Every decent human being in America who saw the expression on Minneapolis Police Officer Derek Chauvin’s face as he caused the death of George Floyd recoiled in horror.
The Hennepin County District Attorney’s Office-at least so far-has not concluded that Chauvin intended to kill Floyd, just that he acted with a “depraved mind” and without regard to human life. He faces up to twenty-five years in prison. Read the criminal complaint here.
The fate of the other officers who stood by for nearly nine minutes, keeping a concerned crowd at bay, is still uncertain.
Chauvin, like all other defendants, enjoys a presumption of innocence.
Over the weekend, tens of thousands of people all over the United States came out to peacefully protest against police violence. They were met, in many cases, with more police violence, and infiltrated by white supremacists and anarchists who engaged in looting, vandalism, and other provocations.
The violence was encouraged by the president of the United States, who was so cowardly that he retreated to an underground bunker below the White House.
By contrast, several police chiefs and officers joined the protesters in heroic, self-aware solidarity.
The answer is because they can.
Police and other government officials like prison guards get away with murder in two ways: by engaging in wanton acts of deception and by hiding behind their badges under a legal doctrine known as qualified immunity.
Bad cops deceive the public because other bad cops let them. Before the video came out, police reports claimed that George Floyd’s death was the result of a medical condition. The officers that stood by while Mr. Floyd died are nearly as culpable as Chauvin, who would not have acted as he did without knowing that they would cover for him. Good police everywhere call out their colleagues when they engage in misconduct. In New York, police misconduct records are protected from public disclosure, a practice that must end.
As civil rights lawyers, it is our job to hold police and prison guards responsible after the fact by suing them to obtain compensation for their victims. The United States Constitution protects all Americans from excessive force, cruel and unusual punishment, and infringements on their rights to free speech. A post-civil war statute, the Civil Rights Act of 1871, creates a “private right of action” for violations of the Constitution by state officials like police and prison guards. That means, when police hurt you in violation of the Constitution, you have a right to sue for money damages. You do no have to depend on the government to get compensation: you can go to court and demand it yourself.
But far too often, our clients run up against the “qualified immunity” defense, which is a doctrine created by the Supreme Court that says that government officials are immune from being sued even if they violate the Constitution, so long as a court finds that their actions are “objectively reasonable.”
“Objectively reasonable” does not always mean to the courts what it would mean to you and me. The doctrine of qualified immunity has been used in our cases to protect a police officer who shot a dying man in the back of the head and to prevent suits against prison guards for sexually abusing inmates. As President Trump packs the courts and the Department of Justice with judges and lawyers who are hostile to individual civil rights, the courts may become emboldened to apply qualified immunity even more frequently.
Civil rights complainants have an uphill battle to obtain compensation. Not every case is as clear cut as the killing of George Floyd. If no video had emerged, Chauvin and his co-conspirators would have been able to claim they acted “reasonably” to restrain him and that the death was a tragic accident. Body worn camera footage can be manipulated. When the police kill someone, the main witness to their misconduct is dead.
We cannot rely on police to police themselves.
Ending qualified immunity and strengthening the Civil Rights Act would go a long way to ensuring that police know they have to serve and protect, not maim and kill.