LexisNexis

George Floyd killing: discriminatory, disproportionate use of force by police undermines rule of law

Jennifer Venis, IBA Multimedia JournalistTuesday 9 June 2020

The death of George Floyd is the most recent incident to highlight the disproportionate use of force against black people in police custody.

Floyd died on 25 May in Minneapolis, Minnesota, after police officer Derek Chauvin knelt on the back of his neck for eight minutes and 46 seconds. Floyd was motionless after almost six minutes, according to the criminal complaint against Chauvin, and had repeatedly told Chauvin and three assisting officers: ‘I can’t breathe.’ An independent coroner’s report classified Floyd’s death as a homicide.

Chauvin was charged in early June with second-degree murder, with the three assisting officers charged with aiding and abetting second-degree murder. All have been fired. The police department faces a civil rights investigation from the Minnesota Department of Human Rights.

Systematised, targeted enforcement of criminal laws against blacks, often for non-existent or petty offenses, and often with lethal force, succeeds Jim Crow racial segregation laws as a system of social control

Nawi Ukabiala
Associate at Debevoise & Plimpton

Floyd’s death has galvanised major protests, both in the United States and internationally.

Nawi Ukabiala, a public international law practitioner and associate at Debevoise & Plimpton, who speaks in a personal capacity, highlights that only fatal incidents of police brutality, if captured on video as Floyd’s was, typically receive media coverage. ‘However, extensive evidence indicates that brutal acts of torture perpetrated against blacks by law enforcement officers are occurring in the US on a regular basis.’ He notes that even recorded incidents rarely generate accountability.

‘What we can see on the publicly available video recording of George Floyd’s killing clearly amounts to torture and arbitrary killing; two of the most serious violations of international human rights law,’ Nils Melzer, UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, tells Global Insight.

Sarah Cleveland, Co-Vice Chair of the IBA Human Rights Law Committee and Louis B Henkin Professor of Human and Constitutional Rights at Columbia Law School, notes that under international human rights law, force ‘cannot be used on a suspected criminal who does not pose a serious and imminent threat to the lives or bodily integrity of others.’

According to the US National Institute of Justice, the US has no universal set of rules governing when police officers can or should use force and to what extent. But ruling on Tennessee v Garner in 1985, US Supreme Court Justice Byron White wrote: ‘It is not better that all felony suspects die than that they escape’.

Minnesota statute justifies deadly force to protect officers or others from ‘great bodily harm,’ to capture someone suspected of a felony involving or threatening deadly force, or a suspect whom the officer ‘believes will cause death or great bodily harm if the apprehension is delayed.’

But the technique Chauvin used isn’t classed as ‘deadly.’ Neck restraints such as those used in the incident in which Floyd died are a ‘non-deadly force option,’ according to the Minneapolis police manual.

And, like many before him, Floyd wasn’t accused of a violent crime. The police were responding to a call from a grocery store, where Floyd allegedly tried to use a counterfeit $20 bill.

For Ukabiala, ‘systematised, targeted enforcement of criminal laws against blacks, often for non-existent or petty offenses, and often with lethal force, succeeds Jim Crow racial segregation laws as a system of social control. The characterisation of blacks as criminals, or as criminally inclined, is fundamental to that system’.

In 2019, a US study using verified data on police killings from 2013–2018 found that roughly one in 1,000 black boys and men are destined to be killed by police, whereas only 39 out of 100,000 white males will suffer the same fate.

Ukabiala says ‘the discriminatory effect of police brutality in the US is sufficient to constitute a violation of the International Convention on the Elimination of All Forms of Racial Discrimination.’

Campaign Zero is a data-informed platform that presents solutions to US police violence. It argues that decades of ‘broken windows policing,’ which involves ‘focus on policing minor crimes and activities... has led to the criminalisation and over-policing of communities of colour and excessive force in otherwise harmless situations.’

In 2015, President Barack Obama’s Task Force on 21st Century Policing published recommendations on reducing violence against black people and improving public safety. But policies like community-orientated policing were abandoned after the 2016 presidential election.

Minneapolis pursued reforms in 2015 and implemented training on implicit bias, de-escalation and crisis intervention. The State adopted tighter use-of-force standards and body cameras. But these measures didn’t prevent Floyd’s death.

According to Mapping Police Violence, in the US 99 per cent of killings by police from 2013–2019 have not resulted in officers being charged with a crime. Further, the doctrine of qualified immunity protects officers from civil suits, unless they violated ‘clearly established’ constitutional rights or federal law.

For Melzer, ‘any form of impunity for, or leniency towards, such serious misconduct, especially when committed for reasons related to discrimination of any kind, makes a mockery of justice, equality and the rule of law.’

Highlighting failures of reform, groups including the Black Lives Matter Global Network call for defunding of the police, with funds redirected to community-led public safety.

Such radical change is controversial. However, on 7 June, a veto-proof majority of the Minneapolis City Council pledged to disband the city’s police force in its current form. In its place, the Council members said a new system of public safety would be created in collaboration with the community.

And in late May, the US House Judiciary Committee asked the Department of Justice to investigate systemic police misconduct and determine whether this amounts to a ‘pattern or practice of unconstitutional conduct.’

The US Constitution guarantees that no state can deprive a person of life or liberty ‘without due process of law’. But due process cannot be guaranteed if certain groups don’t survive arrest.

The US Department of Justice and National Association of Police Organizations both condemned Floyd’s killing but did not respond to Global Insight’s requests for comment.

Image: Johnny Silvercloud / Shutterstock.com