I can't breathe

Eric Garner is dead.

On July 17 of this year, while he was standing on a sidewalk in Staten Island in New York City, Garner was approached by members of the New York Police Department and confronted with the accusation that he had been selling cigarettes without a license to do so--a charge that Garner repeatedly denied.

This was apparently not the first time police officers had confronted Garner with the charge, and as anyone might do, who believes he is being unfairly singled out for mistreatment by the authorities, Garner protested.

After Garner began resisting what he considered to be harassment, four NYPD officers moved to restrain him, pushing his arms behind his back.  One officer, Daniel Pantaleo, put Garner into a chokehold.  That is, he crooked his elbow around Garner's neck and squeezed in an effort to block Garner's ability to breathe.  Garner repeatedly cried, "I can't breathe! I can't breathe!" as he was being choked.  Together, the four officers bulldogged Garner to the ground, and one officer pressed Garner's face into the concrete.  Garner was handcuffed behind his back and made to lay on the ground, unconscious, while no one administered any sort of medical aid to the distressed man.  Eventually he was transported to a hospital.

An hour after the incident began, Eric Garner was dead.

We know all of these things are true because a bystander captured the entire incident on video. 

I am particularly sensitive to the mechanics of what happened to Eric Garner because, like Garner, I am a very large man.  Garner was reported to be over 350 pounds.  In the video, his body type is evident--he was muscular, but he was also very overweight, and he was not flexible.  When you have that body type--and I know this because I have that body type--if someone forces your arms behind you, the pain is excruciating.  Resistance to that act is completely involuntary.  You will summon whatever strength you have to stop your arms from being pushed backward.

Having your arms pinned behind your back, when you have that body type, makes breathing more difficult.

When you add in that Eric Garner was only marginally able to breathe under the best of circumstances, the chokehold that Officer Pantaleo administered became deadly.

The New York Penal Code, section 125.20, defines first-degree manslaughter as having occurred when, among other things, "With intent to cause serious physical injury to another person, [the accused] causes the death of such person or of a third person."

The medical examiner ruled that the cause of Eric Garner's death was "homicide by chokehold."

But what of the intent element of a manslaughter charge?  In 1985, the NYPD banned the use of chokeholds, allowing only a single exception, when the officer's life is in danger and the chokehold is the least dangerous alternative method of restraint.

In 1993, the NYPD removed the exception.

And what was the NYPD's justification for the chokehold ban?  The fact that chokeholds, which cut off oxygen and blood flow to the brain, sometimes cause serious physical injury or death.

When Pantaleo put Eric Garner in a chokehold, he did so intentionally.  In other words, he chose to use that technique.  He had to know that what he was doing carried a significant likelihood that Eric Garner would die or be seriously injured as a result.  An intentional act plus knowledge of its potential consequences implies the intent to cause those consequences.

But even if you disagree what that view of intent, when you add in that Garner repeatedly told Pantaleo that he couldn't breathe--indicating that serious injury was imminent--and Pantaleo continued to choke him, surely you can't disagree that intent was there.

Or if that's not enough, surely you can't disagree that an intentional act plus knowledge of its potential consequences implies recklessness.  In second-degree manslaughter, recklessness is substituted for the intent element.

The grand jury disagreed, voting for "no true bill," i.e., no indictment.

I don't know what happened in the grand jury that was investigating Eric Garner's death.

But what I do know is that twice in the last week, state-level procedures have proven wholly inadequate to protect the rights of citizens of color against out-of-control police officers.

In Garner's case, the video is indisputable.  Garner did not commit a violent crime.  He was not accused or even suspected of having committed a violent crime.  The NYPD's treatment of him was unreasonable and brutal, and he died.

Our Constitution guarantees to all of us the equal protection of the laws.  It guarantees to all of us that our civil rights may not be infringed without the due process of law.

Eric Garner's death was mostly indistinguishable from an extrajudicial execution.

The Justice Department needs to step in.  Because the State of New York has proven unwilling to do so, the officers responsible for Garner's death must be held to account in the only way that's left:  with federal civil rights charges.

Until that happens, I can't breathe.

None of us can breathe.