But For Video: The Eric Garner Failure

It has been stressed, over and over, that video is not the panacea that many believe it will be.  Facile slogans, like “seeing is believing,” are contradicted by science, which has made clear in long and boring studies that what people see on videos is viewed through the lens of cultural bias.  The better slogan is believing is seeing, but that defies the simple understanding of people who see the world “clearly” and “obviously.”

The video of P.O. Daniel Pantaleo killing Eric Garner is, as such things go, quite clear.

As an aside, of only peripheral relevance at this point, I do not accept the “myth” of the case, that Garner was being arrested because he was selling untaxed cigarettes, “loosies,” as that claim arose the day after his killing.  At the time, and as the video provides, the police were called to the scene because of a fight, which Eric Garner broke up.

New York City police officers killed a man Thursday after he had broken up a fight between two other men, insisting on placing him in a chokehold and slamming his head to the pavement, piling on top of him as he gasped for air and as he continually told the cops he couldn’t breathe.

The entire incident was caught on video from a witness who kept telling the cops that the man had not committed a crime.

There is a worthwhile discussion as to whether Garner “resisted arrest” when no underlying cause for arrest existed, other than the mundane non-compliance with commands that are escalated into a self-justifying excuse for the police to seize a human being.

Perhaps there was cause to arrest Eric Garner for loosies; perhaps not.  However, I will not blindly adopt the police excuse proffered the next day in the absence of evidence to support it. Most of you have and will. I’ve seen too many facile fabrications to join you. As there was no hint of such cause when it happened, the next-day excuse will be treated as media myth here.  Yet you will likely read it in every media report about Garner, as journalists are herd animals.

The video shows Pantaleo’s take-down, using what police call a chokehold, of Garner.  At the outset, while Garner was non-compliant, he was also not threatening. He posed no risk of harm to any officer.  Patience, like reason, however, does not appear in the Patrol Guide.   Police are disinclined to wait for a non-cop to comply, or consider his pleas to be left alone. Once they command, they demand compliance, and they will use force to obtain it whether it is legally justified or not. That, in the minds of cops and courts, is for someone to figure out later.

The question of whether Pantaleo’s “wrestling move that he was taught at the police academy” was the prohibited chokehold is not in issue, even though viewers of the video might think it’s up to them to decide.  Legally, the issue was settled when the medical examiner determined the death to be a homicide. On the more practical level, the issue would be addressed at a trial, where experts for both sides could battle, explain their positions, and try to persuade the jury whether the hold was benign or deadly.

That it resulted in death counts. That Garner was obese, asthmatic and had high blood pressure is part of the calculus, but human beings invariably come with their frailties. It’s an inherent part of the determination that police must make when using force, particularly when their use of force isn’t mandated by the threat of harm against them.  The law doesn’t presume people against whom force is used to be in perfect health, particularly when it’s clearly observable that Garner was obese.

At ATL Redline, Elie Mystal asserts a very serious point:

And Eric Garner’s death was caught on video in broad freaking daylight. Don’t you get it, white cops are allowed to kill black people. It’s legal for them to do so. How is a body camera going to change that?

The video of Garner’s killing serves to resolve many questions, many claims that would have arisen in the absence of video.  It shows that he did not engage in violence toward the police.  It shows that he did not attempt to flee.  Much of the manufactured controversy surrounding the Michael Brown killing, the speculation that has grown into immutable excuses, are removed from the discussion.

And yet, the result was the same. Daniel Pantaleo, despite the video conclusively showing him to be the perpetrator of a homicide, will not be charged with any crime in New York.

This is not the fault of video.  This is the fault of a systemic favoritism toward police.  This is the fault of fundamental bias supporting law enforcement, which causes people to seek out benign explanations that confirm their view of law enforcement as good, or at least better than criminals.

And this is the fault of racism.  As Corey Rayburn Yung offers, there are a series of videos showing police harming and killing minorities with impunity.  This is not to suggest that police will not, do not, engage in the same rank use of force against whites as well; indeed, of all the colors that impact police decision-making, blue is by far the most important. But that people of color suffer harm disproportionately, for a variety of reasons, none of them acceptable, cannot be ignored.

Yet, while Elie is right that the video of Eric Garner being killed by Police Officer Daniel Pantaleo did not stop the killing, nor even produce a prosecution after the Staten Island prosecutor managed the problem, it was not without value.  The video allows all of us to see what happened without the overlay of banal cop excuses that would have wiped this killing from our minds, if it even reached that point.

Without a video, there could have been a press conference, sparsely attended, to announce the sad death of a Staten Island man, whose name only his family and friends would remember, who died after resisting arrest, with its implicit suggestion of violence, because of his poor health.  The announcement might have included mention of how brave Officer Pantaleo had to be treated for the injuries suffered in the course of the takedown, and would certainly have mentioned every arrest and conviction of the deceased and all members of his family.

It’s not much.  It’s not good enough. But video gave us more than we had before.  Without it, Police Officer Daniel Pantaleo might have gotten a commendation, perhaps even a medal, for his bravery in the fight to save society from the vicious Eric Garner.  This doesn’t quite refute Elie’s point, but it serves to remind us that this is one tool in the search for reality.  But only one.


37 thoughts on “But For Video: The Eric Garner Failure

  1. GEJC

    Great post and you hit the police-friendly bias spot on. I wonder what your suggestions are for helping change the attitudes of people outside of the legal profession and law enforcement? Decades of D.A.R.E. brainwashing, the presence of “school resource officers” in even the safest schools, and the general fetishization of law enforcement have led to an idea that the government’s agents are our protectors and heroes. I see a lot of police apologists adopting a “break a few eggs” approach to this sort of thing and it’s hard to get them to see the dangers of these abuses. What do you suggest? It seems like an overwhelming cultural phenomenon to overcome.

    1. SHG Post author

      I’m a lawyer, not a sociologist, psychologist or any other ologist. I no more have a solution to human ignorance than I have a cure for cancer.

  2. Vin

    SHG, lazy and ignorant people dont read blogs like yours. Ignorant, yes, but not lazy. While I appreciate that this blog is for lawyers and judges, it is also a tremendous source for ignorant and NOT lazy people to become more enlightened about how the system actually works.

    That said, while this article is about the merit of video used in law enforcement, the most important thing for the average ignorant non lawyer to gleam from it is…”On the more practical level, the issue would be addressed at a trial, where experts for both sides could battle, explain their positions, and try to persuade the jury whether the hold was benign or deadly.”

    What the average non lawyer, moderately intelligent yet uniformed ignorant citizen is not hearing is, the TRIAL is where the homicide is determined to be criminal or non criminal. This I think is what is confusing those of us who come here and ask stupid questions about the definition of homicide.

    There is a lot of noise coming from news sources that indicates a homicide is not always criminal. People are too quick to allow for the GJ process alone to determine the criminality of the act.

    1. SHG Post author

      I can’t remember any time when ordinary people were expected to have a sufficient grasp of grand jury, its procedures and purposes, in order to understand what is happening as the past couple of weeks. It would require a background that they don’t have, and the people reporting the news don’t have. The media has been worse the bad, but affirmatively misleading in its reportage.

      That said, an adequate understanding of law requires more than either a blog or an article can provide. That Americans don’t grasp how their legal system works is unfortunate, but we can’t explain the world from the beginning of time to this moment to the satisfaction of every potential reader every time a new legal twist arises. More to the point, that’s not why SJ exists.

  3. David Woycechowsky

    ” Without it, Police Officer Daniel Pantaleo might have gotten a commendation, perhaps even a medal, for his bravery in the fight to save society from the vicious Eric Garner. This doesn’t quite refute Elie’s point, but it serves to remind us that this is one tool in the search for reality.”

    1. That is my favorite part of the post.

    2. Even if it turns out that he was selling loosies (and I have heard of no evidence that he was), this still might have been an Constitutionally forbidden arrest, even under the permissive standards of the permissive standards Lago Vista case. I haven’t seen legal analysis on that point, but maybe because it is contingent (and could be construed as conceding that Garner was selling loosies on the day of the fight).

    1. SHG Post author

      Almost every case would require a dozen posts, parsing various tangential aspects of what happened, which criminal defense lawyers would immediately see as unnecessary to address as not relevant to the core of the case. Maybe lawprofs will take this apart in a 78 page law review article, piece by piece, but a guy like me will address it when it becomes a salient point. This isn’t the case.

      1. David Woycechowsky

        Just to clarify / apologize: I wasn’t trying to suggest that your post was lacking, or remiss in any way. I mean, if you (or even other readers) had a thought on my comment, then I would have loved to hear it, but I wasn’t trying to “put you on the spot” with my comment, or criticize your post. Just doing a bit of good old fashioned “issue spotting” given the uncertain factual situation.

    2. David

      They found no cigarettes on his body, and the police didn’t see him doing anything illegal (he was actually being harassed after they noticed him breaking up a fight – doing the police’s job for them) so yeah, their treatment of Garner was illegal and bullshit from start to tragic finish.

  4. Judith

    This is an excellent article on the state of affairs right now. But your answer to GEJC was curt and dismissive. Perhaps you were just trying to express your own sense of frustration, but you have obviously given a great deal of thought to your subject matter, and GEJC has asked you to give more thought to trying to find a solution. I, for one, see some hope in the demonstrations going on across the country, in the spirit of the 1960s and 70s civil rights and anti-war demonstrations. They led to a great deal of change in this country. Many want to eliminate those changes, so it is up to us that believe in them to heighten awareness once again. It is a first step that has proven to be effective in the past.

    1. SHG Post author

      But your answer to GEJC was curt and dismissive.

      Fuck you, you entitled piece of shit. I don’t owe you or anyone else answers upon demand.

      1. Judith

        By virtue of writing this blog, you do owe something to your readers: a continuation of what was a thoughtful piece of writing. I am no one’s “entitled piece of shit.” I am a concerned grandmother who is very disheartened by the state of race relations in our country today. Your blog was recommended to me by someone whose opinion I respect, someone who would never say “fuck you” to a grandmother. Would you say that to yours? “Fuck you” is the response of the person who has nothing intelligent left to say. “I expect civility from you, but that does not mean I will respond in kind” is just insulting. I will no longer follow your blog. Please remove me from your list.

        1. SHG Post author

          Volenti non fit injuria. No, I owe you nothing. I don’t give a damn how you stumbled onto this blog, but you don’t get to dictate its terms. I don’t give a damn if you’re a grandmother or a 12-year-old; you are not the center of the universe, you flaming narcissist. If my language hurts your feelings, tough shit. Get off the internet and go play with people who give a damn about your delicate feelings.

          And remove yourself from my list. I didn’t put you on. I don’t take you off.

          1. Big Bad Wolf

            Stop being mean to grandma, or I’ll huff and I’ll puff and I’ll blow your house down, something, something.

          2. Wrongway

            Some Blog this is.. I can’t find the subscription list anywhere..

            How the hell do I keep coming here anyway ??

            And why’s my accent gone ??

            1. SHG Post author

              What’s funny is that n00bs here get all bent out of shape when they’re not showered with love. After they hang around for a while, they figure out why. And they have no sense of humor. Or accent.

        2. Sgt. Schultz

          Dear Grandma Judith,

          I want to personally apologize for SHG being so mean to you and using such vulgar language. To a grandma, no less! How awful.

          You are absolutely right. He wrote this blog, which lots of people read (and refer other people to read too!!!), and he doesn’t even charge for it. How dare he not fulfill his duty to answer your questions, and do it without that fresh mouth of his.

          When I see him, I’m going to wash his mouth out with soap for you. Until then, I’m giving you a digital tummy rub to make you feel better. Hugs.

  5. Gary

    I don’t think it’s limited to minorities. Cops kill anyone with impunity. I cite the Kelly Thomas case in Fullerton as an example.

  6. Arctic_Attorney

    It sounds like Mr. Garner at around 16 seconds into the video is saying to the cops “I didn’t sell nothing”, so it seems that the loosy excuse was present at the time and didn’t just arise the next day. That doesn’t justify the level of force used of course, but it does seem like at least that part of their story isn’t complete bullshit, or was at least contemporaneous bullshit and not merely after the fact.

    Also, it seems that you may have made a typo or missed a word where you say “police are wont to wait for a non-cop to comply” as I doubt, from having been a long time lurker here, that you were trying to suggest that police are patient beings. Please feel free to delete this last paragraph, I added only so you are aware of it, not to show off my proof-reading skills to other readers.

    1. SHG Post author

      My take on the “I didn’t sell nothing” wasn’t that he did, but more along the lines of Captain Renault rounding up the usual suspects. His assumption was that they were hassling him because he was “known” for selling loosies, not that he did so here, or they had any basis to allege he was doing so at the time. I don’t argue that it’s not possible, but that it’s not proven and wasn’t the claim of why they were present and engaged him at the time.

      And thanks for the pointer. Will make clear.

  7. Elie Mystal

    One point though, that I think is worth making, is that while the video brought attention to the problem of police killing black people, it brought that to the attention of white people. Black people didn’t need to see the video. Black people don’t exist in a world where the cops can be trusted. Do The Right Thing isn’t a fiction movie, it’s a damn documentary.

    So, like, sure. Cameras bring attention. But (and I’m not saying this about you specifically, obviously, because you’re already here) like another solution would be to just listen to what minorities and especially minorities in poor communities are trying to tell you.

    I don’t know. I guess it just kind of bothers me that we want to *empower* officers — many of whom are untrustworthy — with technology they can use to further suppress civil liberties, all because some white people out there need video evidence before they’re even willing to think about this problem. Like, I’ve never seen a videotape of the Sun crushing two hydrogen atoms together to create Helium and an explosion of energy. But I believe it to be true. And even if I hadn’t heard about it from some scientist, I would have eventually looked up at the giant ball of fire in the sky and thought “I wonder why that’s there. I should probably ask somebody about this.”

    1. SHG Post author

      You know the answer. People only care about things that touch their lives. They rationalize away the nastiness of life they don’t have to confront, and white people don’t have to confront the reality of how police interact with blacks. But when there’s video, they can’t deny its existence. It’s going to take more time, more video, more harsh reality, for it to sink in. Maybe it never will anyway, but cameras and video are the best chance there is to overcome the denial and dismissal. Take it away and there’s nothing.

    2. David M.

      Just curious – how come you think giving cops cams will let them do a better job of suppressing civil liberties? The way I see it, cops are already roving governmental surveillance stations. Documenting them as they go ought to make it harder for them to do their thing, or at least harder to congratulate themselves for it.

      I get your point, though, and yeah, we’re pretty good at compartmentalizing when the guns aren’t pointed at white heads. Here in Europe, we don’t actually have many guns, but we look away all the same, and many of us secretly give thanks that things are the way they are.

  8. Dissent

    Pardon me for venting, but I made the mistake of watching CNN for a bit and I’m fed up with them talking about “two justice systems” – one for whites and one for blacks/minorities. There are two justice systems, but it’s one for cops and one for non-cops. Get it right, CNN.

    1. SHG Post author

      That game can be played many ways. One for cops and one for (pick ’em) non-cops, blacks, poor, etc. The only part of the equation that appears fixed is that cops are on one side, and everyone else isn’t. But I wouldn’t say that whites have it as badly as minorities. It may be bad for everyone, but the poor and minorities have it worse.

      1. Dissent

        Yeah, I used “non-cops” as it seemed most inclusive, but I recognize that there are still levels/tiers among non-cops. My 6’5″ black cop friend is more likely to be hassled by white cops if he and I are both in street clothes. But then he can show them a badge and I can’t…

        I agree with you about the cameras – not just because it provides evidence that can’t be so easily challenged or re-written and has important shock value, but because some research shows it reduces use of force and improves behavior. Not including a link to a review of the studies because of your link policy, but happy to provide it to you if you need/want it.

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