By NANCY GERTNER AND PAUL BUTLER | JUNE 5, 2020 | OP-ED
The tale of these arrests — one of a black man and that of four police officers — explains why there is justifiable rage on America’s streets.
On May 25, a store clerk in Minneapolis called the police because he suspected that Floyd had paid for a pack of cigarettes with a counterfeit $20 bill. But the store owner later said: “Most of the times when patrons give us a counterfeit bill, they don’t even know it’s fake.” The call should have started an investigation; that’s not what happened to Floyd.
Instead, within minutes of the police officers’ arrival, Floyd was facedown on the street, hands tied behind his back, with Derek Chauvin pressing his knee into his neck for nearly nine minutes, while two other cops restrained Floyd by pressing down on his back and legs, and the fourth officer kept distressed passersby from intervening. Floyd begged for his life, telling them that he couldn’t breathe. Soon, his body went limp and silent. He was declared dead at the hospital.
Chauvin was caught killing a man on video, while several eyewitnesses pleaded with him to stop. Yet he appeared completely calm, bored even, one hand nonchalantly in his pocket as Floyd died beneath his knee.
So casually did the cops arrest, brutalize and kill Floyd for nothing. And just as easily did Chauvin and the other three officers leave the scene of their crime. No police cars swarmed the scene to arrest the four officers. Chauvin went home that night a free man, and for the next three nights as well. The other officers were not arrested until Wednesday.
Initially, Hennepin County Dist. Atty. Mike Freeman said that there was not enough evidence to arrest anyone, adding “there is other evidence that does not support a criminal charge.” Not enough evidence? What conceivable other evidence could there have been?
There was, of course, no such benefit of the doubt given Floyd when he was arrested.
It took four days after the killing for the D.A. to arrest Chauvin and charge him with third-degree murder and manslaughter — and only after protests over George Floyd’s death began in nearly every major American city. The other three cops were not charged — even though any civilian who had helped a person charged with murder would probably have been quickly arrested.
It was not until Wednesday, after Minnesota Atty. Gen. Keith Ellison took over the case, that charges of felony aiding and abetting the murder were filed against the three officers. The charge against Chauvin was raised to second-degree murder.
Cases against cops are notoriously hard to win. The main witnesses for the prosecution are other cops and the blue wall of silence means that those officers can be uncooperative or worse — they may try to sabotage the prosecutor’s case. And, even when the evidence is overwhelming, jurors may still be hesitant to convict, because they sympathize with the officer.
These deeply embedded biases make holding cops accountable for their violence in criminal court extremely difficult.
Conversely, African American men such as George Floyd suffer from a presumption of guilt from the moment they encounter a police officer. Almost 50% of black men have been arrested by age 23, most often in connection with minor offenses that they don’t commit more frequently than white men. This arrest gap ultimately results in black men having a one in three chance of going to prison, compared with one in six for Latino men, and one in 17 for white men.
As a white former federal judge and an African American former federal prosecutor, we’ve seen these dynamics play out in courtrooms. But only one of us can imagine being treated by the police the way they treated George Floyd.
So much has to change in the criminal system and the broader society to prevent more killings of civilians at the hands of police. But we can start with the arrest.
Police should be required to issue citations in minor offenses because arrests too often escalate into tragedy. And every officer-involved death should be reviewed by an independent agency, rather than local district attorneys who often have conflicts of interest because they work with the cops every day.
The cornerstone of equal justice is treating all citizens alike. If the criminal system treated African Americans at the arrest-decision point the way it treats police suspects — such as Chauvin and his three colleagues — George Floyd would still be alive.
Nancy Gertner is a professor at Harvard Law School, a retired federal judge and Of Counsel at Guttman, Buschner & Brookes, PLLC. Paul Butler is a professor at Georgetown University Law Center and the author of “Chokehold: Policing Black Men.”