June 2020. Where we are now. The scope of this posting is accurately given by its title. Some of my oldest recollections are of worrying about my Father’s safety while he was the acting police commisssioner of our small Southern city. I am a 78 year old white criminal lawyer who still represents hundreds of people accused of crimes every year. Between infancy and now i have lived for three years in the census tract with the highest murder rate in the United States and many more years in Baltimore, a city the current U.S. President has referred to as “crime infested”. In the last half of 1983 nd the first half of 83 my closest friend and spiritual mentor was a man who had once been the most prominent “hit man” for the Mob in Baltimore. And I consider the funeral of my home town’s most famous murderer the single most crucial moment in my emotional and spiritual development. My life has been saturated with the influence of crime and the enforcement of laws against crime. Hence my experience with law enforcement has continuously been extremely important to me.
I start with the most recent. On May 6 I learned that there had been a young black man killed in Brunswick, Georgia by at least two former law enforcement workers, one of whom had been a certified law enforcement officer for many years and the other had worked for a prosecutor in a nearby city. The killing had actually happened months before, but no official action had taken place subsequently. The Mother of Ahmaud Arbery, the man killed, had been lied to by law enforcement officers about the circumstances of the killing and two successive prosecutors had concluded that no crime had occurred. One of these prosecutors had volunteered in writing to the other that the killers were justified in killing Arbery because they clearly had “probable cause” for a citizen’s arrest of Arbery. The most cursory investigation of the law and facts in the case would have shown the prosecutor that there was no evidence that Arbery was committing a felony offense in the presence of his killers, which would have made an argument for that position under Georgia law. Instead there was shky evidence that Arbery may have been committing a technical trespass by going on a construction site, that he was a jogger who had left that site some time before the killers blocked his path repeatedly with guns, then shot him three times when he resisted them.
A week later the media was filled with information about Breanna Taylor had been shot to death by officers engaged in executing a nighttime no knock search warrant for drugs in the apartment in which she had been sleeping when plain clothes officers burst in. She was a young black medical emergency responder in Kentucky. The no knock warrant had only recently become a valid basis for unannounced entry into a private home through a five to four Supreme Court decision. And that procedure had only been approved where there was a valid safety concern for the officers if the home’s residents were given the opportunity to meet the officers at the door to learn of the search warrant. But in the Taylor situation no such concern could be shown and there were no drugs, the supposed presence of which had been the excuse for the entry.
No arrest had been made in the Taylor killing before four law enforcement officers in Minnesota held a handcuffed black man down on the street while one of them kneeled on their prisoner’s neck for nearly nine minutes. During that time the helpless man begged for his life, called for his Mother and eventually ceased breathing or having a pulse. The officers were fired the same day but not arrested. I begin this writing after two solid weeks of widespread protests and demonstrations.
Minnesota certainly does not have a reputation of being a place where anti-black racism is notorious. It isn’t Mississippi or Alabama. And Kentucky was not a confederate state either. So these killings in these states raise the very real question of whether the police tend to shoot faster and with less real threat of danger to themselves when the life that may be lost is that of a black person. And they also raise the question of whether the problem is a national not a regional one. This issue is about to become one that shares center stage with the corona virus problem, but this police racial problem will likely be with us long after the virus is a bad memory.
Journal of Public Law 