Search About Support Us
New Yorkers protest a grand jury's decision not to indict the police officer responsible for Eric Garner's death.
News

The Garner Decision in Black and White

Reckoning with the great justice divide.

“There is no justice system,” said an aggrieved Benjamin Carr on Wednesday afternoon when he learned that the police officer who choked his son to death in July would not face criminal charges. But a Staten Island grand jury’s decision not to indict New York Police Department patrolman Daniel Pantaleo, despite videotaped evidence of the death of unarmed Eric Garner and despite a police ban on chokeholds, is proof that there is a justice system — one designed in every jurisdiction and at virtually every turn to protect police officers from criminal liability.

Underscoring this somber point last night was Deadspin’s Albert Burneko, who in his piece, “The American Justice System Is Not Broken,” explained that the result in the Garner case, like the result in the case of Michael Brown in Missouri and other cases where grand juries do not indict cops, are not outliers but rather the result of intentional policies and practices we’ve established and nurtured over time. Burneko wrote his piece a few hours after the Garner news broke, before word came from Arizona that an unarmed black man was shot to death Tuesday night by a police officer in Phoenix.

From the politicians, to the advocates, to the police, the reaction to the grand jury’s decision was predictable. There seemed to be far more surprise at the outcome in New York than there was last week when another grand jury came back with another “no true bill.” Compared to the August shooting death of Brown in Ferguson, Mo., the death of Eric Garner left little room for ambiguity about what actually happened. There was no “he said/he said” dichotomy between witnesses and the police officer involved. Because there was video of the incident, everyone was able to see how Garner died — and why — more than 30 years after United States Supreme Court Justice Thurgood Marshall railed in dissentin Los Angeles v. Lyons against the pervasive use of chokeholds by police officers on black suspects.

To apply the legal standard in New York for the use of deadly force by the police, we all got to be “reasonable” women and men evaluating what we might have done were we in Pantaleo’s shoes. But we know, after a long, hot summer, that “reasonable” people of different races see criminal justice differently. Before the sun had set on Staten Island on Wednesday, two Twitter memes had taken hold. One, #CrimingWhileWhite, channeled the interactions of white individuals’ with the police — there were lots of tweets from lots of people who shared accounts of having been merely given a friendly warning from their neighborhood cop. The other, #AliveWhileBlack, channeled the very different experiences of black people with the police.

Become a Member

Join the community that keeps criminal justice on the front page.

This is the gulf that Attorney General Eric Holder mentioned Wednesday night as he announced a federal civil rights investigation into the Garner case, an investigation that also will involve “a complete review of the material gathered during the local investigation,” which presages the possibility of a public federal critique of the local prosecutor’s work in the case. It is the gulf that President Barack Obama also mentioned during his own remarks in the wake of the Garner decision. (Memo to those who see the result of the Garner case as a repudiation of the president’s push for body cameras for police: the cameras were never intended to guarantee indictments of cops. They are intended to create an official record of confrontations where no such records now exist. If Darren Wilson had worn a body camera in Ferguson, for example, he might not have shot Michael Brown, and if he had, at least the rest of us would have known much more about what happened between them.)

The Garner verdict bridges this racial gulf in ways the Darren Wilson verdict did not. Even Andrew McCarthy, a writer at the National Review, who had shown passionate support of Darren Wilson, seemed to concede that there might have been “probable cause” for the grand jury to indict Pantaleo. The Garner case also seems to have crystallized a growing sense of unease toward the aggressive way in which some police officers perform their duties. “Just take a step back,” police analyst Jim Cavanaugh said to MSNBC’s Lawrence O’Donnell as a way of suggesting how the police might avert more of these confrontations that so quickly turn deadly.

So what explains the result here? We know that Staten Island has a long history of protecting its police in circumstances such as this. But we don’t yet know precisely what the Garner grand jury saw or heard during its work on the case, other than the video of his death and the testimony of Pantaleo, the officer, who reportedly told jurors during a two-hour appearance before them that he did not intend to kill the man he was arrested for selling untaxed cigarettes. We know, from a brief court order released this afternoon, that grand jurors: 1) sat for nine weeks, heard from 50 witnesses, including 22 civilians, saw 60 exhibits admitted into evidence, including four videos, and were instructed about New York’s use-of-force statute.

What about the Staten Island district attorney, the local prosecutor who could have indicted officer Pantaleo months ago? “It’s politically costly for Dan Donovan to indict a police officer on Staten Island,” Columbia Law School professor Jeff Fagan told Gothamist. “He can easily shift the political and legal burden to the Department of Justice to decide whether to pursue criminal charges. He’s washed his hands of it.” What about the so-called broken windows attitude by police, the policy of aggressively enforcing even minor crimes, like trafficking in unlicensed cigarettes? Does that help explain what happened here? One police officer told New York Magazine:

When I came up as a rookie, you were assigned an older cop who had been around and knew what they were doing. We were taught that you catch more flies with honey. Basically, if you let the small things go — like the guy selling loosies or weed or whatever on the corner — then when the big shit happens, like homicide or burglary, those are the same guys who will tell you all about it. If they hate you, they won’t tell you shit.

Counterfactual narratives were prevalent in the initial coverage of the Garner case. “Imagine that Eric Garner had been white,” wrote Peter Beinart at The Atlantic, “his death would be a Tea Party crusade.” At Slate, Joshua Keating offered an interesting perspective — how the American media might have covered this story had the killing occurred overseas.

NEW YORK CITY, United States — The heavily armed security forces in this large and highly militarized country have long walked the streets with impunity, rarely if ever held accountable for violence committed against civilians. In recent weeks, however, several such incidents have ignited public anger and threatened to open new fault lines in a nation with a long and tragic history of sectarian violence.

But there is one factual narrative worth keeping in mind as the Garner story evolves into a federal investigation and, invariably, a wrongful death lawsuit. The truth is that some police officers do face trials when they kill unarmed civilians. In South Carolina on Wednesday, even as New York was exploding in righteous fury, a grand jury indicted Richard Combs, a white man and the former police chief of Eutawville, who while in office in 2011 shot and killed an unarmed black man named Bernard Bailey. Bailey had come to the small town’s “city hall” to protest his daughter’s broken-taillight ticket. Combs faces a murder charge after a judge in his case rejected his “stand-your-ground” defense.