Importance of Pending Federal Criminal Case Over Killing of George Floyd

A Professor of Practice at the Georgetown University Law Center, Christy Lopez, asserts that the current federal trial of the three ex-officers for not intervening to prevent the death of George Floyd may be even more important than the state case that convicted Derek Chauvin for murder and manslaughter of Mr. Floyd. She says, although “a duty to intervene to prevent another [police] officer from using unreasonable force has existed for 50 years, it has led to few federal prosecutions for same. [Moreover, the professor has not found any] federal prosecutions of lower-ranking officers for failing to intervene to prevent a higher-ranking—or even a peer officer—from using unreasonable force.” [1]

Reasons for Police Intervention To Stop Excessive Force

According to Professor Lopez,”this trial could set federal precedent for holding officers criminally culpable . . . for failing to prevent another officer — even a peer or superior officer — from committing . . . [civil rights violations]. And that precedent could add momentum to a badly needed sea change in policing — toward a shared expectation that every officer will take all feasible steps to prevent another officer from violating constitutional rights, regardless of rank.”

“It is difficult to overstate the impact such a change culture would have. As I wrote just a few days after Floyd’s death, our central concern should be preventing deaths like his; no after-the-fact measure of accountability can make up for the brutal, unnecessary snuffing out of a human life. Intervention by officers in real time is often the best way — sometimes the only way — to prevent harm.”

“Further, building a culture of intervention is an essential component of broader efforts to transform policing and public safety. When officers stand by while another officer causes needless harm, they commit a separate, in some ways more corrosive, damage: the delegitimizing of police and rule of law that takes hold when abuse committed by bad-apple officers is tacitly condoned by passive bystander officers.”

“[The particular facts of Floyd’s murder underscore the importance of training officers in how to effectively intervene. Turning the legal duty to intervene into routine practice requires building a policing culture that supports active bystandership. Accountability — criminal, civil and administrative — is part of this, but so is demonstrating that officers will be supported when they step in. Training signals that support and increases the likelihood that interventions will be effective — a precursor to intervention becoming the norm. While not having been trained cannot be an excuse to avoid accountability for a failure to intervene, strong training can create a culture in which effective interventions are more likely.”

“Active bystandership programs, such as the one focusing on policing that I helped found at Georgetown Law, teach people to anticipate this reaction and be prepared to overcome it. We use the acronym PACT — for probe, alert, challenge, take action — to help officers remember not only the potential need to ratchet up intervention, but also how to do so. Officers role-play escalating stages of intervention. Imagine if just one of the officers had directly challenged Chauvin (“Take your knee off his neck!”) and, if that didn’t work, taken action to physically remove him.”

“Training cannot guarantee better outcomes, but when good training is bolstered by accountability — like that possible through the trial in St. Paul — it can become a potent component of culture change. Building this culture in policing is essential, not only to prevent tragedies like Floyd’s death but also to stop the everyday violations that steadily erode police legitimacy and that other officers are often the only ones in a position to prevent.”

Conclusion

Professor Lopez’ opinion deserves serious attention. Before joining the Georgetown faculty in 2017, she served for seven years as a Deputy Chief in the Special Litigation Section of the Civil Rights Division at the U.S. Department of Justice where she led pattern-or-practice investigations of police departments and other law enforcement agencies, including litigating and negotiating settlement agreements to resolve investigative findings. Professor Lopez also helped coordinate the Department’s broader efforts to ensure constitutional policing. Before that she spent 15 years as a lawyer involved in criminal justice reform and constitutional policing. [2]

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[1] Lopez, The officers who didn’t stop Derek Chauvin are on trial. Their prosecution may matter even more than his did, Wash. Post (1/23/22).

[2] Christy E. Lopez Biography, Georgetown Law.

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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