THREAD
1/MN US Atty, FBI are investigating federal civil rights violation of #GeorgeFloyd. Some ask why no arrest yet. The answer - the statute is bad. It requires such overwhelming evidence as to make it almost impossible to prove, despite compelling video evidence.

2/ Statute, 18 USC 242, makes it a crime to deprive someone of constitutional rights under color of law. Elements are 1) victim lived in US, 2) def acted under color of law, such as police authority, 3) def’s conduct deprived victim of constitutional right, 4) def acted willfully

3/ Here, elements 1 and 2 are easily met, but 3 is a challenge, and 4 can be virtually impossible.

4/ For element 3, deprivation of a constitutional right, the allegation would be that the officer(s) used excessive force and deprived Mr. #Floyd of his right to be free from unreasonable seizures under the 4th Amendment.

5/ Jury would be told reasonableness is judged from perspective of reasonable officer at scene, not 20/20 vision of hindsight, because officers must make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. Even that element is probably met here

6/ It is the 4th element, willfulness, that is virtually insurmountable. To prove willfulness, the prosecutor must show the officer had a specific intent to do precisely what the law forbids, not just a bad purpose.

7/ For willfulness, it is not enough that an officer’s force was excessive and unjustified, or that he intended to harm or to frighten. It is not enough to show that death was accidental, negligent or reckless. It is not enough to show a mistake, panic or bad judgment.

8/ Instead, it must be proven that that the officer knew what he was doing was illegal and chose to do it anyway. This element must be proved for each officer charged, and can be impossible to prove.

9/ And so, a prosecutor must anticipate that a defense attorney will hammer this element at trial, and portray the officers' conduct in the best light possible and Mr. Floyd's in the worst. To overcome this high bar, it is essential to gather evidence about the officers' intent.

10/ Investigators will look at all of the circumstances, not just the video. They must interview civilian and police witnesses, and lock in their testimony at grand jury, likely suspended for now by COVID, so that they don't change their stories at a trial many months from now.

11/ Investigators will review officers' training, department policies, statements by the officers before and after the incident, and look for any evidence of a cover-up.

12/ Even then, convictions are rare. Jurors give great deference to police officers. Implicit bias may play a role. The legal bar is set deliberately high to protect officers from criminal liability when they must respond rapidly to life-and-death situations. Perhaps too high.

13/ So how do we ensure a just system that allows for police officers to do their jobs? Amend 18 USC 242 to change the intent from “willful” to “knowing” or even “reckless.” This change could help reduce the injustices we see too often on viral videos. Justice for all. END