I've managed to offend my friends and delight my critics by asserting that the Staten Island grand jury was correct not to indict New York police officer Daniel Pantaleo for the killing of Eric Garner. Indeed, folks on the other side of the color line accuse me of succumbing to white privilege, or worse.
The accusations hurt, but my analysis remains the same: While Garner's death was tragic, as are all deaths related to a person being taken into police custody, it is not the result of a crime.
I've earned a healthy respect for the work of law enforcement officers the hard way—by going toe-to-toe with them in criminal and civil proceedings. I've attacked, berated and questioned the tactics of officers in all sorts of cases. What I've learned along the way is the overwhelming majority of them are men and women of good will.
We ask a lot of police officers. They represent the state in the tense and uncertain confrontations pitting public authority against individuals in difficult circumstances. That some of the officers err, even grievously so, is not a sign of systemic racism or oppression. It is a sign of the fact that the human instrument can never be calibrated to perfection.
The German sociologist Max Weber once argued that the state has a monopoly on the legitimate use of force. By its very nature, public authority can compel obedience. Police officers are the face of the state.
Garner was about to be taken into custody, either as an arrestee or to answer questions about complaints he was selling loose cigarettes, known as "loosies," on the street. It was a trifling offense but the officers on the beat did not write the law. Their task was to enforce it.
When the officers approached Garner, he protested, he backed up, he put his hands up, and he did not comply with commands to submit. The YouTube video of this confrontation is a textbook example of a takedown, a technique taught to officers to compel compliance by those resisting them. Officer Pantaleo did use a prohibited chokehold on Garner, and for that there should be consequences.
But Garner was required as a matter of law to submit to the decision to take him into custody.
He doesn't get angry-man immunity, or a free pass just because the officers were white and he was black. Suggesting otherwise is its own form of racism, although a white man who suggests this will be vilified.
Critics of the chokehold and takedown are right to complain about secret grand jury proceedings. The decision to use force should be subject to public review and scrutiny.
Congress would be wise to require unreasonable force claims to be heard by a civil jury, and to deprive the courts of the power to grant summary judgment or a motion to dismiss such claims. The work of juries can serve as a source of legitimacy.
If Officer Pantaleo used a prohibited hold, he, or his department, should be held liable for money damages. But prosecuting cops for crimes in such circumstances is obscene.
I've been stunned by the number of criminal defense lawyers calling for the prosecution of Pantaleo. How many of them would refuse his call if he were indicted and called them for help?
Policing is dangerous and difficult work. We live in dangerous and difficult times where many communities cannot distinguish the activities of a gang from the work of police officers. Public trials of cases involving police misconduct are necessary to assure that we the people can see what is being done in our name, and make judgments about what we will tolerate.
As the reaction to the Eric Garner killing shows, there are deep divisions in the United States, divisions that suggest that our institutions are far more fragile than one might suspect. Some of these divisions fall along race lines; some fall along class lines. Secret proceedings fuel anger and suspicion and merely deepen these divides.