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UB law school panel explores arguments governing police use of force

Mural of George Floyd featuring the words, "I can't breathe." .

A panel at the UB School of Law met to discuss police use of force on the same day the jury began deliberations in the Derek Chauvin trial.

By MELVIN BANKHEAD III

Published April 20, 2021

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“But regardless of what happens, even if it’s a conviction … the work is only beginning with regard to policing and law. ”
Luis Chiesa, professor
School of Law

On Monday, a jury began deliberations on whether to convict former Minneapolis police officer Derek Chauvin in the death of George Floyd. Chauvin is facing charges of second-degree murder, third-degree murder and second-degree manslaughter. If convicted, he faces up to 40 years of in prison.

Also on Monday, the School of Law conducted a panel discussion of legal scholars that effectively put aspects of the American law enforcement system on trial. “George Floyd, Policing, and Race: A Conversation About the Trial of Derek Chauvin” explored the intersection of race and law in the Chauvin trial.

The discussion began with a surprising observation: “This case isn’t legally interesting,” said moderator Luis E. Chiesa, vice dean for diversity, equity and Inclusion, and director of the Buffalo Criminal Law Center in the law school. “There are clear grounds for (Chauvin’s) criminal liability.”

In legal terms, the case hinges on Chauvin’s use of deadly force, as well as whether that use of force caused Floyd’s death. Guyora Binder, SUNY Distinguished Professor and vice dean for research and faculty development the law school, pointed out that “the conventional causation analysis in most places … is sort of two questions. One is, was the defendant’s act necessary to result in death such that if Chauvin hadn’t done what he did, Floyd would be alive today. And then … a second level is, was the result foreseeable as a result of his actions.”

The defense has argued that other factors, including Floyd’s history of drug abuse, were the actual cause of death.

Still, panel members weren’t blind to the racial factors that also exist in the case.

“The defense is arguing that the cause of death was not Chauvin’s use of force,” Chisea noted, “but rather drugs in (Floyd’s) system …. And, of course, this has its own sordid history regarding painting Black males as out-of-control (drug addicts). So, it fits with certain stereotypes and tropes” that defense attorneys count on to acquit police officers.

“In general, what I see here — and, frankly, what I see in many, if not most, of these cases involving police officers who shoot unarmed Black males  — is clear … grounds for criminal liability,” Chiesa said. “But that tends not to materialize for reasons that go well beyond the substantive criminal law.”

Binder agreed, noting that an area of great concern is the “systemic racism that exists within the legal system.” He pointed to specific examples of the racial or gender compositions of a jury being contested in criminal law cases, as well as “systematic efforts to keep members of minority groups off of juries.” He noted that while that the latter example is illegal, it is also “almost impossible” to prove and, as such, it happens “routinely.”

“The crucial issue (in this case is) that if the prosecution fails, it will be on this issue (race),” he said. “It won’t be on the use-of-force issue, which is surprising because, usually, it’s the opposite” in cases involving a civilian shooter.

“The defense has a two-step argument,” noted Ekow N. Yankah, of the Benjamin N. Cardozo School of Law at Yeshiva University in New York City. “One, the force was not that unlawful, or was not unlawful and was reasonable, and was what a reasonable police officer would do; and two, these other things killed (Floyd).”

The panel members warned, however, that the standard of “what is reasonable” works quite well in cases where the shooter is a civilian. However, when police officers kill unarmed individuals, there are complications.

“Ultimately, this case is interesting because of what it means, what it stands for in its political ramifications,” Yankah said. “… If I could magically go into that video and take off Chauvin’s uniform and show the world a video of two civilians in a fight where somebody put a knee on somebody else’s neck for nine minutes? Nobody in the world would think there’s a serious doubt that you’re a substantial cause of death. The case would be over!”

Binder pointed to another factor that makes the case unusual: that the prosecution has “put on a very strong case,” and has been aggressively aiming to show that Chauvin’s actions were not reasonable, and that he violated department policy and his training. Normally, he said, in similar cases, the prosecution would merely “go through the motions,” while the defense would argue that the officer’s actions were consistent with departmental policy and training.

Yankah attacked what he called the insanity of that standard defense.

“We ought to think hard about the fact that the justification of this kind of policing is, too often, ‘This is what you’re trained to do,’” he said “… This is crazy. If your defense is that ‘This is how we’re trained to treat fellow citizens,’ that’s an indictment, not a defense. But only in our world is that a defense of police behavior.”

Still, Binder, a Hodgson Russ Faculty Scholar, noted that there’s a method to the apparent madness.

“Police training … and bad training that encourages police to use force when they should not, actually then has the effect of insulating police from liability because it means that their defense attorneys can … say, ‘Oh, look, their conduct was consistent with their training,’” he said.

The other concern, Chiesa noted, “is that ‘reasonableness’ can serve as a vehicle for all of these systemic prejudices, biases and all of these issues … to find their way into law enforcement.”

As Minnesota and the nation braces for the jury verdict, Chiesa asked for people to use their common sense, no matter what happens.

“I hope everyone remains calm in the wake of the verdict … This will be a difficult time for our country. But regardless of what happens, even if it’s a conviction … the work is only beginning with regard to policing and law.”