If the Eric Garner case is more troubling than that of Michael Brown, the reason may be, as Andrew C. McCarthy argues, that there’s a pretty good case to be made that the grand jury got this one wrong — that the police officer in question, Daniel Pantaleo, used unreasonable force. But the underlying criminal context is relevant, too: Brown was on a miniature violent-crime spree, from roughing up the convenience-store clerk to his fatal encounter with Officer Darren Wilson. Garner apparently was breaking the law, too: peddling single cigarettes.
God help us all if the New York Police Department is going to start seriously enforcing that law.
Of course, one must have a permit to sell cigarettes in New York, and New York bans the sale of so-called loosies, single cigarettes sold to those who lack either the means or the desire to purchase an entire pack at the going New York City rate of $12 to $14. Smoking is a funny thing: There are people who smoke for decades without ever buying a full carton of cigarettes, convincing themselves that each individual pack is their last. And there are the social smokers, people for whom Marlboros pair with Jack Daniel’s the way Stilton pairs with port.
In the environs around establishments trading in alcoholic beverages, there is a robust market in the sale of single cigarettes, though this is partly pro forma: The accepted etiquette is to offer a smoker $1 for a cigarette, though in many or most cases he, possibly having had a few drinks himself, will simply offer one. But that $1 does change hands fairly often, too, and I’ve never seen four NYPD officers tackle somebody outside of Weather Up or Camp in response to that verboten act of capitalism. Maybe they roll a little differently in Staten Island.
Here we have a dilemma: One of the ways in which the NYPD has been able to help effect a dramatic reduction in crime in what once was a crime-plagued city is by cracking down on the humble, street-level offenses that contributed to the city’s prior atmosphere of general lawlessness: street-corner prostitution and drug-dealing, the squeegee men, vagrancy, etc. And that has been a good thing for New York by any meaningful measure.
On the other hand, we can be sure that even our best police departments — and the NYPD is the nation’s best big-city police outfit — will make mistakes and will inevitably have a share of miscreants in the ranks. If we assume that even under the best conditions, even first-rate police departments will see things go wrong in some reliable share of interactions — call it 1 percent, to be conservative — then we must conclude that there will be more of these incidents the more arrests there are, the more stop-and-frisk episodes there are, the more traffic stops are made, etc. As with practically every public issue of any consequence, there are few if any hard-and-fast rules or criteria that can be relied upon at all times; instead, we are left with the messy and amorphous standards of prudence, of “reasonableness” as understood under the law.
And we cannot ignore that the law is an awfully flexible thing, in reality. Michael Milken, contrary to the myth, was never convicted of insider trading, and the so-called junk bonds he dealt in turned out to be a pretty good investment. He pleaded guilty to some relatively minor reporting violations – the sort of thing that normally earns one a sternly worded warning – and while those are nominally the charges for which he went to prison, what he was really convicted of was being a rich jerk that nobody liked, a guy whose personality was too grating even for Wall Street. (He is said to have exited prison a changed man.) Martha Stewart went to the lock-up for similar reasons. Scooter Libby went to prison in the CIA leak case even though everyone knew that somebody else was responsible for that leak. Practically anybody with sufficiently complex personal finances could be brought up on tax charges of some sort, given a sufficiently motivated prosecutor. Tom DeLay, one of the most powerful politicians in the country, was laid low on charges of having broken a law that hadn’t even been passed at the time he was alleged to have broken it.
If the rich and famous can be so easily crushed metaphorically, it is no surprise that a guy peddling loose cigarettes on a street corner should find himself crushed literally – “compression” of his chest and neck is what killed Eric Garner.
Unintended things happen in less dramatic circumstances. As I related to Charles C. W. Cooke during yesterday’s “Mad Dogs & Englishmen,” I once saw a young man nearly lose his life after roughhousing around with his father after a martial-arts class – he tripped and fell through a glass table, with grisly consequences. Every trip I ever took to the emergency room as a kid, and there were a few, was a consequence of playing rough with my brother. (I believe that was the case for him, too.)
And we all know that arrests are not child’s play.
In a sane world, selling cigarettes would not be a crime. (With all due respect to WFB.) NYPD is said to be deemphasizing petty marijuana arrests, but as long as possession of marijuana is a crime, there will be marijuana arrests, and as long as there are marijuana arrests, things will go wrong with them. That isn’t an argument for anything-goes lawlessness, but it is an argument that we have too many criminal offenses, and an argument that not everything that is a crime is a danger. Muggers, rapists, drunk drivers – assuming due process, we can toss them in the darkest oubliette for all I care.
But street-corner loosie peddlers? That strikes me as an occasion for restraint among those doing the restraining.
— Kevin D. Williamson is roving correspondent at National Review.