Eric Garner

Listen Up, Liberals: Make Everything Illegal, Create More Eric Garners

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Leviathan
Wikimedia Commons

In comparison to the Michael Brown shooting, the death of Eric Garner—and the similar decision not to indict the cop who killed him—has drawn outrage from across the political spectrum. Many conservatives, including Breitbart's John Nolte, The Federalist's Sean Davis, and The Daily Caller's Matt Lewis, agreed with anti-police-brutality libertarians and liberals that Garner's killer should have faced charges. The consensus is that the video evidence definitively established wrongdoing on the part of the officer (unlike the Brown case, which relied on conflicting eyewitness testimony).

But because that's no fun, right and left had to find some way to tear each other apart over this. And so the contention—made by some libertarians and conservatives—that punitive cigarette taxes are a contributing factor in Garner's death has driven many on the left into a fit of rage.

Some background on that contention, courtesy Reason's J.D. Tuccille:

Here we have Garner, a guy allegedly selling loosies—single cigarettes—which are a perfectly legal product. Why is he supposedly selling loosies? Because New York officials inflict on their long-suffering subjects the highest cigarette tax in the country at at $4.35 per pack, plus another $1.50 levied in the city itself. It's not a popular tax, with smuggled smokes making up 60.9 percent of the market. So the powers that be unleash the cops to enhance revenue by tracking down shipments of smuggled cigarettes and, on occasion, putting the occasional small-time street vendor in an illegal chokehold.

On his show last night, Jon Stewart mocked Sen. Rand Paul for making that point. When asked about Garner's death, Paul said: "Some politician put a tax of $5.85 on cigarettes, so they have driven cigarettes underground by making them so expensive, but then some politician also had to direct the police to say, hey, we want you arresting people for selling a loose cigarette."

Stewart's response: "What the fuck are you talking about?"

BuzzFeed's Adam Serwer also criticized the point (though more kindly), in a Twitter argument with Reason's Scott Shackford. "I think 'it's the cigarette tax' is comforting because then we don't have to deal with the racism, which we know isn't getting fixed easily," wrote Serwer.

Media Matters was as nasty as could have been expected, publishing an email update on the matter under the vindictive headline: "Right-Wing Media Parrot Rand Paul's Absurd Assertion That Cigarette Taxes Are To Blame For Eric Garner's Death."

And the most eloquent critic of the cigarette argument, The New Republic's Danny Vinik, wrote:

In other words, Eric Garner is not dead because New York City imposes high cigarette taxes. He's dead because a cop put him in a chokehold, in violation of NYPD rules, and held his head against ground. To their credit, conservatives have widely denounced the grand jury's decision. If they want to argue against cigarette taxes, though, they should make that full argument—including that the law can cause violent confrontations between police and civilians. But pointing to Garner's death as evidence that those taxes are bad policy isn't meaningful. 

Look, police brutality has many underlying causes. One of them is undoubtedly racism; black people are disproportionately arrested and imprisoned. An encounter between a cop and a civilian is more likely to be unpleasant if the civilian is black. In fact, it's more likely to occur in the first place if the civilian is black, because many cops racially profile suspects.

Another cause is the police incentive structure. Police have far more legal protections than non-police. They can get away with so much more. Indeed, while the cop who killed Garner evaded indictment, a civilian who recorded the incident on his phone was indicted on a separate weapons charge.  It's difficult—often impossible—to punish police for bad behavior, which gives the bad apples free rein to abuse people.

You know what's also a cause? Overcriminalization. And that one is on you, supporters of the regulatory super state. When a million things are highly regulated or outright illegal—from cigarettes to sodas of a certain size, unlicensed lemonade stands, raw milk, alcohol (for teens), marijuana, food trucks, taxicab alternatives, and even fishing supplies (in schools)—the unrestrained, often racist police force has a million reasons to pick on people. Punitive cigarette taxes, which disproportionately fall on the backs of the poorest of the poor, contribute to police brutality in the exact same way that the war on drugs does. Liberals readily admit the latter; why is the former any different?

If you want all these things to be illegal, you must want—by the very definition of the word illegal—the police to force people not to have them. Government is a gang of thugs who are paid to push us around. It's their job.

A well-meaning liberal who doesn't want people to smoke but also doesn't want the government to kill them for doing so has plenty of other options, by the way. There are countless organizations and products dedicated to helping people quit cigarettes voluntarily.

But anybody who wants it to be a matter of law must accept that resistance will be met with fines, prison, and death. As Bloomberg View columnist and law professor Stephen L. Carter put it:

It's not just cigarette tax laws that can lead to the death of those the police seek to arrest. It's every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they're right.

There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same as the advice I give my students on the first day of classes: Don't ever fight to make something illegal unless you're willing to risk the lives of your fellow citizens to get your way.

Any subsequent conversation about ending police brutality should include strategies to combat racism, reforming the criminal justice system and police incentive structure… and taming the maniacal leviathan that is the modern regulatory state.