to be contrite, even grief-stricken, at the death of Garner. He surely emphasized that it was never his intention to injure or harm anyone, and that at most it was a tragic accident, but certainly not a crime. He acknowledged that Garner stated, "I can't breathe." Pantaleo said, according to his lawyer, that he immediately disengaged and tried to get off Garner as quickly as he could. Pantaleo, according to his lawyer, downplayed any suggestion that he used a forbidden chokehold by stating that he employed a maneuver he learned at the police academy to try to "tip Mr. Garner off balance," but that he had to move his arm when they both fell to the ground, and he was in fear that he and Garner would go through a store window. 
There are significant contradictions between Pantaleo's account (as described by his lawyer) and what is seen in the video. He appears in the video to remain atop Garner well after Garner, lying face down on the pavement with Pantaleo's arm wrapped around his neck, pleads that he can't breathe. Nor did Pantaleo's arm move off Garner's neck when they fell to the ground, as Pantaleo claimed. Presumably these contradictions, and other aspects of Pantaleo's story, would have been sharply probed and impeached by any responsible grand jury prosecutor. 
Facing the target of the grand jury's investigation is a perfect opportunity for any prosecutor to grill the target on any and every aspect of his story, to try to demonstrate to the grand jury that the story is not credible. We have done that often. Did the Staten Island prosecutor treat the officer's self-serving account with kid gloves, with leading and helpful questions? That is what happened in the Ferguson grand jury. It is crucial that we find out what happened in Staten Island. In New York, only the prosecutor can formally seek to ask the court to publish the transcripts. Staten Island District Attorney Daniel Donovan has not done so. Even though grand jury testimony is rarely released to the public, given the public's access to the videotape of the choking, this is the case that cries out for the disclosure. We encourage the district attorney to publish Pantaleo's grand jury testimony. 
Complicating the grand jury's responsibilities is the fact that the homicide charges jurors had to consider are difficult to understand and apply. None of them involve intentional conduct by the officer, so the officer's plea before the grand jury that he did not intend to injure Garner is irrelevant. The kinds of culpable mental state required for any of the degrees of homicide submitted to the jury involve varying levels of recklessness. So, for murder, the jury would have to find that the officer acted with a "depraved indifference to human life," such wantonly reckless conduct that the actor knew almost to a certainty that death or serious physical injury would result from his conduct. Consider, as an example, a motorist who causes a pedestrian's death while driving at 100 miles an hour at high noon in Times Square. Manslaughter in the second degree, punishable by 15 years in jail, requires a showing of recklessness, conduct in which the actor is aware of and consciously disregards a substantial and unjustifiable risk of causing death or serious injury. 
The owner of a factory where a fatal fire has erupted, who knew that there were flammable gases or substances, disregarded numerous safety violations, and knew that the exits were locked, easily fits into this category. Finally, criminally negligent homicide, punishable by seven years in jail, requires proof not of recklessness but of criminal negligence, where the actor by his conduct fails to perceive a substantial and unjustifiable risk of causing serious physical injury or death. 
It is likely that the jury was considering the crime of criminally negligent homicide and disagreeing about it. Even though Pantaleo may not have been aware of a serious risk to Garner's life, should he have been? Should he have known that violently grabbing Garner around his neck, to the point of hearing Garner plead "I can't breathe," and not disengaging his violent hold of the neck, presented a substantial and unjustifiable risk that would cause serious physical injury - and possible death - to Garner? The grand jury has spoken. 
Now it is up to the Justice Department and the United States Attorney to decide whether to file federal civil rights charges. In making that decision, it seems to us, it will be very important for the Justice Department to examine the vigorousness of the prosecutor's grand jury presentation. If Pantaleo's conduct was aggressively and vigorously pursued, should there be a second effort to indict him? If Pantaleo's account was not challenged, was justice served or was there a miscarriage of justice? The public needs to know more facts than we now have. District Attorney Donovan should apply to the court to release the entire record of what occurred behind closed doors. Only then will he take the first step to possibly quelling the public's understandable outcry - by helping establish that justice was pursued in good faith. 
Gershman, a former prosecutor, is a professor at Pace University School of Law and the author of Prosecutorial Misconduct. 
Cohen, a former prosecutor, practices white collar criminal defense law at Stroock and is the author of "Blindfolds Off: Judges on How They Decide."

OPGARN09

The Eric Garner case cries out for disclosure

Opinion: We need a full record of the Garner jury

NYC protests spread to the West Side Highway

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Unlike the recent shootings by police of Michael Brown, John Crawford and Tamir Rice, there's something - the video - about the killing of Eric Garner by New York City police officer Daniel Pantaleo that has folks on both sides of the political aisle criticizing the Staten Island grand jury's decision not to indict. 
Conservative mainstays such as Washington Post columnist Charles Krauthammer said last week, for instance, that "from looking at the grand jury's decision here, it's totally incomprehensible." Or even former President George W. Bush, who called the decision "hard to understand." But there are a lot of conservatives still rationalizing and caveating away the naked injustice of the case with near-excuses about the circumstances of Garner's death: Garner shouldn't have resisted arrest; Garner had a criminal record; the police sergeant at the scene was a black woman. 
And? I don't consider what Garner was doing "resisting." Saying, "I'm minding my business, please just leave me alone" - which Garner said shortly before New York police officer Daniel Pantaleo jumped him - doesn't sound to me like resisting; it sounds like a tea party slogan. 
But even if you do think he was resisting - which is how police will always see it - no one can watch that video and reasonably conclude that Garner was threatening physical harm, in any way, toward any of the officers trying to arrest him. 
Conservatives aren't the only ones making these "arguments," but you're hearing these talking points loudest on the right. Here are three of the worst: 
-- The choke hold wasn't "illegal." Yes, it was. On Wednesday night, cable news king Bill O'Reilly went out of his way to emphasize several times that Pantaleo's "choke hold was not illegal; it's against department policy" - a distinction without a difference if there ever was one. 
Baseball bats aren't illegal, but it's still illegal to kill someone with a baseball bat, unless it's in self-defense. The point about the choke hold isn't that it hasn't been specifically banned by statute in the state of New York. It's the fact that if it's not authorized as a legitimate policing technique, then Pantaleo had no more legal right to choke Garner to death than a civilian does. 
-- This was about a big-government cigarette tax. Fox News' Greg Guttfeld said Thursday that the issue in this case isn't "cops vs. blacks but government vs. citizens. The nanny state crushing the individual." A sentiment echoed by Sen. Rand Paul, R-Ky., who told MSNBC's Chris Matthews that "the individual circumstances are important, but I think it's also important to know that some politician put a tax of $5.85 on a pack of cigarettes," adding, "For someone to die over breaking that law, there really is no excuse for it," but "I do blame the politicians. We put our police in a difficult situation with bad laws." 
I happen to agree that New York City's cigarette tax, and the police department directive to aggressively prohibit the sale of loose cigarettes, is big government run amok. But there's no NYPD directive I'm aware of that states that violators of the loosie law should be taken into custody at all costs, up to and including choking a man to death just because he's suspected of selling them. 
Rather than trying to take Garner into custody with brutal - and ultimately deadly - force, the officers at the scene could easily have issued him a citation or summons. If it's as ludicrous a crime as conservatives say it is (and it is), and that's all Garner was charged with, then there was no need to take him into custody. Write him a ticket and move on. Don't kill him. 
-- Eric Garner was "huge." We keep hearing references to Garner being 300, 350 or even 400 pounds - as Breitbart's Ben Shapiro made sure to point out at the outset of his breakdown of the case. But what of it? People - including Garner and Pantaleo - come in all shapes and sizes. And part of a police officer's job, or any public servant's job, is that you have to take people as you find them. 
There's no justification for singling out an unarmed man - who's not being violent or threatening violence - for violent treatment, just because he's big. If you're a cop and you can't handle the fact that you're eventually going to interact with a guy who's bigger than you, then you shouldn't be a cop. 
Swerdlick is an associate editor at The Root.

News

OPSWER05

The three worst conservative rationalizations for what happened to Eric Garner

Opinion: 3 worst excuses for Garner case

Times Square Eric Garner reaction

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Last week, I wrote what I believed to be a thoughtful piece about racism as a follow-up to the riots in Ferguson, Missouri. A number of African-Americans I know emailed nice things after reading it. It left me feeling pretty good about myself. 
Three days later, I was called a "racist" on Twitter -- a "#*%! racist creep" to be exact. My crime? Tweeting the following in reaction to the Eric Garner grand jury decision: "Sometimes a tragedy is just a tragedy." 
That didn't go over well with @CCB5Keithfan34 of Queens, whom I'm sure is a fine person, whoever she is. Or with others who tweeted similar barbs my way. Such are the visceral reactions out there about the two grand jury decisions. 
All I was trying to say was that NYPD Officer Daniel Pantaleo probably didn't mean to hurt Garner. He certainly didn't mean to cause his death, and a grand jury agreed. But I wanted no part of a Twitter battle in this environment, so I retired from the field feeling nauseous at being unfairly stung. 
There was nothing organic about the crowds that materialized to take over bridges and highways after the Staten Island grand jury decision. They were whipped up by professional agitators like the Rev. Al Sharpton, the health care workers union, SEIU 1199, and others, just as they always are. That was no surprise. But what has been eye-opening in this case is how many people of goodwill -- black, white and other -- have looked at the very same videotape and come to strikingly different conclusions about what they saw. 
It's a terrible thing to watch a man die. The first time I looked at the Garner video, I had to knuckle back tears. But not for a minute did I think the police officers involved might be subject to criminal investigation. It looked to me like a terrible accident. 
That's clearly not how a lot of good people saw the video. It's not how any African-American I know saw it, and I have to respect that. The collective experiences we all bring to an incident are valid discussion points. 
But discussion about the Garner tragedy can't be all one sided. It can't be all about police tactics. If we're really going to have an honest conversation about policing in inner city communities, we also have to talk about why police officers have to spend so much time in them. It's a conversation that won't happen, though, because anyone raising the point is almost instantly labeled a you know what. 
William F. B. O'Reilly is a Republican consultant.

OPORE05

Garner case is too hot for rational dialogue

O'Reilly: Garner case is too hot for rational dialogue

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Mass urban protests have always been a necessary part of American democracy, giving people who are marginalized a voice and a way to exert influence they wouldn't otherwise have. 
We've been seeing more of them in recent years because more people justifiably feel excluded from consideration when decisions that affect their lives are made. 
Americans revere the Boston Tea Party, yet many see contemporary protest movements as irritants that exist outside the political process. 
Large-scale protests don't happen unless there's a major problem, so rather than seeing them as annoyances, people should ask what's broken. 
When low-wage workers walk out across the country, or when violence by police in New York and Ferguson, sparks protests as far away as Seattle, all of us need to listen. 
People endlessly debate the details of particular wage plans or the sequence of events in Ferguson or even the character of Michael Brown, the young man shot dead by a police officer there, rather than looking up to see the larger reasons for protest. 
Last week, I saw a play at the Seattle Repertory Theatre, Robert Schenkkan's "All The Way," about Lyndon Johnson and the civil-rights movement. The play was set in the 1960s but felt contemporary, as it dealt with the interaction between the federal government and a mass protest movement by people shut out of that power - an interaction that yielded improvements in our democracy that would not have happened without pressure from outside the political and economic establishment. 
How much say do you feel you have when government and corporations are making decisions on issues you care about? Ordinary people are told to take their concerns to the voting booth. I make a point of voting, but at the same time I know election outcomes are shaped by elites and interest groups. 
The National Rifle Association usually wins in Congress regardless of what opinion polls say voters want. Stadiums get built whether voters want them or not. Corporations demand and get special treatment all the time. The U.S. Supreme Court's Citizens United ruling even gave them supercitizen status, allowing them and other big players to spend on politics without restraint. 
That's not good for democracy, and it is especially bad because enormous income and wealth inequality already distorts public life. 
Martin Gilens of Princeton and Benjamin Page of Northwestern University wrote a paper that looked at voter- and interest-group positions on nearly 2,000 issues between 1981 and 2002 to see whose positions were reflected in policy decisions. 
The study published this September in "Perspectives on Politics," a peer-reviewed journal of the American Political Science Association, concluded, "Multivariate analysis indicates that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence." What do you do if your positions are ignored? Well, nothing most of the time, but when the usual process causes real, ongoing pain, people can and do take to the streets. 
The Stonewall riots, after a 1969 police raid on the Stonewall Inn, a gay bar in New York City, birthed a powerful rights movement for sexual minorities. Labor rights and women's rights have been advanced by civil disobedience. 
Corporations can disrupt communities in significant ways, shutting down businesses, for instance, but they do it legally because they help decide what's legal. 
Protests are a legitimate response by people who aren't being heard. They are often a last resort that can be disruptive and threatening. Even when most participants are peaceful, frustration and anger can turn some to violence. At other times, protests are polluted by people who use them as cover to break laws for personal reasons. In Ferguson, peaceful protesters were in the position of trying to ward off vandals and thieves. People watching protests unfold don't always make distinctions, but we should. 
Not everyone who takes to the street has a just cause. But protests that reach the levels we are seeing now usually are saying something we need to hear. 
Jerry Large is a columnist for The Seattle Times.

OPLARGE05

Yes, nationwide protests really mean something

Opinion: Yes, protests really mean something

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It seems the video of Eric Garner being choked to the ground wasn't definitive to a Staten Island grand jury. 
But the video matters to the nation. 
The video matters because it made visible and unavoidable something that lurks beneath the surface, camouflaged by conflicting testimony and uncertainty, and our fundamental biases. The video matters because it made all of us, regardless of how we feel about race or the police, confront the idea that it can be legal for cops to kill black males who present no danger. 
Eric Garner is not Michael Brown. Members of the grand jury that considered the killing of Brown by police Officer Darren Wilson heard conflicting testimony. Was Brown charging? Were his arms up in a gesture of surrender? Who can really say for sure? But in the case of Garner, we are all witnesses. We can watch the video of his confrontation with police officers, including Daniel Pantaleo, who took him down. We can observe Garner's lack of aggression, and hear him say over and over, "I can't breathe." 
Thursday, the day after we learned that Pantaleo would not face criminal charges, the discussion turned to what has to change. Gov. Andrew M. Cuomo announced that race and the state's justice system would be a focus of next year's legislative session. Mayor Bill de Blasio outlined extensive retraining for NYPD officers. And departing U.S. Attorney General Eric Holder said he will focus the next phase of his career on bridging the cop-community divide. 
Why take a case like this to a grand jury, rather than have a prosecutor charge Pantaleo? Should cases involving police officers be referred to special prosecutors? Are local district attorneys like Staten Island's Daniel Donovan so close to police that they can't be independent enough to pursue those officers? How do we reinvent police training and attitudes to avoid these situations? We'll have a commission, certainly, or a task force, or both, locally and nationally, and we should. 
These are worthy pursuits, but they are only detours and patches. Fundamental change is needed. As individuals and families and communities, we must examine our mindsets and prejudices to understand how Garner's death happened and could go unpunished. And how to become a nation where such deaths are rare and have consequences. 
The Garner case has many law-and-order conservatives, normally staunch allies of the police, appalled at the lack of an indictment. So start with this question: What if there had been no video? How many of us would argue that Pantaleo barely touched Garner or that Garner was aggressive, and that witnesses who said otherwise were lying? 
After all, we hear it now: "It's not like Garner hasn't been in trouble before," or, "If he hadn't resisted arrest, he'd still be alive." 
This time, though, no one can honestly say that, and so the problems of race and the police -- and race and . . . all of us -- are out of hiding. 
We don't yet know why the video didn't matter to that Staten Island grand jury. Perhaps we never will. But we have our work cut out as a nation to show that it really, truly matters to us.

VPGARNER05

Editorial: Garner video is evidence of what must change

Editorial: The Garner video matters

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you. 
I wish this caution were only theoretical. It isn't. Whatever your view on the refusal of a New York City grand jury to indict the police officer whose chokehold apparently led to the death of Eric Garner, it's useful to remember the crime that Garner is alleged to have committed: He was selling individual cigarettes, or loosies, in violation of New York law. 
The obvious racial dynamics of the case - the police officer, Daniel Pantaleo, is white; Garner was black - have sparked understandable outrage. But, at least among libertarians, so has the law that was being enforced. Wrote Nick Gillespie in the Daily Beast, "Clearly something has gone horribly wrong when a man lies dead after being confronted for selling cigarettes to willing buyers." Republican Senator Rand Paul of Kentucky, appearing on MSNBC, also blamed the statute: "Some politician put a tax of $5.85 on a pack of cigarettes, so they've driven cigarettes underground by making them so expensive." 
The problem is actually broader. It's not just cigarette tax laws that can lead to the death of those the police seek to arrest. It's every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they're right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won't lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand. 
The legal scholar Douglas Husak, in his excellent 2009 book "Overcriminalization: The Limits of the Criminal Law," points out that federal law alone includes more than 3,000 crimes, fewer than half of which found in the Federal Criminal Code. The rest are scattered through other statutes. A citizen who wants to abide by the law has no quick and easy way to find out what the law actually is - a violation of the traditional principle that the state cannot punish without fair notice. 
In addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure. 
Husak cites estimates that more than 70 percent of American adults have committed a crime that could lead to imprisonment. He quotes the legal scholar William Stuntz to the effect that we are moving toward "a world in which the law on the books makes everyone a felon." Does this seem too dramatic? Husak points to studies suggesting that more than half of young people download music illegally from the Internet. That's been a federal crime for almost 20 years. These kids, in theory, could all go to prison. 
Many criminal laws hardly pass the giggle test. Husak takes us on a tour through bizarre statutes, including the Alabama law making it a crime to maim oneself for the purpose of gaining sympathy, the Florida law prohibiting displays of deformed animals, the Illinois law against "damaging anhydrous ammonia equipment." And then there's the wondrous federal crime of disturbing mud in a cave on federal land. (Be careful where you run to get out of the rain.) Whether or not these laws are frequently enforced, Husak's concern is that they exist - and potentially make felons of us all. 
Part of the problem, Husak suggests, is the growing tendency of legislatures - including Congress - to toss in a criminal sanction at the end of countless bills on countless subjects. It's as though making an offense criminal shows how much we care about it. 
Well, maybe so. But making an offense criminal also means that the police will go armed to enforce it. Overcriminalization matters, Husak says, because the costs of facing criminal sanction are so high and because the criminal law can no longer sort out the law-abiding from the non-law-abiding. True enough. But it also matters because - as the Garner case reminds us - the police might kill you. 
I don't mean this as a criticism of cops, whose job after all is to carry out the legislative will. The criticism is of a political system that takes such bizarre delight in creating new crimes for the cops to enforce. It's unlikely that the New York legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they're so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants. 
Husak suggests as one solution interpreting the Constitution to include a right not to be punished. This in turn would mean that before a legislature could criminalize a particular behavior, it would have to show a public interest significantly higher than for most forms of legislation. 
He offers the example of a legislature that decides "to prohibit - on pain of criminal liability - the consumption of designated unhealthy foods such as doughnuts." Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate. 
That's too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same as the advice I give my students on the first day of classes: Don't ever fight to make something illegal unless you're willing to risk the lives of your fellow citizens to get your way. 
Stephen L. Carter, a Bloomberg View columnist, is a professor of law at Yale University.

OPCARTER04

Law puts us all in same danger as Eric Garner

Opinion: We're all face Garner's danger 

Arrest Struggle Death - cropped

I can't breathe. 
Those were Eric Garner's last words, and today they apply to me. The decision by a Staten Island grand jury to not indict the police officer who killed him takes my breath away. 
In the depressing reality series that should be called "No Country for Black Men," this sick plot twist was shocking beyond belief. There should have been an indictment in the Ferguson case, in my view, but at least the events that led to Michael Brown's killing were in dispute. Garner's homicide was captured on video. We saw him being choked, heard him plead of his distress, watched as no attempt was made to revive him and his life slipped away. 
This time, there were literally millions of eyewitnesses. Somebody tell me, just theoretically, how many does it take? Is there any number that would suffice? Or is this whole "equal justice under the law" thing just a cruel joke? 
African-American men are being taught a lesson about how this society values, or devalues, our lives. I've always said the notion that racism is a thing of the past was absurd -- and that those who espoused the "post-racial" myth were either naive or disingenuous. Now, tragically, you see why. 
Garner, 43, was an African-American man. On July 17, he allegedly committed the heinous crime of selling individual cigarettes on the street. A group of New York City police officers approached and surrounded him. As seen in cellphone video footage recorded by an onlooker, Garner was puzzled that the officers seemed to be taking him into custody for such a piddling offense. He was a big man, but at no point did he strike out at the officers or show them disrespect. 
But he wasn't assuming a submissive posture as quickly as the cops wanted. Officer Daniel Pantaleo placed him in a chokehold, compressing his windpipe -- a maneuver that the New York Police Department outlawed two decades ago. Garner complained repeatedly that he was having trouble breathing. The officers wrestled him to the sidewalk, where he died. An emergency medical crew was summoned but officers made no immediate attempt to resuscitate him. 
The coroner ruled Garner's death a homicide. He suffered from asthma, and Pantaleo's chokehold killed him. 
The Staten Island prosecutor presented evidence against Pantaleo to a grand jury; the other officers involved in the incident were given immunity in exchange for their testimony. On Wednesday, it was announced that the grand jury had declined to indict Pantaleo on any charge. 
This travesty -- there's no other word for it -- came just nine days after a St. Louis County grand jury declined to indict Officer Darren Wilson for Brown's death. Demonstrators took to the streets across Manhattan. What else was there to do but protest? Set aside the signs that say "Hands Up, Don't Shoot." Bring out the signs that say "I Can't Breathe." 
There are two big issues here. One involves the excessive license we now give to police -- permission, essentially, to do whatever they must in order to guarantee safe streets. The pendulum has clearly swung too far in the law-and-order direction, at the expense of liberty and justice. 
As I wrote Tuesday, we are so inured to fatal shootings by police officers that we do not even make a serious effort to count them; the Michael Brown case illustrated this numbness to the use of deadly force. Garner's death is part of a different trend: The "broken windows" theory of policing, which holds that cracking down on minor, nuisance offenses -- such as selling loose cigarettes -- is key to reducing serious crime. 
Police officers, whose brave work I honor and respect, are supposed to serve communities, not rule them. 
The other big issue, inescapably, is race. The greatest injury of the Brown and Garner cases is that grand juries examined the evidence and decided there was no probable cause -- a very low standard -- to believe the officers did anything wrong. I find it impossible to believe this would be the result if the victims were white. 
Garner didn't even fit into the "young black male" category that defines this nation's most feared and loathed citizens. He was an overweight, middle-aged, asthmatic man. Now we're told that the man who killed him did nothing wrong. 
Eric Garner was engaged in an activity that warranted no more than a warning to move along. But I recognize that he also committed a capital offense: He was the wrong color. &nbsp;&nbsp; &nbsp; Eugene Robinson's email address is eugenerobinson@washpost.com.

OPROB04

The Eric Garner case's sickening outcome

Opinion: Eric Garner case is a travesty

Manhattan Eric Garner reaction in Times Square

nyGARN/alo - cropped

What happened Wednesday is incomprehensible. 
A Staten Island grand jury voted not to bring criminal charges against NYPD Officer Daniel Pantaleo, who threw his arm around Eric Garner’s neck last summer in what looked much like a departmentally prohibited chokehold. 
Garner cried again and again, “I can’t breathe.” Then he was dead. 
The disturbing viral video shot by a bystander was an emotional gut punch. It was, and still is, difficult to watch. Video can mislead, of course. But what we thought we saw was bluntly buttressed by New York City’s medical examiner, who said Garner’s death was a homicide resulting from the chokehold and the compression of his chest by police officers. 
And now we’re back where we were last week in Ferguson, Missouri, back where we never really left, with a grand jury’s inaction reverberating profoundly and volatilely across the country. And with questions we have been unable to answer — about our nation’s troubled racial history, about the distrust that exists between minorities and police departments, and about why some of us are not treated equally under the law. 
Garner was black. Pantaleo is white. Ferguson victim Michael Brown was black; then-police Officer Darren Wilson, who was not indicted by a St. Louis County grand jury, is white. 
But the two cases are different. In Ferguson, conflicting testimony and evidence made it impossible to decipher what transpired, and whether Wilson should have felt threatened by Brown. 
Garner, on the other hand, did not pose a lethal threat to anyone — not to the police officers who surrounded him, not to bystanders. He was resisting arrest on suspicion of selling “loosies” — individual cigarettes — a very minor allegation. 
We wish Staten Island District Attorney Daniel Donovan could step forward to explain why the grand jury declined to bring charges. If there’s a sound legal basis for that decision, we’d like to know it. But state law doesn’t permit him to discuss the salient details. And that lack of clarity leaves us with another crisis of boiling racial anger that must be addressed. Why are people of color treated differently by the police? 
“This is an American problem, and not just a black problem,” President Barack Obama said yesterday. “It’s my job as president to help solve it.” He should, and assertively. 
The Department of Justice has launched a civil rights investigation into the Garner killing. But we need more. Obama has said he’ll set up a task force to bring more transparency to law enforcement and mend a fractured relationship between police and the communities they protect. That’s a start. 
We’ve made great progress over the years, but the past has a long and haunting reach. America’s race problem has taken a serious turn for the worse. 
It’s time that we honestly confront it.

VPGARNER04A

Editorial: Eric Garner decision defies belief

Editorial: Garner decision defies belief

NYGARN03

Yesterday, a Staten Island grand jury in the apparent chokehold death of Eric Garner did not indict the officer in the case. The decision will be treated as indistinguishable from the Michael Brown case in Ferguson, Missouri, by those who insist that the case was only about cops killing African-Americans with impunity. 
In fact, the two tragic deaths are dramatically different. The "provocation" in the Brown case, hitting an officer and trying to steal his gun, was more deserving of a strong reaction than was Garner's attempt to avoid being arrested on suspicion of selling untaxed cigarettes. And no one knows for certain what happened during Brown's confrontation while, thanks to a bystander's video, we know what happened in the Garner case. 
There is no doubt that police are often trigger-happy when confronted with blacks, and often act more like occupiers than public servants in African-American communities. But using the tragic death of Brown to prove that case to the public is the equivalent of holding up the O.J. Simpson criminal case as proof that police often frame innocent black men. 
If, as is likely, there would've been an acquittal of Ferguson Officer Darren Wilson at trial -- and even if everyone agreed it was a fair trial -- it would have never satisfied those upset at the non-indictment. 
Let's not forget that the mantra "No justice, no peace" is more accurately phrased "Do what I demand or no peace." 
An attorney whose client has been indicted is almost expected to dismiss the significance of the action by citing the modern aphorism that "a district attorney could indict a ham sandwich." And the best evidence of that was the indictments in the 2006 Duke University lacrosse "scandal." There was more evidence against any random "ham sandwich" in that case than against the players who were indicted. The charges were eventually dropped and the local prosecutor disbarred -- but not before damage had been done. 
Today, even reasonable people point to the undeniable fact that an indictment could have been easily obtained in Ferguson. They argue that a trial would've allowed all evidence to be vetted by both sides. 
No one who values credibility has claimed there was proof beyond a reasonable doubt before the grand jury that decided against indicting Wilson. Those who advocate for a trial claim that an indictment is "no big deal" because "probable cause," the standard for an indictment, is so low. 
Anyone who thinks that a costly and terrifying trial for one's freedom and reputation is "no big deal," has not gone through that ordeal. Indicting Wilson to have a transparent and cleansing trial would have been unethical and impractical, if not counterproductive. 
As a young Jewish federal prosecutor, I knew that indicting ham sandwiches was not kosher. I remember a case in which a federal agent agreed that we did not have proof beyond a reasonable doubt, but the agent wanted to indict the target to expose him and to make him suffer the agony of trial. I refused to seek an indictment because in our judicial system convicting a guilty man on insufficient evidence is a miscarriage of justice. 
Those who still demand a trial should be careful what they wish for. The belief that airing the evidence in the Ferguson case at trial would cleanse the public of doubt and misinformation has no contact with reality. One need only look at how the grand jury evidence is being deconstructed to know that the unusual transparency of the grand jury's proceedings served only to exacerbate tensions -- as well as give grist to TV talking heads who are worthy of an Olympic gold medal in synchronized spinning. 
That does not mean trials should be unfairly blocked. It means that trials should not be unfairly generated because they would not be the cleansing vehicles many people expected them to be. 
David S. Gould is a former federal prosecutor who is in private practice.

OPGOU04

A trial for public good never achieves its goal

Opinion: Indictments don't bring closure

nyPara28_protest - cropped

As the takedown of Eric Garner, 43, on Staten Island reverberates across the metropolitan area, it is clear that New York City Police Commissioner Bill Bratton faces a huge challenge to train America's largest police force in the art of "active listening" and in addressing "the needs of people asking for help." 
Can Bratton and Mayor Bill de Blasio really change entrenched police attitudes? Actually, they don't have much choice. Many city residents were already angry about the NYPD's stop, question and frisk program championed by former Mayor Michael Bloomberg. De Blasio and Bratton sought to defuse that fury with a program encouraging cops to treat citizens with more respect as the city also ratchets up enforcement of quality-of-life crimes. 
But the Garner case indicates that old attitudes run deep. A cellphone video that went viral last week shows a police officer using what looks like a banned chokehold to subdue the 350-pound suspect after cops approached him for allegedly selling untaxed cigarettes. 
As they take Garner down, he protests repeatedly that he can't breathe. Then he is still. In a second video, we see officers standing over Garner for several minutes without offering aid. That video also shows cops chatting jovially in the background while Garner lies unmoving on the sidewalk. And perhaps worst of all, it shows the plainclothes cop who grabbed Garner around the neck waving sarcastically to the camera. When an ambulance crew arrives, we see no attempt to aid Garner's breathing. He's rolled away and later pronounced dead. 
Caution is advised about judgments. We don't know yet exactly what caused Garner's death. And we don't know why cops and ambulance workers seemed slow to act. The Staten Island district attorney and the NYPD Internal Affairs Bureau -- among others -- are investigating. But what's indelible are those shots of NYPD officers standing around while a man dies. Bratton faces a huge job.

VPLIGARN22

Editorial: Death on Staten Island challenges NYPD

NYMEDA cropped

Newsday

Manhattan Eric Garner reaction

Police Chokehold Death

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