Now No One Can Breathe

No one should have been surprised, because geography matters. Staten Island is to New York City as Simi Valley is to Los Angeles – the smallest of the five boroughs, it’s predominately white, a bit isolated, and where all the cops go to retire. As for Simi Valley, it became famous, for a time, because of the massive Los Angeles riots back in April, 1992. The previous year, four or five white Los Angeles Police Department officers had beaten the crap out of Rodney King, who was black, after a car chase. King had given up and was on the ground, but they kept beating him with their nightsticks, and then they kicked him around, and then beat him a bit more. It happens, but someone had caught it all on videotape and had shopped that amateur videotape to the media. Everyone out here saw those white cops beating that helpless black guy on the ground, who was just lying there half-conscious, and beating him again and again. It seemed to go on for eight or ten minutes. It didn’t, but the LAPD was still in a fix. The officers were finally brought to trial.

Then there was the change-of-venue motion. That was successful. The defense argued that their clients couldn’t seat an impartial jury in the city – the issues raised were far too hot, and everyone was talking about this, because the local media wouldn’t stop talking about this. The jury pool had been hopelessly tainted. The judge agreed and the trial was moved out to Simi Valley, at the far end of the San Fernando Valley, where, curiously, almost all the folks were white and where a whole lot of LAPD cops had retired. On April 29, 1992, the seventh day of jury deliberations, the jury out there acquitted all four officers of assault, and acquitted three of the four of using excessive force. Maybe one of them had gone a bit overboard, but they were deadlocked on that last charge. All four officers walked.

No one could believe it. Everyone had seen the videotape. The riots followed – but the change of venue had worked.

Now it’s Staten Island:

A Staten Island grand jury on Wednesday ended the criminal case against a white New York police officer whose chokehold on an unarmed black man led to the man’s death, a decision that drew condemnation from elected officials and touched off a wave of protests.

The fatal encounter in July was captured on videos and seen around the world. But after viewing the footage and hearing from witnesses, including the officer who used the chokehold, the jurors deliberated for less than a day before deciding that there was not enough evidence to go forward with charges against the officer, Daniel Pantaleo, 29, in the death of the man, Eric Garner, 43.

Officer Pantaleo, who has been on the force for eight years, appeared before the grand jury on Nov. 21, testifying that he did not intend to choke Mr. Garner, who was being arrested for allegedly selling loose cigarettes. He described the maneuver as a takedown move, adding that he never thought Mr. Garner was in mortal danger.

The decision came barely a week after a grand jury found no criminality in the actions of another white police officer, Darren Wilson, who shot and killed Michael Brown, an unarmed 18-year-old black man in Ferguson, Mo.

The Eric Garner and Michael Brown cases were similar of course. Usually a prosecutor goes to a grand jury and argues that there seems to have been a crime committed – there is evidence that a jury could consider, sufficient evidence that a crime has been committed – and asks that the grand jury return a True Bill, an indictment, so the matter can then be sorted out in an actual trial. This is fairly routine, almost a rubber-stamp process. The defendant never testifies in front of the grand jury. If there’s enough evidence to charge him with something, to call for a trial, he defends himself there. The prosecutor simply asks for an indictment – but in these two cases, both prosecutors seem to have argued that there should be no indictment, and they also had the defendant in each case argue, at length, that they were entirely innocent. Evidence to the contrary was mocked. The usual process was reversed. These two prosecutors didn’t really ask for an indictment. They shrugged. They weren’t asking for anything in particular. Maybe no crime had been committed after all – and all this must have confused each grand jury quite a bit. They’re always asked to bring an indictment so that others can sort things out. But there wasn’t any “ask” this time – so, rather than sort things out themselves, they let each matter drop. If the prosecutor doesn’t really want to go to trial, well, who are they to force him to? They probably wondered why he even dropped by.

At least in the Rodney King case there was an indictment, for all the good it did, but that was forced by the videotape that has been seen around the world. In this Staten Island case there was a seventeen-minute video tape, of the cops actually killing an unarmed black man, who had surrendered, using a chokehold that has been banned by the NYPD since 1993, and the coroner had ruled this a homicide, not an unfortunate accident – but the officer said he had meant no harm. That was enough in Staten Island:

In an average of Quinnipiac University polls taken in August and November, only 41 percent of Staten Island residents supported bringing charges against Officer Daniel Pantaleo (the margin of error on these combined subsamples is 7 percentage points). In New York overall, 64 percent approved of criminal charges. Staten Island isn’t like the rest of the city.

Half of Staten Islanders thought it was “understandable that the police could have acted” the way they did in the Garner case, compared to 43 percent who said there was “no excuse.” Again, that’s far lower than in the rest of the city, where 66 percent of residents indicated to pollsters that there was “no excuse.” … Staten Island’s adult citizen population – the group from which the grand jury was drawn – is almost 70 percent non-Hispanic white; New York overall is majority non-white.

Staten Island is a special place, but saying you’re kind of sorry wasn’t enough elsewhere:

After the news from Staten Island, a wave of elected officials renewed calls for Justice Department intervention, saying the grand jury’s finding proved that justice could only be found in the federal courts. By the evening, the department announced it would open a civil rights inquiry.

On the streets of the city, from Tompkinsville to Times Square, many expressed their outrage with some of the last words Mr. Garner uttered before being wrestled to the ground: “This stops today,” people chanted. “I can’t breathe,” others shouted.

While hundreds of angry but generally peaceful demonstrators took to the streets in Manhattan as well as in Washington and other cities, the police in New York reported relatively few arrests, a stark contrast to the riots that unfolded in Ferguson in the hours after the grand jury decision was announced in the Brown case.

There were no real riots because of the mayor and the president:

New York Mayor Bill de Blasio (D) said that he received a call on Wednesday from Attorney General Eric Holder and U.S. Attorney for the Eastern District of New York Loretta Lynch. Lynch and Holder, according to de Blasio, said that there would be a Department of Justice investigation into the death of Eric Garner.

“Just before the meeting began, leaders here on Stanton island, I received a phone call from attorney general holder and U.S. Attorney Loretta lynch, they made clear that the investigation initiated by the U.S. Attorney would now move forward and it would be done quickly with a clear sense of independence and that it would be a thorough investigation,” de Blasio said at a press conference Wednesday afternoon.

And in Washington:

President Barack Obama said Wednesday that there’s a very visible sense among Americans that the police and justice systems aren’t treating everyone fairly. Those comments came in response to the news that no charges would be brought against the New York Police Department officer in the choke-holding case that resulted in the death of Eric Garner.

Obama, speaking at the 2014 White House Tribal Nations Conference, said that he had just spoken with Attorney General Eric Holder who would have more specific comments about the case. He also referenced protests in Ferguson, Mo., over the death of unarmed teen Michael Brown at the hands of a police officer, a case which also didn’t result in an indictment.

“But I want everybody to know here as well as everybody who may be viewing my remarks here today, we are not going to let up until we see a strengthening of the trust and a strengthening of the accountability that exists between our communities and our law enforcement,” Obama said. “I say that as someone who believes law enforcement has an incredibly difficult job.”

Obama continued that “right now unfortunately we are seeing too many instances where people just do not have confidence that folks are being treated fairly.”

“In some cases those may be misconceptions but in some cases that’s a reality,” Obama said.

Meanwhile, back in the big city:

Officer Pantaleo said in statement on Wednesday that he felt “very bad about the death of Mr. Garner,” just as he had told the 23 panelists of the grand jury when he testified before them for two hours.

During the proceedings, jurors were shown three videos of the encounter and in his testimony Officer Pantaleo sought to characterize his actions as a maneuver taught at the Police Academy. He said that while holding onto Mr. Garner, he felt fear that they would crash through a plate glass storefront as they tumbled to the ground, said Stuart London, his lawyer. One of the officer’s arms went around Mr. Garner’s throat, as Mr. Garner repeatedly said, “I can’t breathe, I can’t breathe.”

Appearing with the Rev. Al Sharpton in Harlem, Mr. Garner’s widow, Esaw Garner, said she did not accept the officer’s apology.

“Hell, no; the time for remorse for the death of my husband was when he was yelling to breathe,” she said. While she mourns, the officer can go home to his family, she said.

“He’s still feeding his kids and my husband is six feet under and I’m looking for a way to feed my kids now.”

Something’s not right here, and Andrew Sullivan asks some obvious questions:

How does a prohibited, aggressive chokehold on an unarmed, peaceful man that leads to his death not constitute manslaughter in the second degree? How is such an act not even brought to trial? Unlike the Brown case, there is no doubt about what happened – we can see it with our own eyes.

This is a case that might – just might – bring people together to force some kind of change. … The cop had no reason to fear anything, let alone his life; he acted outside approved police procedures; and the father and grandfather is dead – and all because he might have been selling cigarettes without taxes applied! All of it is caught on video – by a dude who was – yes – later indicted on a gun charge!

That may not matter:

The key now is for the protests to be bigger and calmer than Ferguson and across the political spectrum – and for the DOJ to take a look. If cops can get away with this kind of thing, even when there’s direct video evidence, why would body cams make any difference at all?

Sullivan hopes conservatives and libertarians will speak up now, but don’t hope for much:

Sen. Rand Paul (R-Ky.) thinks the death of Eric Garner is symbolic of a much larger problem in American society: politicians levying taxes on things like cigarettes.

During an interview on MSNBC’s “Hardball” Wednesday evening, Paul said that it was hard to watch the video of Garner being put in a chokehold and not be “horrified.”

“But I think there’s something bigger than just the individual circumstances,” Paul said. “Obviously the individual circumstances are important, but I think it’s also important to know that some politician put a tax of $5.85 on a pack of cigarettes, so they’ve driven cigarettes underground by making them so expensive.”

Paul went on to blame politicians for putting police in a position where they had to arrest someone for selling a loose cigarette.

There’s a lot of that going around:

Unlike the decision last week to clear white Ferguson Officer Darren Wilson in the fatal shooting of unarmed black 18-year-old Michael Brown, few conservatives were applauding the grand jury this time around.

Whereas many conservatives said Wilson was simply doing his job, some on Wednesday said Pantaleo was enforcing a punitive big government policy. And while Brown was nothing more than a “thug,” Garner was the victim of the dreaded nanny state.

That item goes on to chronicle who said this sort of thing, in detail, but it’s the same old stuff. Government, with all its rules and laws and taxes, is bad. Conservatives and libertarians don’t see race. They see other things – overworked heroic cops forced to kill people because of the stupid nanny state – but Charles Blow sees race:

At some point between the moment a Missouri grand jury refused to indict a police officer who had shot and killed Michael Brown on a Ferguson street and the moment a New York grand jury refused to indict a police officer who choked and killed Eric Garner on a Staten Island sidewalk – on video, as he struggled to utter the words, “I can’t breathe!” – a counternarrative to this nation’s calls for change has taken shape.

This narrative paints the police as under siege and unfairly maligned while it admonishes – and, in some cases, excoriates – those demanding changes in the wake of the Ferguson shooting. (Those calling for change now include the president of the United States and the United States attorney general, I might add.)

The argument is that this is not a perfect case, because Brown – and, one would assume, now Garner – isn’t a perfect victim and the protesters haven’t all been perfectly civil, so therefore any movement to counter black oppression that flows from the case is inherently flawed. But this is ridiculous and reductive, because it fails to acknowledge that the whole system is imperfect and rife with flaws. We don’t need to identify angels and demons to understand that inequity is hell.

Things don’t work that way:

People want to be assured of equal application of justice and equal – and appropriate – use of police force, and to know that all lives are equally valued.

The data suggests that, in the nation as a whole, that isn’t so. Racial profiling is real. Disparate treatment of black and brown men by police officers is real. Grotesquely disproportionate numbers of killings of black men by the police are real.

No one denies that police officers have hard jobs, but they volunteer to enter that line of work. There is no draft. So these disparities cannot go unaddressed and uncorrected. To be held in high esteem you must also be held to a higher standard.

And no one denies that high-crime neighborhoods disproportionately overlap with minority neighborhoods. But the intersections don’t stop there. Concentrated poverty plays a consequential role. So does the school-to-prison pipeline. So do the scars of historical oppression. In fact, these and other factors intersect to such a degree that trying to separate any one – most often, the racial one – from the rest is bound to render a flimsy argument based on the fallacy of discrete factors.

Yet people continue to make such arguments, which can usually be distilled to some variation of this: Black dysfunction is mostly or even solely the result of black pathology. This argument is racist at its core because it rests too heavily on choice and too lightly on context. If you scratch it, what oozes out reeks of race-informed cultural decay or even genetic deficiency and predisposition, as if America is not the progenitor – the great-grandmother – of African-American violence.

And yes, racist is the word that we must use. Racism doesn’t require the presence of malice, only the presence of bias and ignorance, willful or otherwise.

We might as well talk about that:

Today, too many people are gun-shy about using the word racism, lest they themselves be called race-baiters. So we are witnessing an assault on the concept of racism, an attempt to erase legitimate discussion and grievance by degrading the language: Eliminate the word and you elude the charge.

By endlessly claiming that the word is overused as an attack, the overuse, through rhetorical sleight of hand, is amplified in the dismissal. The word is snatched from its serious scientific and sociological context and redefined simply as a weapon of argumentation, the hand grenade you toss under the table to blow things up and halt the conversation when things get too “honest” or “uncomfortable.”

But people will not fall for that chicanery. The language will survive. The concept will not be corrupted. Racism is a real thing, not because the “racial grievance industry” refuses to release it, but because society has failed to eradicate it.

Racism is interpersonal and structural; it is current and historical; it is explicit and implicit; it is articulated and silent.

And we might as well deal with it:

The activism that followed Ferguson and that is likely to be intensified by what happened in New York isn’t about making a martyr of “Big Mike” or “Big E” as much as it is about making the most of a moment, counternarratives notwithstanding.

In this most trying of moments, black men – supported by the people who understand their plight and feel their pain – are saying to the police culture of America, “We can’t breathe!”

There is the police culture of America, and sometimes it’s just sad:

The Cleveland police officer who fatally shot 12-year-old Tamir Rice on Nov. 22 had “dismal” handgun performance during training, the news website reported on Wednesday.

During Officer Tim Loehmann’s brief tenure with the Independence Police Department he was characterized as “distracted” and “weepy” during firearms training, according to a Nov. 29, 2012 letter obtained by

The letter was written by the police department’s Deputy Chief Jim Polak.

“He could not follow simple directions, could not communicate clear thoughts nor recollections, and his handgun performance was dismal,” Polak wrote.

The letter also recommended that the department disassociate with Loehmann, who eventually became an officer with the Cleveland Division of Police, reported.

“I do not believe time, nor training, will be able to change or correct the deficiencies,” Polak wrote…

The Independence Police Department released Loehmann’s personnel file on Wednesday, which showed he resigned after six months… Loehmann was reportedly hired by Cleveland police in March.

You either trust cops or you don’t? It’s not that simple. Pretty soon no one will be able to breathe.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Now No One Can Breathe

  1. Rick says:

    Andrew Sullivan says:

    “The cop had no reason to fear anything, let alone his life; he acted outside approved police procedures; and the father and grandfather is dead – and all because he might have been selling cigarettes without taxes applied!”

    I disagree:

    * I think the cop — and, in fact, all his fellow cops — felt they did have something to fear, and that was that this huge three-hundred-plus pound man could cause a lot of damage to someone, maybe tumbling them through a plate-glass window, while he was resisting arrest. I got the feeling Garner’s massive size persuaded them to use too much force on purpose — more than they would have used, say, to bring down my puny (comparatively) 165-pound self.

    * And yes, while he may have “acted outside approved police procedures” with that choke-hold, we need to remember that “approved police procedures” are not the same things as “laws”. Departments might not approve certain procedures because they don’t do the job as well, and do it as safely, as other procedures. In fact, even if the procedure is not approved, it’s apparently still taught in basic training.

    * And cigarette taxes? Really, Andrew? You and Rand Paul should launch a separate campaign to do away with these kind of taxes — the only reason I won’t join you on it is not because I strongly favor them, it’s that I have only so many brain cells and I don’t want to burn them up on trivial pursuits. But the truth is, this isn’t about the rightness of the laws, it’s about the enforcement of them. Whether you’re accused of being a serial killer or of illegally selling cigarettes, when a cop starts to arrest you, he can’t just back off and walk away, simply because you refuse to be touched. (By the way, I’m assuming that’s what was happening in that video; I never heard all the audio, since some news person was always talking over it.)

    As for not stopping when Garner repeatedly gasped, “I can’t breathe!”, I’m guessing they hear that all the time from suspects they are trying to handcuff, but who can breathe just fine — people who (and I don’t mean to be too flip here) have obviously ruined use of that phrase for everyone else, including those who legitimately cannot breathe. Maybe one lesson the cops can learn from this is, when they hear someone say they can’t breathe, give them the benefit of the doubt.

    I’m guessing I’m swimming against the current here, but when I see the video of this Staten Island incident, I see a tragic accident that left dead someone who did not deserve to die, but I don’t see a crime.


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