Upsetting Facts about the Garner Case

Stephen Kershnar

Eric Garner and Police Violence

Dunkirk-Fredonia Observer

December 7, 2014

Most readers are familiar with Eric Garner’s death. In Staten Island on July 17, 2014, Eric Garner was approached by a police officer for allegedly selling untaxed cigarettes. After he vehemently protested being arrested for this, another police officer (Daniel Pantaleo) put a chokehold on him, despite the fact that the NYPD bans such a hold. Pantaleo already had previous complaints for misconduct filed against him. While the chokehold was in place, other officers kept Garner pinned down. Garner said he couldn’t breathe eleven times.

An hour later, Garner was pronounced dead. The city’s medical examiners found that he was killed by neck and chest compression and prone positioning and that contributing factors included Garner’s suffering from asthma, heart disease, obesity, and hypertension. The four medics at the scene didn’t give Garner CPR and were suspended without pay. The police department stripped Pantaleo of his gun and badge and placed him on desk duty. Last week when a grand jury failed to indict Pantaleo, protests erupted.   

What is upsetting about this case is the intersection of a number of features of the criminal justice system, although it is not clear what connects these features. First, the criminal justice system is locking up far too many black men. Saki Knafo, writing in the Huffington Post, reports that one in three black males born today can expect to go to prison at some point in time in their lives. This is a staggering figure. Even if the number were only half that, it would still be staggering. The one in three is even more disturbing when one considers the humiliation, stigma, and reduced employment that follows prison, along with the fact that one in five prisoners was forced or pressured into sexual contact.  

Second, writing in the Washington Post, Eugene Robinson points out that the police shoot and kill a significant number of people each year. In 2013, he notes, the police shot and justifiably killed 458 people. That is, more than one a day. Robinson points out that not all police departments report such incidents and so the actual number is likely higher. Two journalists, Reuben Fischer-Baum and Al Johri, estimate that the police shoot and kill around 1,000 people each year, that is, three a day.

This past year the police killed 19% more than usual. Philip Stinson, a professor at Bowling Green State University, found that police killed on average 385 people per year from 2005 to 2011 (2,706 total). Surprisingly few officers were arrested for negligent homicide during this time, although this is likely in part due to the fact that most of these shootings were justified and because the law gives police a lot of latitude in using deadly force.

It is worth noting that being a police officer has never been safer. Writing the Washington Post, Randy Balko reports that in 2013, 27 police officers were feloniously killed. This was the fewest in more than 50 years and probably the safest year safest year to be a police officer in a century in terms of per capita deaths. In general, being a police officer is not an especially dangerous job. According to 2013 Bureau of Labor statistics, farmers, truck drivers, pilots, roofers, construction workers, and power line workers faced a greater chance of death at work.

The overall data is troublesome, although it is unclear what conclusions should be drawn. The increase in the number of people the police killed when crime is steadily decreasing is a concern as one wonders whether police are getting more aggressive or whether there is an increasing number of violent men who clash with the police, especially black men.

Explanations of these killings, especially that of Eric Garner, have focused on racism, police offers’ bad attitudes, or the state’s increasing interference with people’s lives. The racism claim is hard to assess as it is not clear what it’s based on. At the patrol level, probably more than half of the NYPD is not white, so it’s hard to believe that a police force with so many non-whites contains many viciously racist white cops. Also, the frequently false and discredited cries of racism should make people especially wary of this charge. Perhaps racism is playing a role here, but it’s hard to see how we can be confident that it is without studies to show this.    

Frequent anecdotes and youtube videos about incredibly aggressive cops support a second explanation in terms of out-of-control aggression. A recent example of this is Buffalo police officer John Cirulli who was sentenced to probation after having been caught on camera slapping and kicking a man lying on the ground in handcuffs. One gets the sense that this sort of behavior is probably linked to some of the shootings and this would explain why killings are up when crime is down. However, this isn’t much more than a hunch.

A third explanation is the increasingly intrusive government is clashing with people more than ever. David Harsanyi, writing in Reason, argues that the Garner case is a glaring example of this. New York’s nanny government decided to raise cigarette taxes to more than $5 per pack, making them the highest in the country. A predictable black market resulted, Governor Cuomo then initiated a crackdown that predictably has led to the repeated arrest of largely harmless people like Garner.  

In the end, it is hard to know whether there is a problem with police killings. I suspect there is and that it is related to unchecked aggression, but my suspicion isn’t backed by enough evidence to warrant any confidence.

I doubt this is relevant, but in the interest of full disclosure I should mention that the police have made quite a number of visits to my house in the last couple of years because of a highly aggressive ex-wife.  

Impeach and Convict Obama for Amnesty

Stephen Kershnar

Throw Him Out: The Overwhelming Case for Impeaching and Convicting Obama

Dunkirk-Fredonia Observer

November 23, 2014

Via executive order, President Obama recently amnestied five million illegal aliens. The amnesty applies to people who have been here illegally for the past five years, although one doubts whether the five-year requirement will be enforced, and to parents of anchor babies. Many of these aliens will likely not be prosecuted for identity theft and document fraud they committed in order to work here in the past. This amnesty follows a previous one, which occurred when Obama enforced the DREAM Act despite Congress’ refusal to pass it.

If, in the absence of an emergency, a President who nullifies valid law and, in so doing, significantly subverts the Constitution should be impeached and convicted. Obama’s amnesty fits the bill.    

His action is clearly illegal. There are laws that have been passed by Congress and signed by a President that constitute American immigration law. The law simply does not allow for such an amnesty. The best the President’s defenders can do is argue that the amnesty is permitted by prosecutorial authority. Under this doctrine, a prosecutor has the sole discretion to decide whom to charge, what to charge them with, and whether to dismiss or plea bargain down the charges. This, however, has to be done on the basis of limited resources, not on the basis of whether or not a prosecutor approves of the law.   

Consider, for example, if President Rand Paul tried to get Congress to eliminate all taxes on capital gains. Congress refused and, instead, raised these taxes. Paul then announced that he was in effect nullifying all taxes on capital gains by giving an amnesty for anyone who doesn’t pay them, despite the fact that Congress had allocated money to enforce such a law. Does anyone honesty think this would be legal?

The Constitution permits impeachment and conviction. It says, “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The clause is best interpreted to include not only criminal acts, but also neglect of duty even when not an indictable offense.

This interpretation is supported by the original intent of those who wrote and ratified the Constitution, the power’s historical lineage, and precedent. People who helped to frame and ratify the Constitution, such as Alexander Hamilton and George Mason, intended the power to cover violations of public trust that were not indictable offenses. Historically, the clause was modeled on power had by the British legislature had that was not limited to indictable offenses. The broader interpretation is also in line with precedent. Within 30 years of the country’s creation, Congress impeached and convicted a judge for such non-indictable acts as being drunk, foul-mouthed, and blasphemous while on the bench. The purpose of the impeachment clause, then, is to allow Congress to remove government officials who abuse their power, especially when their doing so subverts the Constitution.

Obama’s amnesty is a clear-cut abuse of power and one that severely harms the country. Relative to current Americans, illegal aliens are poorer, less educated, less intelligent, and less committed to family values. Relative to other members of the third world, Mexicans, which includes many of the aliens, are neither poor nor oppressed. Compare them, for example, to the many desperate people from Sudan, Congo, or India. Thus, they are neither a good source of skilled workers nor strong candidates for economic or political compassion. What’s more, the U.S. is not like a restrictive country club. In the last few decades, the country has been so flooded with legal immigration that roughly one out of four people in this country are either immigrants or the children of immigrants. The Democrats, along with Republican collaborators, have decided to import a new people, despite the ardent opposition of the American people.

The Obama administration did not make the aliens eligible for some public benefits, such as food stamps and Medicaid, but no one who has watched this administration and the Democrats in Congress expects this restriction to remain in place. Consider that 42% of the new Medicaid signups are immigrants or their children and that Obama and the Democrats repeatedly tried to include illegal aliens in Obamacare. If this amnesty is not smacked down, Obama will undoubtedly move to convert the newly amnestied into citizens, grant amnesty to millions of the remaining illegal aliens (there are at least another six million), and make them all eligible for government benefits. No one can seriously doubt that these moves are on the horizon, by executive action, again, if necessary. Also, no one can doubt Obama’s two amnesties will encourage a massive new wave of illegal aliens hoping for yet another amnesty.   

The precedent here is important. Recently, Presidents have been violating the public trust with increasing frequency and severity. Obama claimed the unilateral right to take the nation to war in Libya and against ISIS without getting a declaration of war or following the War Powers Act. He has previously engaged in blatantly illegal acts such as rewriting Obamacare and breaking immigration law (see DREAM Act). The Internal Revenue Service targeted political enemies and blatantly ignored Congressional oversight with few repercussions. His attorney general has been held in contempt of congress. His Veteran’s Administration was awash in illegalities. His administration just ignored the bankruptcy laws to favor his political ally (UAW) in the General Motors and Chrysler bailouts.

One shudders to think what another Clinton presidency would do if this pattern of abuse is left unchecked. 

One objection is that the U.S. can’t and won’t deport masses of illegal aliens. First, the country has done so before during President Eisenhower under Operation Wetback. Second, even if the country lacks the integrity to enforce the law, it does not follow it has to retroactively validate the law breaking as opposed to putting it on a list of things to do.  

The only fitting response to Obama’s lawlessness is to throw him out the hell out. Impeach and convict him posthaste. 

Minimum Wage: No Good Theory & Net Loss to the Poor

Stephen Kershnar

NFL Salaries and the Minimum Wage

Dunkirk-Fredonia Observer

November 11, 2014

A common view is that people in some types of jobs are paid too much and others too little. This view explains why debates over executive pay and the minimum wage take on a moral tone rather than being mere policy judgments. It is as if politicians are talking about sin.

In 2009, President Obama forced a $500,000 cap on corporate executives at firms receiving taxpayer bailout money. He said he wanted to stop federal money to be used to reward failure. He just knew that these corporate fat cats were making too much. On the other hand, four states recently voted to raise the minimum wage. Apparently, the crass politicians in those states just knew that unskilled workers were making too little. 

The problem with all this is that these judgments are arbitrary and indefensible. Simply looking at people’s salaries tells us little about whether the pay is deserved, fair, or a good deal for employers. To see this, consider whether you would want your brother or son to play in the NFL.    

On the benefit side, being a NFL player is well-paid, exciting, prestigious, and can make one famous. Nick Schwartz, writing in USA Today Sports, points out that the average NFL salary in 2013 was $1.9 million. The average play over his NFL career makes roughly $4 million after taxes. It also carries with it validation of one’s sense of masculinity, access to attractive women, and participation in a band of brothers. For young men, prestige, excitement, and access to attractive women are very appealing. Other jobs (for example, factory worker) don’t offer anything like these benefits. 

The costs of trying to make a career in the NFL are significant. NFL football is a dangerous sport with significant chance of an injury that can damage one’s ability to think. NFL players suffer concussions and other types of traumatic brain injury. This can cause memory loss, depression, and dementia. The NFL has acknowledged that many former players are suffering from these problems.

Players who commit to football in college invest a tremendous amount of time and energy and stand very little chance of getting a return on their investment by making it to the NFL.

NFL careers are short. NFL players’ union claims the average career is 3.2 years long. The NFL claims that it is 6 years but its estimate is misleading because it focuses on better-than-average players. On either estimate, an NFL career is short. The job is also stressful, physically demanding, and requires travel. Every day, players fear injury, demotion, termination, and loss of ability to support one’s family.

In 2009, Sports Illustrated reported that 78% of NFL players are bankrupt or facing serious financial stress within two years of retiring from the league. Compare this to the ironclad job security had by teachers, soldiers, and postal workers and the generous retirement benefits had by soldiers and police officers.  

When compared to the jobs held by players’ peers (for example, farmer, factory worker or insurance salesman), the basket of costs and benefits is better for some people and worse for others. Whether the basket is better depends on an individual’s talents and preferences of the person in question. This is similar to the different attitudes people have toward the basket of costs and benefits that accompany specific consumer goods. Consider, for instance, that some people have a strong desire to buy Porsches. Others have no interest or don’t see them as worth the money.

There is no way to decide what NFL players should make. First, the notion that they make too much because they don’t need so much money is unconvincing. None of us need that much money to live. Even people making wages below the minimum wage can live dignified lives, albeit with far less opportunities than the rest of us. A good deal of the third world is doing so now.

Second, the notion that they don’t deserve so much money depends on there being a principled way to pick out what a worker deserves. On one theory, workers deserve money for the effort they make. The problem is that this is implausible. Musicians who put in a lot of effort, but still make terrible music don’t intuitively seem to deserve a lot of money (think of the 80’s big hair bands). The same is true for those teachers who teach poorly and people’s whose skills are unwanted because they are just not good enough in a flooded market (consider, for example, violinists).

Perhaps, instead, workers deserve money for what they contribute to others’ lives. Again, this just isn’t true. Some movie and pornography stars contribute to a lot of people’s lives as judged by the number of people who enjoy their work without working especially hard. Consider Marlon Brando and Linda Lovelace. I don’t see why they deserve a lot of money.

In any case, NFL players contribute a lot to others. In 2014, the Associated Press reports that roughly half of Americans are NFL fans (156 million people). That is a lot of people whom players make happier. The fact that teams pay so much for NFL talent tells us that they think that the players who make it would contribute a lot more than the teams’ next best options (those players who don’t make it).

If we can’t discover what an NFL player should make, because there is no adequate theory, there is similarly no reason to think that we can discover what is the minimum that unskilled workers should make or the maximum that corporate executives should make.

If the case for the minimum wage is not based on what unskilled workers deserve, then it weakens considerably. While there is a controversy over the studies, it is likely that raising the minimum wage results in fewer low-wage workers being employed. If this is so, then it is likely that the costs to such workers via lost jobs outweighs the gains to those who retain their jobs.

Also, most minimum-wage workers do not live in poverty. On one 2007 estimate by economists Richard Burkhauser and Joseph Sabia found that only 13% of the workers who would be affected by it live in poverty. Thus, it is not a particularly effective welfare program.