A Case for Charging the Killer of George Floyd With Murder I

America watched a video of a white officer slowly killing an African-American man, Mr. George Floyd. As a result, black, brown, and white Americans have taken to the streets in protest. It’s not the first time such a thing has happened, although the number of white people in these protests is higher than it’s ever been. This outpouring of upset from white Americans could be due to the explicitness of the video, or it could be because of the exhausting list of black people, mostly men, being killed while in police custody.

The idea of racial equality having been ushered into American life because we have Oprah and Obama is a fallacy easily proven by the aforementioned list. It is one that continued its growth even though an African-American woman became America’s favorite person to have in their homes and the country elected an African-American man to its highest office.

In the prior month alone the nation learned of the police breaking into a Kentucky house to do a “no-knock” arrest of a person who a) never lived there, and b) was already in custody. The exercising of the house occupants’ First Amendment Rights resulted in the police killing an innocent African American woman, 26-year-old Breonna Taylor, who had been asleep in her bed when her boyfriend heard someone breaking into their home and shot at the intruders.

The story of Ms. Taylor’s death broke after news of an even more convoluted killing of a black person. People had been reeling about the murder of 25-year-old Ahmaud Arbery by two white men in Georgia. Mr. Arbery had been hunted down and killed on February 23th, yet the two men who killed him were not charged until a video of the event was posted and went viral. (Ironically, that video was filmed by a third man who was also involved in this modern-day lynching.)

On top of the horror of that video itself, is the fact that, even without the video, the records show that there were plenty of reasons that these two white men should have been arrested on the spot. Yet, they were not.

The reason they were not arrested appears to be the connections these men had to law enforcement, in particular to the district attorney. Adding to the sense of this killing being racially motivated is the revelation that after killing Mr. Arbery, the shooter looked at the body of on the ground and said, “f**king n*gg*r.”

Then, after all of this, came the video of Mr. George Floyd with a police officer’s knee on his neck for eight minutes and forty-six seconds. It seems that, finally, even white people have had enough.

For Black People, These Murders Are Infuriating, but Not Unusual.

I would like to say these recent stories of black people being killed are shocking to me, but my shock was over 30 years ago. The year was 1989, and it had already been a hell of a year because of the notorious “Central Park Five” story that the media had been running with since that April. (As was proven 12 years later, the five black teenagers were innocent.)

Meanwhile, in African-American circles, the movie of that summer was “Do the Right Thing” by a new young filmmaker named Spike Lee. Its theme song, “Fight the Power” by Public Enemy, was blasting from cars, boom-boxes, and summer dorm-room stereo-systems.

Back then I was a young, wide-eyed black American college student on Long Island who hadn’t been raised in the Continental U.S — and who had just recently learned what Kwanza was. That August, 16-year-old Yusef Hawkins was chased down and murdered by a white mob in Bensonhurst, Brooklyn.

Up until that point, I had been under the impression that lynching had ended sometime after the signing of the Civil Rights of 1964 and Voting Rights Acts of 1965 — and the rash of assassinations that occurred in 1968–69. After all, it was Richard Nixon’s rejection of racism that got him the 1968 Republican nomination for president instead of the notoriously racist George Wallace. (Of course, the rash of issues with Nixon, the GOP, and race, are worthy of an article of its own. That’s what I was working on before the George Floyd murder.)

Growing up, the above is pretty much the way it was taught in my history classes. America “used to be” racist. I don’t know how it was taught in the US proper, but all of my textbooks and most of my teachers came from America, so I suspect it was taught similarly.

How Yusef Hawkins Got Some Justice

Anyway, getting back to the killing of Yusef Hawkins, his death sparked marches and protests in Brooklyn that got citywide attention. Many, if not all of them, were led or organized by the young Reverend Al Sharpton. Unlike the protests that have been sparked by the murder of Mr. Floyd, the protests in 1989 for Yusef Hawkins were attended mostly by people of color.

Those protests did have some effect. In November, David Dinkins was elected as the first (and thus far, only) African-American mayor of New York City. Also, the shooter of young Mr. Hawkins was convicted of second-degree murder.

However, if you look at the case against Hawkin’s killer, he received a lower charge than he deserved. You would think that a group of people who lie in wait for a person with baseball bats — while one carries a gun — fits the definition of premeditated murder. In 1989, the jury’s answer to this was no. They went with the lesser charge of “acting with depraved indifference to human life.”

Nevertheless, that conviction was considered a victory, and honestly, it was. There have been a string of cases, before and since, where the killer of an African-African person that occurs under circumstances that involve racial bias, gets off scot-free. Here are just two examples of how the verdict in the Hawkin’s case could have gone.

In 2012 16-year-old Travon Martin was killed in Florida by a man who felt his being on the neighborhood watch gave him the right to follow the teen and, allegedly, confront and kill him. The jury in Florida went with the argument that this was a killing of self-defense. Then, two years later, we watched a video of Mr. Eric Garner being choked to death by a police officer. That video was the first time we had images of a police officer choking the life out of a black man as he pleaded with, “I can’t breathe.” A New York City grand jury declined to indict the officers involved, which led to nationwide protests. It would be another five years before the NYPD finished conducting an investigation that ended up with the officer who did the actual choking, Daniel Pantaleo, being fired from the police force.

Why George Floyd’s Killer Should Be Charged With Murder I

In the long list of black men and boys being killed for being black, there have been far too many cases that end the way they did for Travon Martin and Eric Garner. As such, the thinking of Minnesota’s State Attorney General, Keith Ellison is practical. He wants all four officers who were involved to get time in jail and the upgrade to felony Murder II is a sound strategy to get those convictions. It’s one not far removed from how the prosecution for Mr. Hawkin’s killer was able to get that guy some jail time.

To get a charge of first-degree murder has a much higher bar. That requires a jury to believe the person charged intended to kill. Historically, juries don’t believe that in these things. The best scenario juries have been willing to believe is that a white person “accidentally” killed a black person because of “depraved indifference” for the person’s life.

Still, the evidence that has existed in the past has never been as crystal clear as what we have in the case of George Floyd. Even the shocking view of a man being chased down and shot — as in the case of Mr. Arbery — allows some to present a weak argument about a scuffle and “self-defense — or if not self-defense, a “heat of the moment” killing.

It is impossible to make the same “heat of the moment” argument after watching the video of Mr. George Floyd’s murder. That excruciating eight minutes and forty-eight seconds of the now-former officer Derek Chauvin with his knee on Mr. Floyd’s neck, is the irrefutable evidence that Mr. Floyd’s life was taken slowly, deliberately, and callously. It is why much of white America has been shaken to its core. The streets have been filled with protestors, white protestors, infuriated at what they’ve seen, and suddenly realizing what black Americans have known for decades — the systemic racism in our culture and institutions is deadly.

The circumstances of this moment in history are exactly why the charge of first-degree murder should at least be put up as a choice for the eventually jury in the George Floyd case. Whether or not Chauvin knew Mr. Floyd prior isn’t the point. (There is currently an investigation into whether he did have any encounters with Mr. Floyd before killing him.)

The Bold Argument Ellis Could Add to the Charges

A look at the Minnesota statute for murder in the 1st degree shows seven points that qualify a defendant for the charge. Only the first one mentions premeditation. Unfortunately, there is not one that correlates to the 2nd-degree charge of felony murder. There is though, the seventh point to consider.

“(7) causes the death of a human being while committing, conspiring to commit, or attempting to commit a felony crime to further terrorism and the death occurs under circumstances manifesting an extreme indifference to human life.”

If the idea of “furthering terrorism” seems extreme, take a look at the definition of domestic terrorism given by the 2001 USA Patriot Act.

“(…)domestic terrorism is defined as “activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any state; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and © occur primarily within the territorial jurisdiction of the U.S.” This definition is made for the purposes of authorizing law enforcement investigations.”

The discussion the nation is currently engaged in goes beyond the single act of a former officer. It is what the Black Lives Matter movement has been trying to get understood for years: that these individual acts are part of a wider policy of “state-sanctioned violence” against communities of color. This idea is well-founded in a large number of studies that link current police practices in these communities to those of the slave patrols that existed back to the 1700s. One role of those patrols was a systematic terrorizing of the slave population in order to keep them in submission. Today, communities of color are being terrorized in the name of reducing crime.

Would making this argument of terrorism mean labeling all local law-enforcement as terrorists? No. Nor would it claim that all police forces should be considered as terrorist organizations. Instead, this argument would be an acknowledgment of the systemic racism that has been increasing in police departments for decades. Such an argument would bring in the fact that white supremacist organizations have infiltrated the culture of policing and how that influence is readily apparent in policing practices, and in the acts of individuals like former officer Pantaleo. To put it bluntly, one does not kill a man in broad daylight, with cameras rolling, unless the intent is to instill fear in people. It’s why the terrorist group ILSL videotapes beheadings and broadcasts them to the world.

This is why, along with the second-degree felony murder charge, Attorney General Ellis should offer the jury the option to consider a first-degree murder charge under the seventh point given in the statute. The video of how Mr. Floyd died shows an act that can only be seen as a cold-blooded murder by a police officer. His willingness to do so with no signs of remorse, and with an audience, can be seen as a way of enforcing fear of the police in the African-American population.

The modern-day lynching of Mr. George Floyd stands out as an American turning point. Yes, his name is the latest on a very long list of unjustified killings of black men and women, but it is his that has finally cut through the haze of white denial around what kind of racism still exists in America. To get a first-degree murder conviction under that seventh point of the statute would give the jury the chance to alter the course of history by making good on the long-denied promise of equal justice for African-Americans under the law. It would also send a powerful message to everyone that times really are changing.

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