I breathed a sigh of relief and my body relaxed a little bit as I listened to the judge announce the jury’s verdict in the trial against Derek Chauvin for the death of George Floyd. On April 20, the jury found Chauvin guilty of unintentional second-degree murder, third-degree murder, and second-degree manslaughter. As a Black American and an attorney who has brought police misconduct cases and worked alongside grassroots organizations to demand police reform, I harbor no fantasy that this single verdict in a criminal case, no matter how high-profile, has cured U.S. policing of racism or other abuses of power. While the guilty verdict provides a measure of accountability, the expansive U.S. criminal legal system still routinely enables police to wrongfully deprive people – particularly people of color – of their life or liberty.
American policing continues to function as a “tool of race-class control.” Similar to George Floyd, victims of police misconduct still face a presumption of guilt that can only be overcome by irrefutable evidence.
The Pervasiveness of Police Contact
On May 25, 2020, the Minneapolis Police Department responded to a service call at a neighborhood store – the end result was the tragic murder of George Floyd by the police. During the trial, a former store clerk testified that although he suspected the $20 bill Floyd used was fake, his initial reaction was to offer to pay for Floyd’s cigarettes himself. But after the clerk talked to his manager, the manager eventually ordered another employee to call the police instead. Within a month after Floyd’s murder, the store owner announced, “Until the police stop killing innocent people, we will handle incidents like this one using non-violent tactics that do not involve police.”
Part and parcel of our criminal legal system is not only the 18,000 law enforcement agencies across the United States, but also every U.S. resident who can invoke the formidable force of the state by calling the police. One study estimated that in 2011, “1 in 8 U.S. residents age 16 or older, or 31.4 million persons, requested assistance from police at least once.”
Most calls to police involve non-criminal or traffic-related matters and only a small fraction of calls deal with violent crimes. A study of 1.07 million police dispatch calls in Philadelphia revealed that only about 40% were crime reports – including low-level crimes. Researchers examining service call data for ten police agencies found that serious violent crimes made up around one percent of all service calls. Too often police are called upon to respond to persons in mental health crisis. This over-reliance on policing for non-criminal matters means that more often than not, police with authority and training to use deadly force are responding to situations where no force is needed.
Although deadly police encounters seem to be the primary focus of media coverage, the harms of over-policing are much more expansive. Each service call runs the risk that police will escalate the situation by initiating coercive questioning, conduct invasive searches, unnecessarily restrict people’s liberty by detention, arrest, or use of force, or that police will enforce private prejudice. A few years ago, I experienced this myself when white employees in a bar filled with mostly white patrons called the police on me and a colleague for attempting to “karaoke #WhileBlack.” Although the police did not use physical force, they allowed themselves to become instruments of private racial bias, including by threatening to (falsely) arrest us for trespassing, and removed us from the bar.
Over-policing also leads to more arrests and related collateral consequences. Police encounters resulting in arrest have encouraged a growing background check industry in which private companies profit from sharing individuals’ criminal records. Researchers estimate that 30% of American adults, or 70 million Americans, have been arrested. By another estimate, a person in the United States is arrested every three seconds. At the end of 2018, states maintained criminal history files for more than 110 million individuals. Landlords frequently use tenant screening services that include automated criminal background checks. And immigration advocates recently obtained a copy of a $16.8 million contract between LexisNexis and U.S. Immigration and Customs Enforcement to provide the Department of Homeland Security investigators access to billions of different records and “analytical tools that can help police connect these vast stores of data” to targeted persons. But criminal background check reports are often incomplete and full of errors such as mixing up identities, including sealed or expunged records, omitting case resolution information, and misclassifying offenses.
Black and Latinx people in the United States bear the brunt of over-policing. For example, traffic stop data across the United States – including Ferguson, Missouri; Chicago, Illinois; South Carolina; and Los Angeles, California – show that police are more likely to initiate traffic stops against Black people but more likely to find contraband when they search white drivers than when they search Black drivers. In my legal practice, I’m frequently reminded of how over-policing and the expansive reach of the U.S. criminal legal system leads to school pushout for Black and Brown boys and girls; loss of housing; denial of employment opportunities; loss of public benefits; debt from criminal legal system user fines and fees; family surveillance and separation; and immigrant detention and deportation.
A Higher Burden of Proof
Within the legal system, racially disparate policing is largely an accepted reality, crystalized by U.S. Supreme Court decisions such as McCleskey v. Kemp, which declared that racial sentencing disparities are “an inevitable part of our criminal justice system,” and Whren v. United States, which effectively authorized racially-motivated traffic stops. “[R]esearchers have found that being presented with evidence of extreme racial disparities in the criminal justice system can cause the public to become more, not less, supportive of the punitive criminal justice policies that produce those disparities.” As Professor Jennifer Eberhardt pointed out in her book, “Biased,” “[t]he same disparities that community leaders view as proof of racial profiling can be cited by police officers as proof of who is most likely to commit crimes.”
As a result, people of color are held to a high burden of proof whenever they identify racism in policing or any other area. More often than not, legal proceedings and legal actors are resistant to claims of racial bias and fail to adequately acknowledge and remedy this kind of harm. In the Chauvin case, as the prosecution noted in the state’s closing argument, the trial was “not a prosecution of the police.”
The day following the guilty verdict, Attorney General Merrick Garland announced the Justice Department’s opening of a “civil investigation to determine whether the Minneapolis Police Department engages in a pattern or practice of unconstitutional or unlawful policing.” While some may see such investigations as a threat to the status quo, others see it as an effective accountability tool. In practice, Justice Department findings of racist or otherwise unlawful policing tend to be backed by an overwhelming body of evidence. This reinforces the rule that claims of racially biased or otherwise unlawful policing will be held to the highest legal burden.
Opportunities for Change
Although policing reform has stalled at the federal level, states are free to enact laws that set standards of proof for racially biased policing and other police misconduct in ways that reflect the lived experience of adversely impacted persons. In California, we have seen mixed results. In 2019, efforts to update the state’s police use-of-force law resulted in what some called a watered-down version that didn’t mandate de-escalation before using deadly force. But in 2020, the California Racial Justice Act was passed, removing some of the traditional legal obstacles to proving racial bias in criminal cases. California also became the first U.S. state to pass a law to study and develop a reparations proposal for Black Americans. H.R. 40 is a similar federal bill that was recently voted out of the House Judiciary Committee.
The time it is has taken to mobilize legislative efforts to confront America’s racist past is perhaps indicative of what lies at the core of the U.S. over-policing problem. Too many Americans still cling to the narrative of racial difference upon which the United States was founded.
Image: People gather inside the Twees Foods Store in the Third Ward where George Floyd grew up in Houston, Texas, to watch the the verdict in Derek Chauvin’s trial on April 20, 2021. Photo by MARK FELIX/AFP via Getty Images