Skip to main content

By the Way, It's Not Clear Eric Garner Even Had Illegal Cigarettes When He Was Killed

In the end, it didn't matter whether Eric Garner was selling loosies or not, but the fact is he said he wasn't, and no one has proved otherwise.

The Staten Island grand jury's decision not to indict Officer Daniel Pantaleo, as sickening as it was predictable, has caused the scales to fall from the eyes of a lot of people who were previously blind to the injustice that decision represents. People for whom Michael Brown and Tamir Rice weren't sufficiently "perfect" victims are coming around to the idea that maybe black people haven't been making it up all these years. Obviously, not everyone is coming around, but more of them than before. I hesitate to call that a good thing, because even a fire that's burning less hotly is still a fire, but let's just say it's not less good. If you're one of those people, welcome to the party. The price for your admission was too high.

In the media rush to rally around the obvious (and less obvious) injustices of the Eric Garner story, though, a key detail has been papered over. In most of the discussions you'll hear on the news about this case, and online, Eric Garner's death is being shorthanded to "The police killed this guy just for selling loose cigarettes."

It's a shortcut that, in most cases, is taken with the best of intentions, to underscore the disproportionality of the response, to magnify the sense of injustice, and perhaps to  preempt an inevitable objection that raised criminality as a justification. It also leads to gobsmacking deflections like this one from Senator Rand Paul (R-Ky.):

I think there’s something bigger than just the individual circumstances. Obviously the individual circumstances are important. I think it is important to know that some politician put a tax of $5.85 on a pack of cigarettes so they’ve driven cigarettes underground by making them so expensive. But then some politician had to say we want you arresting people for selling a loose cigarette. For someone to die over breaking that law, there is really no excuse for it.

One of the many problems with that statement is that Eric Garner didn't die over breaking that law. I don't mean that just in the sense that racial bias and overpolicing were much more operative causes of the confrontation than the cigarette law, but in the actual technical sense. By now, we all know that Eric Garner used every bit of his last breath to tell police that he couldn't breathe eleven times, but the video that Ramsey Orta shot of the incident also shows Garner telling the cops he didn't sell anyone a cigarette half a dozen times. At one point, he even asks the officer to whom he supposedly sold a cigarette, and the oficer gives a less than ironclad reply:

"Not that red shirt, there's another guy in a red shirt?"

At this point, it's Garner's word against the word of a tentative-sounding cop that he sold a loose cigarette to someone, but early reporting on the incident suggests the cops didn't even have that much, but rather "accused him of passing a cigarette to someone," which isn't illegal. They suspected Garner, Garner had been busted before for selling "loosies," but it's not even clear they had a prima facie charge against him for this incident. As it turned out, the cigarettes he was carrying were perfectly legal.

Like Rand Paul said, the law Garner was accused of breaking wasn't for selling loose cigarettes, it was for selling untaxed cigarettes. Since there's a dispute over whether an actual purchase was observed, the only way Garner can now be considered to have broken the law is if he possessed illegal cigarettes. The police reportedly found four and-a-half packs of Newports on Garner, but those reports don't specify if those packs were untaxed. Even if you grant that they were, like the 23 packs he had been apprehended with previously, those 90 or so Newports would still be legal under state law:

However, a use tax is not imposed if it meets one of three exceptions: 1) the cigarette tax imposed under § 471 has already been paid; 2) the cigarettes are exempt from taxation under New York State tax law; or 3) the person brought into the state four hundred cigarettes or less.

Garner is dead and the "another guy in a red shirt" who Garner may have passed a cigarette to is apparently in the wind, so as far as the available facts are concerned, Garner was not illegally selling cigarettes when the cops rousted him. It's an important distinction for several reasons, not the least of which is that Eric Garner expended many of his last breaths trying to get that message across.

It's also important because there are actually people who want to make Garner's death about taxes (as Paul did), or "broken windows" policing, or "for whatever reason," anything other than what it was really about. Everyone knows that small stores and gas stations in urban or underprivileged often sell loosies, and everyone there knows which stores sell loosies. It's a good bet that one of the stores near where Garner was killed sold loosies. But like many other crimes, "loosies" aren't just a black thing, or a ghetto thing, or even a poor thing.

A few years ago, The New York Timesprofiled a man named Lonnie Warner, or ""Lonnie Loosie," a 50 year-old black man who made a living selling untaxed cigarettes on the streets of Manhattan. Among the many great details in the piece (like how, before business was good enough that he could almost afford health insurance, Lonnie relied on stints at Riker's Island for medical care), Warner talks about his clients as businesspeople who are in denial about quitting smoking, and about making deliveries to female clients in office buildings.

Upscale clubs, restaurants, and parties are another rich market for loosies, but for whatever reason, there doesn't seem to be the same focus on the problem by law enforcement:

Bathroom attendants in several posh drinking spots are selling individual cigarettes, or loosies, for a buck a piece. It's a misdemeanor under city and state law, but some wonder if the city is looking the other way when it comes to cracking down on loosie sales at upscale locales.

More than 5,000 people have been arrested for selling untaxed cigarettes and tobacco products in New York City since 2008, 247 so far this year, according to the NYPD. Russell Novack, an attorney with Legal Aid that often defends people who hawk loosies on the street, said he has never heard of a bathroom attendant being charged for the crime.

“It’s an interesting enforcement question. Why is one tolerated and one is not?” he said.

Yes, that is interesting, as is the story of Staten Island 57 year-old George Pringle, whom police stopped and searched based on a supposed loosie sale, but who was arrested for possession of crack cocaine. The city wound up paying Pringle a $42,000.00 settlement when the "crack" turned out to be a couple of Velamints.

In the end, it didn't matter whether Eric Garner was selling loosies or not, but the fact is he said he wasn't, and no one has proved otherwise. It didn't matter because he was killed for being fed up with living in an overpoliced community where the people who were supposed to protect and serve were more interested in bending him to their authority.

For Whatever Reason.