The Weekly Sift

This week it’s been easy to assemble video collections of misbehaving police. The current crisis began with a Minneapolis policeman killing George Floyd — not instantaneously, by shooting him in a moment of confusion or fear, but slowly, by kneeling on his neck as his life ebbed away. In the two weeks since, we’ve seen phalanxes of militarized police attack angry but non-violent crowds of protesters on multiple occasions. Friday, the NYT’s Jamelle Bouie put together a list:

Rioting police have driven vehicles into crowds, reproducing the assault that killed Heather Heyer in Charlottesville, Va., in 2017. They have surrounded a car, smashed the windows, tazed the occupants and dragged them out onto the ground. Clad in paramilitary gear, they have attacked elderly bystanders, pepper-sprayed cooperative protesters and shot “nonlethal” rounds directly at reporters, causing serious injuries. In Austin, Texas, a 20-year-old man is in critical condition after being shot in the head with a “less-lethal” round. Across the country, rioting police are using tear gas in quantities that threaten the health and safety of demonstrators, especially in the midst of a respiratory disease pandemic.

That list is sadly incomplete. For example, Bouie’s “elderly bystander” is not the one you’re thinking of. These bystanders are in Salt Lake City, not Buffalo. The video Bouie linked to also shows an old man being pushed to the ground, but he falls on his chest rather than striking the back of his head.

It is tempting to keeping throwing more and more videos at the dead-enders who refuse to see the widespread problem in American policing. But those who are not convinced by now will probably never be convinced, and in the meantime we have let them freeze the conversation. Something similar happens with climate change: A handful of stubborn denialists can freeze a conversation at the is-it-real stage, and prevent reality-based people from discussing what to do about it.

It’s time to ignore the dead-enders and move forward without them.

More than a few bad apples. It also time to start ignoring people who make the few-bad-apples argument, as White House National Security Adviser Robert O’Brien did recently. If there were no systemic problem, that handful of bad cops would be easy to identify and remove from the force. (Don’t tell me the other cops don’t know who they are.) But the problem is not just the occasional officer who violently abuses his power; it’s all the other cops who cover for him and resist any attempt to hold him accountable.

The initial police statement on George Floyd mentioned nothing about Derek Chauvin kneeling on Floyd’s neck, but was titled “Man Dies After Medical Incident During Police Interaction.” When Buffalo police shoved a 75-year-old protester — a white man, in this case — who hit his head on the pavement and soon had blood pooling around his ear, their initial statement said:

A 5th person was arrested during a skirmish with other protestors and also charged with disorderly conduct. During that skirmish involving protestors, one person was injured when he tripped & fell.

In both cases, that false account probably would have stood if not for bystander video, leaving us to wonder how many police assaults and murders are routinely covered up — not just by the “bad apples” who commit those crimes, but by the criminally complicit police around them.

The Buffalo situation demonstrates an even deeper rot. When bystander video showed that the police report was a lie, Buffalo’s police commissioner suspended without pay, pending investigation, the two officers who pushed the man down. (The officers who knowingly allowed a false report to be issued have not been punished.) But even this small move towards accountability was too much: All 57 fellow active members of the Buffalo Police emergency unit resigned from the squad (but not from the police).

“Fifty-seven resigned in disgust because of the treatment of two of their members, who were simply executing orders,” Buffalo Police Benevolent Association president John Evans told WGRZ on Friday.

Their orders were to clear the square of protesters, not to assault old men. (The two officers were charged with assault Saturday. Over 100 police and firefighters showed up at the courthouse to support them.) But not a single member of the emergency unit looked at that video and said, “Hey, we shouldn’t be doing things like that.” They have chosen their side. There aren’t two bad apples on that squad; there are 57 bad apples. There’s probably no bureaucratic mechanism that can bring about this outcome, but none of them should ever be police anywhere again. (According to the local ABC TV channel, though, two of the 57 claim the union manipulated this outcome by saying they could no longer defend members of the emergency unit under these conditions.)

What can be done? We need to be thinking on multiple time scales. Some significant changes need to be announced immediately, while the crowds are still in the streets. But problems this deep and old resist quick fixes. So the country needs a long-term plan, but that plan has to visibly begin right now.

In Minnesota. In the specific case of George Floyd’s murder, most of what the protesters want has already been achieved: All four officers involved have been arrested and charged. Derek Chauvin is charged with second-degree murder, and the other three face aiding-and-abetting charges. Unless we want to see the officers handed over for mob justice, that’s all that can be done right now. The legal process will play out over months, and ultimately a jury will have to decide what happens to them.

More broadly, the Minnesota Commissioner for Human Rights filed suit against the City of Minneapolis and its police department on Tuesday, claiming that

the City of Minneapolis Police Department has engaged in a pattern and practice of race-based policing in violation of the [Minnesota Human Rights Act]

Friday, the Commissioner and the City agreed to a plan that they have asked the Court to impose as an injunction. The plan has six provisions:

• Ban chokeholds and neck restraints of any kind.
• Police officers who witness another officer’s unauthorized use of force have an immediate duty to report the incident to their commanders.
• Police officers who witness another officer’s unauthorized use of force have a duty to intervene “by verbal and physical means“, or face the same punishment as the offending officer.
• Crowd control weapons (chemical agents and rubber bullets are specifically mentioned) can only be used after authorization by the Chief of Police.
• Pending disciplinary actions must be decided within 45 days. Future actions have to be decided within 30 days.
• The City’s Office of Police Conduct Review can audit body-camera footage “proactively and strategically”. (Human Rights Commissioner Rebecca Lucerno explains: “Right now, body cam footage exists. However, it’s only reviewed when there’s a complaint.”)

New York Governor Andrew Cuomo announced his own proposal, which requires action from the legislature:

• Make police disciplinary records transparent
• Ban chokeholds
• Make false race-based 911 reports a hate crime
• Attorney General must act as independent prosecutor for any police murder case

Several other states and cities have announced plans to ban either chokeholds or tear gas or both.

8 Can’t Wait. Campaign Zero is an organization devoted to ending police violence. It put out the “8 Can’t Wait” agenda, of steps any city could take right away. (The “Data proves …” claim in the graphic below is theirs, not mine. I have not tried to evaluate it.)

Matt Yglesias explains the 8 in more detail, and looks at some of the supporting statistics. Some are easy to understand: banning chokeholds and the duty to intervene are already part of the Minneapolis agreement discussed above. The ban on shooting at moving vehicles and requirement to warn before shooting are self-explanatory.

A comprehensive reporting requirement means that officers need to report each time they use force or threaten to use force against a civilian. … The use of force continuum is a specific set of requirements governing what kinds of weapons can be used versus what levels of resistance. And a deescalation requirement mandates that officers try to secure their personal safety through distance and communication before resorting to force.

Medium-term proposals. A number of ideas are included in the Justice in Policing Act of 2020, which Democrats in the House and Senate are introducing this morning. It’s hard to imagine Mitch McConnell allowing any of these reforms to be passed in time to bring this season of protest to a successful conclusion, but the problem isn’t going away until we have reforms more significant than anything that can happen quickly.

• a national database of deaths in police custody. It’s hard to believe this doesn’t already exist, but apparently not.
• a national police misconduct registry. So that bad cops fired in one city can’t just get a new job somewhere else.
• ending or altering “qualified immunity”. Qualified immunity shelters government officials from civil lawsuits for violating someone’s rights, “unless the victims of those violations can show that the rights were ‘clearly established’.” In practice, this has made such suits almost impossible for plaintiffs to win.
• changing the standard for police use of force. “victims of excessive force or other violations need only show that officers ‘recklessly’ deprived them of their rights. The current statute requires victims to show that officers’ actions were ‘willful’.”
• formalize the Justice Department’s oversight of police departments with a history of bad practices. During the Obama administration, Justice took oversight of local police seriously, but when Jeff Sessions became attorney general, he abandoned those efforts.

A change more likely to be made on the state level than the federal level: setting up a special prosecutor or special process for investigating killings by local police. In Minnesota, for example, the state attorney general has taken over the prosecution of the George Floyd officers. Some states already have state guidelines for investigating officer-involved deaths that make sure police departments aren’t investigating themselves. All states should.

And finally, cities need to change their relationships with police unions. In general, unions are good, and collective bargaining for better wages and benefits is fine. But too often police unions intent on protecting their members torpedo any move towards public accountability.

Long term: police culture. Welcome as reforms like those mentioned above would be, many doubt they would solve the problem.

Two aspects of the problem are more complicated than just changing a few rules and hiring better people:

• The institutional culture of police departments needs to change.
• The tasks that belong to police departments need to be rethought.

Both of these are too big for a few paragraphs at the end of a long article, but here are some thoughts to get you started.

Friday night, Chris Hayes interviewed Patrick Skinner, a former CIA counterterrorism officer who came home to be a beat cop in Savannah. One of the themes of their conversation was the dysfunction of the “warrior” mentality of police. Skinner said that police would do better to think of themselves as neighbors rather than warriors. In a recent Washington Post op-ed he wrote:

As I got better at being a rookie cop, I kept asking myself this question: “If I didn’t have a badge and a gun, how would I handle this call?” Whatever I came up with that was legal, transparent and kind, I would try.

Hayes reviewed the video of the 75-year-old man being pushed down in Buffalo, and observed that probably none of the officers present would act that way in everyday life: They would not push an old man out of their way, and if they saw an old man bleeding on the pavement, they would stop to help. Somehow, their police training overrode those human reactions.

Long term: defunding. Philip and Thenjiwe McHarris note all the reform efforts by the Minneapolis police — none of which saved George Floyd’s life. They think it’s foolish to expect similar small-scale reforms to end the killing of black people in general.

The focus on training, diversity and technology like body cameras shifts focus away from the root cause of police violence and instead gives the police more power and resources. The problem is that the entire criminal justice system gives police officers the power and opportunity to systematically harass and kill with impunity.

The solution to ending police violence and cultivating a safer country lies in reducing the power of the police and their contact with the public. We can do that by reinvesting the $100 billion spent on policing nationwide in alternative emergency response programs, as protesters in Minneapolis have called for.

In most American communities today, police get called to deal with all manner of disorder, from the homeless man sleeping on your stoop to the loud teen-age party next door to domestic violence to drug overdoses to episodes of mental illness.

But what defines the police is their ability to use force, all the way up to deadly force. Their very presence is a threat of force, and opens the possibility that someone could end up dead. I sincerely doubt that the clerk who called the police on George Floyd intended for them to come and kill him. The store owner now says: “If I was [there] I don’t think the authorities would have been called and we would have policed our own matters.”

Often situations would be better addressed by a civic official with different capabilities, different options, and different training. Or perhaps the disorder would not exist at all if some kind of preventive service had been provided during the previous weeks. But cities don’t have the resources for such alternatives precisely because they’re spending so much money on police.

Moves to cut both the responsibilities and the budgets of police, and to use that money to provide services in alternative ways, are often promoted with slogans like “Abolish the police”. This is poor messaging, in my opinion, and opens itself up to easy caricature from police advocates. (Are cities going to stop enforcing their laws? Should citizens buy more guns and take the law into their own hands?) But what abolish-the-police advocates really want is something far more reasonable: Reduce to the absolute minimum the number of occasions when Americans come into contact with people who could kill them and get away with it.

The George Floyd story is really three separate stories: how he died, how he fits into the larger story of police brutality against black people, and the demonstrations and riots that have happened around the country since his killing.

His death. The first story is the most difficult to watch, but the easiest to tell: Last Monday in Minneapolis, police officer Derek Chauvin killed George Floyd by kneeling on his neck “for 8 minutes and 46 seconds, with 2 minutes and 53 seconds of that occurring after Floyd was unresponsive”.

We know the timing that exactly because a bystander uploaded a video to Facebook. It shows Floyd repeatedly complaining that he can’t breathe, and then becoming motionless while bystanders plead with police to “check his pulse” and ask the policeman who was keeping the growing crowd away “You going to let him kill that man in front of you?”. Chauvin doesn’t get off Floyd’s neck until an ambulance has arrived and a stretcher is ready to receive his (possibly already lifeless) body.

The police account, from a few hours before the video went viral, tells none of that. The New York Times summarizes:

Minneapolis police said they were investigating an accusation of forgery on Monday night in the southern part of the city. They confronted a man who was sitting on the top of a blue car. The police said the suspect had “physically resisted officers” as he was placed in handcuffs. He appeared to be “suffering medical distress,” according to the police statement released on Monday night after an ambulance was called to the scene.

That account is true, as far as it goes. Floyd was being arrested on a complaint that he had tried to pass a counterfeit $20 bill at a local grocery. NBC reconstructed the arrest from a number of video sources. At times Floyd struggled with the police arresting him, but he presented no weapons and was always greatly outnumbered. (According to the criminal complaint against Chauvin, the struggle you can barely make out in the NBC video is Floyd resisting being put in the squad car.) At no point did he seem to be getting away. When Chauvin put his knee on Floyd’s neck, Floyd was already handcuffed.

Minneapolis Mayor Jacob Frey commented:

The technique that was used is not permitted; is not a technique that our officers get trained in on. And our chief has been very clear on that piece. There is no reason to apply that kind of pressure with a knee to someone’s neck.

The four police officers involved in the incident were fired on Tuesday. On Friday, Chauvin was arrested and charged with third-degree murder and second-degree manslaughter. [1] According to the local Star Tribune, he is the first white police officer in Minnesota to be charged in the death of a black civilian.

The other officers have not been charged with anything, but the county attorney says they are under investigation and charges are expected. Local Channel 9 speculated on what those charges might be:

The most serious charge the other three fired officers could face is aiding and abetting the murder. “That could be giving him a tool or weapon, it could be keeping people away from interfering with that was going on,” Mark Osler, a former federal prosecutor, told FOX 9.

Friday, a Washington Post editorial expressed dissatisfaction with the official response:

Minneapolis’s own police have done little to suggest they can earn the trust of the community they are sworn to serve. They have not released body-cam footage of Mr. Floyd’s arrest, nor apologized for the specious statement they published about the incident, which elided the fact that Mr. Chauvin’s knee choked Mr. Floyd. The head of the city’s police union, Lt. Bob Kroll, said “now is not the time to rush to judgment” on Mr. Chauvin or the other officers at the scene, who did nothing to interfere as Mr. Floyd begged for his life.

Racism and American police. Excessive violence against black people accused of crimes is a very old story in America. By various accounts, thousands of blacks were lynched between the Civil War and the 1930s, often on little more than a false accusation. By definition, a lynching is an extra-judicial killing, but local law enforcement officers commonly either participated or looked the other way. (For example, the local sheriff was identified as a conspirator in the Mississippi Burning murders of three civil rights activists in 1964.) I don’t know any estimate of the number of African Americans who have died in police custody since the end of slavery. Such killings were easily attributed to the suspect resisting arrest, attempting to escape, or committing suicide in prison.

For most of my lifetime, whites have regarded police brutality against black people as a they-said/they-said story. Blacks almost universally complained that police treated them more harshly than whites, and statistics showed that blacks were arrested, charged, and convicted far more often. But police said that blacks committed more crimes and were more likely to have a bad attitude towards police. Most white people never saw police arresting or otherwise accosting blacks, so the problem was easy to deny, ignore, or minimize.

The advent of ubiquitous video has changed all that. In recent years, the whole world has seen police choke Eric Garner to death while arresting him for selling untaxed cigarettes, shoot 12-year-old Tamir Rice dead for playing with a toy gun, shoot Walter Scott in the back while he was running away from an officer who had stopped him for having a bad brake light, and many similar incidents.

Those videos made us see other incidents differently, even if the actual death was off-camera: John Crawford III was shot dead in a WalMart for carrying a toy gun he was thinking of buying. Stephon Clark was shot dead in his grandmother’s back yard when police mistook his cellphone for a gun. Philandro Castille was riding with his girl friend and her four-year-old daughter when a policeman stopped the car. Castille informed the officer that he had a legal gun in the car, and the officer shot him dead. Freddie Gray died from a “rough ride” that police gave him back to the station after arresting him for carrying a knife.

The great majority of these incidents — even the ones caught on video — resulted in no jail time for the police involved. No one was indicted for Garner, Rice, Crawford, or Clark’s deaths. The officer who killed Castille was acquitted. Gray’s death resulted in a mistrial, some acquittals, and dropped charges. Walter Scott’s killer was convicted on federal charges, eventually, after his trial on a state murder charge ended in a hung jury.

Police have also tended to look the other way when white civilians kill blacks. Trayvon Martin was shot dead by a neighborhood watchman as he returned to his father’s fiance’s house after buying Skittles at a convenience store. Rather than treating the shooting as a crime, police returned the shooter’s gun and sent him home. Massive protests pushed local authorities to indict the shooter eventually, but he was acquitted.

It’s hard to avoid the conclusion that the American justice system doesn’t regard the killing of a black person as a big deal. The anti-brutality movement is called Black Lives Matter in response to the apparent reality that they don’t. [2]

Recent events. By the time Chauvin knelt on Floyd’s neck, outrage had already been building for some while.

In late February, Ahmaud Arbery was killed in Brunswick, Georgia by two white men (a retired police detective and his son) while he was out jogging. The killers told police they suspected him in some local burglaries. For months the police took no action and the case got no attention in the press. But in early May, a video of the incident (which police seem to have known about all along) went viral. It showed Arbery being chased down and shot by three men in two trucks. It looked a lot more like a lynching that the resisting-citizen’s-arrest story the killers told.

Within two days of the video’s release, the Georgia Bureau of Investigation had gotten involved and arrested the two men in the lead truck. The third man, who videoed from the second truck, was arrested later.

How, the nation wondered, could police have sat on this video for months without making an arrest? If the video hadn’t leaked, would the killers have gotten away with it?

Another recent case generating outrage: Breonna Taylor, a Louisville EMT. Plain-clothes police with a no-knock warrant burst into her home (her boyfriend claims without identifying themselves as police), setting off a gun battle in which Taylor was killed and her boyfriend wounded. The warrant was to look for drugs, which they did not find. The boyfriend’s story — that he thought he was defending against a home invasion by armed criminals — seems pretty credible.

Echoes of Ferguson. Before we get into this week’s demonstrations and riots, I want to talk about the last time something like this happened.

In 2014, after the Michael Brown shooting in the St. Louis suburb of Ferguson, demonstrations erupted and sometimes turned violent. I commented at the time on the coverage from Fox News and other conservative media, which framed the community reaction as a great mystery: Most of these people never knew Michael Brown and had no idea whether the police were telling the truth or not about his killing. What riled them up so much that they had to go break windows or burn down a store?

If you came to the Ferguson story with that question in mind, racist stereotypes provided an obvious answer, which Fox didn’t need to spell out (though some right-wing voices did): The Brown shooting was just an excuse for young black men to indulge their inherently lawless nature.

I addressed this “mystery” in “What Your Fox-Watching Uncle Doesn’t Get About Ferguson“, a piece that I think holds up pretty well after nearly six years. What Fox did wrong was present the Brown shooting as a one-off event, when the real story was the ongoing predatory behavior of the Ferguson police towards the black community. [3]

The right story begins not with Officer Wilson’s bullets, or even with Michael Brown in the convenience store, but with a community where lesser forms of police abuse are an everyday occurrence. … So it’s no mystery at all why people who never met Michael Brown have been out on the streets. Brown’s death is part of a bigger issue that they all have a stake in: How can the police be gotten under community control, and disciplined to treat the community with respect? …

What’s rare about the Brown shooting isn’t the shooting itself, but how visible everything is: The body was lying in the street for hours. The eyewitnesses have been on TV. Nothing in the autopsy or other available evidence contradicts their testimony. If the police don’t have to answer for this, then what are the limits? Is there anything they can’t sweep under the rug?

This week’s responses. That’s the context to keep in mind as you think about the sometimes-violent demonstrations that we’ve seen around the country since Floyd’s killing. It isn’t that thousands of people have suddenly decided to care about a guy they’d never heard of a week ago, and it’s not that lawless animals have been turned loose. The anger being expressed in these demonstrations, by both peaceful and violent demonstrators, is largely personal anger. George Floyd symbolizes that anger, but it’s much bigger than him.

Very large numbers of black people have had their own bad experiences with police, incidents where they felt humiliated or threatened or disrespected. (One young man in Ferguson schooled a condescending Fox News reporter: “We go through this shit every day.“) And for the most part they have had no recourse; no one who had the power to demand justice would take their complaint seriously.

So when they see the tape of Chauvin killing Floyd, their response isn’t, “Oh my God, can you believe that?” but “There! Look at that! That’s how they are!” Not “I can’t believe stuff like that happens in America” but “Finally somebody got the goods on them.” [4]

And at the same time, there’s the fear that even with this kind of evidence, nothing will change. Maybe Chauvin will be tried and maybe he’ll even be convicted, but maybe he’ll get off somehow, as so many others have. Maybe the other cops have been fired, but probably somebody — maybe even Minneapolis again — will hire them and put them back on the street. Or maybe they’ll be the rare cops to pay some kind of price for their racism, but the racist policing system as a whole will rumble on.

There is no reason for the demonstrators to have faith that something else will happen, that America finally gets it now. That’s why they’re on the street.

For comparison, think about school shootings. Again and again — Columbine, Sandy Hook, Parkland — an event is so shocking that it rises above the usual platitudes. And for a moment you think: “Now. Now something will change, because things like just can’t go on.”

But they do go on. Sometimes nothing happens, and sometimes there’s some incremental change in how we sell or track guns. But before too long there’s a new shooting, one even more horrible than the last one. And we go through it all again. Remember how that feels?

Riots. What we saw rising through the week and then reaching a crescendo over the weekend was a pattern of peaceful demonstrations by day and violence by night — not just in Minneapolis, but in cities across the country.

I don’t know how to cover the destruction, or even how to grasp it. A news network may show you a store being looted or a police station being burned, but are all the stores being looted? Is the whole city burning? The destruction seems widespread, but I don’t know how to get a handle on it.

I think it’s important, though, that riots not become the story. The original injustice — both specifically in the Floyd case and generally in the racial bias of our law enforcement — needs to be the story. Yes, the riots need to stop. Yes, people who use the cover of the chaos to commit crimes should be arrested and punished. And we need to take a hard look at crowd-control policing to see whether its tactics set off people who might otherwise disperse on their own. But just returning to the status quo is not a solution, because before long there will be another George Floyd, and then it will happen all over again.

I think it’s important to remember that peaceful protest was tried and it failed. Remember Colin Kaepernick? What he was protesting when he knelt during the national anthem was precisely the racist nature of policing in America. The main result of Kaepernick’s protest was to end his NFL career, largely because Trump wouldn’t let up. LeBron James reminded us of this by posting this photo with the comment “This is why”

When you suppress peaceful protest against legitimate injustices, and punish the people who do it, you make violent protest inevitable.

And I don’t want to hear the platitude that violence never changes anything. In fact it does, and I think we’re seeing that now. The riots are sending white America the message that this can’t go on. It could have heard that message when Eric Garner said, “I can’t breathe.” It could have understood that message when football players knelt. But it refused. Now the message is being sent with fire and broken glass.

This can’t go on.

The agitators. Finally, there’s the mystery of the Umbrella Man, and an indeterminate number of others like him. A white man dressed in black, hiding his face behind a gas mask and an umbrella, got the Minneapolis riots started by calmly and methodically smashing the windows of an AutoZone with a hammer. He then walked away. He does not seem to be either a protester or a looter; he’s just there to catalyze the transition from protest to riot.

There are many similar stories of mysterious people, many of them white, who perform some initial act of violence and then vanish. Sometimes they arrive in trucks with no license plates.

So far, a lot more is being said about these mystery men than anyone actually knows. Some say they’re white supremacists trying to set off the race war that their rhetoric says is coming. Trump says Antifa is behind it. [5] A number of protesters in Minneapolis suspect undercover police of agitating the violence to discredit the peaceful protests. (In the Umbrella Man video, bystanders keep asking “Are you a cop?”)

Any of those stories might have been false originally, and then become true. If you’re an isolated white supremacist or a left-wing anarchist, and you hear a false report that people like you are trying to turn the protests into riots, maybe you go out and do it without orders from anyone.

All those explanations need to weighed against the need of local officials to deny that their own constituents are so disillusioned that they’re ready to start burning stuff down. Blaming it all on “outsiders” is an easy out for them.

My advice: Pay attention to actual cases and the observations of specific witnesses, but don’t take anybody’s conclusions seriously yet.

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[1] A local TV station summarizes what Chauvin was and wasn’t charged with.

A person commits third-degree murder when the person does not intend to kill another person but does so by acting recklessly, or “without regard for human life.”

It can lead to as many as 25 years in prison. The manslaughter charge carries a sentence up to 10 years, and is easier to prove.

A person commits second-degree manslaughter when their negligence causes another person’s death. Manslaughter only requires the person to create “an unreasonable risk,” while third-degree murder requires the person to act “without regard for human life.”

The more serious charge of second-degree murder would require establishing that Chauvin intended to kill Floyd, and first degree would mean that he planned the killing.

So it depends on what Derek Chauvin was thinking. If he walked into the situation thinking “I’m going to kill that guy”, it’s first degree. If in the moment he realizes “I’m killing this guy” and continues, that’s second degree. If he just thinks “Eh, if he dies he dies”, that’s third degree. If he should have known that Floyd’s life was at risk, it’s manslaughter even if he didn’t know.

In my personal opinion, the Floyd killing is second-degree murder. But if I wanted to give myself the best chance to win in court, I’d do what the prosecutor has done. I’m not sure I could prove to a jury that the thought “I’m killing this guy” went through Derek Chauvin mind (though being surrounded by people yelling “You’re killing him” should have given him a clue). Proving that Chauvin acted recklessly and should have known Floyd might die seems much easier.

[2] That’s why the response “all lives matter” is so off-base. If all lives really did matter, there would be no need to assert that black lives matter.

[3] That behavior was laid out in detail months later in a Justice Department report. One key quote:

Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.

In other words, the police went into the community looking for things to fine people for, not to protect life or maintain order. The racial attitude of the police was characterized by things like this:

A November 2008 email stated that President Barack Obama would not be President for very long because “what black man holds a steady job for four years.”

[4] The Trump administration is still in denial about this. Sunday on CNN, White House National Security Adviser Robert O’Brien rehashed the full a-few-bad-apples story.

No, I don’t think there’s systemic racism. I think 99.9% of our law enforcement officers are great Americans and many of them are African-American, Hispanic, Asian. They’re working in the toughest neighborhoods, they got the hardest jobs to do in this country. … There are some bad cops that are racist, there are cops that maybe don’t have the right training,. There are some that are just bad cops and they need to be rooted out because there’s a few bad apples that are giving law enforcement a terrible name.

What the administration sees is a PR problem, not a race problem. The thing to fix is not black people getting killed, but police getting “a terrible name”.

A lot of people on social media are sharing this Chris Rock quote:

Some jobs can’t have bad apples. Some jobs, everybody gotta be good. Like … pilots. Ya know, American Airlines can’t be like, “Most of our pilots like to land. We just got a few bad apples that like to crash into mountains. Please bear with us.”

[5] Over the years, Trump has said a lot of nonsense about Antifa, which is not even an actual organization so much as a collection of local groups who share some ideas and tactics. The general idea is that fascists are violent, so anti-fascists need to be prepared to match their violence. But Trump needs a left-wing group to distract from white supremacist violence, so Antifa is it.

Inside our nation is a colony of poor, mostly non-white communities whose police are not under their democratic control. Jeff Sessions wants to keep it that way.

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Recalling Ferguson. I remember exactly when I came to accept that Darren Wilson should not be prosecuted for killing Michael Brown: when I read the Justice Department’s report on the shooting. Until then, no entity I trusted had been able to examine all the evidence and report its findings to the public.

From the beginning, the Ferguson police had shown no interest in uncovering the truth; Wilson was their man, and they wanted him to go free. The local prosecutor, likewise, did not want to get on the wrong side of the police, and even Missouri’s Democratic governor saw the case as too hot a potato to pick up.

Only the Obama administration’s Justice Department was far enough removed from the local power structure to be objective. So its report was what finally convinced me: Wilson’s account of the incident was closer to the evidence than the hands-up-don’t-shoot narrative that had been echoing through Ferguson’s black community.

Even after that report, I still believed that Wilson’s animalistic (and at times even demonic) description of Brown was racist. I will never be convinced that killing Brown was his only option, or that he wouldn’t have found another way to resolve the situation if Brown had been white and middle-class. But even so, I knew that if the case went to trial and I were a juror, I could not vote to convict.

Simultaneously, though, Justice issued a parallel report about the general state of policing in Ferguson. The primary mission of Ferguson’s police, the report found, was not public safety, but generating revenue for the city by citing poor blacks for violations that carried fines. Likewise, the municipal court’s mission was to monetize those violations, and if possible to multiply them by making the court process as difficult as possible to navigate without incurring further fines.

The community’s response to Brown’s killing, the two reports implied, was based not so much on the facts of that particular case as on a hope: Maybe finally the police had done something so egregious that the outside world would have to notice the illegal and unconstitutional abuses Ferguson’s black citizens had to endure every day.

The Justice Department had noticed. It worked out a consent decree with the city to change how its police and court systems operate. It is one of many consent decrees Justice has worked out with cities all over the country.

But it’s not going to do that any more.

From oversee to overlook. This week, the Trump Justice Department, led by Attorney General Jeff Sessions, gave notice that it was getting out of the business of overseeing local police. In a memo to his department heads and to local U.S. attorneys, Sessions wrote:

Local control and local accountability are necessary for effective policing. It is not the responsibility of the federal government to manage non-federal law enforcement agencies. [1] … The Deputy Attorney General and Associate Attorney General are hereby directed to immediately review all Department activities — including … compliance reviews, existing or contemplated consent decrees — … in order to ensure that they fully and effectively promote the principles outlined above.

That memo had immediate effects, though perhaps not entirely the ones Sessions intended. His subordinates tried to torpedo the consent decree that Obama’s Justice Department had worked out with Baltimore just before leaving office. But the presiding judge was having none of it, ruling that

The case is no longer in a phase where any party is unilaterally entitled to reconsider the terms of the settlement; the parties are bound to each other by their prior agreement. The time for negotiating the agreement is over. The only question now is whether the Court needs more time to consider the proposed decree. It does not.

Having received the judge’s blessing, the Baltimore agreement is now in force. However, the outline of an agreement that had been worked out with Chicago is not yet official, and may well go back to the drawing board. Mother Jones paints the larger picture:

A report released in February by Samuel Walker, a police reform expert at the University of Nebraska in Omaha, determined that most consent decrees enforced by the Department of Justice since 1994—when Congress passed legislation granting the DOJ oversight authority over local police agencies—have been successful in achieving long-term reforms. Consent decrees are binding legal agreements, and once signed, they are overseen by a federal judge and an appointed monitor. The DOJ’s ability to interfere with that process is limited, [former Obama Justice official Jonathan] Smith said.

But there are things the DOJ can do to undermine it. It could ignore violations of decrees and stop taking police departments to court because of them. It could also seek to renegotiate the terms of a decree or to have it dropped altogether—though that would be difficult even with the cooperation of a police department, Smith said. “After all, these injunctions are entered to protect the public interest,” Smith said.

Why isn’t local accountability enough? But even if we recognize the damage likely to result from Sessions’ decision to stop overseeing and start overlooking police abuses, we have to admit that the first line I quoted from his memo is quite true:

Local control and local accountability are necessary for effective policing.

The obvious question to ask, then, is why such local accountability doesn’t exist in so many places. The black citizens of Ferguson live in a democracy, after all, and local elections are held on a regular basis. Why did they — or the black citizens of Baltimore or Chicago or dozens of other cities — have to raise the attention of the national media and of Washington in order to get local reform?

The answer to that question is in Chris Hayes’ fortuitously timed A Colony in a Nation, which came out last month.

This book makes a simple argument: that American criminal justice isn’t one system with massive racial disparities but two distinct regimes. One (the Nation) is the kind of policing regime you expect in a democracy; the other (the Colony) is the kind you expect in an occupied land. … If you live in the Nation, the criminal justice system functions like your laptop’s operating system, quietly humming in the background, doing what it needs to do to allow you to be your most efficient, functional self. In the Colony, the system functions like a computer virus: it intrudes constantly, it interrupts your life at the most inconvenient times, and it does this as a matter of course. The disruption itself is normal.

Ferguson and the Founders. Hayes begins, like I just did, in Ferguson, where the goal of policing is not public safety, but revenue enhancement. And he draws a parallel I would not have thought of: to the American colonies in the decade before the revolution.

In high school American History, we were all taught that the revolution was about “taxation without representation”. But in fact, Hayes argues, the colonies had existed under onerous tax-and-tariff laws for a long time. From Britain’s point of view, the purpose of the American colonies had always been to produce raw materials for British industry and markets for its finished goods. From the beginning, the colonies had been barred from trading with rival powers and taxed steeply when they traded with the homeland.

And from the beginning, the colonies had been rife with smugglers, some of whom (like John Hancock) achieved great prestige. Colonial life was largely one big smuggling conspiracy. Ordinary people did their best to interfere with customs agents, and juries often let guilty smugglers go.

What changed after the French and Indian War wasn’t so much the British laws and taxes, but their policing regime: They began trying to collect the taxes the law said were owed.

The British crackdown essentially inaugurated America’s first tough-on-crime era. It was a classic crackdown: more customs officials were granted more expansive powers, while courts were streamlined to produce swift punishment and avoid the maddening jury nullification … After 1763 customs officials no longer looked the other way in exchange for small bribe. Instead, they began operating in ways that looked a lot like what we now call “stop and frisk.” … American colonists were subject to British invasions of their carriages, ships, and homes without the safeguards enjoyed by their English cousins.

It wasn’t the financial burden of taxes that caused the revolution, it was the “insulting and humiliating” policing necessary to collect those taxes.

No wonder places like Ferguson sometimes seem so rebellious now.

Real community policing. Among law-enforcement theorists, community policing means that police maintain relationships with the local community. The image of community policing is the cop walking a beat, recognizing and being recognized by the people he passes.

But Hayes raises the stakes, pointing out what community policing might mean: Not individual cops maintaining relationships, but an entire system of policing — what laws get enforced and how — that is responsive to the community being policed.

That sounds incredibly utopian until Hayes points out that such systems already exist: on college campuses. First he describes the lax enforcement of drug laws he remembers from his student days at Brown. But then he reports the shock to his Ivy League sensibilities when he got a job in Madison, home of the University of Wisconsin.

Nothing I’d seen during my college years quite prepared me for the sheer insanity of a big football program home game. Tens upon tens of thousands of people, of all ages, were shit-faced drunk. Frat row was in a state of debaucherous pandemonium, with dozens of students passed out on lawns and outdoor couches, amid no small amount of vomit, urine, and broken bottles.

He wonders about the role of race.

[W]ould all this (mostly harmless) mayhem meet with such enthusiastic tolerance if it were a hundred thousand drunk-as-hell black folks streaming through downtown Madison? Something tells me, no chance.

The couple I was staying with had season tickets to the games, and while they rolled their eyes a touch at some of the excesses, they were part of a community, and they understood and embraced that this was a community ritual, a norm collectively arrived at.

Compare that mental image to the militarized police rolling down the streets of Ferguson during the Michael Brown demonstrations. Was that display of force also “a norm collectively arrived at”? Or was it control from the outside?

If you took a lot of [student] behavior out of the Nation and put it in the Colony — say, out of Harvard Yard and into a big city housing project — if would provide the material for dozens of articles on the pathologies of poverty that hold back poor people of color. People sleep all day; they engage in loud, frequent relationship dramas while having numerous different sexual partners, and they get into drunken arguments and brawls and consume ungodly amounts of controlled substances.

University police know that their job is to serve the interests of the students they police (and their parents, who pay the bills). No one wants to pay hundreds of thousands to send their children to college, only to have them sent from there to jail, or to come home with a criminal record. So universities are policed in a way that minimizes those outcomes.

No doubt citizens of the black and Hispanic neighborhoods of New York didn’t want to be routinely stopped and frisked, or to see minor confrontations spiral out of control until their fellow citizens were imprisoned or dead. Black citizens of Ferguson didn’t want police to see them as prey, as sheep to be sheared for the benefit of the municipal budget. But they lacked the power to get the policing they wanted through local democratic channels. And now, under the Trump administration, they will also lack the power to go over the heads of local political interests and get a sympathetic hearing from federal officials.

Larger factors. So far, my summary sells Hayes’ book short: It paints a far larger picture, including discussions of white fear, the difference between law and order (and public safety, which is a separate consideration), and the financial value of order to owners of real estate.

But the book will have done an important job if it simply gets its central image into the public discussion: Some parts of the United States are nothing more than colonies run for the benefit of other parts.

To the Colony, Jeff Sessions is like the new governor sent over by George III to maintain control. And the next time there’s a shooting like Michael Brown, we will never really know what happened, because no disinterested party will ever investigate.

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[1] Actually, it is the responsibility of the Justice Department. In essence, Sessions is saying that he will not enforce the following paragraph of the Violent Crime Control and Law Enforcement Act of 1994.

§ 14141. Cause of action

(a) Unlawful conduct

It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.