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NEWS

George Floyd Protests: racial injustice & procedural rights

FairTrialsAdmin - June 3, 2020

This post was written by Rebecca Shaeffer, Legal Director for the Americas at Fair Trials. Rebecca is based in our Washington DC office.

Protests have broken out across the USA following the death of George Floyd in police custody last week, an incident highlighting ongoing patterns of police violence against black communities. Floyd was choked to death by Minneapolis police officer David Chauvin after his arrest on suspicion of using a counterfeit $20 bill. The killing was caught on video by a bystander and quickly went viral, to national and international outrage. These largely peaceful protests have been met with overwhelming state violence and mass arrest in many cities, resulting in at least 11,000 arrests nationwide as of June 3. The National Guard has been deployed in over two dozen states to back up police action and curfews have been imposed in many cities, leaving protesters even more vulnerable to arrest. New as well as established patterns of brutal and unlawful policing are being used including the targeting of journalists, police running cars into groups of protestors, highly militarized weaponry, and the kettling and tear-gassing of peaceful protesters. These repressive tactics reinforce, rather than answer, the urgency of this movement’s message that US policing needs to be dramatically rehauled.

Five years after the police killing of Mike Brown, which rocked the nation and was followed by national and international recognition of the Black Lives Matter movement, there have only been discrete efforts at reforms in some cities, and racist police violence persists. This has led many to call the last half decade effort at police reform a failure. The call from movement leaders now is to move beyond what are being called “proceduralist” fixes to policing (bias and de-escalation training and data collection, for example) to more fundamental change, involving de-militarizing, disarming, and reducing the scale, function and power of police.

In light of the crisis of overcriminalisation, police militarization, and a deeply-ingrained culture of racist state violence that dates back to the origins of policing in the USA, and the persistence of these in the face of sustained reform movements, Fair Trials is more committed than ever to reinforcing fundamental legal safeguards around arrest, detention, and criminal procedure, many of which were designed with the explicit aim to prevent and remedy police brutality. Although political, financial and cultural incentives that permeate police decision-making desperately need realignment, key legal safeguards that constrain the actions of police are still missing or unenforced in the USA.

Lack of police oversight is a broader problem than in the streets. The US is notable among nations with developed criminal legal systems for its practice of holding arrested people in what is practically incommunicado detention in police custody. It is extremely rare in almost all US jurisdictions to be granted access to legal advice post arrest until an arrested person is brought before a judge, at the earliest. In countries that provide lawyers for arrested people in police custody (all of the European Union, for example), lawyers play an important role in identifying, documenting, and challenging unlawful arrest, unfair policing practices during protest and in everyday life, and injuries and trauma resulting from pre- and post-arrest brutality. Access to a lawyer for arrested people is acknowledged as one of the key safeguards in torture prevention. The practice of incommunicado detention is on full display in US cities during this wave of protest, with desperate families and lawyers trying in vain to make contact with arrested people overnight and through the weekend.

At later criminal proceedings that may emanate from arrests during protests, a full hearing of the legality of police action is unlikely; as nearly all US criminal cases are not aired in a full criminal trial, but rather resolved via guilty plea. Threatened with severe sentences if they proceed to trial, most defendants are coerced into pleading guilty, often waiving key constitutional protections including rights to challenge unlawful police action in the process. This is common despite the fact that many recent prosecutions of political protesters have collapsed under the untenability of the evidence or police conduct if defendants are able to reject guilty pleas. The guilty plea process suppresses adequate probing of the evidence or confrontation of police, as guaranteed by the 6th Amendment of the Constitution. The lack of criminal trials removes yet another key juncture at which police behaviour can be scrutinized.  

Even if a person detained during a protest ends up being released from police custody without charge, avenues for justice after police abuse are extremely limited by the US legal concept of “qualified immunity,” an invention of Supreme Court jurisprudence which undercuts Constitutional protection against abuse of rights by state officials and which  drastically reduces the likelihood that police who inflict harm will be held accountable. The concept of “qualified immunity” for police who commit abuses is currently being considered by the US Supreme Court.

Curfews and orders to disperse may violate protesters’ First Amendment rights to freedom of expression. But protesters still have rights. Violations happening today may yet find remedy in a future court. Even if immediate justice is not possible, the historical and legal record show that adequate defense and challenges to illegal police action produce are essential to efforts to build accountability for police, whether in courtrooms, legislatures, civilian review boards, or other democratic oversight mechanisms.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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