Hard Cases Make Bad Protests

Race Riot Roundup

Because 2020 hasn't been bad enough already, now we can add race riots to the list of plagues descending upon us to punish us for our sins.

The violence of the last week, which reached a peak of intensity this weekend, has been confusing and has confused origins. So let me try to bring a little clarity.

Hard Cases Make Bad Protests

There's an old saying in the legal profession that "hard cases make bad law." It's a warning against drawing general conclusions or universal rules from the circumstances of extreme and unusual cases—that the rules that apply in normal cases should not be altered too much in an attempt to cover the ambiguous borderline cases.

A similar warning should be applied to the sensational cases that spark off these protests. Such cases are actually quite rare, and the stories are often more complicated than the initial reports suggests. That's why I follow two basic rules. The first is to treat every incident as an individual case with its own unique circumstances, rather than as a symbol of some wider social cause. The second is the 72 Hour Rule: Wait at least three days in a controversial case so that more of the real facts can come out. That's true even in cases where there is video of the event. In fact, it is especially true in those cases, because the direct perceptual evidence of a video seems so clear and obvious that it can cause you to draw hasty conclusions without even feeling the need to seek out more context.

In this case, we have video showing a Minneapolis police officer restraining a black man, George Floyd, by placing a knee on the back of his shoulder and neck to pin him down to the ground. Floyd complains repeatedly that he can't breathe, and a few minutes later he dies. So it's obvious that the police officer was deliberately and callously choking him to death, right?

Except that it's not so obvious. According to a prosecutor's summary, the official autopsy of George Floyd "revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation" and attributed his death instead to "the combined effects of being restrained, potential intoxicants in Floyd's system, and his underlying health issues, including heart disease." Now, it's still fairly early on, and maybe this will be contradicted by later findings. (Floyd's family has commissioned their own autopsy.) Maybe Floyd really was choked to death, but in a way that didn't leave the usual physical indications. I regard it as more likely that the physical restraint by the police triggered or exacerbated an underlying heart condition that actually killed Floyd, and the shortness of breath was just a symptom of that underlying problem.

There's some corroborating evidence for this. Check out a long, thorough New York Times report on the case, which notes, "Even before he was placed on the ground under Mr. Chauvin's knee, according to the prosecutors' account, while standing outside the car, Mr. Floyd began saying repeatedly that he could not breathe." There is a real possibility, in other words, that Floyd was already is some kind of acute medical distress before the police even arrived.

If there's something disturbing about the video, it is the callousness of the police officers, who didn't seem to take Floyd's physical distress very seriously and waited some time after he was unresponsive to call for an ambulance.

I mention all of this because it has become standard terminology to describe this incident as the "murder" of George Floyd. This is being done by politicians and commentators on the both the left and the right. It's everybody's way of letting us know that they are on the Correct Side on this issue. But of course they're setting us all up, once again, with exaggerated expectations for the results of this case. The officer who held Floyd down, Derek Chauvin, has been charged with third-degree murder, and Floyd's family is upset that he's not being charged with first-degree murder. But when he is prosecuted on this charge, given what we know so far, there is a good chance he will be acquitted—and then everyone will scream and howl with rage about the injustice of "the system" because they weren't paying attention to the evidence.

This reminds me most of the Eric Garner case. It starts with a man who is remembered as being mostly harmless but who has lived a life on the margins of society, in a way that frequently brought him into contact with the police. Floyd had a history of drug and alcohol abuse and had served prison time years earlier for armed robbery. He is then arrested for some relatively minor, nonviolent crime: buying cigarettes with a fake $20 bill. (Counterfeiting is a serious crime, but Floyd was no criminal mastermind. A witness recalls that "the ink was still running" on his fake twenty.) He resists arrest—Floyd was described by a witness as "awfully drunk" and "not in control of himself"—and is restrained by police. At this point, years of hard living catch up with him, and the rough handling combines with an underlying health problem to kill him.

From what I can tell, this is definitely not "murder." It might be excessive force, and it certainly might be negligence. Yet because of the way it's captured on video, and because of the way that video is presented on social media, it looks like a vicious, deliberate killing by the police.

This is a hard case: seemingly obvious but actually muddled and ambiguous. So we shouldn't be surprised that everyone is reacting in a way that is inappropriate—some through their own bias or carelessness, and some with deliberate malice.

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