This week has been a harsh and painful reminder that while life goes on and new and evolving crises, such as COVID-19, pop-up, our country, and our society, continues to falter when it comes to race and law enforcement. As a criminal defense attorney handling cases ranging from people charged with stealing cigarettes from Plaid Pantry to people charged with multiple sex offenses to people charged with murder, I have seen the gamut. To be certain, and clear from the start, the vast majority of law enforcement consists of upstanding and respectful men and women doing their level best to do their jobs and to protect their communities. While there are far too many "George Floyds," or "Michael Browns," or "Rodney Kings," most interactions between law enforcement and the public is cordial, respectful, and unremarkable.
Unfortunately, the fact remains, far too often we hear stories about unarmed citizens being shot, choked, and beaten by the men and women sworn to protect them. It is true not all people getting arrested are compliant and receptive to being placed in custody, but the law enforcement response must be tempered and commensurate with the resistance. For example, it would be hard, and unfair, to fault a police officer for pulling a weapon on a suspect who, despite being given clear verbal instructions to stop, drop his weapon, and put his hands up, continues to approach while holding a loaded firearm. On the other hand, once a suspect is facedown, on the ground, with his hands behind his back in the grips of another officer, it would not be acceptable, or excusable, for an officer to continue to punch, choke, or shoot that person.
As a society, we have to figure out how to eliminate these disproportionate responses so everyone can feel safe and comfortable in their community. I realize as a 40 year old white man I can never fully understand what it is like to be in the shoes of someone of color who instinctively is afraid of the police. I have read many stories, articles and books and watched many shows and movies in which racism and discrimination are at the forefront. Over the course of 13 years of practicing criminal law and handling hundreds of cases, I have seen the angst, and brutality, some arrested individuals experience. In college, my thesis advisor, and friend, was Julian Bond, who was the Chairman of the NAACP. We spoke about race, criminal law, and the death penalty. He would tell me stories about growing up in the South and working with Dr. Martin Luther King, Jr. and the Student Nonviolent Coordinating Committee and how difficult, and brutal, peaceful and nonviolent protests could be. I was fortunate to be able to learn, as well as a college-aged white kid could, what it was like to be in the shoes of a man terrified of the people who were supposed to be protecting him.
So, when I read the news, or hear the stories, about the fate of men like George Floyd, my heart sinks. I don't know all of the facts behind why the police encountered him, or why they got him out of his car, or why he was sitting on a sidewalk, and then why he was laying facedown on the concrete gasping for breath and pleading for mercy, while a white cop held him down with a knee on his neck. What I do know is I have been unable to think of how the deadly force the officer used was in any way commensurate to any resistance Mr. Floyd might have provided. I think I am safe in assuming this is not a position unique to me. To date, the whole interaction and ultimate use of lethal force makes no sense.
That said, how should we be responding?
I have seen and heard the cries for the officers involved to be arrested and charged with murder. At this point, the Minneapolis officer whose knee was thrust upon Mr. Floyd has been charged with third degree murder. I have heard the discontent with the fact that the officers were not immediately arrested, but merely fired. I have heard and seen the protest and how some have become unlawful and violent. I have heard people dismiss those protesters as thugs and lawless. But, at the end of the day where does all of that get us? When do we figure out how to address these issues and tragedies so we don't have to say again "another George Floyd."
I am an Oregon lawyer, so cannot speak to the criminal laws of Minnesota, but I have read their murder law and have compared it to ours. Third degree murder in Minnesota reads a lot like manslaughter in the first degree in Oregon. The third degree murder statute reads: "whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree." This reads a lot like first degree manslaughter in Oregon: "criminal homicide constitutes manslaughter in the first degree when...it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.
Clearly facts and circumstances can change, but it seems to me the prosecutors got the charging decision right, based upon what has been shared publicly. Maybe something more will come out that suggests the officer intended to kill Mr. Floyd and thus should be reindicted and charged with murder in the second degree or perhaps even murder in the first degree if they can establish the murder was with premeditation. There's also the possibility that some evidence comes to light that would indicate there should not be a homicide charge at all or that the officer has a legitimate defense, although neither of those seem likely at this point.
I have no gripe with the charge. I understand the dismay and outrage at why it took so long to arrest the officer and charge him. Mr. Floyd died on May 25, but the officer was not arrested until May 29. I think of a typical case I have seen when the person causing the victim's death is clear, it does not usually take very long to get that person in custody. That said, I also understand that facts are not always known right away or enough evidence has not been collected to make a clear charging decision. So, in the end, I do not think the delay is entirely unreasonable. This is an instance in which it is so important to get it right that taking the time to gather the facts and evidence makes sense.
While from a pragmatic and lawyer-perspective I do not have a problem with the delay, I can understand why it is not so easy for everyone to accept. Many people protesting have not been given the benefit of the doubt or the deference of a thorough and complete investigation prior to be judged and charged. Much of the protest has nothing to do with the ultimate charge either. I think many people have the feeling of "here we go again" and the further cementing of fear of authorities...after all, George Floyd was not armed, but rather facedown on concrete surrounded by officers when he was killed. This brings back thoughts of Michael Brown, or Rodney Kind, or any number of other unarmed people killed by law enforcement. I suspect, for people like Julian Bond, it brought back horrific memories of encounters with police in the 60s in which many people were injured and killed solely because of the color of their skin. It's important for those of us that haven't experienced those times or have those inherent concerns show understanding and not disdain.
I have been disappointed to see how many protests have become violent with people throwing projectiles, igniting fires, and committing other lawless acts in the name of protesting police brutality. As I've said, I cannot fully understand the pain, betrayal, and "here we got again" that many feel at this time, but the way to respond is through peaceful protest and helping accomplish change, not in committing crimes and acts of violence. Mayor Keisha Bottoms of Atlanta put it so eloquently and passionately, in response to the unrest and violence going on in Atlanta, that I'd rather you see it for yourself than me try to explain it. The best way to accomplish change and maintain the moral high ground is to emulate the Martin Luther King, Jrs. of the world. Peacefully protest and work through legal means to make the necessary changes. Committing new crimes and giving fervor to the idea of "just a bunch of thugs" does nothing to accomplish the goal of stopping these needless and inexplicable deaths.
Of course, all of us need to recognize the pain behind these protests and do our part to try and understand it and help those hurting so badly. It is of no help, and only intensifies the feeling of being second class or not mattering, when people of power dismiss protesters as "thugs" and make suggestions like "when the looting starts, the shooting starts." We can make the necessary changes and reconciliations our society demands only when we truly make an effort to understand and empathize with each other.