I reviewed the NYTimes’ online timeline and video compilation regarding the death of George Floyd. It contains security footage from Cup Foods, the store where Mr. Floyd allegedly passed a bad bill, cell phone videos from at least 3 witnesses, official documents and police scanner audio.
A few observations and comments:
1) There is a certain depravity to Officer Derek Chauvin’s behavior. Mr. Floyd had been handcuffed with Chauvin’s knee to his neck, while another officer applied pressure to his torso and a third to his legs. Mr. Floyd was subdued and at least 16 times said “I can’t breathe.” While the officer maintained the knee to the neck, he had to sense that life was draining from Mr. Floyd, who was no longer struggling, no longer speaking, no longer making any sounds, no longer moving and eventually no longer breathing. It was essentially impossible for the officer to miss all of that considering he was on top of Mr. Floyd.
2) None of the other three officers attempted to stop or even mitigate Chauvin’s actions, with the exception that Officer Thomas Lane twice asked Chauvin about turning the suspect over. Lane had been on the police force for six months, the shortest time of the four.
3) None of the four officers appears to be particularly afraid or concerned that his or their actions (or inactions) are being observed. They are open about what they are doing, and unreceptive to comments from passersby that Mr. Floyd was incapacitated and the pressure on his neck should be removed. The police displayed some displeasure when the cell videoers got too close, but were unconcerned about being observed in an open area on a busy street in daylight on a clear day. Their absence of concern suggests that the four officers lacked appreciation that what they were doing was in any way wrong . How can that be? Most everyone else in the country and on the planet recognized the officers’ actions as destructive of human life, wrong in a moral sense and criminal. Why not the officers themselves?
In the recent avalanche of commentary, discussion and editorializing many observers assert that the answer to that question lies in white supremacy, systemic racism and the like. I think much of that commentary has been off base, failing to appreciate the law enforcement culture for what it is. Let’s take the example of white supremacists – say members of the KKK. They recognized that much of what they did was illegal, and that many people would view their actions, even when legal, as wrong and reprehensible. Understanding this, KKK members concealed their identities with hoods and acted in the dark of night to avoid detection. These officers were not worried about being detected.
We cannot know exactly what was in Chauvin’s mind at that moment – whether or not he had a pre-existing animosity toward black people, black males, black males of a certain age or anyone at all. But Chauvin has been married for 10 years to a Hmong refugee from Laos. If he is a white supremacist, his psychopathology does not appear to extend to yellow people. The Officer who stood between the people on the sidewalk and Chauvin is Tuo Thao. He is of Asian descent. I believe he is also Hmong. He doesn’t exactly fit the demographic of a white supremacist out to hurt black people. Officer J. Alexander Keung was also involved. I am no expert in ascertaining race or ethnicity by surname. The officer could be of Chinese descent, but could also be German or Austrian, or something else. It does not matter. What unites the officers is not racial uniformity, nor I suspect a collective negative attitude toward another race, black or otherwise. No, what unites the officers is that they are police officers – they are law enforcement. They are the “us” in what they view an “us versus them” world. “Them” is whomever crosses their path, challenges their authority or becomes a person they view as the “bad guy”. This attitude is the primary component of the law enforcement culture. Police and prosecutors see themselves as a group apart. They are loyal to each other largely regardless of race or ethnicity. That “group apart” sense has been accentuated by the increasing militarization of the police. Look at the average officer–gun, baton, mace, handcuffs, radio, bulletproof vest, boots, etc. Stand next to an officer on the sidewalk and he takes up 50% more space than the average non-militarized human. Then there is the shotgun mounted in the car, crash bars, protective materials separating police and suspects, etc. The military operates in an environment that has its personnel united in a common purpose against a defined enemy – there is not a lot of worry about the rights and freedoms of the enemy. Police militarization tends to foster, not guarantee but foster, a similar attitude.
I’d wager that on a given day, each of the four officers is capable of and has acted responsibly, maybe even heroically, maybe even heroically for the benefit of a black victim of a crime, including a crime committed by a white person. From the general police point of view, the “bad guy” is not defined primarily by race but by defiant behavior. However, once the “bad guy” is defined, many officers–not all–are capable of behaving to some degree as the four in this case did. Once Mr. Floyd resisted getting in the police car, responsible police behavior evaporated. For these four police officers, Mr. Floyd was now the “bad guy” the officers could treat differently. That is in large part why they failed to appreciate the evil of their acts. They did not try to avoid detection because they were blinded by racism, but because their “us versus them” culture saw their behavior at that moment as acceptable. Therefore, there was no need to avoid detection.
Quick Google research reveals there are over 800,000 law enforcement officers in the US–not counting prosecutors – employed in 17,985 police agencies. Not all officers absorb the culture to the same degree. Some reject it entirely. Others can tolerate observing it, but not actively participating, Others, I suspect a substantially smaller group, are capable of doing what Chauvin did. The newer the officer, the less incorporated into the culture he/she is likely to be. Thus, it is not a surprise that Officer Lane, only six months on the force, was the one to raise concern for Mr, Floyd.
This is not a “few bad apples” problem, as some right wing, pro-police under most any circumstance, commentators would have you believe. There may be only a few who act with the callousness of Chauvin. But the tolerance, acceptance and acquiescence of brother officers regarding Chauvin’s conduct demonstrates the problem is bigger than just a few. These individuals are, however, redeemable. They operate in a culture that influences and molds their behavior. In a different police culture, there might well have been three officers seeing the harm being done to a completely subdued suspect and they might have assertively intervened. I have heard some commentators bring up Mr. Floyd’s criminal background. That background is irrelevant. Once a suspect is subdued, it does not matter if it is Mother Theresa or Jack the Ripper, the officers’ right to administer force ends. They have no right to administer punishment.
WHAT IF THERE WERE NO VIDEO
If there had been no video in this case, the police reports filed by each of the four would likely have read something like this: “We were dispatched to the scene with a description that the suspect was “awfully drunk” and “not in control of self.” We were able to locate the subject in a parked vehicle near the store, under the influence of one or more intoxicants and out of control as described by the dispatcher. He was combative. He resisted arrest, refusing to get in our unit, stating he was claustrophobic, despite our having found him in a car. We were forced to physically restrain him. I feared for my safety and life. We were eventually able, after much struggle, to subdue him. The subject became unresponsive. We called medical personnel. I understand the subject had a preexisting heart and other physical conditions. It is my understanding that the subject was pronounced dead after leaving our custody. I further understand that there were substantial amounts of drugs in his system at the time of death.
The local DA would receive the reports. If the witnesses from the sidewalk presented themselves, their statements would be taken. If the DA were like many, he/she would take no further action. Or, if there had been some public outcry surrounding the death, the DA would run the matter through a Grand Jury, which hears a one-sided presentation from the DA, and the Grand Jury would do as the DA wished and not charge the officers.
The video obviously changes that picture.
HOW DO WE CREATE A NEW CULTURE?
We need to create a new structure that encourages and promotes the best behavior in officers–best behavior being defined as protecting the general public from criminal acts, while recognizing that suspects retain their humanity and are restrained only to the extent necessary to protect the public and the officers themselves. Then the legal system deals with any alleged crime. After the first minute or so, Chauvin’s aggressive restraint of Mr. Floyd did nothing to protect the public or the police, and it failed to recognize his humanity.
Joe Biden wants to appoint a commission to study police violence. No. Others call for more police training. That is not the solution. The average 6th grader would not need training to know enough to stop applying potentially lethal force to a subdued individual. Some want civilian review boards, but frequently officers do not cooperate with them. Enough with commissions, training, new policies, civilian review boards. Some of those may have a role but the law enforcement culture needs redirection.
The culture can begin to change if:
1) Each state creates an independent prosecutorial agency that investigates every instance of significant police violence. The agency would need a team of prosecutors, investigators and staff to look into instances of the application of force by police and into alleged mistreatment of civilians. This agency’s exclusive mission would be police misconduct. Right now prosecutors at all state levels, including states’ attorneys general, are too closely aligned with police, both in worldview and in the discharge of their respective duties, to effectively prosecute them. Prosecutors can’t call an officer as a witness in one case and prosecute him/her in the next. Sending an alleged police misconduct case arising in County X to be handled by the prosecutors in County Y next door makes little difference in light of a common worldview. You’ve probably heard prosecutors running for re-election at all levels say things like: “The homicide rate is down X% under me.” Or “I went after and cleaned up the sexual predators in our community” Or “I went after deadbeat dads and recovered 10 million dollars in back child support.” Or “Violent crime dropped Y% under me” or “Property crimes are down under me.” The list goes on. The standard of success for the Independent Police Prosecutor (IPP) would be the number of convictions of police, or reduction in killings or violence by police. The IPP’s only mission is the effective prosecution of police misconduct, which would ultimately result in there being less need for prosecutions of police If properly created and maintained the IPP could justify public faith in the system.
We need police and they, in my opinion, deserve to know that. They need to know that they will get fair treatment from the IPP. It should not be populated by ideological zealots but by rational, calm beings with an understanding of the legal issues involved and a healthy appreciation for the right of the public to be free from crime, for the constitutionally protected rights of criminal defendants, and for the right of police officers to do their job safely. There are legally justifiable uses of force and police shootings. There are criminal uses of force and police shootings. We need a special subset of prosecutors to evaluate that. By creating an independent entity, we remove what was all too often a comfortable backstop for suspect police conduct.
2) Police officers would be required to cooperate with the IPP, including the giving of statements to the IPP investigators. There would be no waiting periods before officers are interviewed. The IPP would have full access to all reports and evidence. Refusal to comply with IPP requests or obstruction of its investigation would be grounds for discipline or termination and could be defined, under certain circumstances, as a criminal act. There may need to be statutorily mandated changes to collective bargaining agreements to allow the IPP to perform its task.
Of course, police officers would be entitled to exercise their 5th Amendment right against self-incrimination. However, refusal to speak to the IPP would be grounds for termination. This raises a constitutional question as there would be a negative consequence to the exercise of a constitutionally protected right. The statute would have to be drawn carefully to meet constitutional requirements. That may be difficult, but worthy of the effort.
3) All officers would be required to wear functioning body cameras at any time they were interacting with the public. Willful failure to do so would be grounds for termination/discipline. Videos do not tell the full story, but it is obvious they can be important.
4) Although not relevant in Mr. Floyd’s situation, we need to enact meaningful gun control legislation so that officers do not have to fear that, in every interaction with anyone at any time, they face the possibility of being shot. That will have a deescalating effect. That discussion for another time….