As we push for justice for George Floyd, Breonna Taylor, and the many other people of color killed by police, it’s a good time to read I Can’t Breathe, Matt Taibbi’s book investigating the 2014 killing of Eric Garner by Staten Island police. The wheels of justice did not turn in Mr. Garner’s case: a grand jury failed to indict his killers. The details of the court proceedings remain secret, but we are left with the strong suspicion that a police-friendly prosecutor deliberately botched the prosecution. Years of public protests and legal proceedings by Mr. Garner’s family and their allies went nowhere. What went wrong? What needs to change to make sure this doesn’t happen again?
Eric Garner was a lifelong New Yorker. Throughout his adult life, he struggled to financially support his six children. With no legal, “legitimate” careers open to him, he eventually found himself, at age 43, in failing health, standing on a street corner near Tompkinsville Park, selling single cigarettes. The cigarettes were profitable because they were smuggled in from out of state, avoiding New York’s high tax. Eric’s dream, according to his wife, “was for us to get a house and to have the grandkids running around.”
Real estate developers had their own dreams. A newly built, high priced nearby development required cleaning up the neighborhood. The decision making of the police in this case remains secret, but, based on official statements as well as complaints from whistleblowers elsewhere in NYPD, Taibbi can speculate. Wealthy citizens and business owners would have complained about shabbily dressed men of color hanging out in the park. Senior police officers would have pushed their subordinates to solve the problem. This left the officers on the street with a problem. The law gave them no practical means to force Eric Garner to leave. Selling untaxed cigarettes is a minor crime, and it was difficult to catch him in the act.
The NYPD has decades of practice with targeted harassment. In the 1990s, Giuliani’s broken windows policing conflated actual crime with the alleged disorderly appearance of lower income people inhabiting public spaces. In the 2000s, Bloomberg’s stop and frisk strategy was built on the theory that random searches of suspicious individuals would eventually turn up real criminals. The department asked police to conduct huge numbers of these searches, far too many for them to establish probable cause before each search. Instead, they settled on an informal policy, spoken but unwritten, of demographic targeting. For instance, searching black men in certain low income neighborhoods. This was illegal and against the department’s official policy, but any whistleblowers faced ostracism by their fellow officers.
In 2014, responding to a campaign of police harassment which Taibbi believes was intended to force Eric Garner off the street corner he does business on, Eric files a harassment complaint against the police department, which only provokes more intense harassment. Eventually, the police decide to arrest him at a time when he isn’t selling cigarettes. (Most of what follows was captured on video by his friend Ramsey Orta, who was himself harassed by the NYPD for years in retaliation.) Eric, stretched to his limits by financial difficulties and the birth of a newborn child, refuses to go with them. David Pantaleo, one of the arresting officers, is physically much smaller than Eric. He grabs Eric from behind in a chokehold and pulls him to the ground. After wrestling with the officers, Eric gasps “I can’t breathe” multiple times and then passes out. A business owner comes by to ask why no one was performing CPR, but the police don’t see a problem. “He’s fine. He’s breathing.” A few minutes later, they radio for an ambulance, which parks up the street. The EMTs wander over, not in a hurry, and ask Eric to wake up. After determining that he isn’t faking, one of them goes to get a stretcher. Eric Garner is pronounced dead at the hospital an hour later.
This tale is one sided and incomplete because of the wall of silence protecting the police department. The officers involved were never brought to trial. Eric Garner’s family was awarded $5.9 million in a 2015 settlement, but Officer Panteleo wasn’t fired until after a 2019 NYPD disciplinary hearing. We do know Pantaleo had a prior history of disciplinary complaints, but only because his file was leaked by an employee of the Civilian Complaint Review Board.
The CCRB, unfortunately, acts as just another bureaucracy designed to exhaust and outlast anyone seeking justice. Taibbi reports that, in 1,200 chokehold-related complaints brought to the CCRB, 99% were rejected for reasons such as inadequate evidence. In the remaining 1% of cases, the CCRB recommended disciplinary action but the police commissioners rejected the recommendation.
While very little progress has been made fixing the systemic problems with policing that led to Eric Garner’s death, recent Albany legislation is a step in the right direction. Signed into law by Governor Cuomo on Friday, June 12, it makes the use of chokeholds by police a Class C felony (the NYPD banned the use of chokeholds by officers in 1993). It also would have made it easier for Eric Garner’s family to receive justice after the fact. The law designates the State Attorney General as the special prosecutor for cases of police brutality. This is aimed at reducing the conflict of interest inherent in the current system, where local prosecutors are asked to pursue claims against their allies in the local police department. Prosecutors and police normally have a close working relationship, and DA campaigns often welcome contributions from police unions. It’s not realistic to expect them to set that aside in cases of police brutality. The new legislation, a repeal of the statute known as 50-a, also allows police disciplinary records to be made public. This will help communities to identify some of the most problematic individuals on their police forces.
Taibbi writes with the goal of providing us with empathy for Eric rather than any overarching theory. He gives some limited historical context, describing, for instance, a murder of a black man by Arkansas police that went unpunished in the 1970s. He does not express an opinion as to whether or not all policing is inherently oppressive. He does not consider how the antebellum South’s fear of slave revolts and runaway slaves led it to develop the first modern police forces in the country. He does not examine how many Western policing practices were invented by colonial occupying forces attempting to pacify subject populations.
Despite that limitation, this book is an excellent work of journalism. Taibbi shows where we are at right now, both the city of New York and the nation. He illustrates how the current NYPD prioritizes its own institutional self-preservation and the convenience of the wealthy. He shows how the department neglects the needs of the poor and the rule of law. He provides ample evidence that the current system is dysfunctional and would be difficult to reform. Where we go next is up to us.
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