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George Floyd, The Systemic Racism Charge And The Numbers.

George Floyd, The Systemic Racism Charge and The Numbers.

Posted by Edmund R. Folsom, Esq.
June 6, 2020

George Floyd’s Killing and The Charges Against the Cops.

On May 25, 2020, George Floyd was killed. Minneapolis Police Officer Derek Chauvin knelt on Floyd’s neck, sunglasses perched atop Chauvin’s head, for nearly 9 minutes while Floyd pleaded for relief, unable to breath. Other Minneapolis officers helped Chauvin pin the handcuffed Floyd face-down to the pavement. The acts were captured on video. We’ve all seen it: Authority figure Chauvin, unmoved by Floyd’s pleas of mercy, continuing to kneel on Floyd’s neck even after Floyd’s heart was no longer beating.

On June 3, 2020, the State of Minnesota charged Chauvin with second-degree felony murder, adding that to a third-degree depraved indifference murder charge and a second-degree negligent manslaughter charge. The new, second-degree murder charge alleges that Chauvin caused Floyd’s death without intent to cause death but while committing or attempting to commit the felony offense of assault in the third degree. Assault in the third degree involves assaulting another person and inflicting “substantial bodily harm.” To assault someone means to either: (1) commit an act with intent to cause another person to fear immediate bodily harm or death; or (2) intentionally inflict or attempt to inflict bodily harm upon another. Stringing that together, to prove the new second-degree murder charge, It looks like the state needs to prove beyond a reasonable doubt that Chauvin acted against Floyd with the specific intent to make Floyd fear immediate bodily harm or death, or that Chauvin intentionally inflicted or attempted to inflict bodily harm on Floyd, and that he unintentionally caused Floyd’s death while doing so. Chauvin also continues to face a charge of second-degree manslaughter, which requires the state to prove that he caused Floyd’s death acting with culpable negligence, creating an unreasonable risk while consciously taking chances he would cause death or great bodily harm. Three other Minneapolis officers, two of whom helped Chauvin pin Floyd to the pavement and the other of whom stood by, are each charged with aiding and abetting second degree murder and aiding and abetting second-degree manslaughter. Those charges require the state to prove beyond a reasonable doubt that the officers intentionally aided, counseled or conspired with Chauvin to commit second-degree murder and second-degree manslaughter, respectively. Suffice it to say, the legal theory for Chauvin’s top charge and for the aiding and abetting charges against the other officers is not exactly simple and straightforward.

The Protests and Riots That Ensued.

From the vantage point on June 6, 2030, we have seen nearly two weeks of protests that have included rioting, looting, the beatings of business owners and bystanders by looters and rioters, and the shooting of multiple police officers in cities across the U.S. New York City and Minneapolis, Minnesota, in particular, have been mauled. In New York, business after business has been looted and destroyed. In the Bronx, 1 officer was injured by a hit-and-run driver and another was beaten by a group of men. In Brooklyn, an officer was stabbed in the neck and 2 others were shot in the hand. Elsewhere, 4 St. Louis officers were shot and injured in one night, while a 77-year old ex-officer was shot and killed protecting his friend’s pawn shop from looters. A Las Vegas officer was shot in the head. In Oakland, California, a federal security guard was shot and killed while guarding the courthouse. In Buffalo, New York, an SUV plowed through a group of police officers, injuring two. In Cincinnati, Ohio, an officer was shot, with a bullet striking his helmet. The rallying cry for the protests, amidst which the thuggery, rioting and looting has taken place, is that American police as a whole are racist, an extension of a systemically racist America, righteously the target not only of peaceful protests but of the looting, shooting and rioting. Too bad for the property owners whose stuff has been smashed, grabbed and torched. For the most part, anyone raising opposition to the destruction has been scolded not to criticize the “mostly peaceful” protests. Advocating serious efforts to stop the destruction has been denounced as somehow racist – a grotesque expression of “white privilege.”

The mixing of the rioters, looters and thugs with peaceful protesters highlights a large part of the problem that brought us to this point in the first place. During the most destructive parts of the protests, police largely stood back and let the destruction take place. To do otherwise would have involved interfering with, and appearing to get rough with, the crowd in which the rioters and looters were interspersed. But to avoid getting rough with the larger crowd, and appearing to interfere and rough up those merely exercising their first amendment protest rights, the police were forced to let the destructive elements in the crowd carry on their criminal destruction, unabated. The circumstances presented the police (and the politicians who call their tune) with a paralyzing choice: Stop the crime spree, or let it go to avoid cries of police brutality and fascist tactics. They chose the latter. As for the looters and rioters, they benefitted from the cover of the larger protest — fish swimming freely in the sea of protesters, taking cover under their sympathies (as Mao observed guerillas must do to succeed).

Much of what brought us to this point also had to do with lawbreakers swimming freely in a larger sea.  But instead of standing back and allowing crime to go unabated, police at those earlier points chose to dragnet for criminals. Using the tactics of “stop and frisk,” police poured over high-crime areas, stopping and frisking people on reasonable articulable suspicion or less. While this tactic has the potential to disrupt criminal activity in the area subject to the dragnet, it breeds resentment among the larger population who, although not engaged in criminal activity, are repeatedly harassed, stopped, tossed against the wall and shaken down by police. The resentment seethes. There’s little that feels more oppressive than the arbitrary and oppressive exercise of the state’s power against the individual. Then again, to the extent the larger population allows criminals to roam freely among them, the more difficult it is to stop crime from occurring among them. The crowd ultimately chooses whether it prefers to be victimized by criminals or by agents of the state if it cannot strike a balance between the two. To compound matters, the state’s agents sometimes act as criminals – sometimes as homicidal criminals.

The Systemically-Racist-Police Narrative and Supporting Data.

Again, the spark that ignited both the peaceful protests and the destruction we have seen was the gruesome police killing of George Floyd, a black man, by white officers of the Minneapolis Police Department. The killing fits the pre-formed headline: “White police kill (or shoot) unarmed black man.” The headline and the story plugged-in underneath it can only mean one thing: The killing is an extension of America’s racism, not only the racism of the individual officers involved, but of a white-supremacist America and its instruments of law enforcement, the police. In this narrative, the death of an unarmed black man at the hands of police must always be taken as an example of America’s structural racism – the example stands for everything. To question it is to demonstrate white privilege, racism – sing with the choir or ready yourself for attack. But if the attribution is correct, if unarmed black men are only killed by police because of racism, shouldn’t we find that the only unarmed people killed by police are black people? If racism is the sole reason police kill the unarmed, police must not be killing white people, right? Or is it the case that whites are killed by police for reasons other than racism, but blacks are killed by police only because of racism?

Unfortunately, nobody seems to keep statistics on all the people killed by police in ways other than being shot. But since 2015, the Washington Post has kept track of police shootings throughout the U.S.  As of June 2, they show that 5,367 people were fatally shot by police in the U.S. since the start of 2015. Of those, 1,265 were black, the remaining 4,102 were not — 2,416 were identified as white and 889 as Hispanic. When it comes to police shooting and killing unarmed victims during this period, that happened 321 times. Of the 321 victims, 109 were black. The other 212 were not. There were 138 unarmed white victims and 57 unarmed Hispanic victims. The way the Washington Post breaks down the numbers, they count 42 million blacks and 197 million whites in the U.S. population, along with 39 million Hispanics and 49 million others. Because there are more than 4 times as many whites as blacks, the Post points out that it’s disproportionate for whites to be shot and killed by police in a number only slightly less than twice that of blacks. They calculate that blacks are shot and killed by police at the rate of 30 per million, while whites are shot and killed at the rate of only 12 per million, so the rate for blacks is 2 ½ times higher than rate for whites. When it comes to police shooting and killing unarmed people, the rate is 2.6 blacks per million versus .7 whites per million. This disproportion in rates relative to population has been widely advanced as ironclad evidence of systemic racism. Yes, whites are shot and killed by police in numbers nearly twice that of blacks. Yes, blacks comprise only 23.5% of the total number of people shot and killed by police – the other 76.5% being not black. And no, the 2,416 whites shot and killed by police from 2015 to 2018 were not shot because of racism. But as to the blacks who were shot and killed? Oh, that’s systemic racism, literally unquestionably.

Morphing Into “Defund the Police.”

Based on this type of proof of systemic police racism, Black Lives Matter and others have issued the call to “defund the police.”  The idea is getting attention in Los Angeles, Minneapolis, New York, and among politicians across the U.S.  Personally, I’m on record, here and here, asking why we need to keep growing the police and incarceration apparatus we’ve been running in this country, especially here in Maine.  Maine’s crime rate is down 57% since 1990, yet our county jail and prison populations have risen markedly since then. One way to reduce the number of people hurt or killed by police is to reduce the contacts people have with police. Every time police have in-person contact with a civilian on the street, they’re thinking first and foremost about personal safety. If you do anything that makes them perceive you as a threat, things can go from zero-to-60-to-flatline in a hurry. Which is why we shouldn’t send cops out en masse to enforce a billion and a half rules and regulations that provide ample excuses for them to seize us, snoop for a reason to search us, etc., whenever they get the urge to poke around. Could we do with less regulation of our lives enforceable by criminal sanctions, including incarceration, enforced largely by pumped up, paramilitary-appearing young men, often with shaved heads and leather gloves, wearing battle armor, armed with TAZERs, pepper spray and guns? I think so. But “defund” the police? That sounds a lot closer to eliminating the police than employing them more judiciously. Does Black Lives Matter seriously mean to get rid of them?

If we were all well-behaved, getting rid of the police might not be such a deadly bad idea, but the riots of the last week fully demonstrate that not all of us are well-behaved. As H. Rap Brown said, “Violence is as American as cherry pie.” When someone is trying to kill you, or loot and burn down your property, you need cops (cops who actually dare to do something to stop the violence, as a matter of fact, instead of just standing by and watching). And as drastically as violent crime rates, including gun crimes and homicides, have fallen in this country in the past 30-40+ years, there’s still a lot of killing going on. In fact, I have to wonder how many blacks are actually on board with getting rid of police, because they fall victim to murder more than anyone else in this country. I’m not talking about being killed at the hands of police, which happens in relatively miniscule numbers, but about being killed overwhelmingly by fellow blacks.

In examining rates of fatal police shootings by race, we used the period from 2015 forward, so let’s use that same period to look at homicides at the hands of civilians. We’ll use some FBI crime data, and the Washington Post’s events-per-million-population metric to test the narrative that racial disparities in homicide rates exhibit that America is inherently white supremacist and systematically racist. This seems fair, given that the systemically-racist-America narrative is grounded largely in crime statistics that exhibit racial disparities.

Is America a Systemically Racist, White Supremacist Nation That Kills Black Men With Impunity?

According to the FBI’s Crime in the United States reports, from 2015 through 2018 (the last full year of reporting available), of all the murders in which the victim’s race is identified, 30,178 blacks were murdered compared to 25,097 whites. Before you write that off to racism, consider the following. Of the 11,429 murders of black people in that time frame in which the race of the perpetrator is identified, 10,177 of the perpetrators were black. In only 970 (8.4%) of those murders was the perpetrator white. Of the 13,548 murders of whites in which the race of the perpetrator was identified, 10,966 of the perpetrators were white. In 2,123 of those murders (15.6%), the perpetrator was black. Blacks in this country are not being murdered in great numbers by racist whites. Blacks in this country are murdering each other. In the same vein, the vast majority of whites are murdered not by blacks, but by other whites. What does this have to do with anything? As an example that serves as part of the backdrop to current events, consider the story of the black jogger, Ahmed Arbery, shot to death by white guys who confronted him because he was running in their neighborhood. When a white person murders a black person, especially when a racist white person murders a black person, it’s national news. The video is played by news outlets, ad nauseum. So much so, in fact, that people get a distorted picture. The distortion is completed when virtually no national news is ever broadcast of black people murdering white people. Is the reason we never see such national stories that blacks simply don’t murder whites? No, as the numbers above show us, between 2015 and 2018, blacks are known to have murdered more than twice as many whites as whites are known to have murdered blacks. It’s just that it isn’t considered a national story, which makes interracial homicides between blacks and whites appear to be an entirely one-sided phenomenon, and racist at that. If a news outlet did play homicide videos for the nation of white victims and black perpetrators, chances are the outlet would be denounced as a racist, irresponsible fomenter of racial violence.

If we use the Washington Post’s technique of calculating the rate of black/white interracial murders on a population-based formula, we find that from 2015 through 2018 blacks killed whites at a rate of 50.5 murders of whites per million blacks, while whites murdered blacks at a rate of 4.9 murders of blacks per million whites. In other words, blacks murdered whites at a rate more than 10 times greater than the rate at which whites murdered blacks, relative to the numbers of blacks and whites in the population. If whites murdered blacks at the rate blacks murdered whites, whites would have murdered more than 9,700 blacks in this time frame. And population-based rates aside, in absolute numbers blacks committed just under 69% of the interracial murders that took place between blacks and whites. Does this disproportion demonstrate black racism? I seriously doubt it. But if disproportion itself establishes racism, I must be wrong. What other explanation could there be? One thing this example of racial disproportion does do, is undercut the numerical basis for the narrative that a systemically racist white America is murdering blacks with impunity.

Cut the Crap.

So knock it off with the mad denunciations of America as a systemically racist society murdering black Americans with impunity.  Rogue cops sometimes kill people — hardly just blacks.  Today, I saw a photo of a protester holding a sign that said, “I won’t apologize for being Black.” Well, who asked you to? I must have missed that part altogether. But don’t demand that all the white people apologize for being white, that they kneel and confess their “white privilege” lest they be denounced.  It’s a little too Great Proletarian Cultural Revolution for me. Your faith is your faith, and this is America after all. Go ahead and have your religious beliefs, as strange and secular as they may be. Just stop forcing them on those of us who don’t share them, by force, violence and intimidation. Defund the police, indeed. The streets of our cities would be ruled by tribal warlords.

 

Nothing in the above post is legal advice.  It is not to be taken as legal advice.