George Floyd and the Fourth Racial Turning Point in American Politics

 George Floyd’s death presented the United States with its fourth racial turning point. Whether or not America is ready to learn from his death and make real change is the question of day.

The United States is a nation born of racism. It is nearly impossible to separate out the origins of America from race. The slave trade and the conquest of native inhabitants were integral to colonial settlement, both when it was part of England, and then after independence. But during its history, there have been three racial turning points that defined America.

Turning Points in American History

Turning Point One was in 1787 with the writing of the US Constitution. The Constitutional Convention was a point when the United States could have shed itself of race and slavery. It was a chance to live up to the egalitarian promises in the Declaration of Independence, that “All men are created equal.”

However, the delegates were divided by fear. Small and big states feared that the wrong constitutional compromise would shift the balance of power away from one to another. But the biggest fear was the tension between the northern free states and the southern slave states. Each feared respectively that America could become all slave or all free.

The delegates instead enshrined slavery in the Constitution. It did so by an agreement that only counted slaves as three-fifths persons for the purpose of representation, while also remaining silent on the topic of voting rights. These provisions gave slave states additional representation in Congress while denying individuals of African descent the right to vote and be free.

A second turning point occurred after the end of the Civil War in 1865. Abraham Lincoln freed the slaves. Republicans in Congress passed the 13th, 14th, and 15th Amendments and a host of civil rights laws to guarantee liberty and equality for former slaves. For a brief period of ten years, Reconstruction led to the enfranchisement and election of Black men across the South. Yet this turning point soon closed.

The disputed 1876 presidential election between Democratic Sam Tilden and Republican Rutherford Hayes resulted in the Democrats conceding the election if Republicans agreed to withdraw federal troops from the South – the states where slavery and the Confederacy existed. Without a northern military presence, there was nothing to stop southern states from ushering in the Jim Crow area. Blacks were segregated from Whites, and the latter effectively lost most of their voting and individual rights.

Turning Point Three began in 1954 when the US Supreme Court declared segregation unconstitutional in Brown v. Board of Education. It grew when Rosa Parks refused to go to the back of the bus in 1955 in Montgomery, Alabama, beginning the civil rights movement that culminated in the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act. All aimed, much like after Reconstruction, to bring equality to African Americans and other people of color. But this movement too came to an end quickly.

Across America in the summers of 1966 and 1967, riots occurred in urban areas. President Johnson created the Kerner Commission to report on the causes of these riots and offer recommendations. In 1968, the Kerner Commission released its report, declaring American had become “two nations, separate and unequal.” The causes of these riots were rooted in race and poverty, segregation, and in the lack of opportunity for people of color. The report called for addressing these underlying problems. Yet this racial turning point was soon abandoned.

President Johnson, instead of taking up the call to address the underlying racial and economic causes of these riots, chose instead to treat this as a law-and-order problem. He opted to press for a 1968 crime bill that militarized the police and gave more authority to local police and the FBI to act. Richard Nixon in his 1968 presidential election ran as a law-and-order candidate and prosecuted a war on drugs. Subsequent presidents pressed policies that sent disproportionate numbers of people of color to prison, and the US Supreme Court issued a series of decisions making it difficult to hold police accountable for excessive uses of force.

Now, America is at a fourth turning point.

George Floyd’s death in Minneapolis was never an if but a when, an inevitable consequence of sixty years of “law and order.” Minneapolis, like the rest of America, was a city of enormous racial disparities in terms of education, wealth, income, health, police and criminal justice stops, arrests, incarceration, and use of force. Racism was everywhere, but ignored.

This blog originally appeared in the Impakter.

George Floyd’s death reminded America of the racial divide. He presented America with an opportunity to pick up the message of the Kerner Commission that had been ignored.

There were calls to reform the police and for other changes in Minneapolis, but it appears that opportunity for change has already begun to end. The demand to defund the police, a surge in violent crime in America, and riots in Minneapolis struck fear into suburban voters. This in turn blunted Democratic Party gains across the country in the 2020 elections. The narrow focus on police reform in Minneapolis and across America steered the country away from the institutional, economic, and social conditions that fed racism leading up to Floyd’s death.

More than seven months after Floyd’s death, racial reform is stalled. The fourth turning point may already be lost.

Policy change in America occurs when there is a convergence of a perception of a problem, a policy solution, and a transformative movement. Floyd’s death created this convergence, although perhaps only briefly. Perhaps it is premature to declare America already in a post-George Floyd moment, but if history is any guide, it is not clear that this fourth racial turning point will result in the change that needs to occur.

On the Basis of Race? Making Sense of the Noor Verdict

Could a reasonable jury based on the facts have concluded that former Minneapolis Police Officer
Mohamed Noor was guilty of  a third-degree murder  and second-degree  manslaughter, or can the verdicts only be explained on the basis of race?  This is the question still being debated more than a week after a jury rendered its verdict. The question of how race factored into this decision or, more structurally, a variety of actions surrounding the Minneapolis police department and government make it difficult to render a clean answer.  However, to many, even if facially neutral, it is hard to account for what has happened unless race is considered.

As many who study policing can attest, the law favors them when it comes to the use of force.  Constitutionally, the standard of “objective reasonableness” in terms of whether an officer feared for his life or that of others is a high bar to overcome to find  police criminally liable for use of force.  Jurors are loath to second-guess police use of force, and often the victim of the force is someone accused or guilty of a crime.  A racially neutral argument is that few police are found guilty of use of excessive force is that the laws favors them and they used force appropriately.

A less than racially-neutral argument asserts that the reason why so few officers are charged and found guilty is because of race.  It is both the race of the officer (generally white) and the race of the victim (generally a person of color).  The racism is not necessarily individual and intentional, but it could also be institutional or societal. By that, the racism is not explicit or conscious, but woven into the fabric of our institutions, law, and society. Use of force by white police officers against people of color tells us something about whose lives matter in our society.

The Mohamad Noor trial was complicated. Three charges were brought against him, with convictions on two of them for third-degree murder  and second-degree  manslaughter. According to the judge’s instructions, a jury could find Noor guilty of third-degree murder if it concluded that
Noor caused (Ruszczyk’s) Damond’s death “by perpetuating an act eminently dangerous to others and evincing a depraved mind” without regard for life but also without intent to kill and was committed in a “reckless or wanton” manner understanding that someone may be killed.

For a second-degree manslaughter conviction, jurors needed to conclude that Noor demonstrated “culpable negligence,” that he was reckless, and created an “unreasonable risk” and knowingly took the chance of causing a death or great bodily harm.

Could a reasonable jury have concluded the facts supported these charges?  Perhaps so and from a racially-neutral perspective, the evidence was significant to overcome the high constitutional bar.

But too many other factors create problems for this case, making it look like the prosecution, conviction, and City reaction were all on the basis of race.  This is the first conviction of an officer for murder in Hennepin County if not Minnesota.  Contrary to other recent high profile cases such as the trial of Jeronimo Yanez (a Latino police officer) who was not convicted in the shooting of Philando Castile (an African-American), this was a person of color charged and convicted of killing a white female.

Second, the City of Minneapolis quickly settled the civil suit against them for a record $20,000,000 payout.  But on same day the Minneapolis City Council rejected settling a far less than rumored $100,000 amount arising out of the shooting of Jamar Clark (African-American) by a white police officer in 2015.  This action led federal judge Michael Davis to order the City to court to explain their behavior.  Third, after the Noor verdict, Minneapolis police officials called for a re-examination of their procedures.

It is possible all of the above could be explained neutrally and not on the basis of race. But for many, especially in the Somali community, while similar reactions or responses did not occur when it involved white officers and persons of color as victims.  Over the years there have been many allegations of police brutality but little call for reform until now.  Perhaps this is the privilege of being white and why black lives appear not to matter.

Responding to Police Use of Force–What the Law Says and What are the Alternatives

Hennepin County Attorney Mike Freeman was correct in not indicting the officers who killed

Thurman Blevins.  The reason is simple–he could never have secured a conviction because the law is on the side of the police.  This point has largely been missed in the debates regarding policy use of force.  But having said that, also largely missing from the debate is a discussion on police alternatives to violence, how to de-escalate conflict, and where race fits into how law enforcement officials approach tense situations where personal or public safety issues are present.  If  Freeman and others want to take a leadership position on this issue, they should explore these questions.
Let’s start with the law.  Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.
The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.
The problem is, this is very hard to do – and therefore it's tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.
And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).
The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen's interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.
In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.  Garner and Connor provide constitutional cover or an affirmative defense for police officers to use force.  Charge law enforcement officials with use of force–criminally or civilly–and these cases along with state law provide protection to use such tactics to enforce the law.
Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.  Given the law, there was little chance Freeman could have secured a conviction. 
Think about it–if the officer who killed Philando Castile could not be convicted by a racially diverse jury, what chance was there to secure a conviction here in a trial involving police use of force against Blevins.  Like it or not, this is the law.  Perhaps it should be changed, regardless of the race of the victim, and that is a reasonable debate that should occur.
But there is also another couple of debates that should take place.  Policing is not simply anymore about the direct use of brute force.  It is about conflict management and how to de-escalate tense situations. Policing now is supposed to be more about interpersonal relations than it is about ordering people about.  This is was community-orientated policy and problem-orientated policing is about.  Watching the Blevins video one should be struck by how bad the police managed the situation.  Yelling, swearing, and threatening someone is not the smartest route to de-escalating a tense situation and getting someone to surrender, especially at a time when people of color have a heightened fear in terms of their interaction with police.
Regardless of what the law empowers law enforcement officials to do, what training do they  have in Minneapolis to encourage them to seek and pursue alternative de-escalation strategies?  Moreover, and this is one place where race comes it, do the police use one set of strategies with Caucasians and another with people of color, or is one technique used in a racially arbitrary way?  These are important questions that need to be studied and examined in Minneapolis.
In the end, protests are fine and politicians’ speeches make good headlines. But a more constructive role or step for Mike Freeman, elected officials, community activists, and even the police if they really want to  address law enforcement  use of force involves understanding the current law and asking whether it should be changed and what are the alternatives to current policing practices that are not racially arbitrary.


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Note: for nearly seven years I taught criminal justice courses, including a course on policy civil and criminal liability.  I also edited the Encyclopedia of American Law and Criminal Justice.