The protests surrounding the killing of George Floyd continue with no end in sight. While the damage has been contained so far, the lack of an effective response is concerning.
There is a special trust that we convey upon our peace officers, where we give them greater powers than civilians have, arming them and allowing to use force, even deadly force, to ensure that the public is protected. This greater power also comes with a greater responsibility, to ensure that this power is not abused, where the law becomes broken in the name of enforcing it.
The killing of George Floyd, suspected of passing a counterfeit $20 bill, has served to galvanize the discontent that was already at a crisis level. Floyd’s death is just one in a string of abuses of power, both large and small, that have served to make a great deal of people angry, especially acts that have targeted African Americans. We already had the battle cry of “black lives matter” prior to the Floyd incident, but George Floyd’s life didn’t matter to Minneapolis police officer Derek Chauvin, and the mob is really out for blood now.
Racial abuse against African Americans is nothing new, as this has been going on since the American colonies first brought slaves back from Africa, long before the United States became a country. We’ve already passed the 400th anniversary of this, and while slavery has long been banned, and we’ve made a lot of relative progress with affording these Americans more civil rights, hatred based upon race is very much alive and well today.
While we focus on the outliers, the Derek Chauvin’s and other members of police forces that have shown heinous disregard for human life in their treatment of African American suspects, we need to make sure that we are focusing on the bigger picture here, where we make the appropriate effort to curtail abuses by police in general, including but certainly not limited to incidents that take human life recklessly or intentionally.
Police officers are certainly subject to the law, and if anything, more so than the average person, due to the added breach of trust involved when they use excessive force. Our track record in holding police officers accountable for their crimes remains questionable, and even though the standard of criminality is a high one, without reasonable doubt, we’ve had plenty of cases where there should have been convictions but officers have either been found not guilty or were convicted of crimes considerably lesser than they should have.
The protests against these actions have served a useful purpose, to not only bring these incidents to light but to show officials how discontented people are about this problem, although we also need to be very careful not to make the situation worse instead of looking to improve it. When the anger turns to violence, while the perpetrators may be angry enough to not care that they are making things worse, they need to realize that this sort of thing makes the haters hate even more, and makes those who wish them harm even more prone to do so.
It’s not hard to imagine the element in our police forces who have it in for certain minorities who they view as thugs and deserving of harsh treatment becoming even more polarized as they watch people continue to riot and loot on television every day. This approach is clearly a big mistake, although it’s difficult enough for many to make the right decisions under the best of circumstances, let alone when they are overcome with such anger.
The stock market hasn’t really been paying much attention to this, because so far it hasn’t added up to anything that notable, but people are now starting to talk about how this might affect the election in November, and this clearly is coming out on the side of Democrats. Joe Biden may think that if black people don’t vote for him, they aren’t black, but even with gaffes like this, the overwhelming majority of African Americans will still vote for him over Trump, and this issue will likely have more of them exercising their right to vote for him now.
The stock market has a strong preference for Trump though, since Trump is much more friendly to the economy than Biden or any Democrat, and what is good for the economy is also good for stocks. There’s also the potential for these riots to go on for some time, given that the anger is not subsiding and authorities are so challenged in quelling this rebellion, almost helpless.
While the number of businesses that have been affected by this remains very small in the grand scheme of things, it’s hard to say when this will end, given that the mob really doesn’t understand the limitations of criminal prosecution and have set the bar much higher than can be reasonably achieved.
The Floyd family called for the death penalty for Chauvin, even though Minnesota doesn’t have the death penalty among its legal options. People want the officers present charged with first degree murder, and don’t realize how ridiculous this is. It would not be possible to prove that even Chauvin committed first degree murder, or even second-degree murder, and the third- degree murder charge that he is now under is really the most we could get from this, but only if we understand the law a little.
While there may have been cases where prosecutors have appeared to have gone more lightly on police officers than they likely would with civilians, we need to approach each situation in its own right. The approach with this particular case is actually pretty clear cut, and this is not just a matter of what you could get a jury to agree to, it’s a matter of what can be proven under the law.
We Need to Understand the Law Before We Start Making Demands
What lay people particularly struggle with is that criminal prosecutions do not just need something to be more likely than not, it requires that the evidence be so strong as to exclude any other reasonable interpretation. If someone likely had the intent to kill someone but there is still some real doubt left, then this means not guilty of that particular charge anyway, as much as people may not like to hear that.
We don’t always pay enough attention to this high standard, and plenty of people get put away when reasonable doubt clearly existed, many of them wrongly. The reason why criminal law requires such a high standard is that we don’t want to be sending people to prison who are innocent, and if we just go by the balance of probabilities like we do in civil cases, this is going to throw a lot of innocent people in jail.
If all we need, for instance, is a 60% chance of guilt, that means that 40% of the people put away will be innocent. We get outraged each time we convict an innocent person, and not without good reason, as we need to ensure that we do our best to prevent such things, within reason that is.
It is nowhere near enough to just be able to say that Chauvin probably intended to kill Floyd, or even very likely intended to kill him, and that’s the part that even juries struggle with, even under the best instruction that judges can offer them. If there is any other reasonable explanation, that is enough for a not guilty verdict. If the glove does not fit, you must acquit, and that was enough to acquit O.J. Simpson even though just about everyone felt that he very likely did it.
As reprehensible as Chauvin’s actions were, and it’s not even easy to come up with a word to describe this, the idea of proving premeditation or even intent beyond a reasonable doubt is well out of reach, as much as people are clamoring for this, and way further out of reach than we see with a lot of criminal trials that actually go to a jury.
For premeditation, we’d need independent evidence, apart from the act itself, that Chauvin did plan this ahead of time. This need not involve Floyd specifically, but could involve a general plan to go out and kill a suspect, and then carry out this plan against Floyd. You can’t derive premeditation at all from anything that was shown on the video.
Proving intent beyond a reasonable doubt would also require independent evidence, even though the officer’s conduct after Floyd passed out, keeping his knee on Floyd’s neck for two minutes after he passed out points to an intent to kill. Pointing to intent and proving intent are two separate matters though, because once again, this is not decided on a balance of probabilities, and it is entirely reasonable that this action was a result of Chauvin’s intention to continue to subdue Floyd with no regard for his safety or whether he would die, which is not the same thing as intent defined by the law.
We have to prove Chauvin’s intent and can’t just assume it, and while this can be easy to do in some cases, it can be very difficult to prove in others, where we have little or no insight into the frame of mind that the officer was in. If we could read his mind, that would help, but we have to rely on independent evidence apart from the action to substantiate it, which could include utterances indicating an intent to kill or by way or other evidence showing a clear intent beyond a reasonable doubt.
Even the fact that Chauvin probably intended to kill Floyd is not enough, although that’s something that a lot of people don’t understand, and then think that the system is cooked up in the officer’s favor when we can’t prosecute accordingly. The media hasn’t helped much though and perhaps don’t want to be seen taking the side of the officer here, which would be unfortunate.
It turns out that the third-degree charge describes the event perfectly, where an event “causes the death of another by perpetrating an act eminently dangerous to others, and evincing a depraved mind, without regard for human life.” This law might even have been written specifically for this case, it fits it so well.
This is as strong of a charge that could be brought against Chauvin without being able to meet the high standard of proving premeditation of intent, and those are both well out of reach. The mob wants to see the other officers who served as bystanders charged with murder as well, but this also results from a misunderstanding of criminal law.
The Minneapolis police chief admitted that these other officers were “complicit,” but being complicit does not mean that you have broken the law. This was likely said to try to soothe the situation, but a more honest approach may have been better, telling people why these other officers have not been charged and why there really isn’t a good case here, as morally reprehensible as their actions may have been.
To be complicit merely requires someone to be associated with a crime. The other officers involved may have been complicit but this does not mean that they met the legal definition of aiding and abetting that is required to be proven beyond a reasonable doubt to obtain a conviction.
Minnesota criminal law defines aiding and abetting as follows: “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” This requires that we prove the other officers took actions to assist or even to provide encouragement to the perpetrator, and there was no evidence of this in the tape.
This is not to say that no such evidence exists, but if it does, it has not been made known. We can only assume that by not charging these other officers with a crime, there is no sufficient grounds to do so, and without additional evidence, claims that they are criminally liable here do not only not meet the high threshold of criminal conviction, they are baseless.
We Can’t Fix This Unless We Monitor and Regulate This Behavior Properly
The manner in which the three other non-participating officers does serve to illuminate the role of administrative redress versus legal redress when it comes to the actions of police officers. All four officers were fired, and while the other three may not be guilty of a crime, they are certainly guilty of breaching their duties as police officers.
The officers may not have broken any laws in standing passively while George Floyd lost his life, but there is an expectation as part of their assigned duties to protect all citizens, including a suspect whose life is placed in peril through the actions of one of their co-workers, and their firing was therefore an appropriate action.
If someone works at a store and has been found to be uttering racial slurs at customers for instance, they haven’t broken the law, but they have acted contrary to the expectations of their employment. If we rely on law enforcement to control this, while store owners do not pay enough attention to these things, we’re not going to get anywhere. If we want to get rid of such things, we need to address them on all fronts, especially on the actual front line.
For those looking for reform, and we all should be calling for a reduction in police brutality, we cannot just leave this up to the law to enforce, as there are many situations that do not come close to meeting the high standards of criminality. If not for the video, we may not have even able to charge Chauvin with anything that could be made to stick, even with eyewitnesses. Without any witnesses at all, the case would surely go unprosecuted, as the police could have made up whatever story they wanted in their report and the only other witness would be dead.
There really isn’t a way to completely eliminate the excessive use of force by police, but we can do much better, and the way to do this is to ensure that all contact that the police have with the public is captured on video, without exception. We also need to have someone monitor these interactions regularly, and also require law enforcement agencies to release videos to the public in situations where there is suspicion of abuse. As was said in the intro of the Six Million Dollar Man, gentlemen, we have the technology.
Those who use a little excessive force need to be held responsible, and this isn’t just firing people who have gone way too far, it also requires effective remedial action with any abuse. Police are given far too much latitude, and too many officers act excessively given the opportunity, if we are too lax at enforcing proper standards of conduct. By capturing all of their actions, and especially by looking to apply proper standards to every intervention, this is the only way we will significantly reduce brutality.
A lot of officers could undoubtedly benefit from having their demeanor monitored, where coaching is provided when it is found that they fail to treat those they encounter with appropriate respect, including suspects. It is not enough to simply prevent the excessive use of physical force, as people should also be protected from verbal abuse, and both are required to bring the perception of officers by the public up to standard, especially in minority communities where they are reviled by so many, and often not without cause.
We need to both look to correct this at the administrative level and the legal level, and the people who say that this goes way beyond George Floyd and Derek Chauvin are absolutely right. This situation is badly in need of improvement, and a half-hearted approach or just giving lip service to this problem falls well short of the minimum required.
The violence expressed in these protests is counterproductive and just serves to widen the gulf. This problem is fueled by hate and the way that these demonstrations have gone, far from the peaceful Martin Luther King style, will only see the hatred grow. This is not accomplishing the goal of the protestors, it is clearly worsening the situation and making it more rather than less likely that this problem will persist.
Given that what these protestors are demanding, that we seek to prosecute Chauvin with a more serious charge, and that the other 3 officers be charged with a crime, murder in fact, together with the ineffective way that law enforcement has been able to stop them, strongly suggests that we may see this continue for a while.
While the communities and cities will suffer more and more as this continues to persist, the stock market has never paid much attention to riots, as this is far from the threshold where the value of stocks would be materially affected. It is possible that we may one day see civil unrest of a magnitude that would force them to care, but it would take something far worse than the protests over Floyd’s death to do it.
Meanwhile, it is clear that we do need real reform here, and this may serve to light enough of a fire under us to see some sort of change at least. Policing attracts a wide variety of applicants, some not so savory, and we need to start by vetting applicants much better than we do, where we look to exclude those who are prone to hatred and violence, as well as closely monitor current officers to ensure that their actions are monitored well enough for us to say that we are actually doing our best.
If we do a good job of this, George Floyd may not have died in vain. If not, it may require several more Floyds to wake us up enough. It would help if we could channel our anger here more constructively, and if officials would step up more to propose improvements, otherwise we will only continue to be angry and disappointed, which no one should want.