How the US justice system works to protect cops who murder people

The oppressing weight of the system doesn’t only crush us from above; by consenting to damaging racial narratives, we prop it up.

As race riots continue to rip open the heart of the country that was meant to guide us in principles of freedom, a courtroom in Hennepin County District Court, Minnesota, stands unexpectedly empty. It was meant to play host to the first court appearance of ex-police officer Derek Chauvin this Monday. Chauvin has been charged with third-degree murder and second-degree manslaughter after kneeling on the neck of black man George Floyd until he died. The court date has now been pushed back to 8th June, as officials ironically fear for Chauvin’s life in the midst of the civil unrest his actions ignited.

One can imagine that Chauvin, currently on suicide watch at a maximum-security prison, is feeling pretty hard done by. After all, what he did was nothing new. Many white colleagues of his in the Minneapolis Police Department have killed black people in the line of duty and faced no consequences. Each year between 900 and 1000 people are shot and killed by police in the US, most of them black or hispanic, but US police officers rarely get charged, and convictions are almost unheard of. He is free from precedent, so why is he not free absolutely?

Derek Chauvin: US police officer charged with murder of George ...

Unfortunately for Chauvin, his act of deadly police brutality was one of the few that is recorded and disseminated, instead of the countless acts that go unseen.

I use the word countless quite literally, because there’s no good official data on how many homicides police commit each year. The US federal government tracks fatal injuries resulting from police action through two databases: the FBI’s Supplementary Homicide Reports (SHR), and the Bureau of Justice Statistics Arrest-Related Deaths (ARD). But A 2015 study found that from 2003 to 2009 and 2011, both systems let deaths fall through the cracks. More than one-quarter (28%) of police-caused deaths weren’t tracked at all under ARD or SHR.

Of the 72% of police killings that are on average recorded, the vast majority are written off as ‘justified’. What constitutes justice in this context is twofold: in America, it’s legal for a cop to kill you ‘to protect their life or the life of another innocent party’ — what departments call the ‘defense-of-life’ standard – or if you’re fleeing arrest and the officer has probable cause to suspect that you pose a threat to others.

The people who generally determine whether either of these two stipulations are applicable in police killings are the police departments themselves; very often the direct employer of the officer who fired the deadly shot or applied the deadly pressure. In this incomprehensible act of circular justice cops who kill are, of course, almost always deemed ‘justified’ by their colleagues.

Are they really justified killings? Impossible to know for sure, but pretty easy to make an educated guess that they can’t all have been.

Whilst police crime is something of a black hole for facts, the Henry A. Wallace Police Crime Database is an independent project that houses information on 10,287 criminal arrest cases from the years 2005-2014 involving 8,495 sworn law enforcement officers. I’ll let you decide whether these few incident reports, picked at random, show justified killings as a result of an officer fearing for their life or apprehending a dangerous subject. The victims are 7, 5, and 4.

As these reports demonstrate, even if a police department has no choice but to bring charges against one of their own because, say, their act of egregious violence was captured on film, officers generally needn’t worry. Between 2005 and 2019, 98 non-federal law enforcement officers were arrested in connection with fatal, on-duty shootings. Of these, only 35 officers have been convicted of a crime (often a greatly reduced one) and only three have been convicted of murder and seen their convictions stand.

In this same time frame approximately 14,000 people died by police. That’s a 0.0002% conviction rate.

Please, take a moment to reflect on those numbers, and the fact that no matter how hard I try I cannot find the names of the three child victims above.

Chauvin should’ve got away with it, and he still might. Why?

The bias of the system

Racial bias is built into the foundations of the US system of law. This prejudice starts on the street with police. Black people are more than twice as likely to be killed by police as white people, according to data collected by The Washington Post since mid-2014. Civil rights leaders say black Americans are shot more because they are more likely to be pulled over.

The Minnesota police department, Chauvin’s former employer, is a great example of the kind of racist echo chamber that can crystallise around a justice institution under the right circumstances.

Minneapolis has a powerful police union with a history of fluidity between its board and local politicians. Though 20% of the city’s population is black, black people account for more than 60% of the victims in Minneapolis police shootings from late 2009 through May 2019.

Minneapolis police union head signals fight for fired officers' jobs ...

As well as the video of Floyd’s last moments, the MPD’s record of racial violence includes Thurman Blevins, a black man who begged two white police officers closing in on him, ‘Please don’t shoot me. Leave me alone,’ in a fatal encounter captured on body-camera footage. His death two years ago led to protests across the city.

There was Chiasher Fong Vue, a Hmong man who was killed in December during a shootout with nine officers, who fired more than 100 bullets at him.

There was Philando Castile, shot by a police officer while being pulled over during a traffic stop. Jamar Clark was shot by police who responded to a paramedic call. Christopher Burns was strangled when two officers used a chokehold, and David Smith was restrained by police officers before he died of asphyxiation. All in Minneapolis.

Minnesota’s current police chief, a black man named Medaria Arradondo, had previously filed a lawsuit for racism against his own department when he was a lieutenant. He’s currently struggling to overhaul the institution.

Chief Tells George Floyd's Family That 3 Other Cops Were ...

But the tendrils of corruption don’t stop at state level. In the rare instances that the ground-level fraternity fails to protect its own and cases of police brutality make it to court, the wording of culpability charges drawn up by law makers seems deliberately advantageous to law enforcement.

The distinction that must be drawn between murder, manslaughter, and a legitimate use of force becomes impossibly, almost interchangeably, muddy.

Michael Scott, a clinical professor in the School of Criminology and Criminal Justice at Arizona State University, Tempe, points out here that the ‘central element to the case is the officer’s intent to cause death or bodily harm.’

In general, innocence is assumed so long as the police officer claims that they didn’t intend for the person to die.

This seems ludicrous to anyone who has seen the clip of Floyd’s death, or footage of any of the deaths mentioned above – where officers continued to restrain or shoot at subjects long past the point of compliance. But it’s hard to prove premeditation.

Another thing working against police victims is the fact that an officer’s use of force ‘must be judged [by a jury] from the perspective of a reasonable officer on the scene’ and not with ‘20/20 … hindsight.’ Jurys are asked to ‘place themselves in the shoes’ of law enforcement in the moment – to ‘picture’ what it was really like. And the only first-hand account available to them is the police officer’s. Anyone was a contradictory account is usually dead.

The law is on the officer’s side the moment they enter the courtroom. This is to be expected: after all, the line between the police office as the law, and as a law-abiding citizen, has always been blurry. However, what’s perhaps more surprising is the tendency for juries to also be on the side of law enforcement, even when that jury is racially balanced.

People with mental health history should be allowed to serve on a ...

We need only look into a mirror…

Juries almost always give police the benefit of the doubt when it comes to allegations of misconduct or killing a suspect. According to data collected by Bowling Green State University Professor Philip Stinson, who has done extensive research on this subject, less than half of jury trials involving law enforcement lead to a conviction. In contrast, police arrested for crimes using their own weapon are convicted 98% of the time.

Criminologists and psychologists who’ve studied this phenomenon claim it stems from the unwillingness of a jury to ‘second-guess the split-second, life-or-death decision of on-duty police officers in potentially violent street encounters’, as Stinson puts it.

However, a recent study by researchers at the John Jay College of Criminal Justice found that pre-trial publicity strongly influenced the decisions of mock jurors in assessing the guilt or innocence of police officers accused of killing an unarmed man.

The study used mock jurors who deliberated the real case of several New York police officers who were charged with homicide in the killing of Sean Bell, a black man shot by a cruising patrol in 2006 the day before his wedding. He was targeted with more than 50 rounds outside a Queens nightclub; the police claim to have overheard one of three men Bell was with mention a gun, but no weapon was later found on their persons.

All three officers involved were acquitted, both by the mock jury and the real one in 2006, after a campaign by the then mayor of New York Michael Bloomberg to defend his officers.

‘You might think evidence would affect their decisions, but at the end of the day, those effects (of pre-trial publicity) were still there,’ said Steven Penrod, professor of psychology at John Jay, in their report.

Sean Elijah Bell (1983-2006) •

Despite overwhelming evidence that the NYPD open fired on unarmed men, neither group of jurors took the word of the two surviving black men over white police officers.

It seems that the narratives people bring with them into the courtroom have just as much of a bearing on the verdict as the evidence itself.

Take also the case of the shooting of Samuel DeBose by police officer Ray Tensing. DuBose, an unarmed black man, was fatally shot by Tensing, a white University of Cincinnati police officer, during a traffic stop for a missing front license plate and a suspended driver’s license. Tensing fired after DuBose started his car, stating later that he was being dragged behind the car by his arm. Prosecutors alleged that footage from Tensing’s bodycam showed he was not dragged.

A November 2016 trial of this case ended in mistrial after the jury became deadlocked. A retrial begun in May 2017 also ended in a hung jury. The charges against Tensing were later dismissed.

In announcing his decision to drop charges against Tensing, Hamilton County Prosecutor Joe Deters said his polling of jurors convinced him ‘that we will never get a conviction. … So many things bled into the jury room related to race.’

Whilst it’s easy to decry the perils of institutional racism, of authoritarian fascist rule so deeply embedded in justice systems that it can’t be undone, it’s harder to swallow the fact that these white police officers were excused for their crimes by ordinary citizens like you and me.

Calvin Lai, one of the world’s leading experts on implicit bias says here that unconscious bias can cause jurors to trust a police officer, but we must interrogate the extent to which unconscious bias also leads juries to mistrust black victims.

Interestingly, one of the only recent instances where a police officer was charged to the full extent of the law after killing someone on duty was the case of Justine Damond, who was fatally shot by officer Mohamed Noor. Noor was charged with second-degree manslaughter and third-degree murder, the exact same charges Chauvin faces, by the same police department – Minneapolis PD. He was convicted.

Noor is Somali-American, and his victim was white.

Mohamed Noor sentenced to 12-and-a-half years' jail for murder of ...

The structures of bias we’ve built around ourselves are in our DNA. As the jury stats show, we cannot separate out the racism that we clearly perceive in our law enforcement from ourselves as the same biases beat within us. Though he’s taken the path of most resistance, the same prejudices ingrained in Derek Chauvin are narrativised in us as well, and the willingness of juries to believe white perpetrators over not only black victims but their own eyes, shows this.

I would love for power to be non-subjective – to operate through force relations on a macro level that I can barely comprehend. But this simply isn’t the case.

Author Scott Woods summarises thus:

Black Lives Matter: What Can I Do As a Writer? – a dreaming skin

It’s these small acts of consent, these micro-aggressions, that built Minneapolis PD and others like it brick by brick.

Officers like Chauvin and Tensing were helped by the arm of privilege at every step. They were helped by their white skin, and the opportunities this afforded them. They were helped by their status in society as police. They were helped by their colleagues. They were helped by the justice system – by lawyers, judges, and a President that actively encourages police brutality. But they were also helped by the innate cultural biases found in each and every one of us.

The answer to the question ‘How does the US justice system protect murderous cops?’ is: because we let it. Every time we don’t actively interrogate our place in society and our privilege, every day we don’t work to scoop out those poisonous thoughts and insipid apperceptions from the boats of our lives, is another day that we exonerate Chauvin and convict Floyd.

We must work to re-write the narrative of race that exists in our society, that divides the dominant gaze of Us into ‘white’ and ‘other’. We must raise a new generation who can walk into a court room completely free of bias.

It’s a lofty goal, but one worth reaching for nonetheless.

George Floyd, Breonna Taylor, Ahmaud Arbery, Tamir Rice, Trayvon Martin, Oscar Grant, Eric Garner, Samuel DuBose, Sandra Bland, Walter Scott, Terrence Crutcher.

We say their names and think also of those names we have forgotten.

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