President Trump was absolutely right to direct the Justice Department and FBI Thursday to conduct an expedited investigation of the death of George Floyd, an African-American man who died in the custody of Minneapolis police Monday.
Rioting and violent protests of the death continued for a second night Thursday in Minneapolis and spread to New York City and other cities.
The Justice Department has confirmed that the investigation of Floyd’s death is a high priority and according to the Wall Street Journal “it was assigning experienced prosecutors and FBI criminal investigators to see if Minneapolis police officers broke federal law, including whether they willfully violated Mr. Floyd’s constitutional rights.”
From 2007 to 2011 I worked at the city of Boston Corporation Counsel’s office defending police officers in civil claims of excessive force, wrongful conviction and other lawsuits alleging constitutional violations. My natural inclination from that experience is to not rush to judgment in these kinds of cases, but to learn all the facts and see it from both sides before making a conclusion.
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The George Floyd case is different. There is no nuance here. Surveillance video from a nearby restaurant makes it crystal clear that Floyd was handcuffed and appeared to be fully cooperative with police. The video shows there was no need for Minneapolis Police Officer Derek Chauvin to push his knee into Floyd’s neck for eight minutes, ultimately killing a restrained and defenseless man.
The case is now in the hands of U.S. Attorney Erica MacDonald in Minnesota and the special agent in charge of the Minneapolis FBI field office. They will work in conjunction with the Civil Rights Division at Justice Department headquarters, which is run by Assistant Attorney General Eric Dreiband. Undoubtedly, Attorney General William Barr will be heavily involved with how this investigation moves forward.
Surveillance video from a nearby restaurant makes it crystal clear that Floyd was handcuffed and appeared to be fully cooperative with police.
Whether the investigation results in an indictment of Chauvin or the other officers will depend on whether U.S. Attorney MacDonald and the Justice Department’s Civil Rights Division believe that a grand jury will find there is probable cause that any of the officers willfully violated 18 U.S.C. Section 242. That law makes it a crime for a person acting under color of any law (for example, a police officer) to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
The question here for a grand jury would be whether Floyd was deprived the right to be free from unreasonable or excessive force by a police officer.
Model jury instructions for the federal district courts of Minnesota state that in determining whether excessive force was used, jurors should consider “the need for application of force; the relationship between the need and the amount of force that was used; the extent of the injury inflicted; and whether a reasonable officer on the scene, without the benefit of hindsight, would have used as much force under similar circumstances.”
In this case, it is clear that there was little if any need to use force, that even if force was somehow necessary the amount used was completely disproportionate, and that the injury inflicted was of the worst possible kind – death.
As to the question of what a reasonable Minnesota police officer would have done in similar circumstance look no further than the Minneapolis Police Manual. It specifically prohibits the use of neck restraints where an officer is met only with “passive resistance.”
“Passive resistance” is defined as “behavior initiated by a subject, when the subject does not comply with verbal or physical control efforts, yet the subject does not attempt to defeat an officer’s control efforts.” From the video, it certainly appears that, at worst, Floyd engaged in only passive resistance.
As for how long an investigation may take before the Justice Department seeks an indictment, the case of Michael Slager may provide a roadmap.
Slager, who was a police officer in North Charleston, S.C., shot a fleeing Walter Scott in the back and killed him on April 4, 2015. While Slager was indicted on murder charges by a South Carolina grand jury in June of 2015, it was not until May 11, 2016 – after a mistrial on state murder charges – that the Justice Department indicted Slager.
Like the Slager case, there is a local investigation alongside the federal investigation. The Hennepin County Attorney may also want to file state charges. These would likely include first- degree manslaughter.
The speed at which a federal case will move will in part depends on whether the Justice Department brings a case before the local prosecutors. But even in those circumstances, it is far from clear that the Justice Department could complete its investigation and seek an indictment before the fall, even with President Trump’s directive.
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In 2014, Eric Garner was killed on Staten Island in what many are calling an eerily similar situation when Garner was placed in a chokehold by New York City Police Officer Daniel Pantaleo and ultimately died. This incident was also caught on video. A Richmond County jury declined to indict Pantaleo and after five years the Justice Department decided it did not have a strong enough case to prosecute.
The comparisons to Garner might cause some to fear that the Justice Department may ultimately back off an indictment because of the similarities. I don’t think that the department should, and I don’t think that it will.
There are key facts that distinguish the cases. Eric Garner was not handcuffed and was resisting the officers’ attempts to restrain him. That does not mean that he somehow deserved to die, but Floyd’s case seems far clearer cut and less subject to interpretation.
In Floyd’s case, he offered no resistance and he did not pose a danger to anyone – he was handcuffed and on the ground, helpless, while a police officer forced the life out of him.
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No case is a sure thing and considerations of success and failure should always guide decisions before attempting to indict someone in a high-profile case.
Fortunately, both President Trump and Attorney General Barr have shown themselves to be fearless in the performance of their duties. Based on what we’ve seen, I believe that the facts and the law are on their side and that they will move swiftly to deliver justice in this case.