George Floyd Killing and Protest Legal Issues
In Minneapolis, Minnesota, on May 25th, 2020, police officer Derek Chauvin
responded to a call regarding an alleged counterfeit $20 bill used or
attempted to be used by George Floyd. Floyd was taken into custody, handcuffed,
and lying on the ground when Chauvin kneeled on Floyd’s neck for
over 8 minutes. Tragically, George Floyd died. Other officers including
Thao, Kueng, and Lane participated in various ways but a viral video taken
of the event primarily depicts the kneeling of officer Chauvin. An initial
autopsy found no indication that Floyd died of strangulation or asphyxia,
but rather that the combined effects that normally occur in a typical
arrest (being restrained) and combined with underlying health conditions
including coronary artery disease and hypertensive heart disease and potential
intoxicants in his system likely contributed to his death. An autopsy
commissioned by the Floyd family found that Floyd’s death was “a
homicide caused by asphyxia due to neck and back compression that led
to a lack of blood flow to the brain.”
Some accounts have suggested that Floyd resisted arrest, but others have
said that video surveillance footage shows that Floyd was not resisting
arrest. The FBI is investigating a possible violation of Floyd’s
civil rights, and after Floyd’s arrest demonstrations and protests
have broken out across the US and world. Chauvin has been arrested and
charged with Murder in the Third Degree and Manslaughter.
Derek Chauvin, the primary defendant, is a 44 year old White man who has
reportedly had numerous complaints made against him for improper policing.
Minneapolis, like any major US city, has handled other situations in which
a police officer has killed a civilian. In 2017, Justine Damond, a 40
year old unarmed White woman, was fatally shot at night by a Black-Somali-American
Minneapolis police offer named Mohamed Noor. Around this time, two police
officers had been ambushed and shot to death in their patrol car in New
York City. Noor, who had received previous complaints about the improper
use of force while on duty, was responding to a call about a possible
sexual assault. After investigating, Noor claimed that he was spooked
when Damond approached his police car. Testimony from his partner, Harrity,
supported this. Harrity testified that he was also spooked and pulled
out his weapon (but didn’t fire). Seemingly, there was no argument
that something frightening happened because both Noor and Harrity, two
trained police officers, pulled out their guns but the jury found that
Noor was guilty of Murder and he was sentenced to 12.5 years in prison.
Many of the protesters in Minneapolis are angry not only about the senseless
killing of Floyd but also the disparity in how Black police officers are
treated compared to White police officers. The only murder conviction
in Minneapolis against a police officer for killing a civilian happened
to a Black-Somali police officer (Noor) and they are outraged at his 12.5
year sentence, completely disproportionate to what happened that night.
Additionally, just as police officers are often given extra latitude in
fatal shootings of civilians because it is presumed that they aren’t
trying to murder someone and instead the death probably resulted from
a mistake, Noor was unfairly denied this latitude.
In 2016, an Asian-American police officer, Peter Liang, was convicted of
killing Akai Gurley, an African-American civilian, after he accidentally
fired his gun in a dark stairwell and the bullet ricocheted off a wall
and fatally struck Gurley in the chest. The broad consensus was that Liang
was relatively inexperienced, frightened, did not intend to pull the trigger,
and because the bullet had to bounce off a wall to hit Gurley, Liang wasn't
pointing his gun at Gurley.
In police shootings of civilians, the cause of death and mental state of
the police officer are critical issues. If there is a fatal police encounter,
a first question is what caused the death? If a police officer applies
force (a gun shot, punch, kick, choke-hold, or kneeling on a neck), did
this force cause someone to die? Obviously, if a police officer shoots
someone and they die months later from an unrelated heart attack, this
isn’t attributable back to the police officer’s actions as
a homicide even if they were wrong to fire their weapon. So, the prosecutor
will need to prove that the force used caused the person to die.
The mental state of the officer is the next critical issue. Was it intentional?
If so, was it in self-defense? If police have guns, they will occasionally
shoot people accidentally, negligently, recklessly, or intentionally.
There is a huge difference . Accidents happen. Ideally, we mourn, forgive,
and move on. Negligence happens. If a police officer is looking down to
text someone while driving and hits and kills a pedestrian, this negligence
is terrible but generally handled civilly. The pedestrian’s family
may sue the police department, the police officer may lose his/her job,
but a prosecutor may be very uninterested in trying to jail this officer
for this negligence. In the same way that we may not want to go to jail
any time we make a routine error at work, prosecutors may not want to
send someone to jail for a routine error, even if it kills. When officer
Liang fired his gun into the dark stairwell, this was an example of a
routine mistake but with deadly consequences. His prosecutor told the
court that he did not want Liang to go to jail because it was a mistake.
Recklessness happens too. Initially, Liang’s conduct was argued
by prosecutors to be reckless. Recklessness is a disregard of the consequences
of your behavior may have on other people. Liang’s conduct was reclassified
as negligent by the judge after the jury convicted him of being reckless
(manslaughter versus negligent homicide). The fact that Liang's conduct
was reclassified as negligent by the judge after a jury classified it
as reckless shows that it can be difficult to classify unintentional police
killings. Murder is generally reserved only for those situations where,
in the absence of self-defense, someone knows that their actions are probably
going to kill someone and they engage in them anyway to kill that person.
Labeling the Noor shooting as murder has been questioned because there’s
so little that says that Noor was trying to kill Damond in cold blood.
Chauvin’s killing of Floyd looks very different so far. What legitimate
police procedure could Chauvin have been applying or attempting to apply
to Floyd? Is there any evidence that Floyd was resisting arrest and that
force was appropriate all the way up until his death? What was Chauvin
trying to accomplish when kneeling on Floyd’s neck? The prosecutor
will argue that Chauvin acted in cold blood in that he applied force that
was clearly excessive and unwarranted and that this force caused death
by asphyxiation according to the second autopsy.
Chauvin may argue that it was really Floyd's underlying health conditions
including coronary artery disease and hypertensive heart disease and potential
intoxicants that killed him and that Floyd was resisting arrest. Chauvin's
attorney may also argue that the initial Minneapolis prosecutor, Keith
Ellison, initially did not charge murder even after viewing video evidence
which means that Chauvin's conduct could not have been that egregious.
It seems unlikely that self-defense will be argued given that it seems
like Floyd was on the ground, motionless during the critical events.
The legal issues are only part of the story as protests have erupted as
a response to it. Prosecutors, judges, juries, and lawyers are people
and obviously subject to bias. Protesters have pointed to a troubling
history of racial bias in Minneapolis. They have complained about the
troubling initial autopsy results for Floyd. Only time will tell how the
legal issues are resolved but by law, Chauvin is presumed innocent, is
entitled to review the evidence, and will be able to cross-examine any
witnesses at his trial and take the witness stand to offer his recollection
of the events, or call his own witnesses.
Protests have erupted and continue to erupt over a broad distrust of social
institutions in Minneapolis and the US. Generally speaking, protesting
is a type of communication which seeks to voice disapproval or objection
to something. In New York, you have the constitutional right to engage
in peaceful protest on public sidewalks and streets, and in public parks.
Sometimes, protests turn into riots. Riots have a long history in the US.
The very first riot was probably the Boston Tea Party Riot on December
16, 1773, in which colonists, sick of being treated like second class
citizens, destroyed shipments of tea sent by the East India Company.
Wikipedia details over 50 US "race riots" (https://en.wikipedia.org/wiki/List_of_ethnic_riots). In these events, there are observations that can be made about the involvement
of race but the dimensions are very different from riot to riot. For example,
Oklahoma had a riot in 1921 in which Whites destroyed the Black community
in Tulsa for no apparent reason other than hatred. Is this a "race
riot" in the same sense as in 1992 when riots broke out in LA and
other places because Rodney King was beaten nearly to death by the police?
In many places, you can be arrested and charged for engaging in a large
protest or march without a permit. Obviously, any property damage or assault
that you take place in can result in your arrest and prosecution.
Protesting is vital to justice, especially in the United States, considering
our respect for the First Amendment and that our country was founded by
rebels. However, like most things, there are rules and many US cities
and locals have rules and regulations that curtail your ability to protest
when the protest may cause traffic problems or otherwise unreasonably
interfere with the public.