CommentaryGeorge Floyd: I Can’t Breathe
Jury: Guilty, Guilty, Guilty
Biden: We Can’t Stop Here
Outside the Hennepin County courthouse, Minnesota, Floyd family attorney Justin Miller said:
What is justice when you lose a loved one? When you don’t have your father or your brother or your uncle anymore? I don’t really think there is justice. I think that that’s a term we throw around too loosely…I think that it will be closer to being fair if this guy [Chauvin] gets as many years in jail as he can. But it’s not justice, because George Floyd is never coming back. And his daughter will never have her father again.
President Joe Biden described the guilty verdict in the trial of the white former Minneapolis Police Officer Derek Chauvin as “a step forward”, but he also said that the nation must reckon with systemic racial discrimination in all aspects of life, including policing. The guilty verdicts are “much too rare” and “not enough,” he added. He also said, “it was a murder in the full light of day, and it ripped the blinders off the whole world to see…[s]ystemic racism is a stain on our nation’s soul.” He gave credit to the activists who demonstrated and the “brave young woman” who filmed Chauvin kneeling on Floyd’s neck. Biden said a “unique convergence of factors” led to the verdict and “it feels like it took all of that for the judicial system to deliver basic accountability.” On a phone call, Biden said to the Floyd family, “nothing is going to make it all better, but at least now there’s some justice…You’re an incredible family. I wish I were there to put arms around you…We’re all so relieved.” Biden triggered backlash earlier in the day when he said, “I am praying the verdict is the right verdict.” Speaking before Biden, Vice President Kamala Harris had said, “America has a long history of systemic racism. Black Americans and black men, in particular, have been treated as less than human. Because of smartphones, so many Americans have now seen the racial injustice that black Americans have known for generations.” She said to the family on the phone, “In George’s name and memory, we are going to make sure his legacy is intact, and that history will look back at this moment and know this is an inflection moment.” Harris calls on the Congress to pass the George Floyd Justice in Policing Act.
It is a landmark moment not just in the American history of criminal justice and law enforcement, but around the world. George Floyd’s death came to symbolize the fight for racial justice and equality in numerous ways they are unbearable to shrink: from dynamic calls for police reform in Minneapolis and new legislation in Washington, to a reckoning on the history of British expansionism in the UK and a renaissance in activism over Indigenous deaths in custody in Australia.
The ABA described their reaction as respecting the decision of the Minneapolis jury in Chauvin’s trial while underscoring that a sole verdict is neither a prosecution of all police officers nor a solution to the systemic discriminations in the justice system. In America, society trusts [and relies on] the rule of law and the principle that laws must be applied [equally] and imposed fairly and without bias. A verdict may bring some justice, but it does not return George Floyd to his family. With some great progress, the country still must address the inequalities, racism, and violence that exist in the legal system that excessively (disproportionately) and negatively affect people of color. Further, the ABA believes that changes are essential to reinstate public trust in the legal and justice system(s) and guarantee all individuals feel they are being treated fairly and with dignity and respect. The ABA will continue to stand for the rule of law and the equality values to build a more ideal justice system.
Derek Chauvin was convicted of second-and third-degree murder, as well as second-degree manslaughter. The trial saw 44 witnesses and 15 days of testimony. And, in the end, less than a day to rule that Chauvin, was guilty of murdering George Floyd. The evidence had continually been tremendous. But despite the masses of exhibits showed at trial, “I cried so hard,” it was that single cellphone video, recorded by a teenage girl – who changed America – who wept on the stand as she tells witnessing Floyd die, that remains to portray plainly the details of Chauvin’s criminal acts. Floyd calls for his mother “Mama, I love you . . .” and informs the officers – who hold his body to the pavement for 9 minutes and 29 seconds – that he cannot breathe. And still Chauvin pushes his knee into Floyd’s neck, a use of deadly force that remained for minutes after officers could no longer feel his pulse. As state’s prosecutor Jerry Blackwell told jurors – after they had heard from Eric Nelson, the defense – that Floyd had died because of his enlarged heart “… you know the truth. And the truth of the matter is, that the reason George Floyd is dead is because Mr. Chauvin’s heart was too small.” Several senior law enforcement officers from the Minneapolis police department, including the force’s Chief of Police, Medaria Arradondo, took to the stand to condemn Chauvin’s acts last year, as their testimonies were both critical and unprecedented. “To continue to apply that level of force to a person proned out, handcuffed behind their back – that in no way, shape or form is anything that is by policy,” said Arradondo.
This sets a precedent for other officer-engaged mortalities that make it to trial: an anticipation that police who are criminally charged over excessive use of force may face testimony from their former supervisors. It does not mark the end of unequal fatal force against African American men in the US, as while Chauvin stood trial, 20-year-old Daunte Wright was shot dead by the police in the Minneapolis suburb of Brooklyn Center. This emphasizes the basic complexity of US law enforcement. In 2014, following the death of Michael Brown in Ferguson, Missouri, Barack Obama’s team on 21st century policing issued a thorough report focused on pragmatic reforms, mainly suggesting for a cultural paradigm shift in US policing. From that of a “warrior” attitude to that of a “guardian.” With such a decentralization of power in US policing, it is difficult to see how such a comprehensive change is feasible to achieve instantly.
A University of South Carolina law professor and former police officer in Tallahassee, Florida, Seth Stoughton was among the final prosecution witnesses in the Chauvin trial, testifying the former Minneapolis police officer ignored indications nearly every step of the way during his arrest of Floyd and escalating the circumstances into a fatal use of force that should never have occurred. Stoughton most recently co-authored “Evaluating Police Uses of Force” and is a contributor to The New York Times, The Atlantic and Time magazine. Before his testimony – that lasted around 3 hours – he reviewed more than 100 hours of body camera footage and other case materials. As an expert in use-of-force, he started his testimony by defining his research on police uses of force, including his four-step process for assessing and analyzing use of force techniques: (a) identifying the relevant facts and circumstances as viewed through the lens of a “reasonable officer;” (b) assessing the threat, if any, presented by the individual’s actions; (c) assessing the foreseeable effects of the officer’s use of force, and (d) determining, in light of the facts and circumstances (step one), were the foreseeable effects of the officer’s use-of-force justified and reasonable (step three) because they were proportional and appropriate to the threat presented by the individual (step two).
“A use of force that is sustained over a period of time does have to be reasonable at the time force is initiated…and throughout the duration that force is being used,” he said. Using related clips from available body-cam footage, Stoughton walked through his use-of-force assessment in this case, underscoring what steps a “reasonable officer” should have taken to prevent bringing harm to Mr. Floyd. Following a clip of one officer checking and failing to find a pulse for Floyd, prosecuting attorney Steven Schleicher questioned Stoughton on what he saw that was related to his evaluation. He responded, “Someone who does not have a pulse does not present a threat…Both the knee across Mr. Floyd’s neck and the prone restraint were unreasonable, excessive and contrary to generally accepted police practices.” He emphasized that Chauvin, who held Floyd to the ground with a knee on his neck for 9 minutes on May 25, 2020, physically abused a forceful control tool that brings a serious potential that’s common knowledge within the law enforcement community.
He added “The neck is kind of like a suspension bridge, right, so it’s generally accepted in policing that you do not put weight down on someone’s neck in that position because of the potential that the neck won’t be able to handle that weight, and you can end up damaging the structure of the neck.” Further, he said “There are also foreseeable effects of keeping somebody in that position permanently, what’s called positional asphyxia, someone who has trouble breathing, who can’t take in over time the oxygen they need to sustain their life, and that’s been very well known in policing for at least going on 30 years.” At no point, Stoughton stated, did Floyd present a threat to officers, though he did plead with them not to put him in the back of a vehicle due to claustrophobia. “In other words, the point of contention does not appear to be (being) in police custody but instead objecting to being put in the back of the vehicle… It’s clear from the number of officers and Mr. Floyd’s position, the fact that he’s handcuffed and has been searched, he doesn’t present a threat of harm. His actions don’t indicate that he presents any threat of escape.”
On the other hand, Chauvin’s defense attorney, Nelson, asked Stoughton on cross examination, under which requirements he performed a use-of-force analysis in the case. He said, “You have the luxury of slow-motion enhancements, looking at things from multiple perspectives,” contradicting Stoughton’s work with the real-time frame Chauvin faced. Stoughton answered, “Yes, I can slow the video down. I can freeze frame it as I am taking those facts and circumstances and identifying what a reasonable officer would have perceived in that situation. I’m of course aware that a reasonable officer on the scene does not have those capabilities.” Also, he explained that placing an individual face down to gain an edge in controlling them is not an uncommon police tactic, but it’s meant to be “transitory.” He said, “As soon as somebody has been handcuffed, you take them out of that position” and the longer Chauvin kept Floyd down, the clearer it became he was in medical distress (“as his increasing medical distress became obvious”) was unreasonable. Moreover, “if someone is describing that they are experiencing medical distress, then officers have to take that into account as they are evaluating the continued effects of keeping someone, in this case, in a prone restraint position” [and] “Before he fell silent, Mr. Floyd said ‘I can’t breathe’ by my count at least 27 times.”
Thus, Stoughton, assessed Chauvin’s actions against what a “reasonable police officer” in the same condition would have done, and continually found that Chauvin did not meet the test and violated the national police use-of-force standards. He said, “No reasonable officer would have believed that that was an appropriate, acceptable or reasonable use of force.” It was unfair as well to believe that Floyd might harm officers or escape after he had been handcuffed to the ground and a reasonable officer would not have considered the yelling bystanders as a threat. The issue of what is reasonable carries great weight: law enforcement officers are permitted specific latitude to use deadly force when someone puts the officer or other individuals in danger. But legal scholars said a key question for the jury was whether Chauvin’s acts were acceptable and fair in those particular situations. “Reasonable minds can disagree, agreed?” Nelson asked, “On this particular point, no,” the witness said. Concluding his assessment, Stoughton summarized that, “the use of force had the foreseeable effect and substantial likelihood of resulting in death or great bodily harm,” and “no reasonable officer would have believed that that was appropriate acceptable or reasonable use of force.”
During the time of empires and absolute monarchs, the concept of “Crown Immunity” was born. This notion developed into the legal maxim of sovereign immunity, which is defined as “you cannot sue a state for a legal wrong”. For jobs like the police, the key reason why the State offers immunity is to reduce the public danger that would happen if an officer was scared to act due to the prospect of civil litigation. In the wake of this case, some activists and lawmakers are calling for an end to this immunity. Thus, if you’re injured or crushed by police misbehavior or negligence, it will be hard to sue the officers responsible and receive damages, as qualified immunity complicates things. To qualify for sovereign immunity, the public official’s action must pass a four-prong test established in James v. Jane (1980), a case decided by the Virginia Supreme Court. These factors are: (a) the nature of the employee’s work; (b) the state’s involvement in that work; (c) the degree of control the state has over the employee; and (d) whether the negligent act in question (task) involved judgment and discretion (if beyond ordinary levels, is needed by the employee in effecting the governmental purpose), this immunity will be granted. This test is very broad and does not establish any specific definition to each element. Generally, while police officers aren’t guaranteed sovereign immunity, it is still controversial whether to bypass accountability or ends up benefitting the citizens of the state. For decades, it has been a legal norm, but it should soon come to an end. The protests ignited by the killing of Floyd have put a focus on this legal doctrine. It is one of the various structural factors that make it problematic to hold police officers accountable for misconduct.
Thus, it is a judicially established concept that protects public officials from being held individually liable for constitutional violations – right to be free from excessive police force – for monetary compensations under federal law if the officials did not violate “clearly established” law. Both 42 U.S.C. § 1983 and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) permit people to sue government officials for money damages when they infringe their constitutional rights. When public officials are sued, qualified immunity operates as an affirmative defense they can raise, preventing damages even if they committed illegal acts, however, it is not a defense to claims for injunctive relief. It protects police officers and other government executives from civil litigation in certain cases, granting lawsuits only when a person’s “clearly established” statutory or constitutional rights have been breached.
In 1982, the landmark case of Harlow v. Fitzgerald formulated the modern interpretation of qualified immunity that controls today. The court adopted a new test framed in “objective terms” by adopting a standard that a plaintiff could be granted qualified immunity only by showing that the defendant’s manner “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known” instead of the past precedent that observed the officer “subjective good faith.” Also, the court stated that the norm “provide[d] no license to lawless conduct…If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harvard Law professor Scott Michelman notes that, the Supreme Court’s idea of a “reasonable officer” has moved since Harlow to grant public officials’ greater deference. In a 1986 decision, the court cited that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Since then, the Supreme Court has detailed that a defendant’s behavior is to be adjudicated based on “any reasonable officer” or “every reasonable official” […] “that in order for a plaintiff to overcome qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’”
Generally, the Supreme Court justified this doctrine, as the Harlow Court explicitly remarked that its ruling sought to achieve a “balance” between permitting victims to hold officials responsible and reducing “social costs” to “society as a whole” noting that “claims frequently run against the innocent, as well as the guilty.” The court was alarmed that the threat of lawsuits could chill lawful law enforcement conduct. It wrote that “there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’” The Supreme Court explained: “[T]he doctrine of qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Also, it would be unjust to hold public officers to constitutional rules they were not aware of at the time of the violation. The court stated that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” Then later, “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”
Generally, qualified immunity can be divided into “two fronts of attack”: first, that it’s bad law and, second, that it’s bad policy. Justice Sonia Sotomayor, who has labeled qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers” illustrates the core of that critique recently (late Justice Ruth Bader Ginsburg joined). She wrote, qualified immunity “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” The Supreme Court established qualified immunity and could of course overrule it, according to stare decisis principles and recently it has signaled a possible moderating of its attitude to it. Qualified immunity doesn’t even realize the policy objectives it aims to accomplish.
This verdict is a win and victory for many but the battle for justice is not over. It is a combination of relief and sadness as the guilty verdict isn’t justice, justice would be black lives mattering in the United States and abroad. Also, Floyd’s death led to awkward social reckonings between political and business leaders and citizens, as public dialogues examined the legacy of European colonialism and modern-day race relations. Holding one person to account, whilst unequivocally necessary, doesn’t demolish the whole system that empowers this conduct in the first place and enables white supremacy. What happened in the United States is a bearer of hope for change and that’s going to strengthen everyone in the fight to find justice. “More than ever, we will not give up.”
Dr. Mohamed ‘Arafa is a Professor of Law at Alexandria University Faculty of Law (Egypt) and an Adjunct Professor of Law at Cornell Law School. Currently, he is a Visiting Professor of Law at the Holy Spirit University of Kaslik (USEK) in Lebanon.
Suggested citation: Dr. Mohamed ‘Arafa, The Derek Chauvin Trial as a Landmark in the American History of Racial Bias, JURIST – Academic Commentary, May 1, 2021, https://www.jurist.org/commentary/2021/04/mohamed-arafa-derek-chauvin-verdict/
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
