Trial of officer accused of murdering George Floyd brings a familiar sense of fear
Why it’s so hard to convict police even when there’s video
The video of Derek Chauvin pressing his knee into George Floyd’s neck inspired the largest protest movement in American history, pushed powerful institutions to acknowledge the reality of systemic racism and led to sweeping police reform legislation now making its way through Congress. Yet as the trial begins for the former officer accused of murdering Floyd, there is a familiar sense of foreboding and fear:
Could Chauvin actually be acquitted?
Jury selection began Tuesday in his trial, which will be seen as a referendum on systemic racism in the criminal justice system and America’s capability for real change. Chauvin, 44, is charged with second-degree murder and second-degree manslaughter. An appeal on whether to add a third-degree murder charge is pending. The trial will be televised from the courtroom of Hennepin County Judge Peter Cahill. If convicted, Chauvin faces up to 40 years in prison.
Minneapolis is bracing for a repeat of the riots after Floyd’s death, which caused $350 million of damage to the city and more than $1 billion worth of destruction nationwide.
The courthouse and City Hall complex is surrounded by multiple rings of razor wire and concrete barriers topped by a chain-link fence and barbed wire. Windows are boarded up. Local and state lawmakers are haggling over millions of dollars in additional funding to bring in thousands of National Guard troops and extra officers.
“I think the city is showing us their expectation by beefing up everything securitywise,” said Michelle Gross of the Minneapolis group Communities United Against Police Brutality. “They are thinking that this is not going to result in a guilty verdict. And I’m very fearful of that.”
Three weeks have been set aside to select 12 jurors and up to four alternates. Most of the jury is expected to be white. The population of Hennepin County is 68 percent white, 14 percent Black, 8 percent Asian and 7 percent Hispanic. Although it’s illegal to exclude jurors because of race, keeping Black people off juries is still a widespread practice, because lawyers are allowed to remove a certain number of jury candidates without stating a reason. In Chauvin’s trial, prospective jurors must complete a questionnaire that asks things such as what TV news channels they watch, whether the criminal justice system is racially biased and their views on Black Lives Matter.
The key evidence is already known. First is the infamous video of Chauvin with his knee on Floyd’s neck for more than 8 minutes, including 2 minutes and 53 seconds after Floyd was unresponsive, prosecutors say. The other three officers at the scene, J. Alexander Kueng, Thomas Lane and Tou Thao, are charged with aiding and abetting Chauvin. Their trial is set for this summer.
The horrific video of Floyd’s killing, which happened after he was accused of using a counterfeit $20 bill, inspired protests around the world. Yet in past cases, a damning video was not enough to initially convict the officers who beat Rodney King, or shot Walter Scott in the back as he ran from a stop for a broken taillight, or choked Eric Garner while arresting him for selling loose cigarettes, or killed 12-year-old Tamir Rice within seconds after seeing him carrying what proved to be a toy gun. (In the King and Scott cases, officers were convicted on federal charges after their state court proceedings ended without a guilty verdict.)
“We have seen so many acquittals in cases that seem to the public so obvious in terms of what the results ought to be,” said David Harris, a University of Pittsburgh law professor who studies policing and race. “The law is just set up in a way that does not favor conviction. It just is. And until that’s addressed, we will continue to see cases fall apart.”
Police departments often don’t report reliable numbers of how many people they kill, but journalists and other independent monitors place the count at roughly 1,000 people per year. Since 2005, only 131 local or state officers have been arrested for murder or manslaughter in on-duty shootings, according to statistics compiled by Philip Stinson, a Bowling Green State University professor of criminal justice. Of those, only 44 were convicted: seven of murder, 23 of manslaughter, and 13 of lesser charges. Fifty-two officers were not convicted; 35 cases are still pending. By comparison, about 70% of murder cases nationally end with a conviction.
Stinson said via email that it would be hard to convict Chauvin, despite the video, because “we know from the shootings cases that juries are very reluctant to second-guess the split-second decisions of on-duty police officers in potentially violent street encounters. This case might end with a hung jury and a mistrial or an outright acquittal.”
The next major piece of evidence in Chauvin’s trial is the medical examiner’s autopsy that ruled Floyd’s death a homicide. The autopsy cites “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression,” the presence of fentanyl and methamphetamine in Floyd’s system, underlying heart disease and a positive COVID-19 test result.
The prosecution is being led by State Attorney General Keith Ellison, a former U.S. congressman who is the first Black or Muslim person elected to statewide office in Minnesota. Ellison was appointed by Gov. Tim Walz to take over the case after community members and Floyd’s family said they did not trust local prosecutors to be impartial.
Ellison’s task is to prove that Chauvin’s decision to kneel on Floyd’s neck was excessive, unreasonable and caused Floyd’s death. “Chauvin will say that his use of force was reasonable under the circumstances,” said Paul Butler, a Georgetown law professor and former federal prosecutor, “but that’s not a strong defense given the video that the whole world has seen. I think most people would draw the conclusion that the use of force was excessive, because for much of the time that Mr. Floyd is being restrained, he does not pose any threat to the officers.
“For the prosecution to prove causation, it doesn’t have to prove that there weren’t other underlying conditions. It just has to prove that what the officer did was an important contributing factor,” said Butler, who also is the author of Chokehold, a critique of the criminal justice system. “And it strains credulity to think that Mr. Floyd just happened to die of a drug overdose or of natural causes during the minutes when an officer had his [knee] on Mr. Floyd’s neck in a way that all of the science tells us is extremely dangerous.”
And yet, Butler said, “No case against a police officer is a slam dunk. No matter what the evidence.”
Chauvin’s lawyer, Eric J. Nelson, has argued in court filings that Floyd was resisting arrest so Chauvin used reasonable force, and that Floyd died because of the drugs in his system and his other health problems. These arguments veer into familiar territory, repeating what we’ve heard in many previous cases: It was the victim’s fault. He shouldn’t have resisted, or fled, or walked off, or spoken – if he had complied with the officer’s demands, he wouldn’t be dead.
“It’s clear that George Floyd will be blamed for his own death by defense attorneys, which I think is despicable,” said Nekima Levy Armstrong, a Minneapolis activist, civil rights attorney and executive director of the Wayfinder Foundation, which supports leaders in under-resourced communities. “I am definitely worried that Derek Chauvin will be acquitted in this case. It’s not a stretch to believe that is possible given the fact that in our history in the state of Minnesota, we have not seen a situation in which a white officer, or any officer for that matter, has been convicted for killing a Black person.”
(Only one Minnesota police officer is known to have been convicted of murdering someone while on duty, according to Communities United Against Police Brutality. Mohamed Noor, a Black immigrant from Somalia, is serving a 12½-year sentence for killing Justine Ruszczyk – a white woman.)
During his 19 years as a police officer, Chauvin was the target of at least 22 complaints or internal investigations, according to The New York Times. Only one resulted in discipline, in the form of two letters of reprimand, although the details are not public. In 2006, Chauvin was one of several officers present when police shot and killed a man who they said pulled a shotgun. A grand jury did not bring charges in that case. In 2008, he shot an unarmed man in the stomach while responding to a domestic disturbance call.
Prosecutors asked to present evidence about six arrests in which Chauvin kneeled on people or restrained them by their necks; the judge will allow discussion of two of those cases. Chauvin’s attorneys were denied permission to introduce evidence about Floyd’s prior arrests or encounters with police.
Fears that Chauvin will be acquitted come not only from the results of previous police cases, but the dynamics of the criminal justice system itself.
Start with the political power wielded by police unions, which have stymied meaningful civilian oversight. In Minnesota, state law forbids any civilian review board from issuing a factual decision on police complaints or imposing any discipline. The main defense of such laws is that civilians can’t understand the complexities or difficulties of police work.
Communities United Against Police Brutality studied all misconduct complaints against Minneapolis police over a 4½-year period ending in 2017. Their report found that only six of 1,656 civilian complaints were sustained and the officers disciplined, far below the national average, which itself is a paltry 7 to 8%.
Then there is the fact that because prosecutors and police work together daily, prosecutors often are reluctant to bring cases against police before a grand jury.
Prosecutors typically pursue cases they think they can win, preferably with a guilty plea, according to Stinson, the Bowling Green professor. If they know they will have to take an officer to trial, given the low odds of conviction, “they are very reluctant to file charges,” he said. “Of course, that is all twisted logic, because the role of a prosecutor is to seek justice.”
Another obstacle to holding violent police officers accountable is the legal concept known as qualified immunity, which protects officers accused of excessive force from civil lawsuits. Defenders say it’s necessary to protect brave people doing a dangerous job that can require split-second decisions, and a fair shield for government workers serving the public. There also are a plethora of statutes from the tough-on-crime era that make it legal, for example, for officer Michael Rosfeld to shoot unarmed teenager Antwon Rose Jr. in the back as he fled from a car suspected in a Pittsburgh drive-by shooting.
A similar philosophy underlies the 1989 Supreme Court case Graham v. Connor, which ruled that when police are accused of brutality, “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” That defines reasonable force by the standards of police, not those who are harmed by them. The ruling was written by the conservative Chief Justice William Rehnquist, who was appointed by President Richard Nixon, who wanted to change the membership of a Supreme Court that he thought was “too soft on crime.”
To this day, police are trained how to use – some would say abuse – Graham v. Connor to justify their actions. They know to say, “I thought my life was in danger.” Even if the dead person was unarmed, if a “reasonable” officer felt threatened, Graham v. Connor gives him a license to kill. “The law encourages jurors to look at the facts from the perspective of a police officer,” Butler said.
When these standards are debated in a courtroom, juries – especially all-white juries – tend to believe police, despite evidence that police often lie. Much of American history and culture reinforces those beliefs. Police are the heroes in TV shows and movies, depicted as the best and last line of defense against vicious criminals, who in the popular imagination are usually Black. Police do have difficult, dangerous jobs. They often risk their lives to protect the public. Many people, including some Black residents of high-crime neighborhoods, support police because of legitimate concerns about crime, and these sentiments can translate into a reluctance to doubt police when they are on trial for murder.
The sum total of these obstacles is the definition of systemic racism. This is what stands between Chauvin and a conviction.
“If he’s convicted, it’s like, well of course he should have been convicted, but this is just one cop. And the system is still in place,” Armstrong said. “You don’t expect a conviction to lead to significant change on its own. And then if he isn’t convicted, it’s just the most, other than George Ford getting killed, it’s the worst possible outcome we could have. So it’s like we still don’t get any real closure or resolution from this trial.
“The hope is that it signals [to officers] that they’re not above the law and above being prosecuted and convicted and serving time in prison,” Armstrong said. “That could potentially produce a change in behavior – if they think there are bona fide consequences they cannot escape.”
A sizable portion of America still denies that there is widespread racism in policing. They say police kill many unarmed white people, too, that Black deaths are a function of higher crime rates in Black communities, that race has not been proven to be a factor when police kill. But these arguments ignore the history that created the higher crime rate in the first place – through housing and employment discrimination, substandard education, disproportionate enforcement of low-level offenses in Black communities while giving a pass to similar behavior elsewhere; and all the other manifestations of the backlash against the original civil rights movement. And it leaves unexplained the fact that unarmed Black people are more likely to be killed by police than their white counterparts.
One of the most devastating things about racism is that it can be so obvious, and simultaneously so hard to prove in a court of law. Which is why race, the clear and present issue making Floyd’s death so meaningful, may well be ignored in Chauvin’s court case.
“It will be a subtext, but it probably not be part of the legal discourse,” Butler said. “And that may surprise some people.”
Improving the fairness of the justice system will take much more than convicting Chauvin. It will be far from quick or easy, despite polls showing more public belief since Floyd’s death in the existence of racism in policing.
On March 3, the House of Representatives passed the George Floyd Justice in Policing Act, which among other things would establish a national database on police misconduct, curtail qualified immunity and make it easier to hold police accountable in court. Gross, of Communities United Against Police Brutality, says that her coalition is pushing nine bills in the Minnesota legislature, pursuing such measures as having mental health professionals respond to certain calls instead of police, ending qualified immunity, strengthening civilian oversight, establishing an independent authority to investigate and prosecute police violence, and ending the three-year statute of limitations on pursuing wrongful death cases against police.
“Frankly, most of our bills don’t have much chance of passing,” Gross said. Why not? “A lack of political will.
“Also, at the very base level, I think that police brutality and police violence is functional for certain segments of our society,” Gross said. “It serves the interest of some segments of our society. It’s tolerated because the police do things that some people want them to do.”
And so the barbed wire barriers go up around the courthouse where Chauvin will be tried for one more example of the long history of police violence. And many of us will erect barriers around our hearts in hopes that they won’t be broken – again.