A Right to Breathe

by | 19 Jan 2015

RIght to Breathe

Image by Jason deCaires Taylor. Source.

The air is taken away from us; “we cannot breathe”. This is a commentary which draws inspiration from an evocative piece of writing by Jerome Roos which appeared earlier in Reflections on a Revolution. The title of his text, “From New York to Greece, we revolt ‘cus we can’t breathe”, describes how the lack of lack of free air has become a symptomatic challenge for the functioning of democracies worldwide. The iron hands of power seem to tighten themselves around the throats of fragile bodies both close and faraway. At the heart of Roos’ critique are Eric Garner’s now famous last words, which he repeated 11 times before the air was finally forever taken away from him: “I can’t breathe”.

The brevity of the three small words, I. cannot. Breathe, characterise how vulnerable the body is when it is cut off from the medium that supports it. The meaning of the words describes a violent endogenous attack on the elemental source responsible for all forms of animation. Upon a single breathe all depend(s). Awareness of this vulnerability has come to increasingly inform the policing strategy for the governance of ‘unwanted’ bodies. Governance seems no longer interested in only the physical punishing of bodies. It now wants to control, monitor and, when necessary, cut off the supply of the medium that forms the elementary condition of life itself. The air is increasingly becoming the preferred technology of power to discipline, punish and kill anybody who breathes too freely. The lack of a legal right to protect the act of breathing provides law-enforcement the opportunity to openly attack the lifelines of the recipients of its violence. I am using two examples, chokeholding and gassing, to make the case that policing increasingly takes place through the attacking of bodily airways. I wish to show that the ‘policing of breath’ is in both cases facilitated by the inadequate functioning of existing legislation on the right to breathe and a general omission of a discussion on the politics of air. I am arguing that a politicisation of the air is necessary to protect the right to breathe free from policing. Nobody questions the idea of a right to food and shelter, yet the elemental right for a body to breathe is constantly and increasingly infringed upon.


The BBC cites a 2014 report from the New York City Civilian Complaint Review Board (CCRB) which takes note of 1,128 registered complaints of chokeholds in the past five-and-a-half years. The complaints took place despite a ‘categorical’ police ban on chokeholds in 1993. The Chief John F. Timoney, speaking for the Department at the time, stated however also that “he could imagine extreme circumstances in which a chokehold might be used legitimately and [that] each case would be reviewed afterward on its individual merits.” There is no indication how the choking of Garner occurred in circumstances that could be classified as ‘extreme’. The interpretational character of the ‘extreme circumstances’ clause seemed to have helped provide the police with the opportunity to legitimately cut-off the air supply of the unwanted body of Eric Garner. Indeed, as Eugene O’Donnell, Professor of Criminal Justice at City University of New York writes, “there is no explicit law that criminalises the use of a chokehold on someone either by a police officer or someone else.” Chokeholds are, in other words, prohibited, but they are not illegal.

Another problem with the 1993 ban is the actual definition of a chokehold. The above NYPD ban stated that the hold refers to “any pressure to the neck or throat or windpipe that may prevent or hinder breathing or reduce intake of air.” A CCRB investigation published after the death of Garner showed that the definition of a chokehold had since 1993 ban been “mutated” to adapt to the “NYPD’s disciplinary process”. It now is said “to require force to the neck during which an officer actually and substantially interfered with a complainant’s breathing rather than ‘pressure’ to the neck which ‘may’ interfere with breathing.” This effectively means that one can only speak of a chokehold when the officer in question “actually and “substantially interferes” with the breathing of his target. This reformulation has led the defence in the Garner case to deny allegations that the officer responsible for the death of Garner actually used a chokehold. The lack of breathing is instead framed as an inadvertent side-effect of the hold. The attorney Stuart London implicitly even denies that Garner could not breathe as a result of the chokehold. He states:

You have to look at the video many times to see that, while his arm is technically around Mr. Garner’s neck, if no pressure is exerted restricting his ability to breath, then it’s not a chokehold.

The reformulation of what a chokehold actually refers to has in some police departments even led to a retranslating of the term into altogether. A police department in Washington now refers it to “lateral vascular neck restraint”. The reformulation into what effectively becomes a “blood choke” is defended by proponents of the redefinition who argue that it is not intended to “impede breathing as does a chokehold because it does not target the windpipe, but instead restricts blood flow to the brain, potentially causing loss of consciousness.” Such reformulations and redefinitions of what a chokehold is (and is not) have led to a underplaying of what the action of choking somebody actually refers to. The result is that the cutting-off of air is effectively seen as a by-product of something else, a less-than-lethal manoeuvre, which ‘inadvertently’ allows and legitimises for an attack on the vital lifeline of the body. The elemental act of breathing is, in other words, relegated as something that falls outside of law altogether.

The neglect in law as to what it means to breathe runs parallel to the neglect in law of the physiological fact that everybody breathes differently. There is, to put it crudely, no differentiation in law between different bodies. Garner suffered from both asthma and obesity. These are medical conditions that characterise, one should remember, the medical state of a very large number of bodies in the US. The American Academy of Allergy Asthma and Immunology notes that “one in 12 people (about 25 million, or 8% of the U.S. population) had asthma in 2009”, while the Food and Action Center states that “more than two-thirds of U.S. adults are overweight or obese.” Returning then to the case of Garner; the medical examiner at the court “found that… obesity and cardiovascular disease were contributing factors [to his death].” The observation led the defence to accuse Garner himself, post-mortem, to have played a role in the causing of his own death. This twisted conclusion characterises the fundamental inequality that exists between different bodies in law. The ‘normal,’ ‘healthy’ body free from cardiovascular diseases, eating disorders and many other medical and even psychological conditions, constituting the minority part of the population, is granted more legal rights and thus protection from police brutality than the body that does characterise these symptoms. Law functions, in other words, on a perception of a body that can breathe optimally and is in a perfect mental and medical condition.

That perfect body in law is seemingly also white in colour. The Food and Action Center states that the Black and Hispanic population consistently suffers more from overweight and obesity. The chances of being a victim of chokeholds further increase when we look at the racial dynamics within US police departments. During an investigation in the early 1980s as to why 12 bodies out of the 16 deaths relating to police chokeholds were black, the head of the LAPD responded that “blacks might be more likely to die from chokeholds because their arteries do not open as fast as they do on normal people”. Such racial attitudes might be less common in 2014, but Black and Hispanic bodies in the US remain statistically much more likely to have experienced chokeholds. Some estimates suggest that police, security guards and self-appointed vigilantes are responsible for the killing of at least 313 African-Americans in 2012 alone. Retrieving data is for all sorts of reasons notoriously unreliable and true figures are said to be even much higher.


While chokeholds target the body of the individual, gassing has the purpose to indiscriminately assault a large number of different bodies. Legal regulations to protect this collectivity of bodies—which law enforcement officers have reduced to the anonymous status of ‘crowd’—are largely missing when it comes to gas attacks. This is particularly visible when it comes to the use of so called Riot Control Agents (RCAs) that globally have become one of the most frequently used policing tools for ‘crowd control’ purposes. While prohibited in warfare, the domestic use of these non-lethal chemical weapons for law enforcement purposes is legitimised in the 1993 Chemical Weapons Convention (CWC). The international convention explicitly excludes “law enforcement including domestic riot control purposes” from the force of regulation. The lack of international regulation has meant that the use of chemical weapons for law enforcement purposes is rapidly rising as states find it increasingly difficult to govern the body politic through methods of popular consent.

In 2013 alone, there have globally been hundreds of instances of state-deployed teargas attacks. Austerity’s choking grip on society means that the so-called ‘counter-terrorism’ industry is by market research predicted to grow by 20 per cent until 2020. Indeed, what better weapon to use as a means towards the disciplining of bodies than the boundless air that invisibly floats around us and on which everybody depends?

The reasons for the anticipated exponential growth of the anti-riot control industry can further be explained by looking more carefully at the legal framework of the CWC. Crucially enough, the CWC does not provide a definition of what ‘law enforcement’ actually entails. The relevant CWC article (II, 9: D) exposes however that “riots” are only one situation among potential others in which airborne chemicals may legitimately be deployed by law enforcers. This leaves substantial legal room and scope for police officers to expand the deployment of toxic weapons in a diversity of situations that it could categorise and classify itself as being ‘law enforcement’. Indeed, the Judge Advocate General of the U.S. Department of the Navy declared in 1997 that the definition of law enforcement “is one that will be determined by the practice of states”. The breath of every respiratory body is therefore at any given moment in time at risk.

Students have increasingly become a very popular recipient of police enforcement. The latest controversy over the use of CS gas at the University of Warwick is only the latest example of this alarming trend. A Coventry police officer is in a published video seen as spraying CS gas from very close range into a young man’s face. Teargas was also widely used in the Ferguson protests. The use of teargas was there of such a degree that a local judge demanded police officers to temper their enthusiasm and to decrease the dosage of their chemical polluting of the air.

The physiological effects of the gas include: coughing, increased mucous secretion, severe headaches, dyspnoea, tightness of the chest, difficulty breathing, skin reactions, and excessive salivation. Sven-Eric Jordt, a professor of pharmacology at Yale University writes that tear gases “are nerve gases that specifically activate pain-sensing nerves… The receptors are designed to warn… about exposure to a noxious chemical, so the [human] removes itself from the exposure.” Despite the fact that CS gas targets the body’s nervous system directly, there exist no laws or regulations that are concerned with the psychological effects of teargas. The risk of convulsions increases dramatically with the intake of gas, while heightened stress levels could have long and sometimes even lasting effects. The gas is said to be safe if used in small doses, but there is “no scientific data on the relative safety of 1% versus 5% CS [gas]”. Neither do there exist specific legislations on the actual quantity of teargas that may be used for law enforcement purposes. Rampant use of teargas in the 2013 Taksim protests, for example, left the entire sky of the square in a thick air of poisonous smog.

Besides a great quantity, protesters at Taksim also suffered from being assaulted with expired gas. The use of expired teargas is not limited to Turkey. A recent report into the use of anti-riot controls during the Ferguson protests suggests that the police deployed tear gas and riot control agents from the Cold War period. There exists little research on the mental or physical health risks of expired teargas. A report on Israeli usage of expired gas against Palastinians writes however “that tear gas when expired turns toxic, and [consequentially becomes] far more dangerous to humans and other organisms.” The CWC makes no mention at all of expired teargas. Although CS gassing is commonly seen as a ‘less-than-lethal’ police technique, Physicians for Human Rights, an international non-profit human rights organization, recorded 39 tear gas related deaths in Bahrain from 2011 to 2012, many from inhalation in close or confined spaces. The last known fatality occurred earlier this year in Egypt where a 52-year-old man was suffocated by gassing.

The CWC makes furthermore no mention of the diversity of bodies of the recipients of teargas. This occurs despite the fact that research has shown that “people with asthma or other conditions can have very severe reactions [to gassing].” Similarly infants and the elderly people are in greater risk of permanent health issues when exposed to gassing. The indiscriminate cutting-off of bodies from the air raises difficult questions as to whether law can actually ever separate lethal from non-lethal weapons. Every respiratory body shares a different relationship to the air.

The very concept of non-lethal weapons raises also questions about the development of future chemical weapon arsenals. Indeed, one researcher argues that non-lethal weapon “may expand rather than limit the ‘just causes’ for using force, thereby reversing the trend in international law to restrict severely legitimate uses of force.” The label ‘non-lethal’, in other words, legitimises and furthers rather than forbids and limits police violence. Technological advances in neuroscience and biochemistry could, according to specialists, “completely alter the nature of human conflict.” The same author warns about the increasing interest of state-sponsored research on non-lethal weaponries that could directly attack the body’s behavioural functions. Without discussions on the politics of the air and a right to breathe, air attacks are likely to accelerate in intensity and in number.


The air is taken away from us; “we cannot breathe”. What is there to say of the violence of one breathing human towards another? It is indifference towards life altogether which arguably makes it the worst possible form of violence. It was precisely this disregard and indifference towards the medium of life which made the killing of air in gas chambers of Auschwitz so unworldly efficient and so disturbingly hygienic.

The proponents, including those that have the monopoly to deploy it, hail the humane character of the killing of air and praise its efficiency and cheapness. The former home secretary Michael Howard, responsible for allowing British officers to use CS spray in 1996, argued that “CS is effective and safe, and promises to be an excellent addition to the means which police officers have of defending themselves.” The words echo those of an official US ‘investigation’ into Israel’s use of U.S-manufactured tear gas tear gas which the 1989 report “describes as “one of the most humane forms of riot control. Its use is intended for purposes of crowd dispersement rather than for punishment.” It also allows for a neutralising effect of distance between the law enforcer and his victim. The UK Home Office invests research on a new Discriminating Irritant Projectile (DIP) which “can be deployed from up to 131 feet away”.

The air is however not only a means to divide and discipline. It is also a medium that unifies and overcomes difference. What makes bodies strong and intimate. I inhale the air that you exhale. When the state decided to squeeze the last breath out of Eric Garner’s body, the air stifled and we all died a little. The air is not a politics of ‘mine and thine’. The air constitutes a politics that is radically democratic, free and equal. We constantly exchange the medium that makes us. The air precedes historical appropriations and is exterior to political classification.

The air is taken away from us; “we cannot breathe”. The incapacity to breathe has now become the expressive and demosthenic slogan for mass protests worldwide against the cutting-off of air. Tariq Ali notes a vital energy to these protests. “The scale, speed and intelligence of the protesters took the country by surprise.” An air of change seems in the making. Indeed, as Fanon (cited by Jerome Roos) wrote, “when we revolt it’s not for a particular culture. We revolt simply because, for many reasons, we can no longer breathe.” With every breath we take, we become stronger. The breath is a calling for air which chooses life over death, the collective over the individual and inspiration over expiration. The breather therefore resists but also seeks to breathe life into new ways of doing things.

Thinking of how we can secure our breathing has as much a bodily as a political purpose. I wish to close by way of invitation to think about ways on how we can protect and exercise our right to breathe. A right to air, it bears remembering, is not the same as a right to life. The air is anterior to life, but it is also there when life is no more. It creates the possibility for it. How to secure something that is so ancient and elemental as the body’s calling for air? This question, to which I admittedly do not know the answer, will need to be raised and discussed at a time in which policing increasingly disciplines, controls and prevents that calling.

Marijn Nieuwenhuis teaches political geography at the University of Warwick.


  1. A practical concrete action is to fine VW one trillion dollars for intentionally polluting the air through noxious diesel emmissions. And establish a special prosecutor with the power to enforce the fine. This calls for a Nuremberg-style prosecution. It is a crime against humanity for sure!!!

  2. Why than can I not shop or buy food without wearing a mask? I can no longer shop for food because I want to breathe. I am a senior and I have been treated horrible by these stores. I have a right to breathe!

    • goober

      • It’s now 2023 and I would be interested to know if Mr. Man who called people “goobers” for fighting for God given rights (breath) has had his epiphany yet ?!
        The insolence of the wicked will be judged.


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