Minneapolis police officer Derek Chauvin pinned a handcuffed George Floyd to the ground and placed his knee on Floyd’s neck. In the cell phone video taken by a passerby, Chauvin, his hand in his pocket, nonchalant, looks rather pleased with himself.
Chauvin’s application of neck pressure was not a tactic authorized by Minneapolis Police Department (MPD) regulations. Chauvin maintained that position for nine minutes while Floyd gasped desperately, crying out that he could not breathe. For Chauvin’s last three minutes in this pose, Floyd was unresponsive.
Chauvin continued to rest his weight on Floyd’s neck as bystanders begged him to relent—warned him that he was killing the man.
Can you see yourself doing that? I didn’t think so.
The MPD regulations also require bystander officers to intervene when they witness an episode of excessive force.
During the nine minutes leading to Floyd’s death three other Minneapolis cops stood around. They warded off the crowd. They let Chauvin do as he pleased.
By holding the crowd at bay they prevented others from intervening. Probably, all of them wished Chauvin would lay off. Probably, each of them wished another would speak up first. No one spoke up.
Can you see yourself speaking up? That’s not quite as easy to answer, is it?
Certainly, all of us hope that we would have acted differently: found our moral compass; mobilized the values we were raised with; saved a life.
But all of us can think of moments when people we liked and admired—people who knew the right thing to do—didn’t do the right thing. Some of us may have experienced those moments ourselves. Everyone knows that life threatens us with these tests: the potential for facing one is a classic theme.
Think of Joseph Conrad’s Lord Jim: the hero, in his own self-image upright and chivalric, immersed in the mariner’s ethic of service, but joining the white crew in abandoning a shipload of Muslim pilgrims in a storm.
Of course, we are not likely to find ourselves in the situation that enmeshed the bystander cops on the Floyd homicide scene, and so what we would have done in their places is not a very urgent question. But it is an interesting one.
The fact is, all of us, to one degree or another, have collaborated in the social construction of a reality that left Floyd dead.
We’ve been bystanders too.
“Down and In” v. “Up and Out”
Just three months ago, in late February, Minnesota’s Attorney General and Commissioner of Public Safety issued a comprehensive set of Working Group Recommendations and Action Steps on police-involved fatal violence.
Compiled in an “all-stakeholders” effort with extensive community participation, the Working Group’s report stands as a saturnine monument to the distance between knowing what to do and doing it in the aftermath of George Floyd’s death.
Had anyone the time (and used it) to mobilize the Minnesota Working Group’s recommendations, Floyd might still be alive.
And even if the recommendations had not saved Floyd, there is one particular recommendation that would put us in a different place today. It called for establishing a “formal, protected, non-disciplinary Sentinel Event Review process similar to the National Transportation Safety Board (NTSB) to review critical incidents and identify systemic issues that need to be addressed to improve outcomes in law enforcement.”
This sort of review is not the individual performance review of the kind that has brought about the firing and may lead to the prosecution of Chauvin, as well as the other members of his team.
While the Minnesota Working Group did clarify how we can better manage that punitive process, it also recommended that we add to our armory a full-context event review, oriented to safety.
This would be a review that not only goes “down and in” to identify the defective actors in the system, but also looks “up and out” to try to understand how and why the system hired those actors, how they were supervised, trained, disciplined, and equipped.
The argument is that while the punishment of individuals in these cases is essential, it is also a bad place to stop.
Whacking Chauvin is both justified and cathartic, but whacking Chauvin without addressing the environment in which he flourished leaves us waiting abjectly for the next Chauvin to come along.
A full-scale Event Review offers a new “forward-looking” accountability that uncovers the underlying culture and processes that kept a loose cannon like Chauvin on the streets.
It treats the Safety in Public Safety seriously.
Among the principles an Event Review borrows from aviation and medical safety specialists is the recognition that you shouldn’t confuse the absence of disaster with the presence of safety.
The fact that someone like Chauvin hasn’t killed anyone yet doesn’t mean he won’t kill someone tomorrow.
The fact that your culture incentivizes bystander cops to look the other way and give your Chauvins a free hand doesn’t guarantee a fatal disaster, but it certainly does enhance the potential for one.
An Event Review recognizes that a tragic death such as Floyd’s doesn’t result from one big decision made by one lone cop but from years of drift and normalization—from hundreds of small decisions, no one of which is an independently sufficient cause for a homicide but which, when combined with each other and with latent system weakness, can have fatal results.
We have to understand that picture, and we have to understand our own places in it. When we go “up and out” in search of explanations we find ourselves.
Truth and Reconciliation
In the past few days we’ve witnessed a surge of violent rhetoric from white commentators excoriating “militarized,” “aggressive,” “racist” police.
Well, fair enough. But at some point it’s time to stop luxuriating in our own eloquence and to recognize that while this abhorrent police behavior is a cause, it is also an effect.
And it is an effect of a constructed reality in which white America is fully complicit.
Almost 30 years ago, when I was working as a Roxbury Defender, I wrote a pair of articles pointing out that we have a criminal justice system built on a colonialist model. I didn’t write them because I read the research on these things; I wrote them because I was sitting in courtrooms, hanging in cop bars, interviewing witnesses, visiting prisons.
Living the life I was living, the historical resonances were unavoidable.
We imagine a country divided into Here in the suburbs, and There in the cities; a White Space and a Black Space. There are real, concrete differences: in economic equality, in education, in health care, and in opportunity, but the imaginative distance we cultivate dwarfs those factors.
We employ in our criminal justice system—on the police forces, but in the courts, corrections, and ancillary organizations too—a cohort functioning as Kipling’s White Men functioned in the Third World. They control the Black Space; they patrol the frontiers.
The cops fill this role, and they can do better or worse in performing it. But they didn’t invent it. If they see themselves as a thin blue line menaced simultaneously by haughty policy-makers and hostile residents, it is at least in part because the white public and its media have taught them to see life that way and have put them in a position that makes their stance sustainable.
They think they are doing what we want them to do.
No amount of vehement white denunciation of the police will (or should) bring about the self-exculpation the commentators seem to seek.
One crucial advantage of the regular practice of Sentinel Event Reviews of officer-involved deaths and other criminal justice tragedies is that their non-punitive orientation allows for the participation of the community on a full and equal basis.
The event reviews return to the community the power that has seeped away from its juries and its citizens. They allow the community to call the system and its operators to account. They force a reckoning of the iatrogenic, “from the treatment” harms inflicted by law enforcement practice and criminal justice “solutions.”
A death such as George Floyd’s should force a full-scale examination of hiring, enforcement practices (e.g., forcible arrest for an allegation of passing a $20 bill?), disciplinary chaos, racial bias, qualified immunity and wholesale indemnification in police violence cases.
This won’t substitute for the retributive justice that Floyd’s death requires, but it does create the possibility of a complementary restorative justice.
A consistent practice of Sentinel Event reviews might help to repair our colonialized criminal justice arrangements in the same way that Truth and Reconciliation Commissions promoted the transition from the Third World version of colonial rule with its cities divided, as Frantz Fanon put it, into separate halves, communicating with each other only through a logic of “terror, counter-terror, violence, counter-violence.”
It would be a place to start.
The moral test faced—and failed—by the bystander cops in Minneapolis calls to mind the words of the old hymn, “Once to every man and nation / Comes the moment to decide / In the strife twixt truth and falsehood / For the good or evil side.”
We all face that test now, but to say that we face it just “once” or face it now for the first time is simply to lie. We’ve seen nearly 20 iterations of this test in the past two years.
Over 30 years ago, Spike Lee laid out, in his film Do The Right Thing, exactly this narrative. A white business owner calls the cops about a trivial crime, the cops respond, and an African-American man is asphyxiated, a riot follows.
We chastise the police and the rioters. We stand by. We can’t go on failing that test forever.
Time to do something now. Learn what happened. Face the facts—including the facts about ourselves—and start to dismantle the structures that support a toxic, divided society.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.