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It is surely correct to mourn the death of any individual, regardless of cause. But it is also imperative not to make false causal accusations, as protesters have done, by attributing the deaths of George Floyd, Breonna Taylor, and other African Americans to entrenched police brutality and institutional racism. It is not just activists who make this claim. It also our governing organizations. The New Jersey Educational Association uses the Black Lives Matter banner to advocate a major reformation of the education system: “It is impossible to see the video of [Floyd] being strangled under the knee of a police officer in broad daylight on a public street and not be disgusted, horrified, angry, [and] sad.”
Not to be outdone, the Association of American Medical Colleges denounces “global systems of oppression, including slavery [that] continues to fuel the systemic disenfranchisement of racial minorities in the United States.” Thus, the “police killings of George Floyd and Breonna Taylor are symbolic of the myriad of racial injustices that Black people have endured throughout history.”
These groups argue that police abuse is a key indicator of institutional racism. Sadly, their claims break down at two levels.
First, evidence for the claim of institutional racism is weak, given the huge changes in both public sentiment and societal organization in the decades since the passage of the 1964 Civil Rights Act, the 1965 Voting Rights Act, the raft of follow-on legislation, and the rise of affirmative action.
Second, the charge of institutional racism must ultimately rest on the view that the officials in charge of major American institutions harbor and act upon ugly racial sentiments. It is not enough to rely on the disparate impact of various policies to support that charge without examining underlying justifications. A higher conviction rate for black males is justified by a higher rate of black crimes under race-neutral procedures. Nor can institutional racism be found in some supposed set of unconscious biases when elected and appointed officials, many of these officials themselves being members of minority groups, routinely reaffirm their fierce determination to stop racism.
Sadly, the trope of institutional racism operates as a clever ploy that allows for global condemnations. Activists have generally failed to identify by name any one person or system which fits the odious description. Moreover, their broadsides make it less likely that any individual person will step forward to defend themselves or their institutions as not racist.
To see how this process works, consider the death of George Floyd. Apart from the four officers directly involved, which public officials are (institutional) racists? Surely not the Minneapolis Chief of Police Medaria Arradondo, a man of African-American descent who promptly fired all four officers. No racist would apologize for “the devastation and trauma that Mr. Floyd’s death has left on his family, his loved ones, our community in Minneapolis and certainly across the country and the world.” Nor can we condemn Mayor Jacob Frey, who cried at Floyd’s funeral. Also rule out Minnesota Attorney General Keith Ellison, a progressive African-American Democrat who, upon gaining control of the case, promptly elevated charges against officer Derek Chauvin to include a suspect second-degree murder count, while also charging each of Chauvin’s three fellow officers—Thomas Lane, J. Alexander Kueng, and Tou Thao—with aiding and abetting second-degree murder.
Perhaps the racism lies in the four officers themselves. But if that’s the case, why didn’t Ellison indict them for a hate crime, or for first-degree murder? Consider again the documented footage of the incident, where the worst statement that Chauvin made was to tell Floyd that it took “a lot of oxygen to talk,” which does not count as evidence of a hate crime.
It can also be said that the footage fails to capture the whole story. The four officers had twice called for medical assistance. Prior to the time he was subdued, Floyd stated seven separate times “I can’t breathe,” which is best explained by the official autopsy that showed that Floyd had ingested a potentially lethal dose of fentanyl, which led him to foam at the mouth, as well as a small amount of methamphetamine. The former could have easily overwhelmed a body wracked by COVID-19: Floyd’s autopsy revealed that he tested positive for the virus. The autopsy further showed that the airway had not been damaged or compromised, which makes any murder charge problematic. Notably, a second autopsy performed by two distinguished physicians hired by the Floyd family attorney, Benjamin Crump, a legal veteran of these high-profile police race cases‚ did not take into account the toxicology report when it postulated death from asphyxiation, even in the absence of any signs of physical damage leading to death.
But what about Chauvin’s decision to kneel on Floyd’s neck over repeated protests? It turns out that his conduct complied with Minneapolis Police Department standards. People can argue over whether the rule should be changed, but they cannot find the wrongful conduct needed to establish murder in the third, let alone the second, degree.
At this point the dangers of the “institutional racism” enterprise are laid bare. Police Chief Arradondo had no business in peremptorily firing the four officers, or of making any public statement that presumed their guilt prior to an investigation of their possible criminality. Nor should Ellison have brought any charges against the four officers before making a thorough investigation. Most critically, no video conveys the full record, which necessarily includes toxicology reports, so further information could readily undermine any initial appraisal. Neither outsiders nor public officials should make hasty generalizations before all of the relevant evidence has been assembled and analyzed, especially in a case of this explosive magnitude.
The point here does not depend on some fussy obsession with the niceties of criminal procedure. Quite the contrary—the concerns with procedural due process go back to the earliest days of our legal system. Long established legal maxims require that the entire proceedings of a case be run by unbiased parties, that the accused be given a right to be both heard and to examine the evidence against him, and to engage in cross-examination at trial.
The rush to judgment in Floyd’s case may well have resulted in major substantive injustices to the four officers charged in this case, and it doubtlessly spurred rioting that put the lives and property of thousands of innocent people in jeopardy. The correct response in this and other cases is to first put the appropriate officers on administrative leave, rather than rush pell-mell into an indictment that may not be justified.
But such rush to judgment is not unique. Thus George Zimmerman was acquitted of murder charges for shooting Trayvon Martin on grounds of self-defense—an outcome that appears adequately supported by the trial record. The family declined to bring any civil action for damages, and the Department of Justice did not pursue any civil rights investigation. Similarly, an exhaustive FBI report released in 2015 exonerated Darren Wilson of any wrongdoing when he killed Michael Brown in Ferguson, Missouri—all of the credible evidence pointed to a legitimate claim of self-defense. Breonna Taylor was killed when the police returned gunfire after her boyfriend confused them for home intruders and shot at them. And finally, the recent case against a Kenosha, Wisconsin police officers for the shooting of Jacob Blake, a black man, is not as obvious as it sounds—the Kenosha police union introduced evidence into the record claiming that Blake had attacked the officers, who were unable thereafter to subdue him even with a stun gun.
None of these incidents reveal racially charged motivations on the part of the police. In virtually every single case, some private individual had engaged in some conduct—whether it be using force, resisting arrest, or endangering others—that may well have justified some strong police action.
To be clear, there is no reason to accept an absolute immunity for the police. And it is critical to determine whether any given use of force by the police is excessive or disproportionate, which is admittedly a tough inquiry. The outspoken critics who parlay these high-profile incidents into mandates for comprehensive police reform commit a dual disservice. In the short-term, their inflammatory rhetoric stirs up protests and riots; in the long-term, it threatens to transform our key cultural institutions, from the universities to the media, from forums of open inquiry into dens of doctrinaire orthodoxy.Published in