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Two sets of thoughts today about the killing of an unarmed, subdued black male crime suspect by a white Minneapolis police officer, and specifically who s to blame – for starters – for its too often violent aftermath.

>First, muddled thinking is abounding about the different categories of groups and individuals involved in this past week’s upheaval. And the problem centers on those who have acted violently.

It should be, but clearly isn’t, obvious that the arsonists and window-smashers and brick-throwers etc mustn’t simply be divided between locals and outside agitators, or between those whose anger is longstanding and genuine and those who have simply gotten caught up in mass hysteria. For if the typology used even for the violent participants isn’t valid, it’s unlikely that the country’s collective response will be constructive.

In my view, none of the violence is acceptable in the slightest – in the sense that its outbreak or continuation can be safely tolerated by any governmental authority. So I’m not completely with the late Rev. Dr. Martin Luther King Jr’s position that “a riot is the language of the unheard.” I say “completely” because it’s crucial to look at the targets of the violence.

Specifically, rioters who attack police stations and vehicles, or government buildings, or even properties with clearly symbolic importance (e.g., a stock exchange) undoubtedly are assailing a system they consider oppressive, and that they believe prevents the peaceful attainment of their objectives (which could in principle even include bringing on anarchy).

I don’t agree with this view because I don’t accept the underlying analysis. But it’s logical. It’s coherent. And it’s principled. At the same time, it can’t be accepted, because a widespread breakdown of order would threaten essential levels of personal safety and well-being for the vast majority of Americans. Which means that these rioters (and their sympathizers) need to recognize that the authorities are justified in using any legal means needed to stop and/or prevent this violence. In other words, attack this system if you will, but don’t complain when it exercises its right to self-defense.

Rioters who attack other targets – like businesses or other sites without symbolic importance – may be motivated by genuine anger against an oppressive system. But ethically speaking, their actions are even less defensible. The best that can be said of them is that they’ve acted without the simple judgment and self-control that’s also needed for society to function satisfactorily. So that society has a legitimate interest in using any legal means necessary to stop and/or prevent their violence. And their sincerity consequently doesn’t warrant lenient treatment, either.

As for the looters – they’ve clearly lost the moral right to carry a social or racial justice warrior ID card. They’re nothing better than common thieves who deserve common thief treatment from the criminal justice system, and no sympathy whatever from their fellow citizens.

>Second, however strong my conviction that none of this week’s violence is acceptable, I can’t shake the feeling that the Minnesota state authorities made the crucial mistake by failing to indict the police officer in question, Derek Chauvin, much faster.

After all, much of violence was sparked by a belief that, despite the unmistakably incriminating video evidence, the authorities were taking much longer in arresting Chauvin than they would have taken in dealing with non-white suspects (even in more ambiguous circumstances).

And in this instance, they were absolutely right. The lion’s share of the blame here goes to Hennepin County (Minnesota) Attorney Mike Freeman, whose first instinct was to announce that “We are going to investigate it as expeditiously, as thoroughly and completely as justice demands. Sometimes that takes a little time. And we ask people to be patient.”

He continued:

That that video [of the killing] is graphic and horrific and terrible and no person should do that. But my job in the end is to prove that he violated criminal statute. And there is other evidence that does not support a criminal charge. We need to wade through all of that evidence to come to a meaningful determination and we are doing that to the best of our ability.”

But however reasonable and responsible and even necessarily fair these comments may have sounded, they were conspicuously timid to anyone with any familiarity with the criminal justice system. For there was no intrinsic need – and certainly no need in this case – for Minnesota authorities to conduct the kind of relatively protracted pre-arrest investigation of this killing that Hennepin County Attorney Mike Freeman described in a press conference yesterday.

After all, the video (whose authenticity no one has challenged) shows the action in question and Chauvin’s involvement undeniably. Would Freeman call for a detailed investigation if he saw a security camera recording of an unmasked thief robbing a liquor store?

Sure, there was the question of specifying the charges against Chauvin. Given the above categories of murder and manslaughter (and in some states, but not Minnesota, “negligent homicide”), that’s not a no-brainer. (On Friday, Freeman announced them to be third-degree murder and second-degree manslaughter.)

But not even these decisions are always or even typically based on meticulous examinations of available evidence. Prosecutors enjoy considerable discretion, and it’s common to file a more serious charge in order to create the worst-case certainty of a lesser conviction. In any event, an experienced District Attorney shouldn’t need three days to make up his or her mind. Which means that Freeman’s dithering surely, and needlessly, fed volatile, racially-tinged suspicions of the criminal justice system.

Where more careful investigation may be justified is in the second, and separate, related probe of the Floyd killing that will be conducted by the federal government. Under the U.S. Constitution, most crimes (except for those designated as federal offenses) are dealt with by the states. These include unlawful homicides like the one Chauvin allegedly committed. (Legally speaking a homicide refers to any taking of one person’s life by another person, legally permitted or not.)

The federal government’s Justice Department, however, is responsible for enforcing federal civil rights law, and on Friday, Attorney General William P. Barr ordered an investigation into whether Floyd’s killing warrants prosecution according to those statutes.

In some instances, apparently, these prosecutions can be more difficult to conduct successfully than standard criminal homicide trials. So it wasn’t completely crazy for U.S. Attorney Erica MacDonald to talk about the the need to “methodically continue to gather facts” and compiling “all available information and thoroughly evaluate evidence and information obtained from witnesses.”   

At the same time, the Justice Department’s own guidelines seem to show that meeting this standard shouldn’t be especially challenging.for an indictment and even conviction in Floyd/Chauvin case given the video evidence, and in particular given the lengthy period during which Floyd clearly was in major distress at Chauvin’s hands:

…the government must prove each of the following elements beyond a reasonable doubt: (1) that the defendant deprived a victim of a right protected by the Constitution or laws of the United States, (2) that the defendant acted willfully, and (3) that the defendant was acting under color of law. A violation …is a felony if one of the following conditions is met: the defendant used, attempted to use, or threatened to use a dangerous weapon, explosive or fire; the victim suffered bodily injury; the defendant’s actions included attempted murder, kidnapping or attempted kidnapping, aggravated sexual abuse or attempted aggravated sexual abuse, or the crime resulted in death. Otherwise, the violation is a misdemeanor.

Establishing the intent behind a Constitutional violation requires proof beyond a reasonable doubt that the law enforcement officer knew what he/she was doing was wrong and against the law and decided to do it anyway. Therefore, even if the government can prove beyond a reasonable doubt that an individual’s Constitutional right was violated,[the statute] requires that the government prove that the law enforcement officer intended to engage in the unlawful conduct and that he/she did so knowing that it was wrong or unlawful. See Screws v. United States, 325 U.S. 91, 101-107 (1945). Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.”

So an argument can be made that the Feds were being too scrupulous by half, too.

Law enforcement should never be influenced by politics – much less by fear that unpopular indictments or verdicts will spark civil unrest. That’s a great recipe for mob rule. And as argued above, many of the rioters weren’t going to be appeased even by the swiftest Minneapolis indictments.

But the Justice Department has officially acknowledged the “sensitive nature of the constitutional and statutory issues involved [in dealing with civil rights crimes] and the desirability of uniform application of federal law in this field….” Which means that prosecutors need to demonstrate a little situational awareness. And that there’s a strong case that this was a test that both Minnesota and federal attorneys flunked in the Floyd/Chauvin case.