That the question has been raised at all of whether the cop who choked Eric Garner to death will be prosecuted for it, further undermines the law’s credibility. As in countless cases of police abuse, in which society’s putative guardians act outrageously in violation of the principles that originally entitled them to be guardians, the issue introduces a double-standard like a specter: the police shall not be prosecuted though they be agents of the law and subject to it like everyone else. Prosecuting police for crimes they commit admits the principle that force does not rule and that the police can thus be wrong under rule that subordinates force and limits it only to what is necessary to protect previously agreed-upon codes of conduct embodied in law. Prosecution would diminish an unwritten understanding that the police, notwithstanding their technical subordination to law, are the ones who are really in charge, to whom complete submission is at all times required without exception, even when they abuse their authority, or act without it altogether. Therefore, prosecution of the police cannot be done.
Garner challenged police authority before he was killed. He was seen to do this on Youtube immediately before his death, and was reported to have been previously “combative” because the police had harassed him for petty offenses. Onlookers cannot be permitted to become emboldened similarly to question police authority because of the necessity of preserving the political balance of power that currently exists between the police and general public, and exists in any society that is ruled by force and is only theoretically constrained by law, i.e., the force that has real force at its disposal controls, or as the Haitian saying goes: constitutions are made of paper, bayonets are made of steel. There is a parallelism between the Garner homicide and when George W. Bush refused to agree with the Taliban after 9/11 to extradition proceedings to have Osama Bin Laden delivered to the United States. As Noam Chomsky observed at the time, if a mafia don seeks to collect a debt, he doesn’t get a court order, even if he could, because that would acknowledge the existence of a higher authority and there isn’t one.
Such unpleasant thoughts arise under the circumstances, as they inevitably will when guardians transgress, and it is often hard not to believe that the improper use of force by society’s guardians, and their getting away with it despite the formal limit of law, is an essential feature of all human societies. A paraphrase attributed to Solon or some other very ancient Greek personage says: laws are like spider’s webs. They catch the small insects but large things break through and escape.
It is important that the cop who murdered Garner, and any future cops who commit violent crimes while wearing their badges, be “held accountable to the fullest extent of the law” so that this conception is denied. Garner’s death, in all its violent injustice, presents an opportunity to publicly reject the de facto validity of the principle that the police, or the executive authorities in general, may freely rule by force. The cops, naturally, do not want this principle denied but affirmed, because it thereby preserves their privilege of using force, and the social power this confers, and they self-interestedly mistake respect for authority for submission.
But the prosecution will not happen, unless enough outrage is sustained over a sufficient period of time that it would be untenable for it not to happen, because it not happening would risk too much social instability. The 1992 Los Angeles riots come to mind, even though they happened after a trial took place. In the United States in 2014, this kind of effective public indignation is difficult to imagine, and it is uncertain whether the executive authorities themselves have become so radically unhinged that they would never consider, even if only for prudential reasons, sacrificing one of their own as a token gesture to maintain the appearance that they are restrained by rules. It is not inconceivable that they’d prefer to ignite the powder keg, since they must believe that they would prevail in any openly violent conflict with a general public that has lost its patience.