BROKEN WINDOWS

12.03.14 8:10 PM ET

Eric Garner Was Choked to Death for Selling Loosies

A grand jury has refused to indict the officer responsible for Eric Garner’s death. Now we need to change the insane policies that lead to his killing.

The controversial deaths of African Americans Michael Brown in Ferguson and Eric Garner in Staten Island at the hands of white police officers don’t just speak to racial divides and raise questions of discriminatory law enforcement in America.

In very different but related ways, they raise fundamental questions irrespective of race about how policing gets done. Unless we want to subject ourselves to endless repeats of similarly tragic events, we need to confront and work through both the militarization of police and commitments to so-called broken windows policing.

In August, Brown was shot and killed during a struggle with Ferguson Police Officer Darren Wilson, who was ultimately not indicted by a grand jury. Whatever else you can say about the case, it was the ham-fisted overreaction to protests by the Ferguson and St. Louis County police forces and the Missouri National Guard that catapulted the story to prominence. The Ferguson story captured the national conversation because it showcased the ubiquitous militarization of police that has been proceeding apace, often with the help of liberal politicians, during the past 40 or more years.

Indeed, just earlier this week, four members of the Congressional Black Caucus made a “hands up” gesture on the House floor to show solidarity with Brown and Ferguson protesters. Yet each of the members who raised their hands—Yvette Clarke, Al Green, Sheila Jackson Lee, and Hakeem Jeffries, liberal Democrats all—voted against “an amendment in June that would’ve limited the transfer of military equipment from the Department of Defense to local police agencies.”

Similarly, Garner’s death in July after being placed in a chokehold is not simply about race. It’s about community policing and the ability of top brass to enforce restrictions on beat cops’ behavior. As cell phone footage of the incident makes clear, the police approached the 43-year-old Garner after he had helped to break up a fight on a busy street in Staten Island. The cops were less interested in the fight than in asking Garner whether he was selling loose cigarettes or “loosies,” which is illegal. “Every time you see me, you wanna arrest me,” says Garner, who had a rap sheet for selling loosies and was in fact out on bail when confronted.

Footage of the incident shows New York Police Department Officer Daniel Pantaleo placing Garner in the chokehold that was the main cause of death according to the coroner, who further ruled the death a “homicide.” (Police at the scene initially claimed that the asthmatic, 350-pound Garner had suffered a heart attack). Like Wilson, Pantaleo was not indicted.

Why were the cops so hell-bent on stamping out the sales of loosies, which typically sell for 75 cents a pop in Staten Island (and two times or more that in Manhattan)? New York City boasts the highest cost for cigarettes in the nation, with a pack ranging anywhere from $12 and up. The city lays its own taxes on top of the state’s, in an effort both to raise revenue and discourage use of tobacco.

The result is a thriving market in sales of loosies and black-market cigarettes more generally (for a fascinating look of how the market in loosies operates, check out this 2007 study published by the National Institutes for Health). Since 2006, the tax on cigarettes in New York have risen 190 percent and cigarette smuggling has risen by 59 percent, writes Lawrence J. McQuillan of the Independent Institute. Whether it’s liquor, drugs, or cigarettes, when you try to stamp out something consenting adults want, you cause as many or more problems as you ameliorate.

Stretching back to the Rudy Giuliani years, the NYPD has been committed to “broken windows” policing, which focuses on stamping out misdemeanor offenses and “quality of life” issues such as graffiti that proponents say lead to more serious crime. “Murder and graffiti are two vastly different crimes,” Giuliani argued in the 1990s, “but they are part of the same continuum, and a climate that tolerates one is more likely to tolerate the other.”

Protestors shout at Times Square after it was announced that the New York City police officer involved in the death of Eric Garner is not being indicted, Wednesday, Dec. 3, 2014, in New York. A grand jury cleared the white New York City police officer Wednesday in the videotaped chokehold death of Garner, an unarmed black man, who had been stopped on suspicion of selling loose, untaxed cigarettes, a lawyer for the victim's family said. A video shot by an onlooker and widely viewed on the Internet showed the 43-year-old Garner telling a group of police officers to leave him alone as they tried to arrest him. The city medical examiner ruled Garner's death a homicide and found that a chokehold contributed to it. (AP Photo/Julio Cortez)

Julio Cortez/AP

Last January, the city passed stronger penalties for selling loosies and other illegal cigarettes and in early July, reports the Daily News. The NYPD’s Chief of Department, Philip Banks, specifically called for crackdowns on loosie sales in Staten Island. “Among the specific public complaints of illegal activity in that area included the sale of untaxed cigarettes as well as open (alcohol) container and marijuana use and sale offenses,” an NYPD spokesman told the News.

Police Commissioner William Bratton introduced broken windows policing to the NYPD when he was first hired by then-Mayor Rudy Giuliani in 1993, and he is continuing its use while serving under current Mayor Bill de Blasio. But just as the response to Ferguson protests raised questions about the sagacity of outfitting local cops with military grade weapons and gear, the death of Garner and other non-violent suspects is forcing a debate over broken windows. “I don’t think it’s a necessary police tactic,” City Councilman Andy King told the News. Councilwoman Inez Barron argued that “such enforcement ‘leads to confrontations like this [one].’”

As in most cases involving social science and broad cultural trends, supporters and critics of broken windows policing can marshal seemingly irrefutable evidence in favor of their position. There’s little question that New Yorkers support arrests for low-level offenses. A Quinnipiac Poll of New Yorkers in August found that 60 percent of respondents agreed that “when a cop enforces some low-level offense…it improve[s] quality of life.” Only 34 percent said it increased neighborhood tensions, with “very little difference among black and white voters.”

Yet clearly something has gone horribly wrong when a man lies dead after being confronted for selling cigarettes to willing buyers. Especially since, as even Bratton has acknowledged, the chokehold applied by the restraining officer is prohibited by the NYPD’s own rulebook. Does the commissioner really control his officers, and is it time to rethink nanny state policies that create flourishing underground markets?

The conversation over the militarization of police started by Ferguson is well under way and has already yielded real change: In the name of transparency, more police departments and the federal government are calling for the use of wearable body cameras that will at least capture parts of confrontations like the one that ended in Michael Brown’s death.

It’s past time to have that same sort of open conversation about broken windows policing. It’s safe to say that noboby thinks selling loosies is a capital offense, but if the police cause the death of a man they are taking into custody by using chokeholds, things get pretty murky very fast.