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Chauvin Trial Takeaway: We Have to Get Better at Trying Police

Existing criminal laws are just not designed for holding them accountable. State legislators need to step up.
April 21, 2021
Featured Image
Police stand outside the US Supreme Court on January 31, 2017 in Washington, DC. (Photo credit should read PAUL J. RICHARDS/AFP via Getty Images)

After deliberating for a scant ten hours, the jury returned a verdict of guilty on Tuesday on all three criminal counts against former Minneapolis police officer Derek Chauvin relating to the death of George Floyd eleven months ago: murder in the second degree, murder in the third degree, and manslaughter in the second degree, each of which required the jury to be unanimous. The crowds that had gathered in anticipation around the courthouse erupted in celebration, and lawmakers and commentators took to TV and social media to weigh in.

But beyond the verdict and even the details of this specific case, what the last three weeks of evidence have shown Americans is not just that reform is needed in how U.S. police departments are structured, incentivized, and trained, but also that the criminal laws themselves require amending to account for the unique nature of crimes committed by people in positions of public power.

By way of analogy, consider the dynamic that played out on the national stage over the last few years as it became painfully clear that existing criminal laws aren’t designed for presidents. President Donald Trump dodged laws, norms, and the Constitution to evade accountability for the Jan. 6 insurrection at the Capitol, along with multiple other abuses scattered across his four years in office. Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election identified eleven acts of possible criminal obstruction of justice by Trump. Yet legally, the pesky fact that Article II of the Constitution vests in the president the executive power and the authority to take care that the laws be faithfully executed made criminal charges messy. If the president is the ultimate executive authority over the Department of Justice and can exercise discretion in how the law is executed, how can he conceivably obstruct justice too? If he calls off an investigation, for example, isn’t it his right to do so—even if it was for nefarious or self-serving reasons? Again, the existing criminal laws just aren’t designed for presidents.

The comparison isn’t exact, but the Chauvin trial revealed a similar problem with applying routine criminal laws to police officers.

The Minnesota criminal laws under which Chauvin was convicted were designed with civilian—not police—defendants in mind. Consider: The most severe charge, second-degree murder, required the state to prove beyond a reasonable doubt that Chauvin had intentionally assaulted Floyd. If Chauvin had been a civilian, the jury would not have heard three weeks of evidence debating the line between the reasonable use of police force and the criminal territory. For civilians, there is no parallel legal authority to do things like force someone into a car, handcuff or pepper spray him, push him into a prone decision, or impose a chokehold under some metric of “reasonableness.”

For the third-degree murder charge against Chauvin, the state had to prove that his conduct was “eminently dangerous to other persons and was performed without regard for human life.” Again, police officers uniquely have legal access to coercive tools and tactics that the rest of us don’t. They can pull out Tasers and guns and point them at people’s heads. They can restrain and detain people. It’s part of their jobs. So, as a matter of law, when does that authority become eminently dangerous and depraved such that a police officer must be stripped of his badge and imprisoned? That defining line is elusive, and it’s at a vastly different place than is appropriate for civilians.

What the Chauvin verdict does offer is a long-overdue message to law enforcement across the country: that killing with impunity can no longer be taken for granted as a part of the job. Importantly, lawmakers must balance that concern against the values that police departments are designed to serve in the first place, including maintaining public order and safety, and preventing and investigating crimes.

And while this subject has obvious racial overtones, especially as it is being discussed in the context of the Chauvin trial, it may ultimately have less to do with race than many have come to believe. In a 2013 report, the Justice Department concluded that there were “no statistical differences” among “the percentage of Hispanics (86%), blacks (85%), and whites (83%) who reported a crime or neighborhood disturbance and felt the police were helpful.” Everyone wants access to good policing. Perhaps George Floyd’s death—and the Derek Chauvin verdict—will have the salutary effect of bringing Americans one step closer to real solutions to the problems of policing in America, if legislatures are willing to step up.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.