The Police in America Are Becoming Illegitimate

The crooked math that's going to crash American law enforcement if policies aren't changed

By
Eric Garner
Hundreds of protestors gather at Foley Square in New York City on December 4th, 2014. Cem Ozdel/Getty

Nobody's willing to say it yet. But after Ferguson, and especially after the Eric Garner case that exploded in New York yesterday after yet another non-indictment following a minority death-in-custody, the police suddenly have a legitimacy problem in this country.

Law-enforcement resources are now distributed so unevenly, and justice is being administered with such brazen inconsistency, that people everywhere are going to start questioning the basic political authority of law enforcement. And they're mostly going to be right to do it, and when they do, it's going to create problems that will make the post-Ferguson unrest seem minor.

The Garner case was a perfect symbol of everything that's wrong with the proactive police tactics that are now baseline policy in most inner cities. Police surrounded the 43-year-old Garner after he broke up a fight. The officers who responded to that call then decided to get in Garner's face for the preposterous crime of selling "loosies," i.e. single cigarettes from a pack.

When the police announced that they were taking him in to run him for the illegal tobacco sale, Garner balked and demanded to be left alone. A few minutes later he was in a choke hold, gasping "I can't breathe," and en route to fatal cardiac arrest.

On the tape you can actually hear the echo of Garner's years of experience with Broken Windows-style policing, a strategy based on a never-ending stream of small intrusive confrontations between police and residents in target neighborhoods.

The ostensible goal of Broken Windows is to quickly and efficiently weed out people with guns or outstanding warrants. You flood neighborhoods with police, you stop people for anything and everything and demand to see IDs, and before long you've both amassed mountains of intelligence about who hangs with whom, and made it genuinely difficult for fugitives and gunwielders to walk around unmolested.

You can make the argument that the policies work, as multiple studies have cited "hot spot" policing as a cause of urban crime-rate declines (other studies disagree, but let's stipulate).

But the psychic impact of these policies on the massive pool of everyone else in the target neighborhoods is a rising sense of being seriously pissed off. They're tired of being manhandled and searched once a week or more for riding bikes the wrong way down the sidewalk (about 25,000 summonses a year here in New York), smoking in the wrong spot, selling loosies, or just "obstructing pedestrian traffic," a.k.a. walking while black.

This is exactly what you hear Eric Garner complaining about in the last moments of his life. "Every time you see me, you want to mess with me," he says. "It stops today!"

This is the part white Middle American news audiences aren't hearing about these stories. News commentators like the New York Post's Bob McManus ("Blame Only the Man Who Tragically Decided to Resist"), predictably in full-on blame-the-victim mode, are telling readers that the mistake made by Eric Garner was resisting the police in a single moment of obstinacy over what admittedly was not a major offense, but a crime nonetheless. McManus writes:

He was on the street July 17, selling untaxed cigarettes one at a time — which, as inconsequential as it seems, happens to be a crime.

The press and the people who don't live in these places want you to focus only on the incidents in question. It was technically a crime! Annoying, but he should have complied! His fault for dying – and he was a fat guy with asthma besides!

But the real issue is almost always the hundreds of police interactions that take place before that single spotlight moment, the countless aggravations large and small that pump up the rage gland over time.

Over the last three years, while working on a book about the criminal justice gap that ended up being called The Divide, I spent a lot of time with people like Eric Garner. There's a shabby little courthouse at 346 Broadway in lower Manhattan that's set up as the place you go to be sentenced and fined for the kind of ticket Staten Island cops were probably planning on giving Garner.

I sat in that courtroom over and over again for weeks and listened to the stories. I met one guy, named Andre Finley, who kept showing up to court in an attempt to talk his way into jail as a way out of the $100 fine he'd got for riding a bike on a sidewalk in Bedford-Stuyvesant. He couldn't afford the hundred bucks. It took a year and multiple all-day court visits to clear up.

I met a woman who had to hire a sitter so she could spend all day in court waiting to be fined for drinking wine on her own front porch. And in the case of a Bed-Stuy bus driver named Andrew Brown, it was that old "obstructing traffic" saw: the same "offense" that first flagged Ferguson police to stop Michael Brown. 

In Andrew's case, police thought the sight of two black men standing in front of a project tower at 1 a.m. was suspicious and stopped them. In reality, Andrew was listening to music on headphones with a friend on his way home after a long shift driving a casino shuttle. When he balked at being stopped, just like Garner balked, cops wrote him up for "obstructing" a street completely empty of pedestrians, and the court demanded 50 bucks for his crime.

This policy of constantly badgering people for trifles generates bloodcurdling anger in "hot spot" neighborhoods with industrial efficiency. And then something like the Garner case happens and it all comes into relief. Six armed police officers tackling and killing a man for selling a 75-cent cigarette.

That was economic regulation turned lethal, a situation made all the more ridiculous by the fact that we no longer prosecute the countless serious economic crimes committed in this same city. A ferry ride away from Staten Island, on Wall Street, the pure unmolested freedom to fleece whoever you want is considered the sacred birthright of every rake with a briefcase.

If Lloyd Blankfein or Jamie Dimon had come up with the concept of selling loosies, they'd go to their graves defending it as free economic expression that "creates liquidity" and should never be regulated.

Taking it one step further, if Eric Garner had been selling naked credit default swaps instead of cigarettes – if in other words he'd set up a bookmaking operation in which passersby could bet on whether people made their home mortgage payments or companies paid off their bonds – the police by virtue of a federal law called the Commodity Futures Modernization Act would have been barred from even approaching him.

There were more cops surrounding Eric Garner on a Staten Island street this past July 17th then there were surrounding all of AIG during the period when the company was making the toxic bets that nearly destroyed the world economy years ago. Back then AIG's regulator, the OTS, had just one insurance expert on staff, policing a company with over 180,000 employees.

This is the crooked math that's going to crash American law enforcement if policies aren't changed. We flood poor minority neighborhoods with police and tell unwitting officers to aggressively pursue an interventionist strategy that sounds like good solid policing in a vacuum.

But the policy looks worse when a white yuppie like me can live in the same city as Garner for 15 years and never even be asked the time by someone in uniform. And at the very highest levels of society, where corruption has demonstrably been soaring in recent years, the police have almost been legislated out of existence.

The counter-argument to all this is that the police are sent where there's the most crime. But that argument doesn't hold up for long in a city that not only has recently become the unpunished economic corruption capital of the Western world – it's also a place where white professionals on the Upper East and West Sides can have their coke and weed safely home-delivered with their Chinese food, while minorities in Bed-Stuy and Harlem are catching real charges and jail time for the same thing.

City police have tough, brutal, dangerous jobs. Even in the "hot spots," residents know this and will cut officers a little slack for being paranoid and quick to escalate.

Still, being quick to draw in a dark alley in a gang chase is one thing. But if some overzealous patrolman chokes a guy all the way to death, on video, in a six-on-one broad daylight situation, for selling a cigarette, forget about a conviction – someone at least has to go to trial.

Because you can't send hundreds of thousands of people to court every year on broken-taillight-type misdemeanors and expect people to sit still while yet another coroner-declared homicide goes unindicted. It just won't hold. If the law isn't the same everywhere, it's not legitimate. And in these neighborhoods, what we have doesn't come close to looking like one single set of laws anymore.

When that perception sinks in, it's not just going to be one Eric Garner deciding that listening to police orders "ends today." It's going to be everyone. And man, what a mess that's going to be.  

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