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by Peter Moskos

July 18, 2014

If you can say, "I can't breath"...

The first thing that jumps to mind in the death of Eric Garner is that somebody who is repeatedly saying "I can't breath" is, in fact, breathing. It's a basic rules of choking, first aid, and well, the way we speak. [Update: Seems I'm probably very wrong about this.]

Also, I'm no expert in chokeholds (because most departments forbid them), but what I do know is that a chokehold can either block the windpipe (which won't kill you, since suffocation takes a while after you pass out) or block the carotid(?) arteries in the neck (which technically isn't a chokehold but a strangle-hold). The former is done with the arm flat on the windpipe. The latter is more a vice grip, and you'll go out pretty quickly. It's pretty lethal. If you're on the giving end, you have to let go as soon as the person drops if you don't want the person on the receiving end to die.

I don't see either of those being a factor here... though it doesn't look good for the officer in green, Agent 99, who did grab Mr. Garner's neck, since chokeholds are forbidden. That officer also may have rushed the decision to put Mr. Garner in custody. Generally I'm for a hand-on approach to physically controlling a guy. And it's not easy to control a man as large as Mr. Garner. I'd be more critical if Mr. Garner died after being Tased.

But this is not a chokehold (though it's possible one was used later).

And yet the Daily News caption in an article about chokeholds says "Eric Garner was put in a chokehold as Staten Island police tried to subdue him Thursday." The officer (Agent 99) is using a half nelson and pulling on the guy's neck for leverage to bring him down and to the right, which he does. He's not near the windpipe, and this does not seem to be an attempt to choke the guy. So it's not a chokehold. Does that distinction matter if the guy is dead? Well, yes. Because chokeholds are forbidden, and the guy is dead.

But there's an important difference between saying "the cops killed him with a forbidden chokehold for resisting" (as I've heard people say) and "he died while resisting." Once you decide the guy is under arrest, what would you do? Mayor DiBlasio said he watched the video like family. Well, I watched it like a cop. And it's not easy to get cuffs and a large resisting man. Just because he died, which is a tragedy, doesn't mean he was killed, which is homicide. Certainly it will matter what the autopsy shows.

What you have is a very large and presumably out-of-shape asthmatic man resisting arrest, perhaps because he didn't deserve to be arrested. (I don't know, I wasn't there.) There do seem to be multiple witnesses (actually at the scene, I might add, which isn't a given when it comes to "witnesses") saying the same thing: Mr. Garner was a peacemaker trying to break up a fight. [But the officers seem to be arresting Mr. Garner for something else entirely: selling a cigarette.]

Mr. Garner, apparently, has been arrested 30-some times. And that very well may be why police focused on him.

But best I can tell (and again, I may be wrong), Mr. Garner seems to be little more than a repeat offender for the criminal offense of... selling loosie cigarettes! Now of all the idiot war-on-drugs nonsense... illegal cigarette selling should be low on the list of law-enforcement priorities. The guy died for selling loosies? And if he was selling them for 75 cents each (I don't know the going price for loosies), then they're cheaper than buying them legally by the pack. If he's selling them for a dollar, then he's making a good profit!

Why are about half of all the cigarettes sold in New York illegal? Because the tax is too high, and that has created a very large black market. The thing about legal regulated drug selling is it needs to make sense.

High taxes on cigarettes -- $5.85 a pack ($4.35 New York State plus another $1.50 for New York City -- were politically popular under Bloomberg, but probably do more harm than good in New York. That, just as much as any chokehold, contributed to the death of Eric Garner.

Selling loosies shouldn't be a crime.

[The post has been updated. And see this as well, dispelling the idea that if you can talk, you can't be not able to breathe.]


David Woycechowsky said...

Maybe saying, "I can't breathe" isn't literally true, but it still should be taken as a sign that severe distress of some kind is going on, with appropriate response by the policemen. That didn't happen here.

Would like to see a criminal prosecution here, even though the dying man didn't exactly pinpoint the correct reason he was dying.

PCM said...

Except when you say something that obviously isn't true, it comes off to cops more like saying, "my handcuffs are too tight."

Obviously there was distress going on, but you're trying to get the guy into custody. What would you have done?

David Woycechowsky said...

I would have taken him into custody without applying so much force that he was killed.

PCM said...

But that's what they were trying to do! It didn't work. It's one thing if they were trying to kill him (which they weren't). It's another if he died while resisting. There's a very important and real difference.

It's not like they knew he was going to die and then applied more force than needed.

At what exact point do you think they applied too much force?

If I were having an asthma attack (and I do have asthma), the first I would do is stop resisting.

I guess what I'm saying is that just because the guy died doesn't automatically mean that too much force was used. (it could mean that, but not automatically)

David Woycechowsky said...

Well, we are getting away from my point. my point is that it sounds silly when policemen repeat the meme about "if you can speak you can breathe." People who are in acute medical trauma don't have the luxury of thinking to say, "I am having unspecified acute unspecified medical trauma." It should be well understood by now that "I can't breathe" means the same as "I am having acute unspecified medical trauma."

Sometimes the statement may be a lie, but it shouldn't be treated as lie, because treating it as a lie causes people to die, which is what happened here.

I can actually give an example from real life about how it is hard to know what to say when one is in acute medical trauma. One time I was having heat stroke on a train. They didn't want to get me an ambulance. I used the last of my strength to say, "I am dying." They (the reluctant train conductor at the stern behest of a well-heeled passenger) got me the ambulance. I wasn't really dying, but "in the heat of the moment" it can be tough to articulate exactly what is going wrong with you. I wasn't trying to lie, and at least one passenger knew how to take my statement.

I don't think that the victim (31 arrests and how many convictions?) was trying to lie to the police when he said he couldn't breathe and it kind of disgusts me that policemen are suggesting that across the internet today.

PCM said...

First responder (medical) training teaches cops that maxim, so I think it's fair to repeat it. (I also had no idea others were saying it, since I don't actually regularly read what other police say on the internet.)

But I do understand your point, but say you're wrestling with a guy, and he's saying he can't breath, but he doesn't stop fighting. What do you do? My first worry, in the fight, is him slugging me. As soon as he stops resisting and can't hurt me I'll go into "render aid" mode.

It seems like you're asking for cops, in the midst of a struggle with someone, to take a time-out the second someone says "I can't breathe." I don't think that's realistic if a guy is still fighting you.

If guy comes up to a cop and says, "I can't breathe," the cop calls an ambulance. But don't you have to stop fighting before you can expect a reasonable person to render aid?

Complicating matters is people do routinely -- at least in the cop world -- say "I can't breathe" as shorthand for "I'm really stressed out right now and maybe having a panic attack," which isn't actually life threatening.

N&M said...

It is becoming almost completely impossible to police anymore. Unless you are trying to grab a guy for murdering a kid someone is going to say that whatever law your were trying to enforce was too petty to even waste time dealing with. If the suspect resists and they are killed or hurt then you just "murdered" or "beat" them for tagging, smoking a little weed, selling smokes,or whatever. God forbid that you have probable cause that a person that happens not to be white has committed a crime because passersby will stop in the street to call you a racist if you try to act on that information. Oh, and please don't wear a helmet to protect your own head the next time people riot in your town because that makes people think that you are a "warrior cop."
In regards to this case Eric Garner had an arm somewhere on or near his neck for 17 seconds. He stated that he couldn't breath after the arm was no longer on his neck. This is as clear cut a case of chokehold murder as I have seen since Bed-Stuy in '89.

David Woycechowsky said...

If the reason the guy is resisting you is because you had / have him in a chokehold then lay off. Even it means that the "perp" gets away an/or slugs you in the face. Chokehold is against the rules (because people die from it), and you deserve what you get after you have applied it.

That said, I don't think the perp-cum-victim in this case was going anywhere or going to slug anyone.

On a legal note, there is a Constitutional right to resist excessive force. After the chokehold, that right kicks in bcs the chokehold is excessive force. This means that an American is not committing a crime by resisting after a chokehold has been applied to him.

PCM said...

When in the video does the chokehold start?

Somewhat off subject (but not to my post)...

It's important to remember that if we stopped criminalizing stupid shit (like selling loosies), this never would have happened.

When bad stuff happens because police have to enforce bad laws, why do so many who are quick to blame police never look at the (often "progressive") laws they once supported?

Chest pain said...

I think that when someone says he can't breathe it means that he can still breathe just not the way he usually does. He might be starting to breathe abnormally and it should be taken seriously. When I was a kid I play rough with my friends and we would have our little wrestling match, we always stop whenever someone say that he can't breathe because at some point we've all been in that situation and we never joke about it because it was such a horrible feeling. Breathing has a very vital role in our body's system that it shouldn't be compromised.


Anonymous said...

I agree that no one should die for a minor offense. But I also agree that if someone is saying, "I can't breathe", that they are actually breathing. I work in surgery, and we often hear patients saying this after the anesthesia wears off.
In response we say, if you can talk, you can breathe. when you can't breathe, you "wheeze", and you cannot talk, now that IS a problem. It would be nice if some doctors would chime in on this.
The media has taken this particular aspect to a false conclusion.

Anonymous said...
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Anonymous said...

Cops are not lawyers but IMHO these 2 unfortunate situations prove, police should better understand the law and be better trained on how to use force, especially in petty crime situations.

Similar to Ferguson, the Staten Island evidence should have brought an indictment. Maybe both cops would have been acquitted in a trial, but we'll never know b/c both DA's short circuited the judicial system. Seems they passed the buck to the Feds, thereby protecting local police and therefore their communities. Now it seems the following events are likely:

1) Cop will be fired (abandoned) from NYPD for chokehold.
2) The family will get tens of millions in civil damages from NYC (google "eggshell plaintiff").
3) The feds will prosecute the cop who could serve 5+ years in a federal pen.

Real question and discussion: Is NYC willing to continue to trade young minority men's lives via "aggressive policing" for the crime rates of the 80s? When everyone is asked whether they would tolerate 90% more crime in exchange for kinder/gentler policing my bet is if you poll everyone (black, white, brown, green) you'll get 90% for aggressive policing and 10% against. Proving that its easy to protest until its you getting mugged.

http://www.nyc.gov/html/nypd/downloads/pdf/crime_statistics/cscity.pdf *

*Hint: major NYC crime stats are down 80-90% from their peak in 1990.

Anonymous said...

Crimes are way down in all of the country, hell in the entire civilized world since the 80s. It has nothing to do with NYC policing. Not to mention being proud of a third world country worthy crime rate while every other country in the OECD is kicking your ass is quite pathetic.

Unknown said...

An interesting post from a cop.


Moskos said...

That's a great post. Thanks. I'm going to move it up to the main post.

Anonymous said...

I ended up in the bottom of a pile during football practice and yelled, "I can't F'in breath", but I could definitely breath, but was more concerned with the big tub-o-lards crushing me.

Anonymous said...

How about if you have asthma and obesity you don't fight anyone, much less the police. How about if you have been arrested 30 times you know the drill, put your hands behind your back. How about NBA and NFL players get outraged and protest the 25,000 murders in America every year not the 500 police killings where 85% the victim had a firearm. Misplaced outrage buries actual progress, playing who's on first over a choke/control move is irrelevant, I get choked completely out a few times a week at jiu jitsu class, the man died because he had medical issues and had no business fighting.

George Zadorozny, Attorney-at-Law said...

Recently on a Reddit law enforcement community page called "/R/ProtectAndServe," a law enforcement officer refuted in compelling detail the potentially lethal slogan "if you can speak you can breathe":


Excerpt (some paragraphing added):

This is a phrase I heard Peter King say in the wake of Eric Garner's death and I feel it's something that everyone in our profession needs to be aware of. The myth of "If you can speak you can breathe".

I know I have heard it said twice by officers I work with, whom I both corrected. One of them actually argued with me about it until I was able to get Fire and Rescue to tell them they are wrong. The LAPD killed a man because they ignored his pleas and told him that if he could speak he could breathe. THIS IS FALSE!!!!!!!!!

And clearly officers nationwide are not being properly trained to know that it is false.

Knowing that this myth persists, and knowing I have heard actual officers repeat it in my presence, I felt it needed to be addressed.

Hearing that phrase come out of someone's mouth always upsets me, because it can easily lead to a preventable death.So let's explore why this is false, because anyone who comes up against a situation like this needs to realize that You CAN speak if you cannot breathe!!

This is true for multiple reasons, so let's explore them:

[Go to the reddit link above for the physiological / anatomical reasons.]

. . .

This is where the problem begins for officers. If you are kneeling on a suspect, or you have them handcuffed on the ground so that they are on their chest, there is a strong possibility that you can cut off their ability to breathe. Once the lungs begin to exhale, they collapse, but if you they are being pressed down on by body weight, they may not be able to re-expand.

They then continue to collapse, forcing out the Functional Reserve Capacity of air, but not drawing in a new breath.

So, your suspect may be pleading for breath, they may actually be incapable of drawing one in, and the reason is you.

If someone is saying they cannot breathe, you need to believe them, because you might be killing them.

. . .

Final Thoughts

So why are you suffocating if so much air is still in your lungs? Part of the problem is that the air left over in the lungs after exhalation is not oxygenated, so your lungs are full of CO2 gas. This air is useless to your blood, so even though your bronchioles are full of air, you are still suffocating to death.

. . . not only does an obese person have smaller lung capacity, they also can have their lungs fail to expand due to their own body weight if they are lying on the ground facedown. An obese person is at extreme risk of suffocation in any instance where their airways are being blocked or where they are cuffed and on the ground. Don't fuck around if they say they can't breathe, they're probably not lying.

Personal Experience - I have personally been in this situation before. After I had the person handcuffed and on the ground for about 20 seconds, they began to wheeze. This is an immediate symptom of them not being able to breathe. I asked if he was having trouble breathing. I let him stand up, get some breaths, and then sit down. If I had simply knelt on his back during this time, I could have killed him. Instead, I eased off, stood him up to get him some air, and all was well.

So remember, when you hear someone say "If you can speak you can breathe" know that they are full of ____. Believe the person who is claiming they can't breathe, because otherwise you could end up killing someone.

Moskos said...

Thanks. Certainly I was guilty and ignorant about this as well. And it *was* how I was taught, specifically with regard to choking and CPR.