Monday, December 15, 2014

185.7 - Eric Garner and untouchable cops

Eric Garner and untouchable cops

Last week I said there was much more to talk about with regard to the Michael Brown killing in Ferguson, MO. Little did I know that that discussion would have to be put aside to address an even more egregious case: the unpunished killing of Eric Garner.

Eric Garner
Back on July 17, Eric Garner was in Tompkinsville, a section of Staten Island in New York City. He was accused by cops of selling untaxed cigarettes, of which he apparently did have a history. He protested that he had done nothing wrong - a claim supported to the police at the time by an eyewitness - but the cops demanded he put his arms behind his back to be handcuffed. When he protested, NYPD cop Daniel Pantaleo grabbed him from behind, wrapping his arm around Garner's neck and wrestling him to the pavement, using an illegal choke hold, and pressing his face into the pavement. The other cops swarmed over Garner, pinning him to the pavement, face down. Garner, in a chokehold with other cops piled on him, several times protested that he couldn't breathe. The cops ignored him. Finally, he went limp. And later he died.

On December 3, a Staten Island grand jury refused to indict white cop Daniel Pantaleo in the death of unarmed black man Eric Garner.

This decision came despite the fact that there is video showing showing everything I just described. Despite the fact that the video shows Pantaleo grabbing Garner from behind, despite the video showing cops swarming over Garner, despite the clear proof of Pantaleo using a choke hold which has been specifically banned by the NYPD for 21 years precisely because of the risk of killing someone, despite the clear view of Pantaleo pushing Garner's face into the pavement, despite the undeniable fact that Garner repeatedly protested "I can't breathe."

Despite that, no indictment. No charge. Not murder, not manslaughter, not even unintentional manslaughter, not even some sort of negligence. No charge.

Despite the clear recorded proof that even the cops couldn't deny, no indictment. No charge.

Despite the fact that the medical examiner called it a homicide and that it was the chokehold that killed Eric Garner, no indictment. No charge.

You want to know how bad this was? You want to know how shocking it was?

Even Bill O'Reilly was troubled by it. Even posters at the leading right-wing website and called the decision things like "baffling" and "infuriating." A writer for National Review slammed it. Even Charles freaking Krauthammer called it "totally incomprehensible."

But there was no indictment, no charge. And again an unarmed black man is dead and again a white cop walks scot-free.

What in hell does it take? What does it take to get a cop indicted? How much evidence is needed? How much proof is required? If video evidence and the report of the medical examiner is not enough, what would be?

This is the other part of this. I talked last week and again just now about white cops killing unarmed black men and getting away with it. But it's more than that. It's cops in general getting away with murder.

I talked last week about the fact that a prosecutor who brings a case to a grand jury and really wants to get an indictment can get one. Despite their supposed independence, grand juries are creatures of the prosecution: The only evidence they see is what the prosecutor shows them; their understanding of the law is from what the prosecutor tells them.

So why are cops the one exception to the rule? Why, when as the saying goes, a prosecutor could get a grand jury to indict a ham sandwich, why do cops over and over and over again walk away free, untouched, uncharged, unindicted?

And yes, it is over and over and over again.

A recent study
by the Houston Chronicle of grand juries in Harris County, Texas - Harris County being where Houston is - revealed that Houston cops involved in shootings have been cleared by those grand juries 288 consecutive times, dating back to 2004. Between 2008 and 2012, Houston cops shot 121 people, 52 of them fatally. More than a quarter of those people, including 10 of those who died, were unarmed.

Officers shot unarmed civilians who “reached” or “grabbed” for their waistlines or held objects such as cellphones or a hairbrush that the cops claimed to have mistaken for weapons.

The paper also noted that in Dallas, 81 shootings involving 175 officers from 2008 to 2012 resulted in exactly only one cop being indicted. No cop in Chicago has been charged in an on-duty shooting since 2007.

US cops kill approximately 1,000 citizens per year. According to a study by Bowling Green State University, those 1,000 shooting produce an average of four indictments. 99.6% of the time a cop kills someone, there isn't even a trial. Even if we were to say that 90% of those killings were clearly, obviously, justified, no doubt, the cop's life was unquestionably in immediate danger, absolutely self-defense, that would still mean that 96 times out of a hundred, 96% of the time even where there is a question, nothing happens. Not even a trial.

In fact, even for small crap, cops virtually never get indicted - if the case even gets as far as a grand jury. As a practical matter, cops are almost immune from legal consequences for their actions.

Why? Why is it so hard to hold cops responsible for their actions?

Because for one thing, grand juries don't want to indict cops. Most people - lord knows why - most people just trust cops more than their accusers, no matter the evidence. Actually, lord does know why: We are socially conditioned to defer to authority, to accept the word of authority over non-authority.

Don't believe me, think you're different? We'll do a little thought experiment. I'll give you two statements. One is by an arresting cop who says "he" - we'll assume it was a he - "was committing a crime and he resisted arrest, so I had to use increased force." The other is by the accused, who says "I was just minding my own business and this cop comes and starts hassling me. I tell him to leave me alone and he attacks me." Who do you think you'd tend to believe based on that? And if you think, as most people would, the cop - congratulations, you've just exonerated Daniel Pantaleo in the killing of Eric Garner. Because you assumed that the cop - the official, the authority - must be more trustworthy.

But a bigger reason is that prosecutors do not want to indict cops. They depend on cops for the investigations that provide them the evidence they need to go after criminals. They work with them on a regular basis. They associate with them. They are "on the same team." They have, that is, both a professional need for, and a personal bias in favor of, cops.

And there's one more reason, a legal - or rather legalistic - one. The legal standard for justifying deadly force set by the Supreme Court in the 1980s is "objective reasonableness." A cop who kills someone isn't liable if the killing was "objectively reasonable." What's wrong with that? As civil rights attorney Chase Madar wrote recently,
[I]n actual courtroom practice, “objective reasonableness” has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers. American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.
No second-guessing allowed; no hindsight is permitted. If a cop claims they felt threatened, that's good enough. Even if they are demonstrably wrong, as in a 2000 case when two cops shot and killed the occupants of a car which the cops claimed was being driven at them: Forensic evidence proved the car was stationary at the time. No matter. No charge.

That applied to Darren Wilson, too: Darren Wilson's account of what happened cannot be correct. Cannot be.

This is beyond the ways in which he clearly changed his story between his initial statements to police, saying initially that he did not realize that Michael Brown fit the description of someone accused of stealing cigars from a convenience store not long before and that Brown pushed "something" into the hands of Dorian Johnson, who was with Brown at the time, only to tell the grand jury that he did know Brown fit the description and that it was definitely a handful of cigars Brown gave to Johnson.

This is not about that. It has to do with an audio recording that by coincidence caught the sounds of Wilson firing his gun.

It was caught in the background of a video chat by someone who didn't realize its significance until later. The sound clip was analyzed by the creators of ShotSpotter, which is used by police in 65 cities, including Ferguson, to identify and pinpoint shootings. (The ones in Ferguson are too far from the scene of Brown's killing to be of use here.)

Their analysis indicated there were 10 shots fired from a single spot by a single shooter over a period of just over 6.5 seconds.

In his description of the event to police, Wilson claimed Brown "charged" at him from about 30 feet away and when he got within 15 feet, 15 feet, Wilson fired his first shot. However, he claimed Brown didn't even slow down. He fired twice more and then once more, killing Brown.

Okay. The shots covered just over 6.5 seconds. Wilson claims Brown was "charging." But even at normal walking speed of 3 miles an hour, in that time Brown would have covered nearly 29 feet, nearly double the distance Wilson claimed. Wilson's testimony cannot be true. Period.

But it doesn't matter. If Wilson, in an adrenalin-fueled panic, just thought it was true, that's good enough.

We are not only socialized to believe the cop, not only do prosecutors not want to charge cops, we are almost legally-required to believe the cop and we can't even say "unless the evidence says otherwise" because even when we have a video and a medical examiner's report it's not good enough to overcome that triple bias.

Frank Serpico - remember him? - said it recently in an op-ed in the NY Daily News:
In the old days, they used to put a gun or a knife on somebody after a shooting. Now they don't even bother.

But today, we have cops crying wolf all the time. They testify "I was in fear of my life," the grand jury buys it, the DA winks and nods, and there's no indictment.
It's time to stop talking about "a broken system" and how we have to "repair" the "broken system." It's time to recognize that this is the system. These cases are not aberrations of the system, they are the way the system is supposed to work. Darren Wilson and Daniel Pantaleo and the rest are supposed to get off. Because they are simultaneously tools of, protectors of, enablers of, and part of authority, of power, in a society that increasingly sees fewer and fewer having, controlling, more and more  while more and more have, control, less and less and a society that still, despite all our claims to advancement, still values black lives less than white ones.

We don't need "reform." We don't need palliatives and soporifics like body cameras - again, ask Eric Garner how much good video does, except oh wait, we can't. We need an entire, fundamental, dare I say radical, change in how we view cops and the role of cops; more, a radical change in how we view authority, in how we view the distribution of wealth and power in our society.

It needs to be said at this point that most cops are decent people trying to do a professional job, trying to do the best they can for themselves, their families, and their communities. But we cannot trust ourselves, or our families, or our communities - especially communities of color - we cannot trust our liberties and our very lives to the mere hope that those cops will not be corrupted by the cop culture in which they are immersed, a culture that sees the world as "us versus them," of "insiders versus outsiders" in which we are the outsiders in our own communities, a culture that increasingly sees itself not as a community resource but as an occupying force, a culture that engenders in cops a constant terror, a constant fear, an unceasing tension that they are constantly at risk of their lives even though, measured by the actual rate of on-the-job deaths, in this country being a cop doesn't even make the top 10.

That cop culture is why recently, a poster at the website could write that "there are no good cops anymore," "good cops" being defined there as those who "do the right thing, even when it's incredibly hard, even when they have to go up against other cops." That is, he said, cops who do the right thing when they have some skin in the game. Cops, as I say, who have not been morally corrupted, who have not had their ethical compass permanently demagnitized by the polluted waters in which they swim on a daily basis.  And yes, they are increasingly rare.

Now we  just have to wait to see what the excuse will be, why there will be no charges against the cop, in the murder - yes I said murder - of 12-year-old Tamir Rice in Cleveland.

Sources cited in llinks:

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