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Gwen Carr, center, the mother of chokehold victim Eric Garner, attends a news conference after New York Police Commissioner James O’Neill announced his decision to fire officer Daniel Pantaleo on Monday. (AP photo)
Gwen Carr, center, the mother of chokehold victim Eric Garner, attends a news conference after New York Police Commissioner James O’Neill announced his decision to fire officer Daniel Pantaleo on Monday. (AP photo)

Commentary: Black Lives Matter is more important than ever

By Noah Feldman
Bloomberg Opinion

The decision by the New York Police Department to fire the police officer blamed for the choking of Eric Garner marked a troubling end to the five-year search for justice for the man whose death sparked Black Lives Matter protests. A police department trial found that the officer, Daniel Pantaleo, had not been truthful when he said he had not used a chokehold on Garner. Because both New York state and federal prosecutors declined to bring criminal charges against the officer, and the city settled a civil suit by Garner’s heirs, this is the only “day in court” Garner’s legacy will ever receive.

All in all, this outcome shows how important the Black Lives Matter movement remains. The legal system is primarily designed to look backward and assign blame for particular, individual events. Even at that task it performs imperfectly. But the legal system is truly terrible at forward-looking transformation of institutions like police departments. For that you need political will and new cultural attitudes, not courts. In other words, transformative change requires a social movement, not a judicial verdict.

It’s worth noting the strangeness of the way the legal system has applied to Garner’s death. The police department’s finding that Pantaleo lied when he denied using a chokehold logically implies that Pantaleo did in fact use an unlawful chokehold on Garner while attempting to arrest him for the sale of untaxed cigarettes. The chokehold has been prohibited for the better part of 25 years. According to ordinary logic, you would think it would follow that Pantaleo should have been charged with not only the crime of killing but also the crime of violating Garner’s civil rights by using the unlawful technique.

But law doesn’t follow ordinary, everyday logic. It has its own way of doing things. Criminal charges must be proved beyond a reasonable doubt. State and federal prosecutors presumably believed they could not reach this standard of proof, and so decided not to charge the officer. But in the New York police proceedings, the standard of proof was much lower: just a preponderance of the evidence. As a result, it was legally plausible to find that Pantaleo lied but not charge him with a crime. The difference lay in the extremely high standard of proof that the law reserves for criminal charges.

Justice for Garner has been difficult to obtain because of the structure of the legal system. But broader, structural justice for all black Americans who might come to be targeted by police and subjected to lethal means of arrest or detention is harder still. The chokehold was prohibited after the death of Michael Stewart, a black man who died after being subjected to this technique in 1983. Yet despite its illegality, the chokehold remained in use. The reality is that changing police practice requires much more than making and enforcing a new police regulation.

Sometimes, courts try to effect social change in police departments by issuing permanent injunctions that demand change and even provide some mechanisms for enforcement. Such injunctions have their place; in some instances, systemic bans on discriminatory policing techniques may work. Nevertheless, on the whole, structural injunctions don’t have a great track record in changing beliefs, attitudes, or ingrained customs and habits. By definition, court orders come from above. Fundamental change is more likely when it comes from within.

In the long run, police practices will change if and only if police are trained in new ways to approach their jobs. For that to happen would require corresponding changes in the beliefs and attitudes in the rest of society.

That is where social movements like Black Lives Matter come in. By raising consciousness and applying pressure, successful social movements affect the way we all think and act. The historical record shows that social movements do not always succeed. And their accomplishments can be reversed. But they are by far the best tool we have for achieving social transformation — whether you consider the examples of civil rights for African Americans, equal rights for women or equality for gay people. After this final chapter in the Garner story, Black Lives Matter matters more than ever.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

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