Problems with the Garner Case

| December 28, 2014
Categories: Op-Eds

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Eric Garner is dead, a fact which no doubt brings grief to somebody somewhere. He’s dead, according to people who have no ability to think critically, because he was black. This is, of course, ridiculous, and more importantly detracts from any intelligent discourse that could be had about what may or may not have gone wrong. The crime, the contact, the use of force, the aftermath…all of it drowned up by ignorant assertions of racism. As you might imagine, the case created quite a discussion (and some disagreement) within the ranks of our minions. Responses ranged from “*shrug* Play stupid games, win stupid prizes” to, “Why are we going hands on so fast for such insignificant cause?” and many points between. None of them had anything to do with the color of anyone’s skin (suspect, officers, bystanders, etc.) and everything to do with aspects that merit discussion. Here’s one of our minion’s perspective. You’ll see more in coming days on this, the murder of 2 NYPD officers and what we see as some legitimate problems. In the meantime Chris addresses breathing, probably cause, the “choke hold” and his bottom line. Mad Duo


Problems with the Eric Garner Case

Chris Hernandez

I’m a cop. And I have a problem with the Eric Garner case.

Sometimes cops do something controversial, but don’t get in trouble because what they did was right. Darren Wilson, for example, was right to use deadly force against Michael Brown in Ferguson. Sometimes cops do something controversial, but don’t get in trouble because what they did was legal. The officer who took down Eric Garner with a neck or choke hold, and inadvertently killed him, did something that was legal. Not necessarily right. Just legal.

Let me say these things first: I do not believe the officers involved in the Eric Garner case intended to do anything other than arrest him. I do not believe racism was a factor. I don’t think Garner would have died if he hadn’t had previous medical problems. I’m not saying any of the officers involved should be in prison. Only one officer applied the controversial hold that brought about Garner’s death, so even if I agreed that he had committed a crime I still wouldn’t think the other officers were guilty. And I don’t know certain details of the incident which might be pertinent.

I’ll also say I firmly believe in using as much force as necessary, when it’s warranted. One quote I’ve heard that makes a lot of sense is, “Violence is rarely the answer, but when it is, it’s the only answer.” I’ve written at length about the shooting of Michael Brown, and explained why I believe it was justified. I expected the Grand Jury not to indict Officer Darren Wilson, and when I heard he was cleared I was relieved the jurors didn’t bow to unreasonable public pressure.

But when I heard the Garner Grand Jury decision, I cringed. Eric Garner, even if he was a longtime petty offender, was no Michael Brown. I knew a lot of people would be furious about the Grand Jury’s decision not to indict anyone for Garner’s death. I understand why. And I think we cops need to seriously rethink some of the practices and attitudes that led to this tragic and needless outcome.

First I’m going to address a couple of points supporting the officers, then I’ll explain why I have a problem with the entire incident.

“I can’t breathe.”

There’s a very good reason the arresting officers didn’t take Garner’s “I can’t breathe” statement seriously. A dirty fact of police work is that we constantly get lied to by people we’re arresting. Faking an injury or illness is a time-honored tradition, especially among those who have been arrested many times and know the system (and even people who have never been arrested before might spontaneously lie about a medical condition, like when Reese Witherspoon lied about being pregnant during her arrest for public intoxication). I’ve had prisoners falsely claim they had broken bones, or an injured back, or AIDS, or multiple illnesses and injuries. One suspect I had to wrestle claimed he couldn’t walk afterward, then wouldn’t give my pen back when I asked him to sign for his property. After I jerked the pen away he said, “Now my finger is sprung too.” The next day, after sobering up, he walked out of the jail without complaint or injury. Back when I worked in small towns we knew certain “regulars” would always claim injury or illness when arrested. Some of them would laugh as they said “My neck hurts” or complained of some other problem, because they knew we’d have to call EMS even if it was obvious they were lying. They knew the game, and played it well.

I’ve heard many suspects say “I can’t breathe” as we struggled to get them in cuffs. I’ve said the exact words an officer said to Eric Garner: “If you couldn’t breathe you couldn’t talk.” I’ve never had an in-custody death or come close to one. If the officers in the Garner case had any street time, they probably heard lots of prisoners claiming “I can’t breathe,” “the cuffs are too tight” or “you’re twisting my arm too far behind my back”. I’ve let up pressure on suspects because I thought I actually was twisting their arm too far, then had them use that as an opportunity to fight harder or try to get away.

So I’m not surprised the officers disregarded that statement. But as we all know, Eric Garner wasn’t lying. It’s not likely the officers knew his prior medical problems. So how can street cops tell who’s lying and who’s not?

There’s no easy answer to that.

“Banned Chokehold”

As many have noted, the “chokehold” applied to Eric Garner isn’t allowed by NYPD. However, that doesn’t mean it’s illegal. It was against department policy, which is totally different. For example, in one police department I know of, weapon lights were temporarily banned. So let’s say an officer disregarded that ban and mounted a light to his pistol, and then was in a shooting. Even if the shooting was totally justified and had the best possible outcome, the officer still violated policy even though he didn’t violate any laws. In the Garner case, even if the officer applied a chokehold, he didn’t violate law. He simply violated policy.

I’ll also point out that the officer didn’t initially grab Garner in a chokehold. He grabbed him in a hold from one side of his neck to under one arm.

Screenshot (12)


The officer apparently couldn’t keep that hold, probably because Garner was so big. So the hold went from under the arm to around the neck.

Screenshot (17)

Again, I don’t think the officer intended to do anything other than arrest him, and didn’t even intend to grab him around the neck when he first tried to take him down. But as far as I know, the chokehold, neckhold or whatever else you want to call it did cause bleeding in his neck and burst blood vessels in his eyes, which is a sign of choking.

There have been debates about whether or not an actual chokehold was applied to Garner (as opposed to simply holding him around the neck). I’ve never received chokehold training as a cop, and only had “blood choke” training in martial arts, so I’m no expert on chokeholds. But whatever kind of hold was applied to Garner, it apparently helped kill him. So why didn’t the grand jury indict the officer who applied it?

My only guess is that the jurors decided the officer didn’t intend to choke him. And that’s just a guess. I do understand that the officer showed no intent to kill, he was just trying to arrest. But still…

That hold bothers me, in that situation. Yes, there are plenty of dangerous, violent criminals who will respond only to a massive application of force. I’m all for officers using that force, including chokeholds, if it gets those criminals under control without injury to the officers or public. But in this case? Against a guy selling loose cigarettes, who’s simply noncompliant?

Probable Cause

Just to clarify, Garner was in fact breaking a law, and had apparently done so many times in the past. The officers had probable cause to arrest, gave appropriate verbal commands, and attempted to apply empty hand control techniques. Aside from the chokehold, the officers’ escalation of force was appropriate. And the chokehold – though I have a hard time saying this – apparently wasn’t as bad as it seems on video.

So why do I have a problem with what happened to Eric Garner?

For several reasons.

First, the violation he was being arrested for was what we cops call a “chickenshit” offense. While I understand Garner had been involved in some way with a fight that had just happened, he apparently wasn’t being arrested for assault or fighting in public. Instead, he was arrested for an extremely minor violation that probably deserved to be ignored.

Many police supporters point out that cops don’t create law or pick and choose what to enforce. That’s true to a certain point. We don’t create law, but we pick and choose what to enforce all the time. If we stopped, ticketed or arrested people for every single violation we saw, as one academy instructor told us, we’d never make it from home to the station because we’d see too many offenses on the way. For example, we don’t stop people for driving one mile an hour over the speed even though it’s literally against the law. Some agencies even have official policies telling officers not to stop speeders unless they’re going at least ten miles over. In fact, officers who write tickets for every possible traffic violation tend to be disliked even within police departments.

Just like arresting Eric Garner for the illegal sale of “loosies”, I could stop a speeder for going one mile an hour over the speed limit and write him a ticket. If he refused to sign the ticket (as many reasonable people would), I could arrest him. If he resisted that arrest, I could escalate force until I gained compliance (like by Tasing, spraying or baton-stroking him). Sure, I could.

But it would be stupid of me to do that. Driving one mile an hour over the speed limit isn’t inherently evil. I’m not putting the public at risk by ignoring it. It doesn’t demand a forceful response. It’s a minor, chickenshit offense whose enforcement creates more problems than it solves.

The law against selling “loosies” seems, in addition to being chickenshit, all about tax revenue and not about public safety. Even so, when we enforce that kind of law, people usually comply (as Garner reportedly did nine times in the past). But when they don’t, the end result just isn’t worth it. In Garner’s case, officers took legal steps to enforce a law. Legal or not, stopping the sale of loosies wasn’t worth the horrible end result.

Second, the incident seemed to go from verbal noncompliance to a dogpile real quick. Yes, Garner was completely noncompliant. Yes, he was large and imposing. But he wasn’t intimidating, or threatening. He simply said he wasn’t going to comply. Plenty of people say that to us. No, they shouldn’t refuse to comply. But we should have better ways to handle the noncompliant than to almost immediately force them to the ground.

A large, angry, noncompliant offender who isn’t threatening or assaulting anyone, or trying to evade, can be handled in a less aggressive manner. Most cops would much rather talk than fight someone into cuffs. An offender who’s just angry and noncompliant, but isn’t aggressive or trying to evade, gives the officer time to talk him down.

Some police supporters are saying cops don’t have time to stand there until a violator decides to follow their lawful orders. Maybe that’s true. But we wind up taking much more time handling the aftermath of a fight than we would by waiting out the suspect. In the end, it’s almost always more efficient timewise to talk someone into compliance rather than fight them into it. Talking people down avoids injury to them and you, eliminates time-consuming use-of-force documentation and generally leaves a better taste in the public’s mouth about what we do. And we cops need the public on our side.

Personally, I’d rather not fight anyone I don’t have to. Having a badge doesn’t make any of us invincible, and I’m well aware of how many people are capable of beating the crap out of me. In my first year as a cop, a very small and very wise sergeant told me, “I’d rather spend thirty minutes calming someone down than thirty seconds getting my ass kicked.” I’ve tried to make that a guiding principle. If that had been applied with Eric Garner, he’d likely still be alive and we wouldn’t have hundreds of thousands of Americans justifiably angry at us.

Third, I didn’t see Garner aggressively resist. When the officers grabbed him, he didn’t punch, kick, push, bite, or headbutt. All he did was try to stay on his feet. In fact, as he went down he held both hands out with fingers spread.

Screenshot (11)

Freedom Rifle 1

Wear it.

In my experience, that’s an “I’m not resisting” signal. Even as he went down and one arm was pinned behind his back he kept his free hand in that position, palms out and fingers spread, not showing any aggressive resistance.

Screenshot (16)

I’ll point out that as soon as Garner was down, at least one officer on the scene called out “Alright, he’s down he’s down he’s down!” as a signal to ease back on the use of force. This was not a mass beatdown by out-of-control cops. Again, I’m not saying the officers did anything illegal. That’s not what I have a problem with.

Bottom Line

I’m not criticizing the officers involved for breaking laws. I don’t think they broke any. I’m not saying they had no probable cause. Apparently they did. I’m not saying they did anything procedurally wrong other than the “chokehold”, which doesn’t even seem to have been the officer’s original intent. But the whole thing seems to have gone way too far, way too fast, over a ridiculously minor offense. Even if the officers’ actions were legal, they just didn’t help. Cops nationwide could start writing tickets for going one mile an hour over the speed limit tomorrow; yes it would be legal, but it would also be stupid, and would probably cause a nationwide uprising against all of us.

Is that what we want? If not, we shouldn’t let minor incidents turn into gigantic crapstorms that leave people dead who didn’t need to be dead. We shouldn’t give average Americans reason to fear us.

I know this is a “slippery slope” argument. Saying we cops should ignore some law violations opens the door to us ignoring gigantic law violations. All I can say is, we already ignore a lot of violations, and everyone is happier that way. The fact that I ignore a driver going 31 in a 30, or don’t care about a grown man selling loose cigarettes to other grown men, doesn’t mean I’ll ignore rapes and murders. In fact, maybe everyone would be much happier if we cops didn’t worry about minor offenses at all, and only cared about the rapists and murderers.

I’m not claiming innocence here. It took me a long time to figure out what was important and what wasn’t. I’ve made arrests that were 100% legal, for offenses I later realized I should have ignored. Judgment takes time to develop, and there’s no way for any of us to know whether or not our judgment calls were always right. There will always be a grey area.

But “offenses” like selling loose cigarettes aren’t grey. That’s something we can safely ignore, and even if we can’t ignore it we can approach it much more slowly than real crimes. And if someone selling loose cigarettes decides he won’t do what we say, even after we spend a long time trying to talk him into compliance? Maybe it’s better to just walk away, than grab him around the neck and take him down.

A grand jury decided the officer who grabbed Eric Garner around the neck didn’t break the law. His actions were legal. Okay, I guess they were.

But they just don’t feel right.

breachbangclear.com_site_images_Chris_Hernandez_Author_BreachBangClear4Chris Hernandez Mad Duo Chris (seen here on patrol in Afghanistan) may just be the crustiest member of the eeeee-LIGHT writin’ team here at Breach-Bang-Clear. He is a veteran of both the Marine Corps and the Army National Guard who served in Iraq and Afghanistan. He is also a veteran police officer of two decades who spent a long (and eye-opening) deployment as part of a UN police mission in Kosovo. He is the author of White Flags & Dropped Rifles – the Real Truth About Working With the French Army and The Military Within the Military as well as the modern military fiction novels Line in the Valley and Proof of Our Resolve. When he isn’t groaning about a change in the weather and snacking on Osteo Bi-Flex he writes on his own blog, Iron Mike Magazine, Kit Up! and Under the Radar. You can find his author page here on Tactical 16.


  1. adam

    “Just to clarify, Garner was in fact breaking a law, and had apparently done so many times in the past. The officers had probable cause to arrest….”

    What’s the evidence for this statement? From the media accounts I’ve read, he had no cigarettes on him. I have never been able to find out why the cops thought he was selling cigarettes on that particular occasion. They clearly knew that he had done it before, but that doesn’t equal probable cause that he was doing it on that occasion.

  2. Danny


    Good article. I review incidents like this for a living and have a slightly different perspective.

    First off, I’d like to introduce you to the concept of “hindsight bias.” It’s where we watch a video, or an event unfold, then subconsciously believe the outcome was predictable. Simply watching a video on the Internet predisposes us to this bias.

    1. ChickenShitness: Most of your points are dead on. As a senior police officer, you’ve been around the block. You likely aren’t the same guy you used to be and, probably don’t enforce the law like you used to. I stopped writing tickets long before I left the streets. If they were a chronically bad driver, or their offense was so egregious, they got a ticket. I believe that justice COULD BE served with me simply stopping someone. Writing a stop sign ticket to a habitual bad driver, or taking them to jail because of their history, isn’t chickenshit. Because you or I as senior officers may not, doesn’t make it chickenshit.

    Not to mention, think about the precision and honed instrument of justice you are now. You got that way by driving fast, arresting a lot of people and “kicking ass” on the streets. It doesn’t make new guys wrong or reckless taking the path that most good cops take.

    Sometimes we apply our department’s priorities to other places. Selling loosies might be a big deal there, or it could be the only charge that they had on a habitual nuisance. Shrugging your shoulders and walking away isn’t always the best option, or what the community needs just to keep things low-key.

    Lastly on point #1. I’m not sure that selling loose cigarettes is the first step to anarchy. As a police officer, and soldier, we’re paid from tax dollars. The roads are paved, schools are built, teachers are paid through tax revenue. If Garner didn’t have to pay them, why should anyone pay them? Why pay for taxes, a state and city business license if the guy selling cigarettes in front of my store doesn’t. Why do I pay my taxes if the cops won’t come remove the pain in the ass selling cigarettes from in front of my store. All they do is talk to him for a minute, shrug and walk off.

    Point 2:

    They spoke with him for a while then decided to act. I don’t know how long. As is common, that part of the video isn’t there. However in the video, there are some key exchanges. Chief among them, Eric Garner was told he was going to jail. I did not hear them give him any option otherwise. Garner made it very clear that he was not going. It’s been my experience that when someone tells you they’re not going, you’ve got a fight on your hands. Despite the forewarning of resistance, they tried to PEACEFULLY put his hands behind his back. He then pulled away. Only after he pulled away did they “dogpile” him. We don’t meet force with force, we meet it with overwhelming force. The longer the fight, the increased risk of danger to everybody. While it did escalate rapidly, it did so for a reason.

    “He isn’t intimidating,” said who? This is the cardinal sin of Graham V. Connor and video watching. I’m sitting comfortably on my bed while my wife snores next to me. I’m good every time I watch this video. I’m good every time I watch any video, cause it ain’t me dealing with it.

    “But we should have better ways to handle the noncompliant than to almost immediately force them to the ground.” Wait, whu?????? Chris, what type of humans do you wrestle with that are less dangerous standing, than on the ground? I don’t even know where to go with that? That’s another trap of the hindsight bias and watching videos.

    There is always a “better way.” That’s why we use the term “objectively reasonable” not the “best way.” As a human in these circumstances, we often are not capable of doing things the “best way,” that’s why our actions must only be reasonable. The Supreme Court agrees.

    I’m a fan of talking guys down, and handling objections when possible. The best use of force report is the one that you don’t have to write for the force you didn’t use. It’s easy from the comfort of your home to craft a scenario that the cops win and the suspect surrenders. But sometimes talking won’t fix everything. What happens then?

    “Justifiably Angry”? I don’t know the facts of this case, like most Americans. But as a 20 year cop you have exposed some pretty serious flaws in your analysis. I say that with all due respect. I do this for a living and I’m trained to look at it differently. My point is: Why would the public understand if a 20 year cop doesn’t understand it?

    I’ll agree with you that on this cold December day, that the whole thing went too far back on that July day. That’s what months of analysis, video, and the gift of hindsight gives us. Lets face it, we don’t flip burgers for a living. We enforce the law. Sometimes we fight with people, sometimes we die, sometimes they die, most of the time we simply put the handcuffs on and go about business. This event was one in a million. Does that mean we don’t do police work because of the remote possibility of someone dying? We walk away because someone has a camera, or because America doesn’t understand?

    Sometimes the best thing is to walk away, but we can’t fault people who don’t and then blame them.

    • Mad Duo Chris


      You raise a lot of good points, and I confess to both being torn about this incident and to being biased by the outcome. Guilty. I’ll concede some of your arguments.

      However, I still have a problem with this case, for several reasons.

      I think we agree the alleged offense was chickenshit. In over ten years on the street, a lot of it in a big city, I never heard of a complaint for loosie sales. Grown adults selling cigarettes to grown adults isn’t something we cops should spend our resources on. I admit to a libertarian streak; I always thought of cops as crime fighters, not tax collectors or tax revenue enforcers. I think every time we act as tax collectors we turn the public against us. NY has the highest cigarette taxes in the nation, and it still hasn’t stopped people from smoking. Garner’s death hasn’t even stopped people from selling loosies, in the same spot where Garner died.

      Here’s another example. Texas used to have a “homosexual conduct” law. It made consensual homosexual conduct illegal, even inside private homes. Several years back two officers responded to a fake burglary in progress call, and wound up catching the homeowner in bed with his boyfriend. Even though they determined there was no burglary, the officers still arrested two grown men for having sex in a home that belonged to one of them. Those men complied; if they hadn’t, and one of them wound up dead because he resisted arrest, I’d still be angry at the officers for making that stupid arrest in the first place.

      I agree that our salaries come from taxes (obviously). That doesn’t mean local governments are now justified in taxing everything they want, including $1 consensual sales of legal items between adults. The fact that loosie sellers compete with established businesses doesn’t, to my mind, justify using cops to eliminate their competition. Garage sales, Craigslist and local online sales forums all compete with established businesses; should those be illegal? If someone has a garage sale without a permit and refuses to sign a chickenshit ticket for it, should I arrest them for selling their own property at their own home? At what point do we have to make a decision to not enforce ridiculous, bullshit laws designed to make local governments money?

      This is why I say people are justifiably angry at us. A guy who didn’t need to get dead did get dead, because of police intervention for a stupid revenue-generating law. And instead of us stepping back and saying “This shouldn’t have happened and we need to change something”, we instead insist it was all okay and nothing should be changed. If we’re going to do that, then fine. Let’s admit it. We’re here to fight crime and all that, but also to collect taxes, Even though forcibly collecting taxes to pay our own salary is, at the very least, a conflict of interest.

      I’m not suggesting we don’t do “police work”. I’m suggesting we ONLY do police work.

      • Tom V


        Thanks for you views. I couldn’t agree more with your assessment above and your original article. You articulated EXACTLY what I saw from an officers standpoint. Especially when you noticed Garners “defensive” outstretched fingers and palms.

        He was non-compliant, not violent. And the loosies cause for arresting him is a total affront to common sense and a free society.

        Again, thanks for posting your comments.

  3. Dale

    A man died over ALLEGEDLY avoiding a tax. That’s never ok. This may all be ~legal~, but it’s not right. And that right there sums up our national situation with pretty much everything.

    The more I see, the more I’m thinking these are small signs and precursors to serious civil unrest. It’s almost like I’m watching it transition from people ranting on spacebook to actually taking action against almost any authority figure. And it doesn’t matter what authority figure, just which ever one is perceived to be doing them wrong.

  4. paceaux

    Thanks for your post, Chris. It’s always helpful to get a perspective from an LEO on these matters; they help me understand what really happened.

    Would you mind explaining how you and other officers are trained to respond with force when a situation escalates?

    I’m not LEO, but in my seems to me like the officers responded with the shortest lasting,least permanent way to subdue someone, which was a chokehold.

    From my perspective, they could have attempted to use Pepper spray / Mace, or even a taser. But instead of figuratively setting Eric Garner’s face on fire for a few hours, or sticking him with some probes, they responded to the escalation with a technique where they were expecting Garner to go home without incident.

    Again, I’m not LEO, but I’ve taken a lot of Jiu-Jitsu. I’ll take a sleeper hold over mace any day of the week. So, it seems to me like the officers – despite a poor judgement call to cite someone for loosies – make a good judgement on their use of force. But, I know nothing of dealing with these situations… and apparently the chokehold was a bad choice. So, I’m curious. What would make you decide, “choker hold vs. mace vs. taser”?

    Also, and this is entirely because I’m curious, how does this compare to how military is trained to respond with force? My expectation is that police are more likely to respond incrementally, but military are more likely to respond with maximum force allowed.

    • Mad Duo Chris


      I agree that the application of force was limited, and controlled. My problem isn’t with the application of force, it’s with the enforcement of a stupid law against a so-called “crime” that isn’t even a crime to begin with.

      In the military we do use more force, but we’re much more controlled than many people realize. During large offensive operations we tend to be authorized to use a lot of force, but during day-to-day occupation duties we’re very controlled. There’s always that struggle between keeping soldiers from shooting everything in sight, versus getting soldiers killed because they were afraid to shoot.

  5. sancho

    Few thoughts on this, some mirror other postings… Doesn’t appear to be -any- “neck hold” that I’m familiar with, likely a “schoolboy headlock” attempt which you revert to when you weren’t trained, or didn’t take your training seriously. I also believe that the subject would’ve likely died from baton, Taser, OC spray or walking up a set of stairs at home. Better to talk (come back later and “attempt” to reason with another family member to convince him to sign the cite/summons) than fight if possible. Police are used for too many things they shouldn’t involved with (I’ll bet a load of street cops will agree) and if something goes wrong, everyone seems confused. George C Scott explains another facet in “The New Centurions”-enforcing the law becoming inconvenient? Write it off the books… Just remember, there are only so many ‘burbs you can move the family to…

  6. Who cares

    Here’s a thought… He was a fat fuck who spent most of his life eating McDonald’s and slurping coke and he was obese, out of condition and wanted to resist some young fit cops… He created the problem, he made the decision to resist, he made lifestyle choices that led to his demise. The take down and arrest phase played out how you would expect, the fat dude chucking a hearty was unforeseen, but not medically unexpected (with his poor fitness and health). He was a heart attack waiting to happen. Great article though, as LEO downunder I agree with most of it entirely (even with the benefit of hindsight from which it is written).

  7. Thomas Deebel

    if you’re not aware the tax on cigarettes in NYC is 5.85$ between the city and state taxes. At app 14$ a pack I can see a thriving black market and a guy providing a public service.

    And I can see local shop owners livid that their monopoly is threatened . Supposedly it was a store owner who called . Who is paying the taxes with other overhead expenses who is tired of guys like garner.

    Then you have Mayor Bloomberg who championed tightening these laws and did state they were going to aggressively enforce these laws. One figure I heard was app 60% of cigarette sales were the illegal kind.

    Also just before the incident last summer either the chief of police or officer in charge of this type of crime supposedly said they were going to aggressively enforce the law.

    I have a problem with cops becoming the tax enforcer but what are they to do with a complaint combined with an order to enforce the law.

    I see a lot of wrong with this whole equation but lay a minimal amount at the feet of the officers. I’m not a cop but I agree that maybe a little more talking should have been tried before taking him down.

  8. Jeff

    If everyone’s on top of a subject and no one’s standing back to be able to look at the subject, then who’s looking to see if they’ve been choked out?

    People who train and compete in martial arts (Brazilian Jiu-Jitsu and MMA) do a lot more choking than police as a matter of course are more aware of when someone’s been choked out than police.

    There was a serious disconnect in the Garner case between subduing the subject and ensuring the subject wasn’t in respiratory distress. Officers with disparate amounts of medical training, comparatively limited experience in applying and receiving chokes, and positioning of the subject once subdued may have all contributed to his death.

    Thus raising the question: if the subject was not resisting, why leave him face down after he articulated he was in respiratory distress?

    Yes, “I can’t breathe” and “I’m having trouble breathing” mean two different things, but to a medical first responder, they’re ostensibly synonymous in terms of checking for respiratory distress. Sad.

  9. JRT6

    You had me all the way to the point of saying if Gardner wasn’t going to comply the cops should have just told him call when he’s ready to be arrested. Letting arrestees decide if they will submit to the arrest or not is incredibly dangerous especially for all the cops who will have to try to arrest the guy next time.

    • Chris Hernandez

      I can understand that. I didn’t exactly say “call us when you’re ready to go to jail”, but I did say some things just aren’t worth the trouble. It probably helps that I don’t think he should have been stopped for this “crime” to begin with.

  10. PJ Burke

    “Probable Cause: Just to clarify, Garner was in fact breaking a law, and had apparently done so many times in the past.”

    Well, no… not actually.

    New York law allows for the possession of up to 400 cigarettes (20 packs / 2 cartons)… whether purchased in-state (taxed by NY) or brought in from out-of-state (untaxed by NY).

    Garner, between his person and his vehicle, was in possession of 4 unopened packs (vehicle) and one opened, partial pack on his person. So, at most, that’s a possible total of 99 cigarettes… or less than 1/4 of the maximum allowed by law.

    On this point, Garner was not in violation… even if they’d been brought in from out-of-state.

    As for what he’d “apparently done so many times in the past,” there was one, and only one, case filed against him for possession of untaxed cigarettes in excess of the legal maximum limit… which was still pending at the time of his death. He had not been convicted, only accused.

    Further, the call that the police were responding to was regarding a fight or dispute of some sort… which witnesses stated that Garner had been instrumental in breaking up. They were not even there about his cigarette-selling activity.

    It is noteworthy that the reponding unit (the anti-crime unit of the 120th District of Staten Island… Pantaleo’s unit) is one of the most-sued unit in all of the NYPD — the first is the narcotics unit of the same district) — and has lost the 2nd-most cases and paid the 2nd-highest dollar-amount in court-awarded settlements.

    Officer Pantaleo has numerous pending lawsuits for excessive force, including one for illegal chokehold use on a 22 year old just days before the Garner incident.

    There’s your repeat offender, not Garner.

    • Chris Hernandez


      The references I’ve read about this case have all said Garner was being arrested for selling loosies, not that he was suspected of it. I don’t think your information about possession applies; the offense was the sale of cigarettes, not their possession. And I have a very hard time believing there would be no uproar about lack of PC to arrest in the first place.

      Columbia University’s website says this about the incident:

      “Why was Mr. Garner arrested in this incident?

      The police officers were engaged in ‘broken windows policing’ and were arresting Mr. Garner for a ‘quality-of-life’ offense, the sale of individual cigarettes. No alternatives to arrest were employed in the encounter with Mr. Garner.”

      The Columbia University page is hardly pro-police, yet says nothing about the alleged lack of probable cause. So I’m inclined to believe there was PC for the sale of loosies, although not for simple possession as you described.

      As I’ve tried to make clear throughout my essay and comments, I do not claim to have all the facts of this case. If I’m wrong and there was no PC, please provide a link.

      Thank you for the additional information you provided, and thanks for commenting.

  11. jbgleason

    Ref the major focus of this article on enforcement of minor offenses (which is a valid discussion of an important topic), my friend from NYPD related to me that these officers were on a special detail directly related to enforcement of this type of illegal behavior. I can’t back that up with anything definitive in writing but he would know. If that is the case, which I believe it to be, then that explains why they pursued this. It makes sense to me that this is the truth because I just don’t see a group of officers responding to this complaint otherwise.

    That being said, I will tell you that the way a suspect like Garner gets handled by a group of officers is likely more aggressive than it would have been with a single patrolman. Not implying anything other than that a single guy or even two probably wouldn’t have been raring to go hands-on with him so quickly.

  12. Jeb

    And yes, I may have went in a few directions…apologies. However, without encompassing everything related to how this went fucked, we cannot understand it fully. Perspectives, if found sound and with foundation, can open up much needed discussion and insight.

  13. Jeb

    Trying to find justification in this incident is all but useless. The contact was fucked from the second physical action was taken…physical being just that, hands on a motherfucker. For the record, selling stripped down cigarettes is NOT a violation of State law, it violates Federal law. Regardless of whether NY has applied legislation, we, as free and sovereign individuals, have a responsibility to deny unjust laws…just as in the military and following unjust orders. Crime. What exactly does the fucking word mean? A crime occurs when someone costs another individual(s) harm either physically or monetarily with intent. Did Garner have intent to sell individual cigarettes? Yes. Was he harming anyone physically or monetarily? Not that I could see. Did the store owner get asshurt? Yes. Too fucking bad. Garner was an individual…not a business, corporation or entity. His Rights trump a corporate/business privilege. Another thing about laws…Any law which seeks to violate the Constitution, Bill of Rights and/or supersede our Declaration of Independence (ala no longer free and sovereign), is not Law but that of the tyrants will. The only absolute Law in this fucking Country is the goddamn Constitution which limits the power of the government while assuring …the People retain it. Also, there is a common misunderstanding as to the definition of “crime”. Many people think that a crime is a “violation of the law”, but this is a circular definition! Which came first, law or crime? If crime is “things which the law prohibits”, and law is “that which is crime”, we have self-reference, a tautology, begging the question, a circular reference. Anyone who has studied logic will tell you that this has no meaning at all. (see any logic text, or:

    Remember, the body of a crime MUST have two components, per Gifis and law dictionaries: 1-an injury, 2- a criminal cause.

  14. McAustin

    All Cops should be required to read this:

    “If someone is saying they cannot breathe, you need to believe them, because you might be killing them.”

    1. The lungs have what are called “Volumes” and “Capacities”. The link describes all of them. For our purposes, you need to understand these two phrases: Functional Reserve Capacity (the amount of air left in the lungs after a normal exhalation) and Expiratory Reserve Volume (the amount of air you can still force out of your lungs after a normal exhalation).

    2. When you take a normal breath you breathe in and out you are breathing about 500ml of air. After breathing out, you are left with ~2400ml of air inside your lungs, this is the Functional Reserve Capacity. If you try to force out as much air as possible, you can still force out ~1200ml more air. This is the Expiratory Reserve Volume. This is air you are able to speak with even if you cannot take a normal breath. Important Note: Notice that the Expiratory Reserve Volume is more than twice the size of a normal breath. That is a lot of air you are able to force out, and a lot of speaking you can do even if you can’t breathe.

    3. The lungs work on negative pressure. So, your lungs, when you breathe in, are at a lower pressure than the outside air. This draws the air into them. This is caused by your diaphragm and intercostal muscles. Your lungs are very elastic, and will move back to their normal size during exhalation. This is where the problem begins for officers. If you are kneeling on a suspect, or you have them handcuffed on the ground so that they are on their chest, there is a strong possibility that you can cut off their ability to breathe. Once the lungs begin to exhale, they collapse, but if you they are being pressed down on by body weight, they may not be able to re-expand. They then continue to collapse, forcing out the Functional Reserve Capacity of air, but not drawing in a new breath. So, your suspect may be pleading for breath, they may actually be incapable of drawing one in, and the reason is you. If someone is saying they cannot breathe, you need to believe them, because you might be killing them. Furthermore, during any kind of physical altercation, that person may be breathing deeply and rapidly, making their lungs collapse faster when you are kneeling on them or holding them on the ground.

    4. Asthma. Some of you may be saying “Well, the guy who died in LAPD’s care had asthma, that wasn’t the officer’s fault or the jail’s fault.” Oh yes it was. If someone is telling you they have asthma and they can’t breathe, you need to believe them. Asthma is a constriction of the airways, no different than being strangled. They will still be able to speak and they will still be dying slowly. It took 30 minutes for that man to die, and that was entirely preventable.

  15. Frank Karl

    Nice article Chris.

    Following this event only in the media, it was apparent to me there were several mistakes. Let me say right not I’m not a police officer, I’ve never even played one on the radio.

    Regardless of NY Broken window policy, arresting someone for selling loose cigarettes, as you said, doesn’t seem worth the paper work such an arrest would create. But having initiated the arrest, I can see how the police were unable to wind back the process. This is an area that needs discussion, not Black vs. White.

    As a former CPR Red Cross instructor, I got to say, if you tell me you can’t breath, my response will always be, “Of course you’re breathing if you talking.’ My response to “I can’t catch my breath and my heart is racing.” is entirely different.

    I was taught a “choke hold” in which pressure is applied to both sides of the neck to compress the carotid arteries. Watching the video of this I did not see technique used. What I saw was an effort to control the head of a large man in an effort to control the motion of the body. I remember my instructors telling me the body will follow the motion of the head. What that failed, the officer’s arm, unfortunately was around Garner’s neck. Things continued to go to hell at that point.

    From an armed citizen’s point of view I think the discussion should be about:

    Thresholds for action (?one mile over the speed limit?).

    How to disengage, when to disengage from making an arrest.

    Follow through Q and A about voiced medical problems.

    Best custody positions for large, overweight and out-of-shape prisoners.

    While I’m sure there are racists on both sides of the law and through out the legal system, the discussion following an incident should be about how to reduce injuries on both side, not on who has the dirtier hands.

    Just my POV.

  16. Jeff

    Thanks for the candid article, appreciate the down-to-earth approach.

    It seems as though what may be police procedure (keeping a cuffed suspect face down) makes checking for respiratory distress substantially more difficult and can exacerbate respiratory distress. Any thoughts on this from the LEOs commenting?

  17. Neil

    A couple quotes come to mind to reinforce your premise. They are off the top of my head, likely loose in paraphrasing, but Im too lazy to look up the correct citations.

    “If we desire respect for the law, we must first make the law respectable.”

    “Never support a law you are not willing to kill to enforce.”

    Additionally, there is a lot of “just follow the laws and you wont die,” or “do what we say and stay alive” commentary coming from the LEO community and their close supporters. I would offer just a tidbit of insight into that morbid authoritarian perspective. It involves our founders and the escalation to our revolution to freedom from the oppression of King George III and his onerous policies over the colonies. The same attitude could have been and likely was held concerning those thugs, I mean patriots, dumping the East India Company’s tea into the Boston harbor. You know, looting and destroying a private merchants property. Albeit a company heavily subsidized by colonial taxes (bailed out) but a private business all the same was attacked by criminals. Those thug colonials defied orders and did not submit to the authority of the crown and his red costumed enforcers. Would those of the aformentioned law and order positions make the same corollary to our brave founders? Doubtful. I get a general sense that those types of people see themselves as patriots too. It is perplexing that they willfully enforce laws, even to the point of death, that they know are in contravention to the resulting documentation of our rights as free people that they swore an oath to and was fought for by those colonial scofflaws. Maybe instead of turning their backs in petulant and symbolic solidarity against their Mayor, they should actually turn their backs on the lawmakers who propose chickenshit laws for them to enforce against those they are charged with serving and protecting. Maybe the real question should be; who do they really serve?

  18. Deputy Dan

    I think most people are ignoring the important part of this whole incident. No one is debating if the law and or arrest was chickenshit. It obviously was. The important part is the fact that the suspect was being arrested. The second the officer told him he was under arrest he needed to comply. At that point there is no retreat option for the officers. If they just “walked away” because dude failed to comply, why would any criminal comply with us. Whether or not the officers should have engaged the subject is irrelevant. That fact Is they did and therefore the subject must comply.

    The issue I never see addressed is that suspects need to comply. It does not matter if they are scared or believe it is an illegal arrest. In my state there is a penal code that states suspects must comply to an arrest whether it is a legal arrest or not. If they do this, there is not opportunity for violence and no chance for escalation of the situation.

  19. Sandy

    There pictures out there that show wider shoot when took Eric G down it shows a supervisor Sargent over seeing his arrest the choke officer did first have the under arm hol.The supervisor Sargent then told him to use the choke hold.She was also black she was called out Becuase of trouble with Eric G was a ongoing thing no loose cigs should be over looked and nuisance call that regular on the same person aren’t right .Weren’t we all told to pick out battles to try look good everyone and the police officers I know the one writing the article .He also knows that had uncle when was rookie off duty that him his partner caught in liquor store and had used judgement he was taught in the academy and did what partner told him he would have save self heart not only injured his classes beat in his eyes but .Violated the kids rights and a rich parent got a rich lawyer to get kid off 17 looked 20 with fully automatic raffle pistol .We as Americans do not realize what total caos this land would be without our police and miltary. Yes Eric might of been saved and the marchers would had less to protest but remember the same inviduals that leading this once before collage degrees topped the black panthers , bombed the whitehouse bomb was defective and Rice Obama baptist minster lead that . We let our school systems be lead by Berkley professors .Santa Cruz egoligy terrorist .Think before you jump and if he smells bad do what you is right listen your gut . The world wll become a better place but support our police use vote to change the worst in land . Educated by being involuted don’t let some else raise your kids get involuted we need more farther in the homes. Thank you officers and preachers who have there in right place not doing for almighty dollar.

  20. Lhicks

    While the are some valid thought provoking points in this article, not sure I have seen a poorer article on BreachBang. To start off with a statement about critical thinking skills then proceed to make conclusive statements without the facts seems a bit counter intuitive. Example. .you state at the beginning an officer applied a chokehold that killed him, then later state it apparently lead to his death. Critical thinking would ask. .did it? The only apparent thing is that the jury did not agree, and as you state many many times. ..”you don’t know about that. .haven’t been trained on that. .don’t have those details”. Could it not be just as likely that the jury his the full range of facts and concluded that given his vast medical history he would have died regardless of the hold…our just the stress from the attack he had due to handcuffing? I really don’t know, just like you stated. However, I’m also not stating a long diatribe opinion piece in which I offer my pinion on the entire matter while repeatedly stating I don’t actually have any details. As one comment above questioned the longer video, and you were not aware of that either. Just seems a very long opinion piece to write second guessing brothers in blue one of whom Garner knew so well Garnet called them by name on site, from having been previously arrested by these some of these same officers –31 times–, without even rudementary research into actual details… Might want to tighten that critical thinking up. After dealing with the man 31 previous times, I’m willing to give them the benefit.

    • Mad Duo Chris

      Fair enough. I thought the honest thing to do was admit I don’t know everything about this case, but I do know enough to offer an informed opinion on it. And I have given the officers the benefit of the doubt; as I stated, I don’t think they committed a crime, or that they intended to do anything other than arrest Garner. My real point is about the enforcement of chickenshit offenses, and how that enforcement is often not worth the results.

  21. Joel Short


    I, like you, have been a LEO for a long time (24years). I just want to add to your conversation with a couple if slightly different points of view. My department still uses an authorized “carotid control hold”. Since everyone only wants to talk about “choke holds”, I want to make sure people understand that they may look very similar to the layman, but are very different. I know of NO departments that have allowed a “choke” for at least 30 years. That said, a well written “use of force” policy should always allow officers to use what ever means they need when they are fighting for their lives, and that can even mean a choke hold and other deadly force.

    I agree with you that, as viewed through the video, this appears to have been a “less than lethal” use of force scenario. Mr Garner was resisting arrest but not throwing punches at the time of the takedown. But several things came to mind as I repeatedly watched the video. First look at the size disparity between the arresting officers and Garner. The officer in front of Garner only comes up to his chest. Look at the difference in the size of their arms. Garner has some huge guns on him compared to the arresting officer. And then look at the overall size difference. Garner is well on his way to 400 lbs. the arresting officer appears to be half that or less.

    When faced with this kind of size disparity, the fight can turn in the offenders favor in a literal heart beat. This fact means that an officer MUST escalate his use of force faster than he would if he were fighting a smaller and less capable foe. We have all seen the videos of a large offender who won the initial fight with a smaller officer.

    Next let’s look at the call. As I understand it, this call was generated when a citizen phoned in a complaint. While it is easy for an officer to ignore the numerous minor (chickenshit-your word) offenses, it is expected that when we are dispatched to a complaint call that we take some sort of action. Imagine if a citizen called in with a legitimate complaint and we showed up and told them “yea, I see that guy breaking the law and running off your customers, but I’m not gonna do anything about it cuz it’s chickenshit. See ya. Have a great day”. It’s not chickenshit to the complainant. To him it’s a big deal. So the officers did what they should have done. They got a call. They went to the scene and probably contacted the complainant who pointed out Garner. They then went out and contacted Garner and determined that there was a violation of law that they needed to take enforcement action on. They then tried to arrest him. My point is that the dispatched officers could NOT ignore thus minor violation.

    Next let’s look at the officers, in particular, their uniforms. The arresting officer and the takedown officer are in plainclothes. There is only one uniformed officer on scene. I am only speculating here but it appears to me that the plainclothes officers may be in some sort over specialized unit, possibly one that is tasked with handling this sort of “selling loosies” vice kind of call. Almost every large department has special units like this to handle those types of calls that normally fall through the cracks. I’ve seen special units that dealt with everything from subway pickpockets to unlawfull smoking in non-smoking areas. These units are typically funded by grants and they must use the grant money as intended.

    Ok let’s look at Garner’s history. Now I haven’t run a CII on Garner so I’m only going off of what I have read elsewhere (No quoting me here). I understand that Mr Garner had 33 arrests and 7 included a charge of resisting arrest. With that many arrests, many for the same sorts of charges, I’m thinking that at least one of those officers had dealt with Garner before. Once again just speculating here but, if these officers had fought with Garner in the past, they would, and rightly so, escalate their use of force more quickly.

    I agree with most of what you wrote including the fact that lots of arrestees lie about injuries. I have had many stories like the one you related.

    I also agree with you about how you, me, and those officers who arrested Garner, never want a violent arrest. We all would prefer if the arrestee submitted to our authority. If there is one thing I wished the public would understand it is that the cops must win EVERY fight. If that ever changes then anarchy starts to rear its ugly head.

    Keep up the good fight and be safe.

    • C Virgo

      Joel Short hit it on the head. Someone called ace complained. There’s an expectation something be done. Cops get sent on chickenshit calls everyday because citizens, your friends, your family, your neighbors call and demand an armed man be sent to “do something about it.” And there’s A LOT of shit out there citizens will complain about.

  22. Mr Jones

    Boo! I’m tired of hearing the “were just doing our job” argument. Patsys for corporate America. If I can purchase your product and sell it for cheaper you’re doing something wrong as a corporation. Don’t line the politicians pockets to make a law for your own profit. Doing so puts our law enforcement offials into a precarious positions. I’m glad these issues our making headlines. I’m sad to read these posts and realize so many are oblivious to the actual issue.

  23. joe cole

    Don’t be a criminal and you live put down pizza and BBQ and cigs and hit the gym and you wouldn’t have a problem breathing

  24. Matt

    I agree with pretty much everything you said, even the chickenshit laws part. But sometimes even the smallest infractions need to be enforced, for one reason or another. Once someone shows that they are not going to comply, we are left with few non-force options.

    Why has no one talked about positional asphyxia or restraint asphyxia? I am familiar with excited delirium and positional/restraint asphyxia and the Garner situation looks like just that. Being a overweight man with preexisting medical conditions made him a obvious candidate for PA/RA. Once the struggle starts its a no win situation for either party.

    In the end I agree it could have been handled differently and with a more positive outcome. I think more training about positional/restraint asphyxia would benefit everyone.

  25. Ed

    I too agree that you have raised several valid points. The one left out is the State legislators and the Gov. passed a law pertaining to the sales of “loosies”. NY was loosing revenue so they wanted to stop this activity. I had also heard that various business owners had complained of him being out front and driving business away. You know as well as I do that when a pet project from high above is given out, that pet project gets the attention…chickenshit or not…I also believe every time he was arrested, there was an assault charge that went with it, so I suspect the reason for the dogpile.

  26. Chris

    It is a good article, but the question of when to enforce, and not enforce which laws is something that takes time to learn, and isn’t always easy even after years of doing it. I agree that rules like that loose cigarette BS or a soda tax are stupid, but for all we know, this is a guy people have complained about, may be costing them money from a legal business while he illegally sells “loosies” outside, and doesn’t seem to learn, or it appears officers haven’t dome anything because he is still at it. I liken it to your speeding analogy, except how many people are you going to let pass you on the highway, signaling to everyone else that you won’t do anything, so they should too?

    I agree with you on almost every point, I just have trouble with ignoring laws or rules without coming up with a better or at least alternate enforcement option. Heck, selling loosies is I’m sure un recorded income over $600, which the IRS likes a piece of. If he is a small business owner and wants to make money, he should pay taxes like everyone else. Let the dude walk bit give the IRS a call, he will stop.

  27. franco

    Exactly the way I felt. I’m not LE but if I were I would have done my best to de escalate this. Maybe write a summons or ask him to sit down and discuss it. If they are thinking of making pot legal why would the arrest over a cigarette sale. Mike Brown on the other hand was a thug and nothing short of a bullet was going to stop him. You could see it in the store video. Good write up thanks for sharing

  28. Todd

    I agree with everything you laid out here. That being said, not knowing the circumstances that led up to the arrest can make all the difference in the world. And there are those out there, plenty of those, that just won’t listen to rational logic. Tragic but true, and the real bottom line is, if Garner had complied with his lawful arrest there never would’ve been a grand jury ruling.

  29. Jeff

    Chris, the first time I heard about this case I believe there was a long version of the video. If I remember it correctly, Garner refused to comply with the first officers to confront him and a long wait with refusing to cooperate until more officers arrived. Have you seen it also or am I mistaken? Jeff

  30. Ben

    This is interesting from a leo standpoint. Thank you for the insight and you’re right, the whole thing just doesn’t feel “right”

  31. Robert Young

    Well said brother, all LEO should read this.

  32. Dave

    While you make a lot of valid points, several accounts I have read indicate that the police were summoned to deal with Mr. Garner by the neighborhood store owners who were sick of his standing out in front of their establishments and costing them revenue. Blaming the stupid law is understandable, but when cops are summoned to deal with a problem individual, leaving him there with a citation was not going to solve the problem.

    • Mad Duo Chris


      You raise a valid point as well, and I considered the possibility that he was trespassing at a private business. However, the video shows him standing on a public sidewalk in front of a beauty supply store. I don’t have any information indicating someone called the police on him for trespassing. Because I respect personal property rights (as everyone should), I would support more aggressive action against a suspect who’s trespassing and interfering with another’s business. I just don’t know that trespassing was the issue in this case.

      Thanks for that observation, and for commenting.

      • scott

        Even if he was trespassing or selling where he shouldn’t have talking him into cuffs would have still been preferable to taking him straight to the ground. Spent a few years in corrections before becoming a cop and we always tried to talk down rather than take down, that came with me to the street.

      • booker

        It may be worthy to note that NYC is known for the broken windows approach, enforcing even the most minor offenses as a way to change the criminal culture. A form of zero tolerance policy that has well documented side effects. This policing approach was instituted by elected officials and funded by tax dollars, which the vast majority of New Yorkers support. In other words, it seems as though they got the heavy handed police they voted for.


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