Op-Eds and Commentaries

What will it take until we can breathe again?

The grand jury's decision not to indict New York City Police Officer Daniel Pantaleo for the death of Eric Garner was a gut punch and a wake-up call to our country. Much of America was still reeling from the decision not to indict Darren Wilson in the death of Michael Brown when the news began trending that the decision was about to come in the Garner case.

By the time the decision was expected in the Garner case, I felt pretty certain that the jury would not indict. After doing additional research following the Brown decision, although the bar is quite low for establishing probable cause before a grand jury, history shows that police officers are rarely indicted for their actions in the line of duty. There is much precedent for this throughout government, in fact. We tend to protect government officials for actions taken when they are acting in their official capacity.

This gives public officers the ability to act in their official role with greater authority when dealing with the public. There is an assumption that they are "following orders" and are a cog in the machine rather than an individual using their own judgment. When, however, they are acting as a private citizen, for example, if this took place on Pantaleo's lunch hour, this would be what is called in tort law "a frolic and detour" and would not be protected activity.

But the Garner decision, even with a few weeks to consider the ramifications, seems to be a watershed moment. No longer can we return to the status quo where police officers acting in the line of duty are protected for the actions they take when "doing their job."

Pantalelo did not employ empathy or basic human decency in his interaction with Garner. His rabid use of a chokehold was contrary to police procedure put in place twenty years ago (although not technically illegal). Not to mention the fact that the Medical Examiner ruled that Garner's death was a homicide. Additionally, all of the officers involved ought to be held accountable for their actions.

But even more importantly what we must indict is our current system. We have all borne witness to a brutal treatment of an African-American male who was choked and thrown to the ground in a manner that is nearly unimaginable. We have all watched a person be slowly killed by a group of government officials; and we cannot sit idly by and allow policies like "stop, question, and frisk" and "broken windows" to be applied with a pattern and practice that is inhumane.

Protest in Eric Garner decision in Grand Central terminal
Protest in Eric Garner decision in Grand Central terminal.

We as a community and as a country must come together to put public pressure on a system in which we no longer have confidence. When I was a lawyer in New York City, my field was government ethics. The two offices for which I worked, the New York City Conflicts of Interest Board where I was Special Counsel and the Judicial Campaign Ethics Center, where I was the Executive Director, were both created on the heels of political and public turmoil. In both cases, the public had lost confidence in the system, and in each case a commission was established to make recommendations to restore integrity to the public sphere. Above all, if we do not have faith in our system, we cannot function.

Now, African-American friends and colleagues have expressed a fear for their own safety to which I have no response. I recently wrote of my perennial optimism, and I do feel there will ultimately be justice - but not if we do not act, and not if we do not speak out, and not if we do not do what we can to pressure our government officials to make change – and to make it now.

I have been fortunate to have interactions with police officers limited to asking for directions and being told to keep moving in a Fourth of July crowd. I have been lucky enough to spend my life seeing police officers as helpful people who ensure my safety. But that is not the case for far too many Americans.

Even as our public trust is eroding, I hope that we can continue to have faith in each other that we will find a way out of what has become a colossal mess. We have done it before, and I believe we will do it again. We must press on, we must press forward.

Cant Breathe

The protestors who have adopted "I can't breathe" as a mantra have articulated the very essence of this problem. Our system has been choked through a variety of unhealthy and unsound practices in the name of law and order, and it must must be unclogged and unbound for our country to move forward.

Clearly, the time is now for public officials to dedicate time, energy, resources, and spirit to reclaiming the public's trust in our criminal justice system. A national commission must be established made up of a cross-section of political officials, grassroots community organizers, and citizens who have had personal experiences with the criminal justice system each of whom has enough clout among their constituents to be deemed an appropriate, unbiased, and relevant spokesperson.

Additionally, local and state government entities should develop their own commissions as well to address the root causes of the inequity in the criminal justice system and to develop a series of recommendations.

Any commission designed to address the aftermath of the deaths of unarmed citizens must be given enough "teeth" and enforcement powers to ensure that their recommendations will be implemented. No smoke screens or window dressing can be permitted. And the protesters and policy analysts (both in the media and behind-the-scenes) must continue to put a laser sharp focus on all aspects of the system until once again we can all collectively inhale and exhale deeply, and find a way to breathe again.