No indictment for Eric Garner unites the right and the left… for now

In a way, this is all eerily familiar. The failure of a New York City grand jury to indict a police officer who killed a large African-American man for resisting arrest seems prima facie to be quite similar to the facts of the case which set the town of Ferguson ablaze.


But the similarities end there. The Eric Garner’s killing was captured on camera. He was confronted by a number of NYPD for being suspected of selling loose cigarettes, and for robbing the city of the exorbitant taxes placed on the sale of that product. Thought to be resisting arrest, he was jumped on by several officers – one of whom used a prohibited choke hold on the suspect. Garner, a heavyset man who suffered from pulmonary issues, succumbed and later died as a result of the injuries he incurred in that altercation. While it was not a finding of criminal intent, a coroner later ruled Garner’s death a homicide.

Despite these facts, a grand jury determined that no criminal indictment could be handed down.

The left is predictably up in arms over this incident. Too many have reflexively determined that Garner’s race had everything to do with both his killing and the failure of a grand jury to indict his killer. That is a statement of faith. There is, however, some consensus forming across the political spectrum that this case was not properly adjudicated.

“He carried no weapons. He did not shove or attack any police officers in such a way to be considered an imminent threat to their health and safety,” The Federalist’s Sean Davis wrote. “No, his apparent crime was selling cigarettes without paying taxes on them. And for that, he was killed.”

New York’s statutes on manslaughter are pretty unequivocal. Just going on the plain language of the law, the police officer who killed Garner certainly appears to be guilty of second-degree manslaughter at the very least:

§ 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes her death,
unless such abortional act is justifiable pursuant to subdivision three
of section 125.05; or
3. He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony.


Davis was not alone. Allahpundit has curated a broad swath of opinion on the right, all of which seems to indicate that few are comfortable with this grand jury’s decision. There are ways in which this consensus can lead to a positive outcome but only if the tribal partisans on the right and the left refrain from hurling recriminations toward one another.

While there will be welcome debate about these and other points of agreement, there is a measure of consonance across all political dispositions that some of these conditions need to be addressed. And immediately:

• The use of excessive force by police: This is something which may be addressed by the insistence that law enforcement be required to wear body cameras at all times, a measure which New York City is beginning to implement. While it did not prevent undue force in this case or lead to an indictment when that force was applied, it will nevertheless impose some restraint on officers encountering a similar situations in the future.

• The state-level reformation of the grand jury process: The fact that a grand jury could not find probable cause to go to trial when an illegal hold resulted in a homicide, but could find sufficient evidence to indict the person who filmed this incident (on a gun charge) shouldn’t sit well with anyone. The fact that evidence presented in a grand jury proceeding is not made available to the public unless there is sufficient outcry is a subjective and problematic determination.


• Unrealistic evidentiary burdens: While police should be and are subject to levels of protection for doing their jobs that are not extended to civilians, there are limits. It is possible that the bar for criminality is set a tad too high in some cases, particularly when the circumstantial evidence is as damning as it is in this case.

• Contraband laws and the criminalization of the nonviolent: There is no reason why a person should be subject to arrest for selling loose cigarettes when that same person would only be subject to a ticket for carrying up to two ounces of marijuana. No law enforcement officer can decline to perform his or her job, which was in this case to execute an arrest on a nonviolent offender that went horribly wrong. But should police have to be put in this position?

All of this consensus goes right out the window the minute partisan accusations begin being hurled about. When the right accuses the left of being soft on criminality or defending the practice of resisting arrest, the targets of this criticism will become understandably defensive, and opportunities for cooperation will disappear. Similarly, when the left – as many already are – suggest that police violence is the result of unfalsifiable racial animus which is both condoned and shared by Republicans and conservatives, the right will justifiably circle the wagons.


Here’s hoping that something constructive comes from this horrible incident in which there are no heroes. Unless aggrieved partisans start valuing reform and compromise over point-scoring, it will be next to impossible for anything other than stasis and mistrust to arise out of this regrettable event.

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