Technically, the case isn’t about race. But in truth, there would be no federal civil-rights prosecution against the officers were it not for Floyd’s race.
Technically, the case isn’t about race. But in truth, there would be no federal civil-rights prosecution against the Minnesota cops were it not for Floyd’s race.
I n federal court on Monday, a jury of Minnesotans heard opening statements in the civil-rights trial of three since-fired police officers who, along with convicted former officer Derek Chauvin, physically detained George Floyd on a Minneapolis street on Memorial Day 2020, allegedly causing his death.
Even though there’s no real doubt, in the sense of legal culpability, that the police detention caused Floyd’s death, “allegedly” is still the appropriate term in this context. That is because Chauvin’s convictions in state and, recently, federal court are not admissible evidence against his three fellow former police officers — Tou Thao, J. Alexander Kueng, and Thomas Lane (who, for simplicity’s sake, I will henceforth desist from referring to as “former” officers). Ergo, the federal prosecutors bear the burden of proving that the police detention caused Floyd’s death, just as the state prosecutors did in Chauvin’s trial last April.
Chauvin is not standing trial in federal court. In mid December, he struck a bargain with federal prosecutors, pleading guilty to civil-rights charges in two separate incidents — Floyd’s death, and the use of excessive force against a 14-year-old boy in 2017.
That is in addition to the state charges tried in Minnesota’s Hennepin County Court, where Chauvin was convicted of murder and manslaughter in connection with Floyd’s death. Under the so-called dual-sovereignty exception to double jeopardy, a state prosecution does not bar a subsequent federal prosecution based on the same conduct. Chauvin was sentenced to 22 and a half years’ imprisonment in the state case and faces a concurrent prison term of up to 25 years when he is sentenced on the federal guilty pleas, presumably later this year.
Floyd died in custody shortly after a confrontation with police, during which he violently resisted arrest after passing a counterfeit $20 bill at a local store. Even after Floyd was subdued, the police held him in a prone position for over nine minutes during which he struggled to breathe, he lost consciousness, and his heart stopped beating. There is no doubt about this; the incident is captured in recordings that are excruciating to watch. Evidence at the state trial established that Floyd had significant drug-abuse and health problems, which could have contributed to his demise. Nevertheless, as I’ve stressed, that would not get police off the hook if the manner of Floyd’s detention was also a material cause of death. That does not seem credibly deniable — as attested by the guilty verdicts against Chauvin, who posited a futile causation defense.
In the federal trial against Chauvin’s fellow officers, establishing cause of death may be more a formality than a real challenge for prosecutors. That’s because the three defendants will blame Chauvin for Floyd’s demise. Chauvin was the senior officer on the scene and the one who infamously placed his knee on Floyd’s neck area. In light of this defense strategy, lawyers for the three cops are unlikely to put up much of a fight against the government’s allegation that Chauvin, principally, caused Floyd’s death. They want the jury to find that their clients are not responsible for Floyd’s killing, and thus won’t want to waste credibility arguing that Floyd was not actually killed (i.e., that he died of causes unrelated to the detention).
Obviously, a point of intense speculation is whether Chauvin will testify at the federal trial. I will address that in a separate column. For now, in setting the table, let’s consider the biggest question about the Justice Department’s prosecution: Is the case about race?
During selection of the anonymous jury, a black man — a prospective juror who was eventually dismissed and won’t be serving on the trial — told the court he feared he’d have trouble being impartial “due to my color.” He was promptly admonished by Judge Paul A. Magnuson, a Reagan appointee who is in his 42nd year on the federal bench. “There is absolutely nothing about the subject of religion, race, or ethnicity that’s involved in this case,” Judge Magnuson inveighed.
That is a hyper-technical way of looking at things — one that elevates a legal nicety over reality down here on earth. What Magnuson apparently meant is that the defendants have been indicted under a provision of the civil-rights laws (Section 242) that criminalizes the deprivation of federal rights under color of law. Racial animus is not an essential element of a Section 242 offense. This fact runs counter to a common misconception that racial animus must be central to civil-rights prosecutions.
In Screws v. United States (1945), the Supreme Court recounted the circumstances under which deprivations of civil rights “under color of law” (i.e., abusive actions by police or other state officials) came to be criminalized. Following the Civil War and adoption of the 13th Amendment, which empowered Congress to enforce the abolition of slavery by legislation, the Civil Rights Act of 1866 was enacted. A provision of the act, in its original form, outlawed official acts depriving civil rights. As the Court observed, this was “an antidiscrimination measure” designed to protect the “newly won rights” of black Americans. Four years later, however, the law was amended, expanding its protection to all inhabitants of U.S. states or territories.
In light of this history, it is only natural for people — especially nonlawyers and even lawyers unfamiliar with civil-rights enforcement — to assume that a civil-rights charge must be based on racial discrimination. Indeed, the civil-rights movement in America powerfully connotes a struggle for racial equality. Plus, some penal statutes in the civil-rights area (e.g., Section 245(b)(2)) do in fact require proof that repressive acts were caused by racism (or by bias against one of race’s statutory cognates: color, national origin, and religion). All that said, though, Magnuson is right if he meant, narrowly, that racial animus is not an element of a Section 242 prosecution.
Still, to claim that this federal prosecution is not about race blinks reality.
To be sure, besides Chauvin, Thomas Lane is the only indicted officer who is white. Alex Kueng is a black man, as was Floyd. Tou Thao is of Hmong descent. Even if there were not such a mix, I daresay people of goodwill should be offended by an inference of racial prejudice based on nothing more than the happenstance that disputants are of different races. Significantly, not a scintilla of proof at Chauvin’s state trial suggested that racial prejudice motivated him or the other police in their confrontation with Floyd. And mind you, prosecutors are permitted to prove motive; if there had been convincing evidence of racism, they’d have used it. Floyd should not have been subjected to excessive force, but it happened because he was a big, strong guy who forcibly resisted arrest, not because he was black.
Alas, implied bias against “people of color” is the animating conviction of the theory that American society is indelibly tainted by “systemic racism.” The Biden Justice Department and its Civil Rights Division are devotees of that theory. Progressive identity politics makes this unavoidable. Increasingly, American police departments mirror the variegated racial and ethnic makeups of the communities they serve. In many of today’s controversial encounters, the police officers confronting suspects of color are themselves people of color. This is highly inconvenient for the race-obsessed. To rationalize it away, they brand the institution of policing as racist. That is, we are to see this “systemic racism” as so burrowed into the institutional ethos of police departments that the non-white race of any particular officer is irrelevant . . . though, in this incoherent demagogy, if an officer implicated in a controversy happens to be white, that is somehow still deemed to be damning.
The killing of Floyd in police custody is the mother of all such racialized controversies. How nice it would be if Judge Magnuson were correct that the federal prosecution of the Minneapolis cops had nothing to do with race. It is a remorseless fact, however, that there would be no federal civil-rights prosecution against the Minnesota cops were it not for Floyd’s race. No sentient observer of the American scene in the 20 months since Floyd’s death would contend otherwise.
As former federal civil-rights prosecutor J. Christian Adams has recounted, Justice Department progressives regard the civil-rights laws as unavailing to white victims of abuse. Judge Magnuson may provide the Justice Department cover by insisting that the Floyd case is not about race because the prosecution need not prove anything about race. Yet, it is inconceivable that today’s Justice Department would have charged a civil-rights case against, for example, the Dallas police officers who allegedly asphyxiated Tony Timpa, a white man, who died when cops applied a prone-restraint technique very similar to the one employed against Floyd. (State criminal charges against those officers were eventually dismissed; and, on qualified-immunity grounds, a federal judge threw out a civil-rights action filed against the police by the Timpa family, although the Fifth Circuit federal appeals court recently reversed that ruling, reinstating the lawsuit.)
Why did Maxine Waters, the California Democrat and notorious demagogue, incite “more confrontational” mob action during the jury deliberations in Chauvin’s state case? There was only one reason: To promote the poisonous narrative that the nation’s police departments are hunting down black men — that Floyd was killed because of his race, and therefore that the angry streets should explode if the jury dared produce any verdict other than a murder conviction.
As I’ve detailed, it was gratuitous for the Biden Justice Department to pursue a civil-rights prosecution under circumstances in which the police were being prosecuted on murder charges in the state. The Civil Rights Division knowingly acted in a manner that was prejudicial to the state proceedings — resulting in the postponement of the state trial against the other three cops until later this year. The Biden administration assessed that signaling solidarity with progressive Democrats outweighed respect for due process.
Moreover, shortly before DOJ indicted the police involved in Floyd’s death, Attorney General Merrick Garland announced that he had opened a civil “pattern or practice” investigation of the Minneapolis Police Department, in order to determine whether it habitually engages in racially discriminatory conduct. This, despite the fact that Minneapolis police officials, including its progressive African-American chief Medaria Arradondo (who is retiring this month), uniformly testified that Chauvin’s actions were against department policy, training, and practices.
The Justice Department took these measures fully aware that they would infect the jury pool with the Democrats’ systemic-racism narrative. It worked. If Judge Magnuson is irritated by that, his pique ought to be directed at the government, not the jurors.