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Grand jury

Thoughts on the Death of Eric Garner

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Eric Garner, of New York, died on July 17, 2014. He had been confronted by police about selling loose cigarettes (sold that way to avoid the city tax) and during this encounter Officer Pantaleo put him in an apparent chokehold. Garner died from “neck compression” and “the compression of his chest and prone positioning during physical restraint by police.” Not surprisingly, the use of chokeholds is banned by the New York City Police Department. On December 3, 2014 a grand jury decided not to indict the officer, although the coroner had ruled Garner’s death a homicide.

This failure to indict follows a familiar pattern: though grand juries almost always indict non-police, they almost never indict police. As I have said before, perhaps this is because there is almost always probable cause to indict the non-police and almost never enough to indict police. Some might, however, contend that this disparity is grounded in injustice.

In general, the media pundits have been critical of the way the police handled the situation and the verdict of the grand jury. Bill O’Reilly and many people at Fox News fall into this camp and this has dismayed some Fox viewers. There are, however, media pundits that have blamed Garner for his own death. The justifications they advance are fairly stock ones and were also deployed in response to the death of Michael Brown, who was shot to death by an officer in Ferguson, Missouri. Because these approaches are often commonly used in such situations, they are worth considering.

One advanced by Representative Peter King is that Garner died because he was obese. On the one hand, King might be right: Garner’s health issues most likely played a causal role in his death. If he had been in good health, then he might not have been killed by what seems to have been a chokehold.

There are two obvious responses to this. The first is that the officer should not have been using a chokehold—there is a good reason that the police department forbids officers to use this technique. This reason is that it is easy to badly injure or kill someone using this attack. While the police can legitimately use force, there are many other techniques that are effective and far less likely to severely injure or kill a person.

The second is that police have a moral obligation to consider the condition of the person when engaging a suspect. This includes both the initial condition of the person (such as being in poor health) as well as what is happening to a person. While the police have the right to restrain a suspect, this comes with the obligation not to needlessly injure or kill the person.

To be fair to the police, it is not always easy to tell whether or not someone has a condition that might make him more likely to be injured or killed. In the heat of a struggle it can also be difficult to tell when a person is being injured. However, in some cases it is quite clear that a person is being subject to needless injury—which seems to be the case with Garner.

Rudi Giuliani and others advanced two justifications. The first is that Garner was a criminal and the second is that Garner resisted arrest. These were also advanced in the case of Michael Brown, although the officer who shot Brown apparently did not know Brown had robbed a store earlier.

In general, being a criminal does change a person’s status and does justify the police taking action against the person. So, if Garner was breaking the law, then the police would be right in arresting him. Likewise, if Brown robbed the store, then the police would have been justified in arresting him. Naturally, there are moral exceptions in the case of unjust laws and evil states. Interestingly, some of those speaking out in this case have focused on the cigarette tax law that Garner is alleged to have violated rather than on Garner’s death.

While the police do, in general, have the right to arrest criminals, this is rather different from making it acceptable for the police to kill alleged criminals. After all, criminals have the right to a trial and justice should not be meted out by the barrel of a gun or by a chokehold.

Naturally, the police can be justified in using force and even lethal force against criminals—but the mere fact that a person is (or is alleged to be) a criminal is not sufficient to justify killing him. Not surprisingly, this is where the second justification comes into play, namely that Garner was resisting arrest.

If it is assumed that the arrest is morally legitimate, then the person being arrested does not have the right to resist that arrest. Since what is legal is not the same as what is moral, there can be unjust laws and there clearly can be evil governments. However, for the sake of the discussion, let it be assumed that the police were acting in the right when trying to arrest Garner and that as such he did not have the moral right to resist. This can, of course, be debated.

Even if it is granted that Garner did not have the right to resist, there is still the question of whether or not his resistance justifies his death. I do agree that there can be cases in which resistance does morally justify the use of lethal force. For example, there was a tragic shooting in my own city of Tallahassee. A former Florida State University student shot people at the FSU library and fired at the police when they arrived. They returned fire, killing him. While it would have been preferable for the police to have not killed him, that was their only viable option to protect the civilians in the area and themselves.

From a moral standpoint, the police are justified in using the force needed to subdue the person (assuming they are otherwise acting morally) but not excessive force. While an officer does have the right of self-preservation, the officer is also morally obligated to accept some risks so as to avoid inflicting unnecessary harm or death. This is not just true of the police—it is true of everyone. For example, a drunken person once tried to punch me while I was running. I easily blocked the swing (black belt and all that). I could have punched or kicked him in return, but did not do so—I could have seriously hurt him. He decided to run away into the crowd, so I continued with my run. I did what I needed to do to defend myself—any more force would have been unwarranted. I did take a chance—the person could have attacked again or pulled a knife. But, a disproportionate response made from fear would be unwarranted.

In the case of Garner, it is clear that he does resist arrest, but in a fairly minimal way—he is not actively attacking but merely trying to avoid being grabbed. Then he is put into what appears to be a chokehold and brought to the ground, which results in his death. Given the situation, it seems clear that far less force (or even more conversation) would have sufficed and Garner would most likely still be alive.

One could argue that his size was such that he presented a clear threat that required such force and his death was a surprise to the police resulting from him being more vulnerable to choking than he appeared. That is, they honestly believed they were using the proper amount force and the proper techniques and the death was just a terrible accident. Having been in the martial arts, I do know it is easy for a person to get badly hurt even when there is no intention of such harm—that is well worth considering. Like most men, I’ve been hurt (and hurt others) when just playing around at rough housing.

That said, the police are supposed to be trained properly in the use of force and they are supposed to follow the guidelines—which, in this case, expressly forbid chokeholds. They are also morally responsible to be aware of what is happening to a person they are engaging. Given what occurred in the video, it seems clear that Garner’s death was unjustified.

Overall, the pundits that are endeavoring to blame Garner for his death are in error. It is true that if he was not suspected of a crime and if he had not resisted arrest, then he would probably still be alive. But, it is also true that if the police had used proper procedures and proportional force (or tried talking more), then he would probably still be alive. Even if a person commits a crime and resists arrest, it does not follow that his death is justified.

 

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Protests, Peaceful and Otherwise

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In response to the nighttime announcement of the Ferguson verdict in which officer Wilson was not indicted, some people attacked the police and damaged property. Some experts have been critical of the decision to make the announcement at night, since the time of day does actually influence how people behave. In general, making such an announcement at night is a bad idea—unless one intends to increase the chances that people will respond badly.

Obviously enough, peacefully protesting is a basic right and in a democratic state the police should not interfere with that right. However, protests do escalate and violence can occur. In the United States it is all too common for peaceful protests to be marred by violence—most commonly damage to businesses and looting.

When considering reports of damage and looting during protests it is reasonable to consider whether or not the damage and looting is being done by actual protestors or by people who are opportunists using the protest as cover or an excuse. An actual protestor is someone whose primary motivation is a moral one—she is there to express her moral condemnation of something she perceives as wrong. Not all people who go to protests are actual protestors—some are there for other reasons, some of which are not morally commendable. Some people, not surprisingly, know that a protest can provide an excellent opportunity to engage in criminal activity—to commit violence, to damage property and to loot. Protests do, sadly, attract such people and often these are people who are not from the area.

Of course, actual protesters can engage in violence and damage property. Perhaps they can even engage in looting (though that almost certainly crosses a moral line). Anger and rage are powerful things, especially righteous anger. A protestor who is motivated by her moral condemnation of a perceived wrong can give in to her anger and do damage to others or their property. When people damage the businesses in their own community, this sort of behavior seems irrational—probably because it is. After all, setting a local gas station on fire is hardly morally justified by the alleged injustice of the grand jury’s verdict in regards to not indicting Officer Wilson for the shooting of Brown. However, anger tends to impede rationality. I, and I assume most people, have seen people angry enough to break their own property.

While I am not a psychologist, I do suspect that people do such damage when they are angry because they cannot actually reach the target of their anger. Alternatively, they might be damaging property to vent their rage in place of harming people. I have seen people do just that. For example, I saw a person hit a metal door frame (and break his hand) rather than hit the person he was mad at. Anger does summon up a need to express itself and this can easily take the form of property damage.

When a protest becomes destructive (or those using it for cover start destroying things), the police do have a legitimate role to play at protests. While protests are intended to draw attention and often aim to do so by creating a disruption of the normal course of events, a state of protest does not grant protestors a carte blanche right to interfere with the legitimate rights of others. As such, the police have a legitimate right to prevent protestors from violating the rights of others and this can correctly involve the use of force.

That said, the role of rage needs to be considered. When property is destroyed during protests, some people immediately condemn the destruction and wonder why people are destroying their own neighborhoods. In some cases, as noted above, the people doing the damage might not be from the neighborhood at all and might be there to destroy rather than to protest. If such people can be identified, they should be dealt with as the criminals they are. What becomes somewhat more morally problematic are people who are driven to such destruction by moral rage—that is, they have been pushed to a point at which they believe they must use violence and destruction to express their moral condemnation.

When looked at from the cool and calm perspective of distance, such behavior seems irrational and unwarranted.  And, I think, it usually is. However, it is well worth it to think of something that has caused the fire of righteous anger to ignite your soul. Think of that and consider how you might respond if you believed that you have been systematically denied justice. Over. And over. Again.

 

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Some Thoughts on the Ferguson Verdict

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In August of 2014 police officer Darren Wilson shot the unarmed Michael Brown to death. On November 24, 2014 a grand jury in Missouri failed to indict police officer Darren Wilson. Like most Americans, I have some thoughts about this matter.

In the United States, a grand jury’s function is to determine whether or not there is probable cause to prosecute. This level of proof is much lower than that of a criminal trial—such a trial requires (in theory) proof beyond a reasonable doubt. Unlike in a criminal trial, the grand jury is effectively run by the prosecutor and the defense has no real role in the process. As might be suspected, grand juries almost always indict. Almost always, that is, unless the person under consideration is a police officer who has killed someone. In such cases the officer is almost never indicted. As such, the decision in the Wilson case is exactly what should have been expected.

Now, it might be that the reason that police officers are almost never indicted for killing is that nearly all the killings are justified. In contrast, the reason that non-officers are almost always indicted is that there is almost always legitimate probable cause. This is, obviously enough, not impossible.

Of course, the real concern here is not with the grand juries in general, but with this grand jury in particular. According to the various news reports and experts, Wilson received a “gold plated” grand jury in terms of how it was handled by the prosecutor and the state. To be specific, the grand jury seemed to be run in such a way that Wilson received exceptionally good treatment in regards to the case. This is in contrast with the sort of grand jury treatment other citizens typically get, which have been described as “tin plated.” In these grand juries an indictment is almost a forgone conclusion. This is not to say that Wilson’s grand jury involved corruption or misdeeds. Rather, the point is that there is a stark contrast between the sort of grand jury that a typical citizen will receive and the one that Wilson received.

This distinction in treatment is one reason that people are justifiably angry about the matter. After all, a proper justice system would treat everyone equally—everyone would get the “gold plated” grand jury (or the “tin plated” one) rather than getting the sort of justice deemed fit for the person’s race, class, or profession. This sort of disparity is yet one more example of the injustices of our justice system.

Naturally, I am well aware that the real does not (and probably cannot) match the ideal. However, this sort of appeal to the real is more of an acceptance of the problem than a refutation of criticisms of the problem. Also, I do not expect a perfect system—merely a reasonably fair one.

In addition to the nature of the grand jury, there is also obviously the central issue: was Wilson justified in shooting Brown to death? In this case, the justification is grounded on the principle of defense of life: an officer is justified in using violence to protect his life or that of an innocent person when he has an “objectively reasonable” belief that there is such a threat. In Wilson’s case, the shooting of Brown would be warranted if Wilson had an “objectively reasonable” belief that Brown presented such a threat. Since the justification is based on the reasonable belief in a threat, the warrant for the use of force ends when the threat ends.

According to the information released to the public, there is evidence that Brown had close contact with Wilson, which is consistent with Wilson’s claim that Brown attacked him and tried to take his gun. Brown died a considerable distance from Wilson and this raises the legal and moral question of whether or not Wilson still had an “objectively reasonable” belief that Brown still presented a threat that could only be dealt with by lethal force. The grand jury decided that he did, which settles the legal aspect of the case. However, there is still the matter of the moral aspect—was Wilson actually warranted in killing Brown?

On the one hand, when one considers that Brown was unarmed and too far from Wilson to attack him, then it would be reasonable to consider that Wilson was not justified in killing Brown.  On the other hand, if Brown appeared to be charging towards Wilson, then Wilson could be justified in shooting him. Since Wilson was not shot in the back, it does seem clear that Brown was facing Wilson—but facing someone is not the same thing as being a threat. Unfortunately, there is no video of the incident and the eye-witness reports conflict (and eye-witness reports, even given in all honesty, are not very reliable). Since Brown is dead, we only have Wilson’s side of the story. As such, one cannot be certain whether Wilson was justified or not, assuming a right to kill when one has an “objectively reasonable” belief that one is threatened.

This principle can, of course, be challenged. Some people take the principle to set a very low threshold—an officer just has to feel threatened in order to be warranted to use deadly force. This, as might be imagined, can be seen as a threshold that is too low. Some states do give citizens the same right (against other citizens) as shown in the various infamous stand your ground laws and these have proven rather problematic. Others take the view that the principle itself is reasonable—after all, it essentially expresses John Locke’s principle that force can be used to protect one’s life or the lives of the innocent. But, even if the principle is reasonable, there is also the question of whether or not it is applied correctly. My view is that the use of lethal force requires a comparable threat to justify it, on the principle of a proportional response. That said, one must also consider the practicalities of combat situations—it can be difficult to judge intent and the heat of a fight can easily change a person’s perceptions.

As one final point, even if Wilson was justified in shooting Brown, the perception remains that the police and the justice system treat black Americans very different from white Americans. Not surprisingly, some white people doubt this and do so in all honesty—they are assessing the system from their experiences and assume that everyone else has the same sort of experiences as they do. However, one must look beyond one’s experiences and consider those of others. While no one can completely get the experience and being of another, it would be a good thing for white folks to give some thought to what it is like to be non-white in America.

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