Saturday, December 6, 2014

Why Eric Garner Might Be Different

In USA Today, David Boaz writes "Eric Garner could spark American Spring." It's worth a read. Why would the Garner killing (by police choke-hold) be different from the many others? Boaz hits most of the high points--but The Omnivore was going to write this article even before he read the Boaz piece. Here's why:

There's Video
A key piece of Vietnam War analysis is that a key difference between Vietnam and the "good war" WWII was, from a Public Relations perspective, the presence of TV cameras. Let's not over-state that: WWII had a lot more going for it anyway (an actual existential threat to the US, evil-personified in the Nazis, way more people involved all around)--but still, some stuff that was part of a planned mission (such as Fire-Bombing Dresden) would probably not have flown as well had there been cell-phone video for people to watch in their living-rooms.

Video is visceral, disturbing, and creates a massive sense of certainty (Let's also not overstate that either though: Video can be deceptive. It can be edited. It can be assessed and spun: The way Rodney King's attackers got off was a frame-by-frame assessment of the video that convinced the jury King was still trying to get up and keep fighting. Maybe that was true--or maybe not). If video exists, whatever its origins, for the vast majority of us, even in today's age of video-editing and special effects, seeing is believing.

There is Audio
In the Tamir Rice shooting, there's video at a distance--but no audio. The presence of the two gives us the disturbing, heart-breaking, "I can't breathe" (several times). Once again, this shuts down a window of speculation that could be used to drive a deeper wedge between potential partisans. If someone reported that Garner was saying "I'm going to kill you--KILL YOU ALL!!" while he was in the hold, we'd have several different (questionable) lip-reading forensic 'experts' weighing in.

With the audio, you get to hear what was there--and it's harder to NBC-edit too.

The Big One: It Breaks The Current Narrative
The Omnivore asserts that the odds are, if you supported Wilson (for whatever reason, including thinking he was probably attacked, if not necessarily), you very likely came down in defense of (a) the justice system as a whole and (b) specifically the grand jury system--which, after all, (if you supported Wilson) got it right.

Using our hypothetical time machine, though, The Omnivore goes back and says "Hey--how much do you think it would take for a grand jury to actually indict a cop?"

"Well,"you say (several days ago),"there would need to be pretty clear evidence that the cop was acting improperly--that there was no reasonable fear for their life--and that they over-reacted in their use of deadly force."

"What would it take," the Time-Travelling Omnivore asks, "Video?"

"Naw," your Back-In-Time-Self says, maybe even slightly smugly. "That'd be nice to have--but sufficient eye-witnesses all telling the same or mostly the same story ought to do it. Maybe a ccoroner report that showed his hands were up? That'd probably get the guy to trial at least."

"You sure about that?" Asks the Asynchronous Omnivore*.

"Pretty sure," your a-temporal self responds.

But today? Are you still that sure? Are you still that sure the grand jury in Ferguson got it right too?

You could still be--The Omnivore acknowledges there's a massive document dump that Ferguson had that NYC hasn't (yet). The stories we heard from witnesses did at least include those that would put Wilson under attack. Maybe some people even legitimately believed Wilson was probably guilty--but read all the material and came to the conclusion he wasn't. The Omnivore bets there weren't many of those, though.

If the grand jury system looks like, at least in some cases, it's simply dysfunctional (such as this one) then the rational for Wilson not having a trial collapses.

And Let's Note: Not All Grand Juries Are Created Equal
FiveThirtyEight finds that in the NYC borough, Staten Island, where the grand jury convened, the public sentiment is far more on the side of police than the rest of NYC. If the location of the grand jury is largely what matters in its findings (say, more than the facts?) then is the process broken? We (maybe) can't conclude the FiveThirtyEight is completely correct about this (and, to be fair, they don't say "the facts don't matter")--but the analysis is disturbing.

It Disrupts the Political DivideThere was a major conservative black-lash against the Garner verdict (in the articles--not as much the comment sections). The Omnivore is forced to wonder if this was partially due to many conservatives feeling betrayed by the grand jury system they had supported in Ferguson--but certainly there's a string of libertarian thought that killing the guy for selling cigarettes simply illustrates the "injustice inherent in the system."

And, well, there's video: if we could wonder what went down for a little under 2 minutes with Wilson and Brown, we don't have to wonder here. If you want a reason for bi-partisanship, you don't have to look much further than that.

What Now?
One of the harder things to deal with in the Garner case is that the Brown-Solution: police body cameras, doesn't sound like it would help, here does it? After all--the Garner cops were filmed (on the other hand, the guy doing the filming is in jail now--because, he says, of retaliation by police for filming them--so, uh, maybe it would help?).

But there's a reason to think that having cameras on and making sure the police know they're on all the time would help. There's a second Eric Garner video: this one shows the aftermath--around seven minutes of the cops hanging out around his dead body with no sense of emergency whatsoever. If you are wondering why (some) people are harping on the idea that "Black Lives Matter," wonder no more: watch the video.

Does it look like anyone cares all that much? Brown was in the street for four hours. While the person taking movies in both videos were certainly known by police, The Omnivore suspects that prevalent cameras--a knowledge that all encounters will be subject to review--could create far better behavior than we see today, even if it isn't "sincere." After all, the idea of an omniscient judge looking down at you all the time is a facet of religion that a lot of people thinks keeps society on the straight-and-narrow.

Just How Bad Is it Today, Anyway?
The Omnivore doesn't have a better place to put this--so it's going here: Scott Alexander dives into the data around the difference in how police treat blacks and whites (it's a long piece--but it's fascinating, and you should read it) and concludes that the state of racial relations is not, erm, black-and-white. There is a big delta in death-penalty for blacks and whites. There is some difference in sentencing and police stops--but it is not nearly as bad as The Omnivore had expected. On the other hand, here's PEW on how blacks and whites rate police:

The polling shows that blacks have little faith in the system at all--in some places by large majorities. If the numbers on policing (the Scott Alexander piece) show a certain amount of bias against blacks, the PEW study shows a massive amount of perceived bias. This is a problem all by itself: fixing behavior on the part of police can only address some of that gap. Consider how long American cars had to improve their quality before people had any faith in them again. It's also worth noting that the white numbers for excellent police behavior are pretty slim in places too.

Cameras would help. Independent review boards would help too (prosecutors must work with the police every day of their jobs for their entire career--one can see how indicting an officer could 'damage' that relationship). Changing the appearance of police to make them more friendly / less military looking would certainly help (there is evidence that the more you make someone look like a storm-trooper, the more they act like it).

In the end, all these things need to happen: because of Eric Ganer ... this time they might.

* The Omnivore knows that's not what it means.


  1. Kindly disregard the last comment - the URL was messed up.

    One big risk here is that in politics, as you know, perception often trumps reality (leaving aside, arguendo, that objective reality can be hard to come by and may never be fully known). This being the case, I've read rumblings of sentiment along the lines of "the System is hopelessly biased / broken". Some folks have claimed deliberate sabotage on the part of the prosecutors bringing the Brown and Garner cases, citing the stat that in 2010, U.S. attorneys prosecuted 162,000 cases - and their respective grand juries returned an indictment in all but eleven of them. As has been noted by Ben Casselman in FiveThirtyEight, that almost-unbelievable 99.993% "success" rate does not hold in cases against LEOs. Indeed, Casselman quotes former New York State Chief Judge Sol Wachtler as saying that a prosecutor could persuade a grand jury to “indict a ham sandwich.”

    Perhaps not if the sandwich was wearing a badge, though.

    As you've said, the available evidence in the Brown case appeared to be sufficiently ambiguous and/or contradictory that a grand jury might, through a narrow reading of the law (not counting the part which was overturned as unconstitutional and about which they were allegedly badly misled), plausibly fail to return an indictment. The Garner case looks much less equivocal; nobody deserves to die for selling loosies on the sidewalk, and chokeholds are sufficiently dangerous that the NYPD saw fit to prohibit them 20 years ago. As both of us are well aware, a blood choke can easily turn into a lethal air choke if improperly applied - how likely is it that Officer Pantaleo was properly trained and practiced in a long-banned restraint technique?

    Worth noting, by the way: some experts have speculated that it wasn't the chokehold per se that killed Garner, but something termed Restraint-Related Positional Asphyxia, which can result from being pinned facedown on a hard surface.

    Anyway, very dangerous precedents here. If we reach a tipping point, it will only become visible in retrospect.

    -- Ω

    1. I agree that it's very unlikely the officer had any applicable training in choking--but even if the guy was a black belt in BJJ it'd be unlikely the guy had experienced a lot of positional asphyxia (I do wonder if Garner had tapped if Pantaleo would've let up--just because).

      However, it's hard to figure out what happened to:
      "I can't breathe."
      "Okay, man--I'm gonna let you up. You gonna behave?"
      " (GASP) Yeah."

      I mean, was the intent to choke him unconscious? I don't know.

      Also: I think that the lack of indictment can be reliable but not be 'sabotage.' The prosecutor has to work with the PD for-evah. If we have to assume who believes cops vs. civilians more often, the prosecutor is an Ockham's Razor bet over a jury every time.

      Anyway: yes to all of that (who knows--maybe grand juries just don't indict cops out of choice--but I doubt it). I think that between Tamir Rice and Garner it's pretty clear that there is a *lethality* problem with American PDs--even if the bias isn't statistically that strong (that is: one unjust death is too many and we've got several very good candidates in a short time).

      -The Omnivore