Thursday, June 21, 2018

IV. Legal Argument

A. The United States Violated Eric Garner's Right to Life Under Article I of the American Declaration

The United States violated Eric Garner's right to life by using a brutal chokehold technique, holding Mr. Garner's face into the pavement despite his stated lack of oxygen, and handling his person with callousness and excessive force, all of which resulted in his untimely death.

1. Article I of the American Declaration Recognizes the Prohibition Against the Excessive Use of Police Force

Article I guarantees that "every human being has the right to life, liberty, and the security of his person." Although the prohibition against the excessive use of police force is not explicitly set forth in the American Declaration, it is guaranteed implicitly throughout many Articles that establish the sacrosanct nature of human life. Specifically, Article I of the American Declaration addresses an individual's presumed physical inviolability, the protection of which becomes even more imperative when a person is in direct conflict with State authority in the guise of police action. *44 To this end, wider international law recognizes very few instances of legitimate reduction or removal of the right guaranteed in Article I.

This Commission, through synthesis of judgments from the European Court of Human Rights and the Inter-American Court of Human Rights, has affirmed that the interpretation and application of the right to life must be done with an eye to feasible, effectual safeguards.

In that regard, even in the framework of police operations that seek a legitimate objective, such as the apprehension of a person who has just committed a criminal offense, international law imposes a series of requirements that derive from the protections afforded by the rights protected by the [American Declaration], among them, the right to life.

Subsequently, states must adopt and abide by regulations that are adequate to ensure that any use of force inherently deters an illegitimate deprivation of life. In this way, all states have an immutable duty to "see that their security forces, which are entitled to use legitimate force, respect the right to life of the individuals under their jurisdiction."

Additionally, when state police use lethal force, the American Declaration, as interpreted by the Inter-American Court, requires that the state agents have first attempted other, less final intervention methods that were deemed fruitless. The subsequent use of force must have been necessary and proportionate to the demands of the circumstances, specifically to the level of danger the victim posed. In order to fairly and consistently evaluate police behavior, as regulated and permitted by the state, the IACHR and the Commission appraise police use of force through application of the UN Basic Principles on the Use of Force and Firearms, and the UN Code of Conduct for Law Enforcement Officers, which serve as an ethical mandate for police, codifying the norms of international law and state practice.

*45 2. Police Agents Killed Eric Garner with an Excessive Use of Force

Police officers detained Eric Garner with a disproportionate use of force that led to Mr. Garner's death. Furthermore, Eric Garner's homicide was an indirect result of the state's failure to adequately regulate the use of a chokehold technique that has been deemed excessive and illegal.

a. Police Use of an Illegal Chokehold did not Adequately Safeguard Eric Garner's Right to Life

The New York City Police Department [NYPD] banned the use of chokeholds by its employees over 20 years ago. Despite this bar, however, chokeholds have been used consistently by this police force, often without any consequence to the culprits. The restraint used on Mr. Garner, and documented in a bystander video, was an illegal application of pressure on his throat that reduced his access to air. Moreover, the abandon with which this technique was used on July 17, 2014 and the decade leading up to that day evidences a clear lack of consideration of the right to life of detainees. This implicit encouragement of illegitimate force violates American standards that oblige a state to adopt any and all measures to avert threats to this right.

The Inter-American Court, relying on a wealth of international judgments, has held that states have an affirmative responsibility to adapt their domestic laws and review of such laws to ensure that police forces do not arbitrarily and excessively employ force. Here, the United States, specifically the state of New York, provided a clear framework for curtailing chokehold use, but failed to implement this framework and failed to curtail the banned behavior. This absence of state regulation and control "created the right climate for the policemen involved in the operation to engage in improper and excessive use of force" which inevitably contributed to the death of Eric Garner.

*46b. Police Use of Lethal Force was Unnecessary and Disproportionate

Eric Garner was overweight and unarmed on the day that police killed him. He did not fight back against the police's physical detention, was not physically aggressive, and did not attempt to escape police custody. The Commission has recognized that the lethal use of force is only justified if employed to protect the lives of police and others. Moreover, United States domestic law has the same requirement, which is predicated on balancing individual rights with public policy. Here, the police's use of lethal force violated both international and municipal law because it was an excessive and unnecessary reaction to the non-existent threat posed by Mr. Garner.

On July 17, 2014, law enforcement officers approached Eric Garner. He was suspected of selling loose cigarettes, even though it is unclear whether police witnessed Mr. Garner selling a cigarette or decided to approach him based on his previous misdemeanors. Mr. Garner expressed frustration at what he described as ongoing harassment, he denied that he was breaking the law, he verbally objected when an officer placed his hands on him, but he did not ever threaten officers physically. For reasons that are unclear, the officer then put his arms around Eric Garner's neck and applied pressure. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials prohibit the use of any force unless it is necessary to protect public safety. Here, Mr. Garner did not pose a threat to an officer or anyone else. He was not even suspected of committing a violent crime. Finally, the officers did not first attempt any other less violent method of detaining Mr. Garner, as required by the Commission. Choking Eric Garner was unjustified in every legal and moral sense. Tragically, this extreme application of force quickly progressed to lethal intensity.

B. The United States Violated Eric Garner's Right to Humane Treatment Under Article XXV of the American Declaration

Article XXV of the American Declaration, which operates coextensively with Article I, *47 guarantees that every person "also has the right to humane treatment during the time he is in custody." This right requires that the state adopt any necessary measures to preserve the life of a detained individual. As such, "[l]aw enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required." Not only should medical attention be hastened when urgently needed, it should also be provided if and when requested by any individual whose liberty has been restricted pursuant to state authority. Therefore, the Commission has held that the absence of prompt and adequate medical assistance on the part of the state constitutes cruel, inhuman, or degrading treatment.

More precisely, this Commission has articulated that special attention must be paid to protecting the health of a police detainee because of the unique relationship that exists in such circumstances:

The foregoing is the result of the special relationship and interaction of subordination between the person deprived of liberty and the State, characterized by the particular intensity with which the State can regulate his or her rights and obligations, and by the inherent circumstances of imprisonment, where the prisoner is prevented from satisfying, on his own account, a series of basic needs that are essential for leading a decent life.

In order to determine whether the lack of timely and appropriate medical attention violates the right to humane treatment, the Commission has set forth the following factors to be balanced and considered: the individual's state of health or particular ailment, the amount of time that has elapsed without treatment, and its cumulative effects both physically and mentally. Further, the medical treatment must be "appropriate, timely, specialized, and suited to the special care that the persons deprived of liberty in question might require."

*48 The United States violated Mr. Garner's right to humane treatment by disregarding Mr. Garner's need for immediate medical assistance while being detained. As multiple officers piled onto Eric Garner and brought him to the ground, the first officer continued to apply force to Mr. Garner's airways. He begged the officers to release him and told them he could not breathe eleven times. As officers held his body prone against the concrete, further restricting his airway, Mr. Garner fell unconscious within seconds. None of the officers on the scene performed resuscitation techniques and emergency medical officers failed to administer aid to Garner for seven minutes while he lay unconscious. Any reasonable observer would know that Mr. Garner's life was in immediate danger, not only because he was not breathing but also because his poor state of health was apparent from his appearance and his protestations that he could not breathe. All state personnel present on July 17, 2014 had the duty and ability to provide Eric Garner with the timely and appropriate medical attention that would have saved his life. Eric Garner's death was the inevitable consequence of the use of force that progressed to lethality through the state's utter failure to treat Mr. Garner humanely, as required by law.

C. The United States Violated Eric Garner's Right to Equality Before the Law Under Article II of the American Declaration

United States violated Eric Garner's right to equality before the law because Eric Garner, as a black man, felt the disproportionate effects of discriminatory policing. Under Article II of the American Declaration, any practice that is implemented or embraced by a state, and has a disparate impact on a protected group of individuals may constitute unlawful discrimination. *49 Accordingly, the level of force applied to Eric Garner as an individual and as a racial minority violated his right to equal protection and his right to be free from discriminatory practice.

1. Article II Recognizes that Discrimination in Police Practice is Prohibited

Article II states that "[a]ll persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor." International law, unlike U.S. domestic law, provides that, in addition to intentional discrimination, "any distinction, exclusion, restriction or preference which has a discriminatory effect" is prohibited. "States must abstain from carrying out any action that, in any way, directly or indirectly, is aimed at creating situations of de jure or de facto discrimination." The doctrine of equal protection before the law is thus predicated on the equal application of substantive rights, regardless of whether those rights are proscribed deliberately.

In order to determine if a legal, public, or social function of the state is being applied in a discriminatory manner, the Commission considers the particular circumstances in which alleged discrimination takes place, as well as prevailing standards. The Commission has historically looked to evidence of minority populations that are more likely to be suspected, detained, arrested, and convicted than other groups and to evidence of racial profiling to establish racial discrimination. With this manner of evidence, this petition will establish that Eric Garner was the victim of racial discrimination through police practice.

2. Eric Garner's Killing Evidences at Least Implicit Discrimination Based on Race

Being black in the United States, as was Eric Garner, is a dangerous thing, both historically *50 and currently. When a crime suspect is black, he is more likely to receive violent treatment and more likely to be arrested. In fact, a perception of blackness has been found to be a statistically significant predictor of police decision to use force. Further, black men tend to populate impoverished and high-crime areas at a much higher rate than white men, and this sociological fait accompli leaves those black men more vulnerable to police who willingly accept the use of brutality and even lethality.

Recently, several international legal and human rights organizations have expressed concern over these very facts, as evidenced by the response to the police killing of Mr. Garner and other black men. The UN Special Rapporteur on contemporary forms of racism, Mutuma Ruteere, even cited evidence that "African-Americans are 10 times more likely to be pulled over by police officers for minor traffic offences than white persons" as a reason for concern. Similarly, the UN Special Rapporteur on minority issues, Rita Izsák, stated that many in the international legal community have "legitimate concerns relating to a pattern of impunity [in the United States] when the victims of excessive use of force come from African-American or other minority communities." In fact, this Commission stated that the killing of Eric Garner was a disturbing continuation of the "pattern of excessive force on the part of police officers towards African-Americans and other persons of color."

The global community is condemning the discriminatory practices of U.S. law enforcement because these very practices are what led to the death of Eric Garner and men like him. The Commission has been presented with more than enough evidence to consider the correlation between discriminatory police practice and the detention and killing of Eric Garner. He was a black man in a state that consistently and repeatedly adopts effects-based discrimination. More specifically, Mr. Garner was the victim of the most pervasive explicit and implicit discriminatory effects: police brutality and racial profiling. This Commission must hold the United States responsible for failing to uphold a "a system of individual liberty and social justice based on respect for the essential rights of man."

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