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
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.
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.
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.
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?
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.
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.
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.
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.
Chris 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.