WASHINGTON — When a police officer killed Atatiana Jefferson in her home in Fort Worth, Texas, last year, the officer was arrested two days later. When Freddie Gray died in police custody in Baltimore, the officers were charged two weeks later.
It’s been four days since George Floyd died in police custody in Minneapolis and a video became public that showed Floyd repeatedly saying “I can’t breathe” while a white Minneapolis police officer, Derek Chauvin, crushed his neck with a knee for eight minutes. The chorus demanding arrests in the days after Floyd’s death included the city’s mayor. On Friday, the Hennepin County district attorney’s office announced that Chauvin was arrested. None of the other three officers involved have been charged or taken into custody.
Criminal investigations into police who kill on the job typically don’t unfold like normal homicide cases, where a suspect on the scene likely would be taken into custody right away. There are delays that are formally built in through union contracts and police protection laws. These cases are harder to win, which means prosecutors take their time building them, and prosecutors mindful of the otherwise close working relationship with law enforcement may take a more cautious pace, according to lawyers who work on police misconduct issues.
“People are much more careful when it comes to prosecuting police officers than they are when it comes to prosecuting the usual suspect in a murder case, who is usually a person of color and poor,” said Christy Lopez, a professor at Georgetown Law Center. “You just know it’s going to be a harder case to convict. Officers have more [legal] defenses. You want to have all your ducks in a row.”
Even when there’s video of an incident, investigators will try to collect whatever other evidence might be available, including body camera footage and witness testimony, said Lopez, a former senior official in the DOJ Civil Rights Division’s Special Litigation Section, which investigates police misconduct. It can take time to convince police officers who may have witnessed an incident involving one of their own to testify for the prosecution, she said.
Cases involving police officers are the rare instance where the criminal justice system favors the defendant, said Jonathan Smith, the former head of the Special Litigation Section. Prosecutors have a close relationship with police, and are reluctant to bring charges until there’s a grand jury indictment, which takes more time, he said.
The two-day window between Atatiana Jefferson’s death and the arrest of the officer is atypically quick, said Smith, now executive director of the Washington Lawyers' Committee for Civil Rights and Urban Affairs.
Sometimes, the reason for a lag in the time between a person dying in police custody and arrests is spelled out in writing. Police union contracts can include provisions that require a waiting period before an officer is interviewed by investigators, which can delay an investigation.
J. Ashwin Madia, a lawyer in Minneapolis who has represented families that sued police officers for use of force in the past, said police officers get a “cooling-off” period that isn’t usually available to suspects in criminal investigations.
“If an ordinary non-officer is suspected of murder, then, yes, they’ll be read their rights but they’ll be questioned right away. And the reason for that is after an incident like that … it’s fresh in their mind and they’re somewhat excited and disheveled and oftentimes suspects waive their rights and talk,” Madia said. “Whereas with officers, as part of their union contract, they’re given… this cooling-off period that allows them to consult with counsel, get composed, take counsel’s advice, and handle it that way.”
Minneapolis police officers involved in “critical incidents” — which include situations where a person dies in police custody — must be given “a reasonable opportunity” to consult with a lawyer before they’re asked to give a voluntary statement to an investigator, according to the labor contract between the city and the police union that expired at the end of 2019. The contract doesn’t specify how much time qualifies as a “reasonable opportunity.” Details weren’t immediately available about the timeline of the investigation into Floyd’s death.
The city hasn’t put a more recent contract online, and representatives of the city and the police union did not return requests for comment on Friday. The contract also says officers may be able to have their legal fees reimbursed by the city, although it wasn’t immediately clear if that would apply to the investigation into Floyd’s death since the four officers involved were fired.
In a section of the Minneapolis union contract that relates to discipline, it states that officers under investigation must be given a written summary of the incident two days before they’re asked for a formal statement. There are exceptions to that rule if a two-day waiting period is “impractical due to the immediacy of the investigation.” If an investigator wants to take an officer’s statement without giving them a written summary first, they have to still notify the police union.
Some states also have laws that give officers greater protections during a use of force investigation, known as a police or peace officer “bill of rights,” although those laws can carve out exceptions for criminal investigations, which is the case in Minnesota.
Police officers who kill can also face federal criminal charges for civil rights violations, but federal prosecutors will typically wait to see what state or local prosecutors do first, Lopez said. Federal civil rights cases against police officers can be even harder to prove, she said, since prosecutors have to get inside an officer’s state of mind to meet a higher “willfulness” standard that isn’t required in a state murder case.
The Minnesota US attorney’s office announced on Thursday that a federal investigation into Floyd’s death was underway. Shortly after the announcement of Chauvin’s arrest on Friday, Attorney General Bill Barr released a statement saying that the Justice Department and the FBI were investigating whether any federal civil rights laws were violated in Floyd’s death and that “state and federal officers are working diligently and collaboratively to ensure that any available evidence relevant to these decisions is obtained as quickly as possible.”
“The video images of the incident that ended with death of Mr. Floyd, while in custody of Minneapolis police officers, were harrowing to watch and deeply disturbing,” Barr said. “Under our system, charging decisions must be, and will be, based on the law and facts. This process is proceeding quickly. As is the typical practice, the state’s charging decisions will be made first. I am confident justice will be served.”
Beyond any criminal investigation into an individual officer, the Justice Department can also conduct broader probes into whether there are patterns of civil rights violations within a police department. The Trump administration has backed away from those types of investigations, however, per reporting by the Huffington Post. Smith said that even if officers involved in Floyd’s death are criminally charged, it won’t solve “deep cultural problems” in the Minneapolis police department.
“The incident demonstrates that there is something deeper going on,” Smith said. “Other officers stood by and watched him as this man could not breathe.”