Two Years Later, the George Floyd Cases Are a Dark Chapter in the History of Due Process

Officers deserved to be held accountable for Floyd’s death, but accountability outside the bounds of the law is not accountability; it’s systemic abuse.

T his week marked two years since the death of George Floyd while he was in the custody of Minneapolis police after violently resisting a lawful arrest. If we have learned anything in that time, it is that the due process of law cannot compete with racial-justice theater and the climate of intimidation it promotes.

Though it should go without saying, our stupid times require otherwise. So I’ll say it: No one is claiming that police officers should not have been held accountable for Floyd’s death, but if accountability is not within the bounds of the law, it is not accountability but systemic abuse — which is precisely what social-justice warriors pretend to be outraged about.

The image of former cop Derek Chauvin with his knee on Floyd’s neck, accompanied by the dying man’s haunting pleas for relief as he rapidly lost the ability to breathe, is indelible. Chauvin was convicted on murder and manslaughter charges in last year’s state trial, and he has since pled guilty to a federal charge of civil-rights homicide — though that seems to have been little more than prosecutorial theater that allowed the Justice Department to claim victory while enabling Chauvin to serve essentially the same prison time in a more comfortable federal facility.

There are reasons for grave concern about these proceedings. That there was sufficient evidence to convict Chauvin does not mean he received a fair state trial. After the weeks of deadly rioting and looting that followed Floyd’s death on Memorial Day 2020, Chauvin’s Minneapolis trial was a chaotic scene. Egged on by demagogic politicians, angry demonstrators vowed that there would be hell to pay on the streets if Chauvin wasn’t convicted on the most serious charges. The presiding judge, Peter Cahill, not only declined to sequester the jury before deliberations; he sent jury members home for a long weekend while their communities were rioting over another racially charged accidental killing of a young black man by a police officer.

As we have pointed out, the jury took just a few hours to reach a verdict. That was a quick turnaround — suspiciously so — in a complex case that took several weeks to try, and that teemed with highly technical, conflicting expert medical testimony. There had been extensive, conflicting testimony about police detention procedures. The homicide charges were complicated and, in some ways, internally contradictory. The case was sufficiently challenging that Judge Cahill gave the lawyers an extra day off to prepare their summations, which consumed another long, full day. And yet the jury reached a verdict with dizzying speed, and without sending out a single deliberation note, or asking to review a single exhibit or a single witness’s testimony.

Even as the jury was deliberating, Judge Cahill was grappling with a mistrial motion based on the intimidation and prejudice caused by the demagogic Representative Maxine Waters, the California Democrat who somehow found herself in Minneapolis, urging protesters to “stay in the street” and become “more confrontational” if the jury failed to find Chauvin guilty. An addled Cahill griped to Chauvin’s lawyer, “I’ll give you that congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned.”

In fact, it wasn’t just the jury that was subjected to mob intimidation; the courts felt it, too. Even putting aside that Cahill declined to move the trial out of riot-ravaged Minneapolis, or to grant meaningful relief when both state prosecutors and the Justice Department took actions to undermine Chauvin’s fair-trial rights, the courts willfully failed to take action to remove a charge of depraved-indifference murder that should not have been brought because it was inapplicable to the facts of the case.

Depraved-indifference murder occurs only when a defendant recklessly uses lethal force indiscriminately, not when he intentionally targets someone. To his credit, Judge Cahill tried to strike the count, but he had to reinstate it based on a clearly erroneous contrary ruling by an intermediate appellate court. Chauvin’s lawyers pleaded for intervention by the state supreme court, asking its judges to rule, pretrial, that the depraved-indifference charge was invalid. That court, however, refused, not wanting any part of the Floyd case — particularly if doing its duty would have meant striking a murder charge. Only after Chauvin was convicted on the charge did it finally issue a decision clarifying that depraved-indifference murder did not apply to cases such as Floyd’s killing. And by then, Chauvin’s jury had been subjected to arguments about his wanton cruelty that had no place in the case.

Still, the worst of the judicial abdications may have occurred not in Chauvin’s state-level case but in the federal civil-rights prosecution the Justice Department piled onto the state charges against all four former officers involved in Floyd’s death.

There was no law-enforcement need for the Justice Department to bring its case. The murder and manslaughter charges brought by the state were more than sufficient. But the Biden Justice Department wanted to signal solidarity with progressive, anti-police protesters.

If there was to be a federal prosecution, it should have been delayed so as not to interfere with the state case. After all, the Justice Department is just as responsible for upholding the civil rights of accused police officers as it is for upholding the citizens’ civil rights those officers allegedly abused. Yet, DOJ’s Civil Rights Division timed the announcement of its investigation, and then its indictment, so as to stir up prejudicial publicity that first undermined Chauvin’s right to an impartial jury, and then foiled Judge Cahill’s effort to bring the other three officers to trial shortly after Chauvin.

And it gets worse.

The Justice Department’s case was deeply flawed. The applicable civil-rights provision of the federal penal code (Section 242) makes it a crime for those acting under color of law to deprive a person of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” Read literally, this vague provision could require state and local police to have encyclopedic knowledge of all potential rights and benefits people may enjoy under federal law. In the 1945 case Screws v. United States, the Supreme Court reasoned that this would flout the bedrock constitutional requirement that criminal statutes be sufficiently clear to put a person of ordinary intelligence on notice of what the law prohibits or requires.

But rather than hold the statute unconstitutional, the justices opted for a construction that would save it from infirmity: For a guilty finding, prosecutors would have to prove beyond a reasonable doubt that defendants had acted not only intentionally but with a purpose to deprive the victim of a “constitutional requirement which has been made specific and definite.” That is, police cannot deprive someone of a federal right unless it has been made clear that the federal right actually exists.

The Biden Justice Department does not adhere to that theory. Instead of interpreting the civil-rights laws to protect people’s recognized rights, its Civil Rights Division theorizes that these laws can be used to impose on state and local police the policing practices that progressives favor.

In the Floyd case, Chauvin was charged with using excessive force, which deprived Floyd of liberty and life in violation of the Fourth Amendment. Specific and definite — so far, so good. But then two of the other cops, Tou Thao and J. Alexander Kueng, were charged not with using excessive force but with failing to stop Chauvin from using excessive force. There is no specific and definite federal law imposing such a duty on police. Contrary to the Justice Department’s insistence, the Fourth Amendment prohibits unreasonable seizures, not the failure to prevent such seizures. In fact, to repeat what I wrote when the case was being tried, the law is the opposite of what the Civil Rights Division suggests:

As a rule . . . states and municipalities are obliged to provide police protection for the community at large; that does not mean individual cops are obliged to take protective action on behalf of particular people. An individual, for example, generally has no right to sue a city because the police failed to respond quickly or adequately to a call for help — even if the person can prove that the police were in a position to respond and could have prevented or mitigated the harm.

DOJ’s Floyd case just kept getting worse from there. Prosecutors had no hope of convicting former officer Thomas Lane of even the made-up crime charged against Thao and Kueng, because Lane’s conduct on the scene had been exculpatory: A rookie who’d done only a few shifts at the time of the incident, Lane had prodded Chauvin, the senior officer on site, to reposition Floyd to make it easier for him to breathe — though to no avail. But this being the notorious George Floyd case, the Justice Department couldn’t let mere innocence get in the way of being seen to do something, so out of their creative civil-rights kitchen, prosecutors cooked up a whole new “crime” for Lane, which was applied to the other ex-cops as well: violating the supposed substantive-due-process “right to be free from a police officer’s indifference to his serious medical needs.”

Putting aside that this supposed offense happened while police were waiting for an ambulance they had summoned in order to get Floyd emergency medical attention, there is no such federal crime. Again, rather than enforcing the actual criminal law, the Justice Department is attempting to impose its preferred police practices.

It is certainly possible that some of those practices might do some good, and certainly true that there is plenty to criticize in the conduct of the officers who detained Floyd. But it is a perversion of civil rights, not a vindication of civil-rights laws, to indict officers — even in Floyd’s case — for behavior that Congress has not made criminal.

Despite having written a series of columns about the Justice Department’s case that exactingly highlighted the constitutional flaws in the indictment, I confess to being taken aback that this did not seem to be more of an issue when the case was litigated and tried. But in any event, Thao, Kueng, and Lane were convicted. How could they not be?

So imagine my surprise a couple of weeks ago when senior judge Paul Magnuson, who tried the federal case, wrote the following in his opinion denying the ex-cops’ post-trial challenges to their convictions:

Finally, although no Defendant raised this issue, the Court must comment on the potentially dubious constitutionality of the charge brought against Defendants for failure to render medical aid. Deliberate indifference to medical needs has long been recognized as a tort of constitutional magnitude for purposes of a [civil claim under Section 1983 of the civil rights laws]. . . . But the criminal prosecution of state actors for failing to give medical aid risks violating the constitutional principle that criminal laws must give fair warning of what they prohibit. See United States v. Lanier 520 U.S. 259, 266 (1997) (discussing “fair warning requirement”). Indeed, “due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” Id. [Emphasis added.]

Judge Magnuson observed that he was aware of only one other criminal case holding police liable for failure to render medical care — one that was not controlling precedent in his federal circuit, that involved very different facts, and that was insufficient in any event “to put law enforcement on notice of § 242’s application to a situation such as that” confronted by police in the Floyd case. He further noted that the defense had presented “substantial evidence” that the ex-cops did not act willfully, which prosecutors countered not with proof of willful misconduct, but with evidence about general police training in restraint techniques. Magnuson charitably observed that “the jury’s decision was undoubtedly a difficult one, and the Government’s evidence was not overwhelming.” But in the end, he, too, averted his eyes, as if he were a spectator at the trial rather than the presiding judicial officer. His answer, if you can call it that, is that there may be a big problem here, but addressing it is somehow not his job:

Because no Defendant raised the issue with this Court, the ultimate question of whether the charges here imposed criminal liability for conduct which, “in the light of pre-existing law, the unlawfulness under the Constitution is apparent” Lanier, 520 U.S. at 271-72 (quotation and alteration omitted), is beyond the Court’s role to determine.

Meanwhile, having been crushed by the feds, Thomas Lane on May 18 pled guilty to a manslaughter charge in the state prosecution. Maybe he is guilty. Or maybe he just gave up hope.