Chokeholds, Eric Garner & Police Ethics
The Eric Garner Tragedy Through The Lens Of Legal Philosophy
By Professor John Kleinig (City University of New York & Charles Sturt University)
August 22, 2014 Picture: The All-Nite Images/Flickr.
This article is part of The Critique exclusive “Black Lives Matter: The Problem of Race & Police Ethics Part I” and was published before the Staten Island Grand Jury Verdict.
In 1994, a former student of mine, Frank Livoti, was alleged to have employed a chokehold when arresting Anthony Baez in the Bronx. Baez died. After a failed state criminal trial, Livoti was eventually (1998) convicted in federal court of violating Baez’s civil rights and sentenced to 7½ years in federal prison. He served 6½ years. I remember Livoti well. He was one of the best police ethics students I had at John Jay College of Criminal Justice – intelligent, sharp, outspoken – and later, before the chokehold incident, I was glad to write a law school reference for him. Ironically, some of the characteristics that made Livoti a great student probably contributed to his being a poor police officer: opinionated, willing to challenge, combative, and forceful. Often good in a classroom; problematic on the street. Now, 20 years later, in superficially similar circumstances, Eric Garner has died during an NYPD arrest (July 17, 2014). In both cases, the offenses were relatively trivial (in the former case: protesting his brother’s arrest for engaging in what was allegedly disorderly conduct; in the latter case, arguing about whether he had been illegally selling cigarettes); in both cases there was a marked disparity in size between the arresting police officer and the victim (Anthony Baez was 270lbs and 6ft 5ins, Eric Garner was 350 lbs and 6ft 3ins; both police officers – Livoti and Daniel Pantaleo – were much smaller); both victims were asthmatics, and though the medical examiner saw the asthma and compression of the victim’s chest as contributory, ruled the events homicides (a classification not involving blame).[1]
Ryan Sorensen/Flickr
Picture: The news and video footage of Eric Garner’s apparent chokehold death ignited a wave of protest in New York. Then came the grand jury’s verdict not to indict Pantaleo, and with it an even greater nation-wide and bi-partisan condemnation. Irrespective of the sharp disagreement many people had about the morality and politics of The Michael Brown case, many felt that the Garner tragedy was different. Unlike the Brown-Wilson confrontation, there was what many believed to be “clear” evidence of pacifism and submission on the part of Mr.Garner.
Chokeholds have been prohibited by the NYPD for over twenty years. It would be slightly reassuring were these incidents a gauge of their frequency, but it transpires that between 2009 and 2013 the NYC Civilian Complaint Review Board (CCRB) received over one thousand complaints about the use of chokeholds by NYPD officers. The Garner tragedy and a new leadership in the NYPD has now prompted what is surely an overdue review of these complaints, including a review of the use-of-force training that police officers receive. Liberal democratic societies have authorized police to use force in the protection of people’s rights – force that individuals would otherwise be morally entitled to use in their own behalf. It is a truism of social contract theory that, left alone to defend themselves against the predations of others, humans would make a poor job of it. They are too irrational, tunnel-visioned, emotional, self-interested, or not interested enough or powerful enough to organize their social lives fairly and effectively, and so need recourse to a “professional” class of legislators, judges, and enforcers to bring order into a social environment that, in Thomas Hobbes’s words, would be one of “continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short. “[2] (Ambitions for anarchistic utopias regularly founder on actual human experience.)
“It is a truism of social contract theory that we need a “professional” class of law enforcers to bring order into a social environment that, in Thomas Hobbes’s words, would be one of “continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short”
Yet the contractual alternative is not without problems of its own. The “professionals” who comprise our legislatures, judiciaries, and enforcement agencies are drawn from the same pool as those whose native wisdom is insufficient for self-rule absent participation in and an acceptance of the constraints of civil society. For this reason, those who watch over and for us need themselves to be watched.[3] It is no accident that “accountability” must be a central feature of our social institutions.
Of all our human powers, the use of force against others is the most potent and, for that reason, the most problematic. To the extent that we have ceded the use of force to police to secure us against the predations of others, we have good reason to hold the police to high standards. If they abuse our trust in them, their actions reintroduce elements of the Hobbesian nightmare and the authority we have vested in them is eroded.
Those standards include the following:
(1) A recognition by police that their authority, with its powers, is loaned, not inherent, and is to be used in the service of the community that has authorized them to secure the rights of its members.
(2) Exercises of their coercive authority ought to acknowledge the moral agency – that is, the dignity – of those they encounter.
(3) Proportionality in the use of force: the costs of enforcement should not exceed the costs of what calls it forth.
(4) Police should use the least amount of force necessary to accomplish their ends (“minimum force necessary”). This might be less than the amount of force that would be justified as a matter of proportionality.
(5) The use of force should be likely to achieve its legitimate ends
(6) Uses of force should be appropriately motivated.[4]
There is obviously plenty of scope here for discussion – about determinations of proportionality, legitimate ends, and appropriate motivations, to mention just a few of the more contentious items. Nevertheless, the general principles are relatively uncontentious, and provide a reasonable framework for assessing both chokeholds in general and the case of Eric Garner.
Chokeholds generally involve a constriction of the neck’s air passage and/or carotid arteries/jugular veins, depending on how the arm is placed round the neck.[5] Each is an effective method of control, and can be used by a person who might otherwise be at a disadvantage in a physical contest. The reason why chokeholds are frequently banned in law enforcement is that when ignorantly or unthinkingly applied they can be fatal.[6] In most ordinary circumstances, officers making an arrest can use techniques that are less likely to have lethal consequences. Even if a person resists arrest, other strategies are usually available. This is almost certainly the case when several officers are present, as was the case with Garner.
I do not mean to suggest that a chokehold could never be legitimately applied. An experienced officer with martial arts skills might know how to apply a chokehold safely; even an inexperienced officer might use a chokehold in self defense if attacked by a more powerful assailant with murderous intent. But police departments that have banned chokeholds have done so in recognition that they are generally unnecessary and potentially lethal. The purpose of an arrest is to bring a situation under control and thus begin the process of adjudication, not to place life at risk. Police officers’ “gifted” authority is not to be squandered or abused.
Chokeholds are not generally designated as crimes. Should it be established that Pantaleo used a chokehold on Garner, he would not have violated a New York State law against chokeholds.[7] The banning of chokeholds is a NYP departmental matter, and those who use them are liable to departmental sanctions, ranging from termination to lesser discipline. To the extent that criminal charges may be brought in the case of death from a chokehold, they are likely to be for criminally negligent homicide or second-degree manslaughter – or, in the case of a federal action, for a difficult-to-establish racially based deprivation of civil rights. As it turns out, in only 9 of the thousand-plus complaints from 2009 to 2013 was a chokehold complaint sustained by the NYC CCRB and, despite its recommending possible termination (involving an administrative trial) in all 9 cases, in no case was an officer subsequently fired. To the contrary, in only one case was disciplinary action of even small consequence involved. Those statistics may well change as a result of the Garner tragedy.
“In most ordinary circumstances, officers making an arrest can use techniques that are less likely to have lethal consequences. Even if a person resists arrest, other strategies are usually available. This is almost certainly the case when several officers are present, as was the case with Garner”
The outcome of the Garner investigation will depend on several factors, some legitimate, others of questionable relevance. So far as the legal use of force is concerned, there will be a judgment about its “reasonableness.” The fourth amendment requires that the use of force to “seize” needs to be reasonable and, as the controlling opinion in Graham v Connor makes clear, “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Moreover, “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” [8] Was that so in this case? I shall leave the legalities for others to determine, my own primary interest being in the ethical questions concerning police conduct in this case and how they might be answered.
I am also interested in how legal proceedings might be affected by ethically questionable considerations. For example, the Garner incident took place on Staten Island, a predominantly white and relatively conservative community which is also home to many police officers.[9] There will be considerable local pressure not to proceed with a criminal case against Pantaleo (and others), given that many residents are likely to be sympathetic to what they see as the hazards and contingencies of police work and they are also likely to possess a limited tolerance for certain activities in their community.[10] Even if the case comes to trial, however, it is quite possible that what occurred in the first Rodney King trial would be replicated here.[11] Unlike the Livoti case, which was tried in the Bronx and strategically involved a bench rather than jury trial, in Staten island it might not be easy to get a “jury of peers” that is unwilling to give a police officer the benefit of the doubt. Such considerations should not figure in an acceptable outcome, whether they weigh against or in favor of police.
“Many who viewed the Rodney King videotape were startled to see how it could be reconstrued in ways that even Jacques Derrida might have marveled at”
No less problematic, though in a different way, will be larger political concerns. A new mayor, a “new” police commissioner, and a vigorous and sometimes vociferous two-year debate concerning use-of-force practices by NYPD officers against minorities (especially stop-question-frisk practices), may influence decisions that are made independently of what Pantaleo actually did.[12] Of course, it might be argued that what Pantaleo did was of-a-piece with (“yet another manifestation of”) what has been occurring for some time (unnecessary force employed against minorities); still, such a claim needs to be particularized and not simply used as a generalized cudgel.
Obviously, establishing the facts of the matter will be critical, and though the video record may seem straightforward, even video accounts may be disputed, parsed, and contextualized in ways that diminish what appears to speak for itself. Many who viewed the Rodney King videotape were startled to see how it could be reconstrued in ways that even Jacques Derrida might have marveled at.[13] No doubt many will see such questionings as morally insulting to the victim and offensive to his family. But – and most probably for good reason – we operate with a legal system that is formally (and probably correctly) committed to the rights of defendants. As indifferent to the victims of crime as this system may sometimes appear, the long-term implications of a legal system in which the rights of the defendant are not held to be pre-eminent would probably be worse.
In the case of the charge of police misconduct, it is not just that any charge will have to be established “beyond reasonable doubt” but that police officers, by virtue of their role and experience, may be accorded a leeway that is denied to others. Should we expect more of police because of their social role? Or should we allow police greater professional leeway because of their social role? Perhaps both. Mediating such issues requires a difficult judgment.
“As indifferent to the victims of crime as this system may sometimes appear, the long-term implications of a legal system in which the rights of the defendant are not held to be pre-eminent would probably be worse”
It is not disputed that Garner contributed to his income by selling loose untaxed cigarettes, though it is not yet clear why he was approached at the time he was. It appears that on this occasion he was not caught in flagranti – though he may well have been recently involved in illegal sales. Perhaps the fight that Garner sought to break up brought unwanted attention to him as a familiar figure. In any case, when the police approached him Garner appears to have challenged them, questioning why he was being targeted at that time. His subsequent rant does not automatically determine the moral legitimacy of what then occurred, though his remark that “Every time you see me, you try to arrest me. I’m tired of it. It stops today!” suggests that he felt harassed and this probably irked the officers. We are not yet privy to all that passed between the police officers and Garner (and given the tendency of officers to support each other we may never be) [Read Kleinig on Police Loyalty]. But whatever the case, this was not a “high crime,” and even if it can be argued that the officers should not have ignored it (as they might, say, in a jaywalking case), taking action did not demand their making an immediate arrest.[14] Perhaps the police, believing that Garner had ignored earlier warnings, decided that they had had enough. But they could see he was upset and should have figured that making an arrest was not the smartest thing to do at that point. The first task of police in such circumstances should be to de-escalate the situation, not exacerbate it.
Elvert Barnes/Flickr
Should the officers have spent more time talking him down? I can see hackles rising. Garner was challenging their authority and that was a red rag to a bull. No doubt many police will argue that he had already been given more time to vent than he was entitled to. Nevertheless, in this case a particular police maxim might have been appropriately followed: “Back off, not down.” Although he was riled, Garner was not running away or armed, he was well-known and not acting in a violent manner. I ask myself: if women police had been involved, how would they have handled it? It’s a good question because the answer is likely to bring out some of the less pleasant aspects of police culture. Women officers would probably have sought to calm him down; and male officers would have seen such efforts as weak and compromising, incompatible with their macho sense of themselves.
In assessing what took place between the officers and Garner, it is important – not merely for legal reasons, but for moral ones as well – to know why Garner was approached on this particular occasion. How familiar were the particular officers with Garner and the life he led? Did they know that Garner was trying to support a large family in a manner that seemed most available to him?[15] Or did they see him simply as a “fat loser” (to use one of the gentler characterizations on the internet)? Did they think that how Garner supported himself and his family was socially disruptive? Were their noses put out of joint by the way in which he was carrying on? Did they feel pressure from above to take this kind of action? Unfortunately for the police, maxims they learn in their training, such as “come on strong” and “take charge of the situation” should only be that – maxims to be employed with discretion. (Even regulations that lead to the handcuffing of 97-year-old grandmothers and 5-year-old children are misplaced if interpreted rigidly and unthinkingly.)
Russ Allison Loar/Flickr
“I ask myself: if women police had been involved, how would they have handled it? It’s a good question because the answer is likely to bring out some of the less pleasant aspects of police culture. Women officers would probably have sought to calm him down; and male officers would have seen such efforts as weak and compromising, incompatible with their macho sense of themselves”
Although the “comments” sections of internet websites tend to bring out the worst in people, it is particularly disturbing to read many of the post-Garner comments that appeared on police websites (such as PoliceOne.com or theerant.yuku.com). It is one thing for fellow police officers to support a colleague by indicating how difficult the job is, or how easily one might have done the same thing in the same situation; it is quite another to make the racist, disparaging, and contemptuous comments about Garner and the general public that the police are there to serve. Much of the police commentary reveals an arrogant sense of authority, expertise, and condescension toward those served – not just Garner, but a wider “ignorant” populace.
I do not deny that the Garner arrest has also stirred considerable anti-cop ranting – even hatred – in New York (and elsewhere); nor do I doubt that a good deal of it is quite undeserved. But this much seems clear: Garner-type incidents bring out the extent to which the professional and personal shortcomings of those who serve society are as problematic as the shortcomings of the citizens they profess to serve. Professionalism should not be reduced to a 15-letter word.
Sadly, police behavior is often not much better than crowd behavior. As the number of EMS and regular officers at the site increased, it was probably increasingly important for the principals not to look wimpy and weak, not to scale down rather than take over.
Let’s grant that Garner answered back or even swore at the officers. Arrest him? It doesn’t follow. And even if he should have been arrested, it didn’t follow that he should have been arrested then and there. Constitutionally, at least, citizens may question and criticize police. Only when they utter “fighting words” do their first amendment rights fail them. Garner’s declaration: “I’m tired of it. It stops today!” hardly rises to that level. But police are notoriously thin-skinned and reactive when they sense a disrespect for their authority (whether or not it also involves a disrespect of their persons) and “contempt-of-cop” arrests are all too common. Although there is no such offense, disorderly conduct, obstruction of justice, and resisting arrest may cover for the affront and, even if such arrests are later thrown out (as they often are), police may at least have the satisfaction that the cause of their ire has been put to some trouble as a result.
But let us suppose that Garner did indeed act in a manner that warranted his arrest. What should the police have done? They knew he was a large, overweight, and somewhat overwrought man; they might have reasoned that he was also physically vulnerable: a “walking heart attack,” as one police commentator put it. Reason not to trigger it. It is not as though the police were outnumbered or undersupported. At least five officers were involved in the arrest, and others were in the vicinity. Garner had no serious history of violence so that the police had something to fear; there was no weapon or threat of a weapon, and he was dressed in a manner that made it unlikely that he carried a concealed weapon. Garner resisted arrest, but he did so in a manner that was evasive rather than aggressive. The trouble was that, once the machinery of arrest had been set in motion, there was little likelihood that it would be withdrawn and, apart from the disputed chokehold, a difficult judgment will now need to be made about the actions of the arresting officers.
Whatever the legal and administrative outcomes of the Garner tragedy, the incident gives us reason to reflect again on basics – on why we have police in the first place, what powers we give them, what limitations we place on the use of those powers, the support we provide for them, and the ways in which they may be held accountable. It gives us reason to reflect again on large strategies, such as “broken windows“ policing and how we train police, as well as tactical decisions such as timing and de-escalation. Whatever Eric Garner’s future might have been, he didn’t have to die then and in that way, and it challenges us all to learn from it [16].
Footnotes & References
[1] As always happens, in each case there are conflicting reports of what transpired. The facts of Livoti’s case are still disputed, despite the legal ruling. In Garner’s case, it appears as though Garner was not selling cigarettes at the time he was approached, although he had a long history of selling untaxed cigarettes and other minor offenses. Just prior to his being approached by the police he had intervened to break up a fight (his T-shirt was still rather sweaty), and part of his reason for objecting to the police interest in him concerned why he (rather than, perhaps, those who had been involved in the fight) was being targeted. Despite the video evidence, there is debate about whether a genuine chokehold was employed rather than a more generalized headlock. We may need to wait for further clarity on the course of events. Relevant parts of the medical examiner’s report can be found in Joseph Goldstein and Marc Santora, “Staten Island Man Died from Chokehold During Arrest, Autopsy Finds,” New York Times, August 1, 2014, A14, available at:http://www.nytimes.com/2014/08/02/nyregion/staten-island-man-died-from-officers-chokehold-autopsy-finds.html?_r=0.
[2] Thomas Hobbes, Leviathan XIII.9.
[3] In Juvenal’s famous question: “Quis custodiet ipsos custodies?” [Who watches the watchers?], Satires VI.
[4] This is intended to represent a set of morally relevant standards. Legally, motivation is no longer part of the mix, exercises of force now being judged only on the basis of their “reasonableness.” Questions of intent/motivation come into play only when the deprivation of civil rights is an issue.
[5] Technically, some would firmly distinguish “chokeholds” (affecting breathing) from “neck restraints” (affecting blood flow). However, in the hurly-burly of an arrest, what may be intended as one may become the other, and for practical purposes they should probably be considered together. The NYPD Patrol Guide, which emphatically (“NOT”) prohibits chokeholds, adopts an elastic definition: “A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air” (PG 203-11). In addition – relevant to the Garner case – it states that “whenever it becomes necessary to take a violent or resisting subject into custody, responding officers should utilize appropriate tactics in a coordinated effort to overcome resistance. . . . The patrol supervisor, if present, should direct and control all activity. Whenever possible, members should make every effort to avoid tactics, such as sitting or standing on a subject’s chest, which may result in chest compression, thereby reducing the subject’s ability to breathe.” On the video of Garner’s arrest, he is clearly heard to repeat: “I can’t breathe.”
[6] A string of chokehold deaths in the LAPD, and the controversy that surrounded them, prompted much of the rethinking. Nevertheless, many departments still permit neck restraints – what are sometimes referred to as Lateral Vascular Neck Restraints (LVNRs). For a legal overview, see the two-part article, “Civil Liability for the Use of Neck Restraints,” AELE Monthly Law Journal no. 12 (December 2013): 101-107 and no. 1 (January 2014): 101-108, available at: http://www.aele.org/law/2013all12/2013-12MLJ101.pdf andhttp://www.aele.org/law/2014all01/2014-01MLJ101.pdf.
[7] With the possible exception of a 2010 NYS provision intended to address domestic violence cases. For a useful legal as well as NYPD background to chokeholds, see Rory I. Lancman and Daniel Pearlstein, “Clamping Down on Chokeholds,” New York Law Journal, July 25, 2014, available at:http://www.newyorklawjournal.com/id=1202664405714/Clamping-Down-on-Chokeholds?slreturn=20140710235410.
[8] Graham v. Connor, 490 U.S. 386, at 396-397 (1989), available at:http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=490&invol=386.
[9]Pantaleo is a Staten Island resident. For demographics, see Wikipedia, “Demographics of Staten Island,” available at:http://en.wikipedia.org/wiki/Demographics_of_Staten_Island.
[10] As well as directives from above, the police were responding to phone complaints about low level offenses (untaxed cigarettes, open alcohol, and pot).
[11] In that case, the initial trial took place in police-friendly Ventura County, resulting in an acquittal. Deadly riots subsequently erupted.
[12] Richard Emery, the new Chair of the NYC CCRB, is also likely to take chokeholds more seriously. In addition, following the stop-question-frisk controversy, an inspector general – Philip Eure – was appointed in May to oversee the NYPD.
[13] For another graphic illustration of the way in which a seemingly decisive video can be differently interpreted, see the high-speed pursuit video that Justice Scalia embedded in his 8-1 opinion in Scott v. Harris 550 US 372 (2007), and the discussion in Dan M. Kahan, David A. Hoffman, and Donald Braman “Whose Eyes are You Going to Believe: Scott v. Harris and the Perils of Cognitive Illiberalism,” Harvard Law Review 122 (2009): 837-906..
[14] It deserves noting that the police were acting on higher orders in exerting their energies on untaxed cigarettes. See John Marzulli, Rocco Parascandola, and Thomas Tracy, “NYPD No. 2′s Order to Crack Down on Selling Loose Cigarettes Led to Chokehold Death of Eric Garner,” Daily News, August 7, available at:: http://www.nydailynews.com/new-york/nyc-crime/wife-man-filmed-chokehold-arrested-article-1.1893790. Some have seen this as a reason for criticizing the use of police resources to fix “broken windows,” an approach to policing that was associated with Commissioner Bratton’s previous term as NYPD Commissioner.
[15] He had worked as a night club bouncer, but because of his respiratory problems had trouble holding down a job.
[16] I thank Eugene O’Donnell and Tziporah Kasachkoff for valuable comments on an earlier draft.
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