Evaluating Conservative Attacks On The Garner Grand Jury

Mark Davis
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Posted: Dec 05, 2014 12:01 AM
Evaluating Conservative Attacks On The Garner Grand Jury

Like most people across the political spectrum, I approach the Eric Garner arrest video with the requisite amount of dread.

What a shame. What a tragedy. What an unsettling thing to see a man on the day of his death, a premature end following a few moments of conflict with New York City police officers.  

Like many conservatives, I have just spent several days standing up for the Ferguson grand jury as it relied on actual evidence to reach a decision in the case of Michael Brown. Those of us who took that stand weathered the attacks of unhinged factions who relied on virtually anything but facts as they fueled a false narrative of a “Gentle Giant” blown away by a racist white police officer. 

Amid hopes that cooler heads will prevail as Ferguson fades in the rear view, along comes another non-indictment in the case of a black suspect dying after an interlude with a white officer. 

I braced for more reflex cries of racism, more shenanigans from race-baiters, more protesters taking to the streets driven by the baseless narrative that white cops are itching to kill black folk. 

All of these unfolded on cue. What I did not expect is a cry of disagreement from conservatives against the New York grand jury, a burst of emotion as undeserved as the venom leveled against Ferguson jurors. 

The Michael Brown and Eric Garner deaths are quite different. One involved a violent criminal shot while attacking a police officer, a case whose particulars are clear even without video. The other involves famously watched and re-watched video that nonetheless yielded differences of opinion. 

The debate over Garner seems principled and thoughtful, containing several key questions: Did this arrest need to grow so heated so fast? Did those officers use too much force? Did their restraint of him rise to the level of criminality?  

These were some of the many matters processed by the citizens of the grand jury, and their ultimate decision was that no crime was committed in the attempted arrest of Eric Garner.

I expected pushback from Al Sharpton and Van Jones. I did not expect it from conservative voices at Fox News. 

Charles Krauthammer, a steadfast voice usually driven by razor-sharp clarity, found the grand jury’s decision “incomprehensible.” 

Judge Andrew Napolitano said “this is not a fair application of the law.”

Bill O’Reilly did not go into full wail at the non-indictment, but did share that he was “extremely troubled.” 

A perusal of their complaints reveals an unfortunate and hopefully momentary surrender of logic to emotion, a trait all three had spent the previous week criticizing in others. 

I’m not immune to the power of the Garner video. I wish I could jump into a time machine and prevent the whole sad thing from happening. I would not go back to the point of the takedown, however. I would go back farther to counsel Mr. Garner on the ill wisdom of resisting arrest— or maybe back even farther, to offer suggestions against breaking the law in the first place. 

But while we cannot jump back in time, we most surely can put aside our visceral reactions to the video in order to put ourselves in the shoes of the grand jurors. 

They were not asked whether the video upset them. They were not asked if the events were disturbing to watch. They were not asked whether the arrest went flawlessly. 

They were asked whether Officer Daniel Pantaleo broke the law in the dispatch of his duties. Their answer was no. 

If they had chosen to indict, I would have respected their decision. Unlike Ferguson, the Garner case presents a wide swath of reasonable options. The decision not to indict is surely well within that range, and deserves to be spared criticism from people who are following some other drumbeat. 

Krauthammer advocated an involuntary manslaughter charge “at the very least,” tapping into two facts that are entirely irrelevant: “The guy was unarmed and the crime was as petty as they come.” 

Excuse me? This cries out for another Charles— Barkley in this instance— to sit down and explain to one of America’s top thinkers what was at issue here. “When the cops are trying to arrest you, if you fight back, things go wrong,” the NBA legend told
CNN

this week. 

That is why Mr. Garner is dead. His lack of a sidearm and the absurdity of the law he broke are of no consequence in a case of an enormous man with vast health problems choosing to fight police making a lawful arrest. 

Napolitano also obsessed on the admittedly stupid law Garner broke, calling the arrest a “use of deadly force on a person who posed no serious or material threat to the police.”

Wow. Don’t let Barkley go just yet, he needs to spend some time with Judge Nap as well. Someone surely needs to, so that this learned no-nonsense judge can refamiliarize himself with the meaning of “deadly force.” 

A force is not deadly if you expire in large part due to your own self-created fragile health. While the medical examiner ruled that Garner died as a result of the restraint used against him, the findings also noted that his condition was a vital factor. He was unable to keep his job with the city Parks Department due to his inability to walk even short distances.

And the notion of Garner “posing a threat” is a straw man argument beneath a wise jurist. No one argues that Garner put the officers’ lives at risk. They responded as they did because a sizable suspect was refusing to cooperate. Period. 

Amid this wayward chorus, we should thank O’Reilly for not piling on to grand jurors who evaluated evidence as thoughtfully as their Ferguson counterparts. But Bill did join the wave of reactions based not on police procedure but on gut reaction to the video. 

“Upon seeing the video that you just saw, and hearing Mr. Garner say he could not breathe, I was extremely troubled. I would have loosened my grip. I desperately wish the officer would have done that.” 

Bad spin there, Bill. 

The most basic police training teaches that suspects will say or do anything to avoid being taken into custody. “I can’t breathe,” “You’re hurting me” and other laments are foisted on arresting officers all over America every day. Officers must rely on applying force within the law and within police department rules, not relenting every time a suspect complains of discomfort. Police training requires decisive and often aggressive action when resistance arises. Hesitation can be fatal.  

“He didn’t deserve that,” O’Reilly concluded, and on that point he is right. But this is another departure from what grand juries actually consider. 

This grand jury was not even called to evaluate the so-called “choke hold,” a matter not of law but of department policy. Even if that hold was used— and that is debated— it would expose Officer Pantaleo to professional sanction, not criminal prosecution. 

In order to indict, the grand jury would have had to find reckless disregard for Garner’s safety, a fair expectation that the officers knew he could die, and perhaps even a callous disregard for that danger. 

Finally, they would have had to find that the death was more attributable to police action than to Garner’s regrettable health. 

The grand jury would have had to reach these conclusions not from feelings in the pit of their stomachs but from a clear-eyed expectation that such claims could be asserted in court beyond a reasonable doubt. 

In their sincere judgment, that bar was not met. That is a judgment that deserves respect, even if it is in the form of respectful disagreement.  

I do not want for one moment to adopt the suspicion harbored by some, that conservatives chastened by battles over Ferguson are feeling a responsibility clamor for an indictment in the Garner case in order to assert some ill-defined bona fides for even-handedness. I would never assert this about the three gentlemen mentioned here, whom I respect profoundly. 

But their reactions are not sprung from the proper place for evaluating grand jury actions, in this case or any other. If we are going to lecture people about wandering away from the facts and the law in controversial arrest cases, we had best not take side trips ourselves.