The Police Will Keep Killing Black Folks, And The New Laws Won’t Stop Them.

[This essay was re-written just hours after Minnesota Governor Tim Walz signed the new “Minnesota Police Accountability Act.”]

I spent nearly a quarter century litigating police misconduct cases — so many that one municipal defense lawyer joked that I was like a character in an SNL skit: “We do volume.” The joke was a mask for a still unaddressed and festering societal ill.

Indeed, I had plenty of “volume,” because I am here in the Land of Sky Blue Waters — and when I actively practiced, my office was located in Minneapolis. That’s the same Minneapolis where four Third Precinct officers appeared on a cell phone video for 8 minutes and 46 seconds kneeling on the throat of Mr. George Floyd as a crowd of onlookers was kept at bay until George Floyd was dead.

It was Minneapolis, where years ago I served a stint as an Assistant Criminal Division Attorney; and a mere sixty days ago it had become “ground zero” for a worldwide movement — an international uprising against police brutality and racism. Those two evils, for those who may still be unaware, are inextricably joined like the proverbial peas in a pod.

During the years I actively practiced, there were other cities and counties that were purveyors of police violence; but it was Minneapolis that was the clear front-runner. And, within the City of Minneapolis there were precincts that were reputed and ill famed for their brutality in police tactics. The Third Precinct was at the top of that unwritten list.

I knew the Third Precinct well because part of my career was spent simultaneously representing public defense clients who had entered the court system in bunches or clusters as “co-defendants” usually in drug cases.

There was a plain and almost grim humor that pervaded the courts of Hennepin County (Minneapolis) in late ‘90’s and into this millennium. When one asked who had been arrested when police entered a home in South or North Minneapolis, the likely response was: “ Everybody.”

In the 1990’s and through the turn of the century into 2001, Minneapolis became engulfed in its own war on drugs: crack cocaine and heroin and the younger cousin of weed, and the newcomer, methamphetamine.

Minneapolis Police (and its nearby suburban agencies) made so many arrests that one colleague suggested that we could accurately advertise that we had handled over a thousand drug cases. It was another grim piece of humor about volume everyone understood.

From that war and its subsidiary battle to stop the burgeoning influx and in-migration of African Americans from other states, came an accompanying wave of brutality and sharp policing tactics. Anecdotal reports were of white officers telling alleged (frequently African Americans) drug dealers to “go back to Detroit.” It was not enough to prosecute them — they had a larger mission to create the threat of police violence that would send a message to be sent back up the line.

In all of this, it was the Third Precinct, or “threes” as it was known in Minneapolis police lingo, which employed the most aggressive officers. That is where Derek Chauvin and his partner and two trainees were deployed.

This well-known and hardly hidden “secret” can never be offered at the trial involving the recent death of George Floyd — I would be the first to move to exclude it if that were my role as a defense advocate. But, I refer to it because despite the sanguine words of pundits that now everything has somehow changed, and that our long delay in addressing police violence has reached a “crossroads,” is yet to me still not believable. I simply cannot credit it as able to survive being buffeted by the same political winds that led to countenancing repeat performances of police brutality.

The recent barely lukewarm effort by the Minnesota Legislature to hold police accountable only two months after George Floyd’s tragic death proves my point. Minnesota’s divided Legislature could not even pass a bill codifying the role now assumed by its present Attorney General. Nor did it act to put real teeth into a statewide monitoring system of police violence.

As I predicted, or perhaps feared, even following the most egregious act of police violence witnessed by millions, Minnesota could not rise to the challenge to speak with one clear voice to rein in police brutality.

Likewise, it appears the recent efforts in the Congress to stanch the Nation’s bleeding from unchecked and unpunished police brutality and the nearly omnipresent policy of non-prosecution will likely continue.

The message to police is clear. Even after the most heinous displays of indifference to life by those sworn to protect without regard to immutable characteristics, the lawmaking response is one of tolerance for the practices leading to the ending of Black lives. Every officer will see through the few incremental and cosmetic changes and take it for granted that it will be “policing as usual.”

Why should police being any different than any other human being placed in a Skinnerian box of reward and punishment? When they see and learn there is no real prospect of punishment, their behavior will continue and perhaps be even reinforced.

My pessimism is also perhaps shaded by all these years that I have watched our courts twist themselves like contortionists to apply the judge-made doctrine of “qualified immunity” and their clear unwillingness to “second guess split second judgments” combined with a seeming eagerness to summarily dismiss the most egregious cases of excessive force.

That unwillingness has amounted to letting police officers effectively set the standard of what is or is not “reasonable” in a given setting. I see no prospect that either judges or lawmakers will change that now.

I have likewise watched criminal trial judges find ways to overlook or ignore violations of constitutional protections against unreasonable searches and arrests because to them there seemed to be so much other evidence of a defendant’s guilt.

The police have watched these same outcomes carefully and with assiduous and studious attention — as judges and prosecutors taught them that this violence would for the most part be condoned. The threat of a prosecution has become such a rarity that it verged upon impossibility.

Perhaps, these lessons were on display that tragic Memorial Day on a South Minneapolis street corner; lessons not learned in a week, or month, or a year. And if we are honest, we will admit they were not learned at some police seminar.

Watching the accretion of own acts — our failure to tell them they must stop, taught them. And by this grew not the lessons of the law but the logic of experience — a well-learned experience that taught those officers — don’t worry, we will never second guess you — after all, if a policeman does it, how can it ever be wrong?

-Albert Turner Goins