The Biden Justice Department has announced that it will seek federal civil rights charges against the three police officers who, along with Derek Chauvin, participated in the fatal arrest of George Floyd. This decision can’t be reconciled with the Justice Department’s own policy guidelines on second prosecutions. What’s more, prosecuting these officers will have serious negative consequences for police work in this country.
Let’s be clear here: we’re not talking about Derek Chauvin. We’re talking about J. Alexander Kueng, Thomas Lane, and Tou Thao. These three cops are not accused of using excessive force; nor are they accused of illegally seizing Floyd. Moreover, two of them were inexperienced—Lane had been on the force only four days—and were following directives from Chauvin, the senior officer.
The government’s argument is that the three officers violated Floyd’s civil rights by assisting Chauvin, who seized Floyd in arguable violation of the Fourth Amendment. But Officer Thao was merely keeping bystanders away and had no part in restraining Floyd; he couldn’t possibly be accused of an illegal seizure. The other two, Kueng and Lane, held Floyd’s legs and back down, but this, too, does not constitute an illegal seizure, since the arrest was lawful, and Floyd had to be restrained when he refused to enter the patrol car. Furthermore, the force these two officers used was a far cry from the neck pressure Chauvin employed.
The indictment alleges that the three “willfully failed to intervene to stop Defendant Chauvin’s use of unreasonable force.” “Willful” means that the accused cops knew they were wrong. This will be difficult to prove, given that the inexperienced defendants were following the directions of a senior officer and the force used was not obviously excessive, such as in the case of a suspect being shot or clubbed.
These prosecutions are sending a clear message: that junior cops must second-guess their superiors in use-of-force incidents, lest they run the risk of federal imprisonment. But this is contrary to police training and discipline in the United States, and it puts inexperienced officers in an impossible situation. On top of all the other pressures they face, young cops must now choose between jeopardizing their careers by turning in or even restraining a superior, on the one hand, or facing federal prosecution if officials subsequently decide their partners’ use of force was excessive, on the other.
This prosecution puts police, who must make split-second judgments when confronting suspects who may be armed and dangerous, in a real bind. In an earlier time, the public understood this predicament. This meant that spur-of-the-moment decisions that, in hindsight, were mistaken—what looked like a gun wasn’t a gun—would not be held against the officer. The result was that prosecutions of police were difficult; unfortunately, this meant that abusive officers sometimes got away with excessive force. Now the pendulum has swung. The days of benefit-of-the-doubt are over. The police must get it right nowadays, even if the situation they confront is ambiguous.
The indictments pose another problem. The Justice Department has a long-standing policy—the so-called Petite rule—that is supposed to govern federal prosecutions that follow state charges for the same alleged misconduct. The policy states that the department seeks to “protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s).” The state of Minnesota has already charged Kueng, Lane, and Thao with aiding and abetting murder by failing to restrain Chauvin and assist Floyd. In other words, the misconduct the state is alleging is identical to the acts serving as the basis for federal charges. Under Petite, the federal prosecutions shouldn’t be happening.
To anyone who isn’t an attorney, all this sounds like a violation of the Constitution’s provisions against double jeopardy. However, the Supreme Court has held that the federal government has the authority to enforce its own laws, even if the conduct involved also violates state law. The Petite policy seeks to moderate the harshness of this rule by requiring a “substantial federal interest” to support the federal charges. But there is no federal interest in prosecuting officers who did not themselves willfully and affirmatively violate someone’s constitutional rights.
The government will argue that there is a federal interest in getting police to restrain overly aggressive colleagues. But the state prosecutions are already serving this end. (The state prosecutions have been postponed until March 2022 to avoid prejudicial publicity; the federal prosecution may face the same problem.) Control of the police is still a state and local matter in the United States, and Minnesota is exercising due diligence. In this case, the prosecutions, along with investigations of entire departments for civil rights violations, may signal the Biden administration’s intent to increase federal control over state and local police.
At a time when many big cities are experiencing rising crime, demoralizing the police is bad policy that will make recruiting new officers more difficult. Why take up a career in which second-guessing your boss can get you fired for insubordination and failing to do so can land you in prison? The prudent person is apt to pick a safer line of work, while the more heedless will enter the next class at the police academy. Isn’t this the opposite of what we want?
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