By Jeannie Suk Gersen – The New Yorker
Amid protests demanding “justice for George,” calls to turn the law-enforcement apparatus on itself are complicated, at a moment when activists are insistently pushing to abolish the police.Photograph by Jelani Rice
I first saw the “Hospital Arraignment” shift listed on my schedule as a rookie prosecutor in Manhattan, in 2004. I soon learned that criminal arraignments routinely took place around a hospital bed, because it was common for a person to be seriously injured during his or her arrest. A judge, prosecutor, defense lawyer, and court reporter would travel in a car to a local hospital, where the person lay handcuffed to the bed, and proceed to conduct the court hearing, stating the crime charged, asking for the defendant’s plea, and sometimes setting bail. My first time, the defendant, a middle-aged African-American man who was arrested for a misdemeanor, was bloodied from head wounds and was moaning in pain. The police claimed, incredibly, that the man had put his own head through the window of a police car. We all knew that police officers’ use of force was common, that they commonly tacked on an accusation of “resisting arrest” to misdemeanor charges in order to justify it, and that the legal system would believe an officer’s account over an arrestee’s claim of excessive force. My questioning of police accounts of arrests quickly led to my having an unfavorable reputation among cops I worked with. I left the job only six months after I started.
George Floyd, of course, did not make it to a hospital arraignment in Minneapolis on May 25th. He was killed by a white officer, Derek Chauvin, in the course of an arrest on suspicion of using a counterfeit twenty-dollar bill to buy cigarettes. Chauvin kneeled on Floyd’s neck for nearly nine minutes while Floyd pleaded, “Please, I can’t breathe.” Floyd’s death, in the light of day, as three other officers looked on or helped restrain him, was captured on video by a teen-age bystander. The widespread demonstrations in response to Floyd’s killing have prompted myriad institutions across the country to denounce the racism that structures the elements of our society, from health care to housing to public education. But demands for justice inevitably return to law and the mechanisms for its enforcement. Calls for accountability commonly drive toward criminal punishment.
At first, protesters expressed outrage that Chauvin had not been immediately arrested. After criminal charges against Chauvin were announced, on May 29th, protesters decried their insufficient severity. The initial top charge was third-degree murder, with a maximum sentence of twenty-five years in prison. That charge indicated that prosecutors believed that Chauvin did not have the intent to kill, but that he perpetrated “an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” Floyd’s family immediately responded, “We want a first-degree-murder charge.” On May 29th, #RaisetheDegree was the No. 1 trending hashtag on Twitter, and one online petition that circulated under that title garnered several million signatures. The Legal Rights Center and the A.C.L.U. of Minnesota also raised concerns about the charge, noting that Minnesota courts have long held that, for third-degree murder, the defendant’s actions must be “eminently dangerous to more than one person,” which did not fit the facts here. The organizations accused the prosecutors of purposely bringing a charge that was doomed to fail, saying it was “inconceivable that experienced, professional Hennepin County prosecutors did not recognize the potential flaws,” and that it “only serves to further undermine community trust” in the prosecution.
On June 1st, responding to complaints from Minnesota legislators, Governor Tim Walz transferred Floyd’s case from the county attorney to the state’s attorney general, Keith Ellison. That day, calling again for a first-degree-murder charge, Floyd’s family disclosed the results of an independent autopsy that they had commissioned, from New York City’s former chief medical examiner and the director of Autopsy and Forensic Services at the University of Michigan. An initial report from the Hennepin County Medical Examiner had provoked further outcry among protesters, by stating that there were “no physical findings that support a diagnosis of traumatic asphyxia or strangulation”; the independent autopsy, however, found that the cause of death was “asphyxia due to compression of the neck and the back.” On June 3rd, Ellison announced that he was adding a second-degree-murder charge to the complaint, attributing the change to his study of the evidence. Asked about the influence of Floyd’s family and of protesters, Ellison insisted, “I did not allow public pressure to impact our decision-making process. I was prepared to withstand whatever calls came.”
The new charge of second-degree murder for Chauvin, under Minnesota law, does not require proof of his intent to kill. Rather, it alleges that Chauvin caused Floyd’s death “while committing or attempting to commit a felony”—in this case, third-degree assault, which is defined as an assault that inflicts “substantial bodily harm.” This type of murder charge is commonly known as “felony murder,” wherein a person who unintentionally causes a death while perpetrating a crime may be punished as harshly as one who intentionally commits murder, on the theory that the punishment strongly deters people from engaging in the underlying conduct. Felony-murder charges are often brought in robberies that accidentally result in death—and they have long been criticized by criminal-law reformers and critics of mass incarceration. It is especially controversial for prosecutors to use an assault as the underlying felony for felony murder, because that means that they may treat any assault that results in death as a murder, effectively undoing the grading scheme for greater and lesser degrees of homicide that legislatures have carefully created. But, unlike that of most other states, Minnesota law allows prosecutors to charge felony murder using assault as the predicate crime.
With respect to Floyd’s killing, one may wonder why the prosecution stopped short of seeking indictment for first-degree murder, which requires an intent to kill and carries a maximum sentence of life imprisonment. After all, Chauvin continued to kneel on Floyd’s neck for an excruciating eight minutes and forty-six seconds while Floyd said, “Please, I can’t breathe,” “Mama,” and “I’m about to die.” He did not let up even as Floyd became unconscious and another officer voiced worry about the position Floyd was held in. It is hard to fathom how Chauvin’s conduct could have been for a purpose other than to kill. But first-degree murder also requires premeditation, which, in Chauvin’s case, was not apparent. Pursuing first-degree murder, in Minnesota, requires a grand-jury indictment, unlike for lesser homicide charges, and, without clear evidence of premeditation, would therefore risk a grand jury’s refusal to indict, fuelling further outrage. It is also possible that, even with an indictment, if a trial jury suspected prosecutorial overreach—in seeking charges higher than can be proved—in response to the protest movement, the jury might look with more skepticism even at the evidence for the lesser homicide charges, which might also ultimately result in acquittal.
At his announcement, on May 31st, that he would be taking over the case, Ellison reminded the public of the need for “a dose of reality.” Prosecuting the police for murder, he said, “is very difficult,” as evidenced by “the cases that have been in front of the public over the last many years.” Grand juries failed to indict the officers who killed Michael Brown, in Ferguson, Missouri, in 2014; Eric Garner, in Staten Island, in 2014; and Tamir Rice, in Cleveland, in 2014. The Department of Justice and Louisiana’s attorney general declined to charge the officers who killed Alton Sterling, in Baton Rouge, in 2016. And, in Hennepin County, the prosecutor did not charge the officers who killed Jamar Clark, in 2016. Six Baltimore officers were indicted for murder, manslaughter, and assault charges for Freddie Gray’s death, in 2015, but none of the cases ended in a conviction, and the Justice Department declined to bring any federal charges. A jury returned an acquittal for manslaughter for the officer who killed Philando Castile, in Minnesota, in 2016. The murder trial of the officer who killed Walter Scott, in South Carolina, ended in a mistrial owing to a hung jury, in 2016, but the officer pleaded guilty, in 2017, to violating Scott’s federal civil rights and was sentenced to twenty years, consistent with second-degree murder. In 2018, a Chicago jury convicted the officer who shot sixteen bullets at seventeen-year-old Laquan McDonald of second-degree murder, determining that the officer’s belief at the time that the killing was justified was unreasonable. The jury declined to convict the officer of first-degree murder, and he was sentenced to less than seven years.
“Every single link in the prosecutorial chain will come under attack as we present this case to a jury or a fact finder,” Ellison said. The most likely point of attack on all of the charges is causation—whether Chauvin’s acts, as brutal as they were, actually caused Floyd’s death. The defense will likely try to create reasonable doubt by highlighting the official autopsy’s conclusion that Floyd was not asphyxiated but, rather, died of “cardiopulmonary arrest while being restrained” by officers. The report identified “no life-threatening injuries,” and emphasized “other significant conditions,” namely heart disease, “fentanyl intoxication,” and “recent methamphetamine use.” It also mentioned that this result “most likely reflects” the effects of COVID-19, for which Floyd had tested positive in April. The fentanyl and methamphetamine in Floyd’s system will also almost certainly lead the defense to claim that Chauvin’s acts were not reckless or negligent, arguing that because Floyd’s behavior indicated that he might be high, Chauvin reasonably believed he was in danger and responded accordingly. Given the private autopsy’s differing conclusions, that Floyd had “no underlying medical problems that caused or contributed to his death,” “was in good health,” and died of “mechanical or traumatic asphyxia,” a war between medical examiners for prosecution and defense will likely be an important feature of a trial.
Protesters also called on prosecutors to bring criminal charges against the other three officers, J. A. Kueng, Thomas Lane, and Tou Thao, who held down Floyd or stood by as Chauvin killed him. In “the interests of justice,” Ellison said, he charged each of the three with “aiding and abetting” the killing. A person who aids and abets a crime—that is, “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime”—is an accomplice, just as liable as the person who commits the crime directly. So, if any of the three were convicted of aiding and abetting second-degree murder, for example, he would be punishable according to the same forty-year maximum sentence as Chauvin faces.
It would break new ground if these charges resulted in convictions against the three officers, especially because the facts invite the defense’s doubts about their individual culpability. Kueng, who is black, was working his third shift as a full-fledged officer, and Lane, who is white, was in his fourth day in the force. They were both being trained by Chauvin, who had nineteen years of experience. Both Kueng and Lane participated in holding Floyd down, but both claim that they attempted to stop Chauvin. The complaint against Lane acknowledges that he repeatedly suggested rolling Floyd on his side and said “I am worried about excited delirium,” referring to a controversial diagnosis associated with drug use that may result in cardiac arrest and sudden death. Chauvin rebuffed the suggestions. Even though Kueng and Lane persisted in holding Floyd down, a jury may not be convinced that two inexperienced trainees following their training officer’s lead during an arrest intended to aid in a crime. The final officer, Thao, who is Hmong-American, is not accused of physically restraining Floyd but, rather, of standing by and blocking observers from approaching. Because presence and inaction does not legally constitute “aid,” the prosecution may have even more difficulty proving that Thao engaged in acts intended to “aid or abet” Chauvin’s crime.
Many protesters demanding “justice for George”—and Ahmaud Arbery, Breonna Taylor, and countless black Americans killed by police—applauded the upgraded charge for Chauvin and the charges for the other officers. Mike Griffin, a senior organizer for Community Change Action in Minneapolis, wrote that black communities want “officials to show they value our lives by charging people—including police—when they wrongfully kill us.” But calls to turn the law-enforcement apparatus on itself are complicated, at a moment when activists are also questioning the criminal-justice system more fundamentally. Like many activists, Vanita Gupta, the president and chief executive of the Leadership Conference on Civil and Human Rights, and a former Justice Department official, has rightly noted that “prosecuting an individual officer or officers will not address the underlying systemic issues plaguing the Minneapolis Police Department, even with a chief who has pushed some reforms.” Others have pushed further. Alex Vitale, a sociologist and author of “The End of Policing,” recently told The Nation that the drive to “jail killer cops” is “a degraded notion of justice that is rooted in the same language of punishment and revenge that we don’t want to apply to us.”
Indeed, critics of the criminal-justice system have insistently pushed, amid the protests, to abolish or defund the police and the prison system. On June 7th, the Minneapolis City Council actually voted to dismantle the police department, with enough votes to override a possible veto by Mayor Jacob Frey, who does not support abolishing the police. In the past week, the New York City Council’s leadership proposed slashing the New York Police Department’s budget by a billion dollars, and the police commissioner disbanded the Department’s plainclothes anti-crime units that target violent crime. Although short on details or plans, these kinds of moves, which look likely to be followed by other cities, reflect the dawning recognition, at this watershed moment, that years of widespread reform measures—including implicit-bias and de-escalation training, diversity initiatives, bans on choke holds, limiting stop-and-frisk, and the use of body cameras—have not worked to change the racism of law enforcement. Hence, the drive for much deeper accountability, which now looks to sweep away the mechanisms and institutions that we have taken as a given in the legal system—including when we urge the arrest, charging, prosecution, and punishment of police officers for crimes.
The legal theorist Robert Cover wrote, in 1986, that “legal interpretation takes place in a field of pain and death.” By that he meant that interpretations of law are really justifications for the decisions of judges, lawyers, and the police in our system of “organized, social practices of violence.” He did not “wish us to pretend that we talk our prisoners into jail.” What is the law in reality but a credible threat, from top to bottom of the legal system’s “pyramid of violence,” to use force against people if they don’t obey? Even the most peaceful of arrests are peaceful precisely because this threat of violence is understood and heeded.
The constitutive role of violence in law enforcement has played out grotesquely and vividly on our streets across the country, in countless scenes of police brutality against people protesting against police brutality. It has struck me that the senseless violence against peaceful protesters is a visceral, even primitive, reaction to a perceived existential threat to the very institutions of policing and law enforcement. It is excessive force, in response to a deep and trenchant “resistance to arrest” that inspires even the large majority of protesters who have been compliant with law enforcement. They dare resist not merely police brutality but the system of law enforcement as we know it.
A different paradigm of public safety is poised to enter, wherein punitive policing could become largely obsolete, prosecution could give way to restorative justice, and retribution might be replaced with rehabilitation. That may sound utopian or dystopian, depending on one’s point of view. But, practically speaking, in this moment, proposals to dislodge criminalization as the go-to response for systemic problems of inequality, poverty, deprivation, homelessness, unemployment, mental illness, poor health, conflict, substance abuse, and oppression—by diverting criminal-justice funding to non-criminal measures for treatment, education, accountability, and opportunity—may now stand a real chance, not just as occasional initiatives but on a wide and systematic scale.
In the meantime, our jails will continue to hold those arrested, and our courts will process their cases. Laws will be interpreted to justify state violence by police, or, in some instances, to justify state violence against police deemed to have acted unlawfully. If we were able to expect convictions of individual officers who committed criminal offenses, that would seem a necessary start to the accountability that is essential to the rule of law. But amid the desperation, rage, and even hope that the protests embody, the urgent yet ageless question is whether we dare expect change that is more transformative than the dealing out of pain and death more equally, more evenhandedly, against black and white, against citizen and police alike.
Jeannie Suk Gersen is a contributing writer to The New Yorker and a professor at Harvard Law School.