By Steve BermanAs former officer Derek Chauvin’s trial continues, another officer is being charged for killing a suspect during a warrant arrest. Officer Kim Potter, who resigned this week from the Brooklyn Center, Minnestota police department, is being charged with second-degree manslaughter.
The debate over whether police should be charged when a suspect is killed has a long history, with overwhelming data showing that generally, police are never prosecutedfor shooting a victim. When they are, they are rarely convicted. After all it’s literally the job of the police to wield lethal force in the application of justice and to protect the public. But I say there should be more police trials, because this is the best way to arrive at truth.
First, we have to frame the debate on what truth we’re trying to arrive at. There are very different truths operating here.
There’s the truth of the race of the officers and the race of the victims. Much of the media is focusing on the fact that Potter is white and her victim was Black. They have also focused on Derek Chauvin’s race versus George Floyd. Pushing back at this, many “back the blue” conservatives have taken the position that George Floyd was no angel. This same back-and-forth is now going on with Duante Wright, who was mistakenly shot with Potter’s handgun after Potter yelled “Taser!” intending to use that non-lethal weapon. Duante was wanted for a revoked $100,000 bond on an aggravated robbery charge—the bond was revoked for possession of a firearm.
Next, there’s the truth that Black people have more interactions with police than their white counterparts in the U.S. A recent study found that Black drivers were nearly twice as likely to be searched as white drivers, regardless of having a lower likelihood they were actually carrying drugs, guns, or illegal contraband.
The study contends that the reason behind stops is that the driver is Black, not that the driver is more likely to be a criminal or an immediate threat to public safety.
[NYU assistant professor Ravi] Shroff and his colleagues also measured the disparity in stop rates before and after sunset. They found that black drivers made up a smaller share of those stopped at night, when it’s more difficult to discern the race of a driver, which suggests that racial bias may influence stop decisions. For example, in Texas, about 25 percent of drivers stopped right before sunset were black, compared to about 20 percent just after dusk. The analysis found the same basic pattern across all the stops in aggregate. Overall, the data showed about a 5-10 percent drop in the share of drivers stopped at night who are black.
More interactions with police means more opportunities for these encounters to escalate. When they escalate over a warrant, especially one involving a firearm or a violent crime, the police are trained that the suspect will be arrested, at that time, no matter what application of force may be necessary to do it. That doesn’t give the officer permission to resort to shooting, of course, but it does open up a can of “resistance” which can culminate in deadly force—or as Kim Potter did, a mistake costing the life of a 20-year-old Black man.
Police trials, in the sense of this truth, seek to expose and overturn what Black advocates see as a systemic source of racism in America. They believe that punishing white officers when encounters with Black suspects escalate and a suspect is killed will give officers pause, and will lead to training and other reforms. Where it goes off the rails is when there’s a presumption of white supremacy in everyone who isn’t a minority. For example, this Harvard Gazette piece:
Like many scholars, Khalil Gibran Muhammad, professor of history, race, and public policy at the Harvard Kennedy School, traces the history of policing in America to “slave patrols” in the antebellum South, in which white citizens were expected to help supervise the movements of enslaved Black people. This legacy, he believes, can still be seen in policing today. “The surveillance, the deputization essentially of all white men to be police officers or, in this case, slave patrollers, and then to dispense corporal punishment on the scene are all baked in from the very beginning,” he told NPR last year.
That paragraph is almost entirely rubbish. The first organized police department, in Boston, was formed out of a “night watch” in 1838, to protect the port and commerce, and also to deal with patrolling against vice in the citizenry. Yes, there were “slave patrols” in the antebellum south, but these were more like posses than actual police forces. It’s only been within the last 100 years that professional police came to be at a community level, beyond the county Sheriff and whoever was deputized for a task, that is. And of course, we’ve always had jailers, courts, and judges.
Third, there’s the truth that police and government authorities must be individually held accountable for the lives of those over whom they have authority. This is a concept that goes back to pre-revolutionary days.
Eight white British soldiers were charged with murder in 1770 for killing five Americans, including Crispus Attucks, a Black man. John Adams, the future president, served as their defense counsel. He gave this argument in their defense (partially quoted below).
We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.
Even in Adams’ day, in the hotbed of revolutionary fervor, only two of the British soldiers were convicted, and those two on the lesser charge of manslaughter. Captain Thomas Preston was acquitted after Adams presented evidence that he had not ordered his men to fire. Was this the result the media, the and public wanted?
Not on your life. Paul Revere’s engraving at the time showed the British “Like fierce barbarians grinning o’er their Prey’ and depicted them lined up in front of ‘Butchers Hall’.” Adams was treated with venom, but maintained, in what we’d expect from Ben Shapiro today:
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.
Police trials for the deaths of suspects, innocent or not, are the best forum for digging out and exposing the individual facts and truths in these situations. While it’s extraordinarily difficult to obtain a conviction, those who are actually guilty of racism, or malice, will find that justice is done to them. Cops will be convicted.
Even Stacey Koon, the officer who savagely beat Rodney King in 1991, after his initial acquittal led to the Los Angeles riots, was eventually convicted of violating King’s civil rights.
In August 1993, Judge Davies sentenced Koon and Powell to thirty months in federal correctional camps. The government appealed, arguing that the sentences were too light and violated federal sentencing guidelines. In 1995, the Ninth Circuit Court of Appeals agreed with the government’s position and sent the case back to Judge Davies for the imposition of a tougher sentence. Koon and Powell appealed to the United States Supreme Court. On June 13, 1996, the High Court reversed the Ninth Circuit and upheld the sentence of Judge Davies on all but two minor points. The original thirty-month sentence stood.
I dismiss the argument that police will behave more reticent to enforce laws if there were more police trials. Do police engage in more drug trafficking, bank robbery, extortion and sexual predation because they are immersed in the criminals who do these things? Certainly, many officers could “get away” with crimes for many years, but the greatest majority are good apples who enforce laws, not break them. When an officer kills someone under racial or political circumstances, having more trials, not less, will not incentivize bad behavior or punish good behavior.
Courtroom trials arrive at the truth the best way we have. The media doesn’t represent truth. Politicians do not represent truth. But in a courtroom, with a qualified judge, a jury of peers—reasonable people—and sworn officers of the court, lawyers, who know the rules of evidence, argument, and justice, we will find our best justice. It’s not perfect justice, but it’s the best, least corrupt, and most honest way we have.
I say that police should be charged more often and with a greater degree of freedom for prosecutors to bring them to trial. The best approach to systemic change and justice is through our justice system. The alternative is constant media and political propaganda, mob action, and continuation of a system that produces results not in keeping with how we would like American society to operate.
Follow Steve on Twitter @stevengberman.
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