What do George Floyd, Caron Nazario and Daunte Wright teach about policing?

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This was bound to be a fraught time for Minneapolis, with the trial of former police officer Derek Chauvin now wrapping up its third week. The recent killing of 20-year-old Daunte Wright at the hands of former police officer Kim Potter during a traffic stop has amplified tensions in the city.

This comes on the heels of nationally-released video footage of a traffic stop in December 2020, in Windsor, Va., in which police officers pulled out weapons on Caron Nazario at a gas station, ultimately leaving him — an Army veteran of Black and Latino descent — prone on the ground, blinded by pepper spray and sobbing. How to make sense of it all?

There are similarities among the incidents, to be sure: all involved Black men and white cops, all were captured on videotape, none of the suspects had been stopped for serious crimes, and none were armed. Still, as Mona Charen noted in The Bulwark this week, “[t]hey may be similar on the surface, but they are quite different in the details.”

The Fourth Amendment to the Constitution states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The touchstone here is the meaning of “unreasonable,” which is not defined in the Constitution. Whether a judge claims to be an originalist, a textualist or a more progressive functionalist, this term demands interpretation. There is no one correct and absolute way to read it. 

Moreover, it’s becoming apparent from the exchanges on social media around these narratives that many Americans aren’t sure of what their rights are when it comes to encounters with the police — and what the police are lawfully allowed to demand. Nazario drove a mile before pulling over for what Windsor police claim were missing license plates The video footage also shows that, despite repeated requests, he did not compliantly get out of the car, instead asking for an explanation as to what was happening.

Similarly, videos and testimony introduced during the Chauvin trial show Floyd resisting getting into the squad car, claiming that he was claustrophobic. He also squirmed, arched his back and raised his voice when the officers worked to push him into the vehicle. 

The available footage of Wright’s death depicts Wright, who was apparently pulled over for having expired registration tags, resisting the officers’ attempt to handcuff him after discovering a warrant out for his arrest. After a struggle, Wright got back into his car and pulled away, at which time Potter can be heard saying, “I just shot him.” Tim Gannon, the chief of the Brooklyn Center Police Department, stated that Potter meant to use her Taser, and mistakenly pulled out a firearm. She has been placed on administrative leave and charged with second degree manslaughter. The officer who sprayed Nazario, Joe Gutierrez, has been fired.

On Tuesday, Chauvin’s defense team called Barry Brodd, an expert in the reasonable use of police force, to testify. He opined that Chauvin acted reasonably, and that had Floyd been compliant with police demands, he would have been “resting comfortably” in the prone position despite Chauvin’s knee on his neck. It will be up to the jury to decide whether Brodd is sufficiently persuasive to create a reasonable doubt as to Chauvin’s guilt, or whether the countervailing opinion of the prosecution’s use of force expert, Seth Stoughton, is more believable.

Brodd did one thing during his testimony that Americans should hear: He walked through the basics of what the police can and cannot do during a routine stop. Whether one sides with the police or the civilian men involved in these scenarios depends in part on perceptions of the reasonableness of each actor. That depends, as well, on the circumstances of each incident. But it also depends on a fair understanding of the governing law — something that police officers know or should know from their training, but that regular people often do not.  

Here are a few basics to keep handy: 

  • There is a difference between being detained and being arrested. To detain someone, police need what’s called “reasonable suspicion” that a person committed a legal infraction. The police cannot pull people over based on a hunch or curiosity. To arrest someone, police need a higher prerequisite, which is known as “probable cause.” In order to arrest, police need to have sufficient grounds to believe that the suspect probably did commit an infraction.

  • Under Miranda v. Arizona, civilians have a right to remain silent and do not have to answer police questions when stopped.

  • The Supreme Court has also held that, during a stop, a police officer may search an individual for a weapon if the officer believes that the person poses a danger to the officer.

  • Lower federal courts have held that civilians have a First Amendment right to videotape police during an encounter in a public space.

  • The Supreme Court has also held that police cannot use deadly force on a fleeing suspect unless the officer has probable cause to believe the suspect is dangerous. (This is one reason why former officer Potter got herself in serious legal trouble with Wright’s death.)

  • The police can perform any search — including of a car, a home or a cell phone — with permission. So, if a cop asks if it’s okay to take a look around and the individual being questioned says “yes,” that person may have consented to the search and waived her Fourth Amendment protections.

  • Otherwise, in general, the police need a warrant from a judge to perform a search. The Fourth Amendment is explicit about this: “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things . . .”

During my first-year law school class on Wednesday, I ran through these basics with my students, figuring that their friends and family members might ask about the ground rules for police in light of current events. One student happens to also be a law enforcement officer. She explained that in all her police training, only one day was spent on the meaning of excessive force. By contrast, she noted, it was regularly drilled into police trainees that, once on the job, they might not make it home one night. The student noted that, as a consequence, she developed a fear that took a while to overcome as a police officer. 

Floyd, Navario and Wright — all men of color — likewise had good reason to fear encounters involving the police. The fact that they were out-weaponed and possibly out-informed on the governing law cannot be overlooked in drawing conclusions about policing in America.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.

Tags Caron Nazario Chauvin trial Daunte Wright Daunte Wright protests Derek Chauvin Floyd protests Fourth Amendment George Floyd George Floyd death Law enforcement Miranda warning search and seizures

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