“PHOTOGRAPHS shock insofar as they show something novel,” wrote Susan Sontag, nearly four decades before everyone started carrying around telephone-equipped cameras in their pockets. “Unfortunately, the ante keeps getting raised, partly through the very proliferation of such images of horror.” Sontag, a writer preoccupied with the effects of conflict, was deeply ambivalent about the moral implications of photography; she worried about its numbing effects.
And yet, over the past several years, as Americans have watched an increasing number of phone-captured videos of police killing people who posed no danger to anyone, they have not grown numb. They have been shocked and horrified—who could not be, watching George Floyd slowly dying under the knee of Derek Chauvin, the former Minneapolis police officer standing trial for murder? They have also been propelled into action. Through protests and legislation, they have revised the terms of engagement between police and the policed. Mr Chauvin’s trial will probably end this week, but whatever the outcome, that process of revision looks set to continue.
On the morning of April 19th, in a courthouse in Minneapolis surrounded by businesses boarded up in anticipation of possible unrest after the verdict, prosecutors and Mr Chauvin’s attorneys will present their closing arguments. The jury will then be sequestered until they reach a verdict, which must be unanimous for a conviction. Mr Chauvin faces three charges: second-degree murder, third-degree murder and second-degree manslaughter.
None of these requires the prosecution to prove that Mr Chauvin intended to kill Mr Floyd. To convict him of second-degree unintentional murder, which in Minnesota carries a sentence of up to 15 years in prison for someone without prior criminal history, prosecutors have to show that Mr Chauvin killed Mr Floyd during the commission of a felony—in this case, assault. That may be difficult to prove: police officers, unlike ordinary citizens, may in the course of their duties touch someone against that person’s will.
Prosecutors will have to show that Mr Chauvin’s use of force exceeded legal and reasonable limits for a police officer. That is why they summoned Medaria Arrandondo, Minneapolis’s police chief, to testify that Mr Chauvin violated police policy by continuing to use force against Mr Floyd after he had stopped resisting and by failing to provide medical help once he became unresponsive. The jury also heard testimony from Sergeant Jody Stiger, a use-of-force expert with Los Angeles’s police department, that Mr Chauvin’s initial use of force, when Mr Floyd refused to enter the police car, may have been justified, but that the extended restraint on the ground was not. That distinction is crucial to the prosecution’s case: the instant force stops being justified, in their theory of the case, it becomes assault, and therefore felonious.
Third-degree murder also carries a sentence of up to 15 years, second-degree manslaughter of up to 57 months. They are similar and probably easier to prove than second-degree murder. Third-degree murder requires the prosecution to prove that Mr Chauvin caused Mr Floyd’s death “by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” The manslaughter charge requires them to prove that Mr Chauvin caused Mr Floyd’s death through “culpable negligence, creating an unreasonable risk and taking a chance of causing death or great bodily harm.”
There is precedent for one of these charges. Mohamed Noor, the only police officer in Minnesota ever convicted of murder for killing someone in the course of his duties, was found guilty in 2019 of third-degree murder. A woman who had reported a sexual assault in an alley behind her house approached Mr Noor’s squad car in the dark, unarmed and barefoot. He shot her in the stomach, and is serving twelve-and-a-half years in prison.
The prosecution’s theory is simple: Mr Chauvin caused Mr Floyd’s death through using force well beyond what was reasonable. But they must prove that claim beyond a reasonable doubt. That makes the defence’s job simpler: they do not have to present a fully-fleshed alternative theory; they just have to sow a seed of doubt in the jurors’ minds. And so they have argued that Mr Floyd’s poor health and drug use contributed to his death; that the crowd distracted Mr Chauvin; and that his use of force was reasonable. Mr Chauvin did not testify in his defence, which is understandable: the prosecution would have had the chance to cross-examine him, perhaps by showing him the video, pausing frame-by-frame and requiring him to explain his actions and state of mind at every step.
And so, by Monday afternoon, Mr Chauvin’s fate will rest with a jury of his peers. By bringing multiple charges, the prosecution has given the jury multiple routes to a conviction. But the defence’s alternate theories may, collectively, sow just enough doubt to prevent one, which would probably spark unrest in Minneapolis—already reeling from demonstrations last week over the killing of Daunte Wright, an unarmed black man, by a suburban police officer—and beyond.
Yet consider that during Mr Chauvin’s trial, his own (former) chief of police testified against him. After Mr Wright’s death, the police chief in Brooklyn Centre, where he died, did not stonewall or rationalise. Instead, he swiftly released the bodycam footage of the shooting. So, last week, did Lori Lightfoot, Chicago’s mayor, after an officer shot and killed a 13-year-old boy with his hands raised (the boy had dropped a handgun while running). The officer who killed Mr Wright has been charged with manslaughter. An increasing number of police departments require that officers wear cameras and that the footage, subject to some restrictions, be released to the public. Citizens are increasingly aware that they have the right to film police working in public view. Over the past year, states and cities across America have passed laws that make police more accountable.
The sense that police departments and lawmakers are listening to citizens’ concerns has had the salutary effect of quieting the more extreme voices, such as those calling to “defund the police”—a vapid slogan endorsing an outcome that few want. A poll taken last July showed that 81% of African-Americans want police to spend the same amount of time or more in their neighbourhoods. Murder rates spiked last year across America; the country needs responsive, well-trained police. But that should not—and increasingly, thankfully, does not—entail impunity.