A redundant prosecution, Star Tribune edition

The Star Tribune drew on the work of three reporters and its collaboration with “Frontline” (through its Local Journalism Initiative, funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting) for Andy Mannix’s story on the federal indictment of Derek Chauvin and his three former colleagues on federal civil rights charges in the death of George Floyd.

With all hands on deck, I thought the Star Tribune (and its collaborators) might find someone to comment on the redundancy of the federal prosecution or otherwise to provide the rationale, but no. The Star Tribune team finds nothing to see here.

Students of pattern recognition may detect a certain sameness to the theme of the quotes offered on the federal case (not to mention the ancient hatred for which both Keith Ellison and Al Sharpton have both fanned the flames):

“The federal government has a responsibility to protect the civil rights of every American and to pursue justice to the fullest extent of federal law,” said Minnesota Attorney General Keith Ellison, who is serving as special prosecutor on the state’s cases.

“Federal prosecution for the violation of George Floyd’s civil rights is entirely appropriate, particularly now that Derek Chauvin has been convicted of murder under Minnesota law for the death of George Floyd. The State is planning to present our case against the other three defendants to another jury in Hennepin County later this summer,” Ellison said.

The Minnesota Police and Peace Officers Association, which is providing legal representation for the four officers in their state cases, said it will be doing the same in federal court with the same attorneys. The association otherwise declined to comment on the indictments.

Civil rights attorney Benjamin Crump, whose legal team negotiated a $27 million legal settlement from the city of Minneapolis for Floyd’s survivors, said in a statement, “Today’s federal indictment for criminal civil rights violations associated with the murder of George Floyd reinforces the strength and wisdom of the United States Constitution. The Constitution claims to be committed to life, liberty, and justice, and we are seeing this realized in the justice George Floyd continues to receive. … We are encouraged by these charges and eager to see continued justice in this historic case that will impact Black citizens and all Americans for generations to come.”

The Rev. Al Sharpton, a longtime civil rights figure who eulogized Floyd at his funeral last year and has been a visible supporter of the family, said in a statement that the news “shows we have a Justice Department that deals with police criminality and does not excuse it nor allow police to act as though what they do is acceptable behavior in the line of duty.”

Referencing earlier instances of Blacks around the country dying in recent years after encounters with police, Sharpton said, “What we couldn’t get [federal authorities] to do in the case of Eric Garner, Michael Brown in Ferguson, and countless others, we are finally seeing them do today. … This is a significant development for those of us who have been engaged in the struggle and police reform movement.”

Derrick Johnson, national president of the NAACP, called the indictments a “step in the right direction” but said the case highlights the need for police reforms, including implementing a national registry of police misconduct data.

“While Derek Chauvin murdered George Floyd over 9 minutes and 29 seconds, no other police officer on the scene acted to save his life,” Johnson said. “The horrifying actions and inactions of all four police officers resulted in the preventable death of a loving father, son and brother. No police officer is above the law, nor should they ever be shielded from accountability. We need urgent reforms now.”

The Star Tribune gives us the range of opinion extending all the way from A to A among Keith Ellison, Ben Crump, the Reverend Al Sharpton, and Derrick Johnson.

I commented critically on the federal indictment yesterday morning in “A redundant prosecution.” Now Andrew McCarthy expands on the relevant points in the same language I used in his NR Plus column “The DOJ’s Abusive Indictment of the Police Who Killed George Floyd.” Andy writes, for example:

[L]et’s think about dual sovereignty. While it is permissible for the feds to prosecute after the state has done so, such prosecutions are rare because Justice Department guidelines discourage them. Trying a person two times for the same offense understandably strikes Americans as unfair, even if it is technically constitutional. As a result, the Justice Department permits a second prosecution only sparingly: when the failure to prosecute would result in a grievous miscarriage of justice — generally because the state proceedings were somehow flawed, or because, absent prosecution, some important federal interest will not be vindicated.

That is not the George Floyd situation.

State convictions and stiff sentences against the former police officers in this case would easily satisfy federal concerns. The theory of the state prosecutions is that, even though George Floyd was lawfully arrested and detained, police exploited their detention authority, abusing his rights to (a) be subjected to only reasonable (not excessive) force, and (b) have police protect his right to life. Chauvin was found guilty of those abuses, and it is highly likely that the other three former officers will be, too.

Minnesota’s holding the ex-cops accountable thus fully vindicates the federal interest in promoting policing that meets U.S. constitutional standards. That interest is the only rationale for permitting a limited federal intrusion into a sovereign state responsibility, the policing of local communities.

Federal prosecution here would violate the spirit of the Double Jeopardy Clause (though not its letter) toward no meaningful end. It would not result in longer sentences. It would not fulfill unsatisfied federal interests. And it could actually undermine accountability.

Unfortunately, this all remains a deep mystery to readers who get their news from the Star Tribune (and Frontline‘s Local Journalism Initiative).

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