I Can’t Breathe Either

Thursday, December 4th, 2014

In much of the United States justice system, prosecutors in pursuit of a criminal conviction may first seek an indictment from a grand jury. The prosecutor presents evidence, and the grand jury then determines if a formal accusation of a crime should be made. If so, a trial is then held. Crucially, grand juries do not themselves determine guilt or innocence, only whether there is probable cause to hold a trial. This is a fairly easy threshold to meet, and prosecutors are nearly always successful in getting an indictment. Only 11 grand juries declined to return an indictment in the 162,000 federal cases seen in 2010. As law professor Andrew D. Leipold notes, “If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong”.

In November, a grand jury in Missouri declined to indict former Ferguson police officer Darren Wilson in the shooting death of Michael Brown. Few would argue that the incident itself was anything but tragic. However, the circumstances were full of ambiguities, with conflicting witness statements and a claim of self-defense from Wilson. Ultimately, this led to the lack of charges.

Yesterday, a grand jury in New York declined to indict officer Daniel Pantaleo for his role in the death of Eric Garner. Unlike in Ferguson, we know exactly what happened in Staten Island. Because the incident was filmed, we can use our own eyes to watch multiple viewpoints. We can see that Garner was non-compliant, but also non-threatening. We can see an officer use a chokehold which is expressly banned by the NYPD. We can hear Garner’s pleading last words “I can’t breathe”. And then we can see that officers did next to nothing to render aid to Garner while he lay barely conscious on the sidewalk for minutes. Soon after, Garner was dead.

All of that came to nothing last night in New York, and that is deeply unsettling. Given our system’s built-in assumption that police officers always act correctly, these recent outcomes may not be surprising. However, a lack of surprise makes the results no less palatable. On last night’s episode of “The Daily Show”, Jon Stewart just didn’t know what to say. I really don’t either. Things are badly broken and there’s nothing funny about it.

The New York Times editorial board offered a short piece which included these strong words:

What is clear is this was vicious policing and an innocent man is dead. Another conclusion is also obvious. Officer Pantaleo was stripped of his gun and badge; he needs to be stripped of his job. He used forbidden tactics to brutalize a citizen who was not acting belligerently, posed no risk of flight, brandished no weapon and was heavily outnumbered.

Any police department that tolerates such conduct, and whose officers are unable or unwilling to defuse such confrontations without killing people, needs to be reformed. And though the chance of a local criminal case is now foreclosed, the Justice Department is right to swiftly investigate what certainly seem like violations of Mr. Garner’s civil rights.

The Times advises that “those who seek justice should remain hopeful, if skeptical and wary”. Broadly speaking, every American should seek justice. Justice for all is a founding principle of our nation. In both the cases we’ve seen in the media and in those we haven’t seen at all, I count myself among those who seek justice. I, we, must remain hopeful that we can be better than this. Still, it sure would be nice to have fewer reasons to be wary.

After hearing the news in the Garner case, New York Daily News political cartoonist Bill Bramhall created this simple, yet deeply affecting statement:

Lady Justice can't breathe.

Let us hope that more aid is rendered to Bramhall’s Lady Justice, and to our justice system, than was provided to Eric Garner in his last moments. As Bramhall’s colleague at the Daily News Harry Siegel advises, watch the videos. See what happened for yourself, and understand why so many are deeply distrustful of the system ostensibly created to protect them.

This isn’t about politics, it’s about human decency. Eric Garner was a human being with a basic right to exist. He, and so many others in similar situations, didn’t deserve to die, didn’t need to die, and should not have died. Nothing we do now can undo past deaths, but we can work to prevent future tragedies like this from occurring. More to the point, we must.


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