The human rights challenges raised by the killing of George Floyd

By Agnes Leung

On 25 May 2020, George Floyd, a 46-year old black African-American man was arrested after being accused of counterfeiting US 20-dollar-note in Minnesota, the United States. While in police custody, a white police officer Derek Chauvin knelt on Floyd’s neck for a period of 8 minutes 46 seconds. Despite Floyd’s desperate call for help by yelling ‘I can’t breathe’, two other police officers aided and abetted by holding him down while another prevented the bystanders from intervening. 11 minutes later, Floyd was left unconscious and showed no sign of life. 

The murder of Floyd sparked widespread protests in the United States and around the globe, calling for racial equality, eradication of systemic racism, radical reform in the criminal justice system. The protests in relation to ‘Black Lives Matter’ Movement (the ‘Movement’) in the nation were largely peaceful at the early stage. In response to the demonstrations, law enforcement officers utilized rubber bullets, tear gas, pepper spray and even live ammunition to dispense and supress protests, contrary to the UN Guidance on Less Lethal Weapons (Request for the Convening of a Special Session on the Escalating Situation of Police Violence and Repression of Protests in the United States, 2020). Not only protestors, but also journalists and legal observers who attempted to report the situations were being attacked, detained and harassed with lethal or non-lethal weapon (United Nations and the Inter-American Commission for Human Rights, 2010).

Although Derek Chauvin has been convicted with all three counts of charges: second-degree murder, third-degree murder and second-degree manslaughter, it is fair to say that ‘the truth is that Derek Chauvin being held accountable for killing George Floyd is the exception — not the rule’ (Sharer, 2021). Systematic failure in the police system remains the root cause of use of excessive force by law enforcement officials. The George Floyd Justice in Policing Act of 2020 (the ‘Act’) has been enacted to end racial profiling, heighten police accountability for misconduct, and increase transparency by mandatory data collection and investigation into police use of force (U.S. House Judiciary Committee, n.d.).

This article argues how the murder of George Floyd unveils the fundamental deficiencies of the legal system in the United States which leads to the infringement of human rights contrary to international standards. 

Firstly, the author explores the extent of police brutality as seen from the death of George Floyd, which is caused by lack of police accountability for use of lethal force. The underlying root causes are the deficiencies in the legal system, including lack of federal statutory protection on such unlawful violence, the so-called ‘justifiable homicides’, ineffective common law and defence of qualified immunity provided to accused law enforcement officers. To a large extent, the Act would rectify this legal loop hole to ensure right to life to all. 

Secondly, this article investigates systemic racism in policing with reference to other high-profile, historical cases of police violence targeted against African-Americans. It is argued that the Act would improve transparency and accountability in police racism. 

Thirdly, the police’s indiscriminate and violent treatment of protestors in mass demonstrations pursuant to the Movement is illustrated. As explained later in the article, the police misconduct seriously infringes individuals’ right to freedom of peaceful assemblies and expression. The author opines that it is led by unregulated use of force in dispensing peaceful protests and militarization of law enforcement personnel. The proposed bills on the states would further deteriorate the degree of protection of human rights in this area of law. 

  1. Police brutality 

According to the International Covenant of Civil and Political Rights (the ‘ICCPR’) which was ratified by the United States in 1992, it is stated in Article 6 that: ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’ (Office of the United Nations High Commissioner for Human Rights, 1966).

Based on the video recordings of the events that occurred immediately prior to the death of George Floyd, which illustrate kneeling of the police officer on the neck of George Floyd for a period of more than 8 minutes, who lied defenceless and suffocated. Despite his desperate plead for aid, other police officers stood watching without providing any alleviation of Floyd’s suffering. The United States ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1994. As per the United Nations (the ‘UN’) Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ‘George Floyd’s killing clearly amounts to torture and arbitrary killing; two of the most serious violations of international human rights law’  (Venis, 2020) . The World Organisation Against Torture concurred that the acts of Derek Chauvin clearly amount to ‘intentional infliction of harm defined as torture’ (Jaquemet, 2020). 

Section 363 of the Act bans the use of chokeholds and carotid and similar excessive force at the federal level. After enactment of the Act, it would be deemed a criminal violation under federal civil rights law.  The section also prohibits the exercise of non-knock warrants in drug cases. The Act urges the states and local authorities to pass laws to comply with the said federal standards, and failure to do so would amount to loss of access to federal funding (U.S. House Judiciary Committee, n.d.). Although it is unclear whether it would prove effective as the states and local authorities spent about USD 120 billion whereas only USD 5 billion were spent by federal governments in 2018 (Collins, 2021). 

Lack of police accountability due to deficient legal framework in regulating the use of lethal force by law enforcement officers

As per General Comment No.6 to Article 6 of the ICCPR, the states shall ‘prevent arbitrary killing by their own security forces’ and such deprivation of lives by authorities is considered to be of ‘utmost gravity’ which shall be strictly controlled and limited by law (Office of the United Nations High Commissioner for Human Rights, 1982). Referring to the UN Basic Principles on the use of Force and Firearms by Law Enforcement Officials (the ‘Basic Principles’), officers can only carry out ‘intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life’ (Principle No. 9) (emphasis added). Pursuant to the international standard, lethal force can only be applied by officials as a last resort. 

  1. Lack of federal statutory guarantee 

Before the enactment of the Act, there is no federal statue governing the use of lethal force by law enforcement officials, and this area of law is determined by individual states and common law (Amnesty International, 2015, p. 17). According to Amnesty International USA, 50 states and Washington D.C. fail to comply with the international standards as above mentioned. Some states enacted laws with standards lower than that provided by the US constitution (Amnesty International, 2015, p. 2),while some even have no regulation on such police misconduct. For those states which laws have been enacted, the forms of the statutes vary substantially – some of them exist within a larger use of force statute, while the others are listed as ‘justifiable homicides’ (hereinafter called ‘Justifiable Homicides’) (Amnesty International, 2015, p. 21). 

According to the data provided by the Federal Bureau of Investigation (‘FBI’), law enforcement officers carried out 435 ‘Justifiable Homicides’ in 2016 (FBI’s Uniform Crime Reporting, 2016). There are potentially many more incidents that have not been voluntarily reported and homicides which are not classified as ‘justified’ etc (Amnesty International, 2015, p. 9). ‘Justifiable Homicides’ statutes (if any) and the common law in the US fail to comply with international laws.  

The Justifiable Homicides statutes fail to state the requirements of necessity and proportionality in exercising lethal force. Prior to enactment of the Act, only four states refer to other non-lethal forces prior to application of lethal violence. However, these states do not require non-lethal forces to be adopted first. Further, these laws tend to utilize permissive language instead of restrictive language. For instance, ‘a police officer may use force dangerous to human life to make a lawful arrest for committing or attempting to commit a felony, whenever he or she reasonably believes that force dangerous to human life is necessary to effect the arrest and that the person to be arrested is aware that a peace officer is attempting to arrest him or her’. (emphasis added) (Ibid, p.22) This statute does not even require the accused to act with reasonable belief as required by the common law which is shown in the following section. Section 196 of the California penal code legally authorizes homicide when: (1) it is necessarily committed in overcoming actual resistance to the execution of some legal process; or (2) in the obedience of judgment; or (3) it is necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest. 

  1. Ineffective common law protection 

The Supreme Court sets out the principles for determining the constitutionality regarding police use of deadly force in Tennessee v Garner (1985). The court ruled that ‘such force may not be used unless it is necessary to prevent the escape (of an unarmed felon) and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others’ (emphasis added) (Tennessee v. Garner, 1985). The decision laid down in Tennessee v Garner allows police to apply excessive force to prevent an escape where he has a probable cause to believe that the suspect has committed a crime in the past involving the infliction or threatened infliction of serious physical harm. It apparently falls below the threshold as required under Principle 9 of the Basic Principles regarding nature of the potential harm faced by the official – i.e. ‘imminent threat of death or serious injury’ or ‘grave threat to life’ (Office of the United Nations High Commissioner for Human Rights, 1990) (Amnesty International, 2015). 

In Graham v Connor (1989), it is held by the Supreme Court that in determining whether excessive force has been used by an officer, the court would consider ‘whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation’ (Graham v Connor, 1989). However, there is no single definition on the requirement of objective reasonableness and it is often based on the circumstances and impacted by the subjective interpretation of the police officer. According to the International Association of Chiefs of Police, the use of force is defined as the ‘amount of effort required by police to compel compliance by an unwilling subject’ (National Institute of Justice, 2020). It is further explained that due to the variations in circumstances, determination of the use of force applied can even be based on factors including the officer’s level of training or experience. The vague reasonableness test laid down in Graham v Connor allows police officers to apply lethal force on suspects in a discretionary manner, contrary to the international principles set down in the ICCPR and the Basic Principles. As there are states in the US and Washington D.C. that do not have state laws that regulate police use of lethal force, the courts in these states follow strictly the rulings of Tennessee v Garner and Graham v Connor which are out of date, ineffective and below international human rights standards. Implementation of a legal framework in the US that complies with ICCPR as early as possible is therefore of utmost importance.  

The Act imposes more stringent requirements in police use of lethal force at the national level. It requires that lethal force can only be applied when: (1) it is ‘necessary, as a last resort, to prevent imminent and serious bodily injury or death to the officer or another person’; (2) it ‘creates no substantial risk of injury to a third person’; and ‘reasonable alternatives to the use of the form of deadly force have been exhausted’. 

Most of the issues that arose from the common law have been resolved by the Act. In determining whether the use of force was justified, the court would consider whether the force was ‘necessary’ instead of whether it was ‘reasonable’ (U.S. House Judiciary Committee, n.d.). The police officer would also have to exhaust all other means before applying the deadly force as a last resort. With the implementation of the Act, the US legal framework regulating the use of lethal force by officials would become more in line with the international standards. 

  1. Defence of qualified immunity offered to accused law enforcement officials 

The ‘Blue Shield’ refers to the ‘legal rules and doctrines that promote and condone the police use of lethal force’ (Crusto, 2020, p. 20) which leads to protection to police officers from criminal liability when wrongly implementing excessive force on individuals, and it is necessary to eradicate such unfair legal framework from the police system in the US.

The principle of qualified immunity imposes an additional hurdle on victims to sue police officers for their misconduct. It is essential to consider the issue of qualified immunity against the backdrop of Article 26 of the ICCPR which guarantees that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’, meaning that no individual, including law enforcement agencies, can receive additional protection and privilege when violating the law. In addition to the rights such as presumption of innocence and right of self-defence which all individuals are entitled to, law enforcement officials are protected with an extra shield of qualified immunity. 

The defence of qualified immunity can be raised where an officer is sued for monetary damages for their alleged unlawful acts. Pursuant to Harlow v Fitzergald (1982), the doctrine of qualified immunity ‘protects state and local officials, including law enforcement officers, from individual liability unless the official violated a clearly established constitutional right’ (emphasis added) (National Conference of State Legislatures, 2021). In order for a person’s right to be ‘clearly established’, the court would consider ‘whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights’. This creates a vicious cycle that if the courts do not rule on the scope of the constitutional right first, the constitutional right will never become clearly established  (Harlow v. Fitzgerald, 1982) (Henderson, Camara, Schwartz, Colbert, 2021) , which means the defence of qualified immunity would stand in almost any circumstance. Additionally, if the defence of qualified immunity is successfully raised, the citizen is denied the right to stand trial as it is a pre-emptive procedural matter to be settled (Cornell Law School Legal Information Insitutute, n.d., p. 41). This definitely enables law enforcement individuals to have privilege over other citizens, which is contrary to the principle of equality for all. The doctrine of qualified immunity has been widely criticized for being a main contributory factor leading to lack of police accountability. 

In Screws v. United States (1985), a white male sheriff in Georgia beat a black male suspect to death after accusation of stealing a tire. The Supreme Court ruled that it is necessary to prove the accused’s specific intent to violate the victim’s federal or constitutional right  (Crusto, 2020, p. 37). This approach has been strictly followed by the lower courts. With such narrow interpretation, the court raised the burden of proof to the extent that it is almost impossible to prosecute law enforcement officials on a federal level for their wrongful acts in civil rights violations. 

Pursuant to the Act, defence of qualified immunity has been eliminated. As such, an officer who violates a victim’s constitutional right can no longer raise a defence based on the fact that he is acting in good faith or that the ‘defendant believed, reasonably or otherwise, that his or her conduct was lawful’ or the victim’s rights were not ‘clearly established’. This immensely increases police accountability for their unlawful acts. 

  1. Systemic racism in policing 

The author argues that in addition to the Blue Shield, law enforcement officials are further protected by the ‘Blue Code’ which is a ‘combination of a protective police culture and systemic racism that provides additional safeguards for police officers who use lethal force’ (Crusto, 2020, p. 59). 

The Movement has drawn the world again to the problem of systemic racism which is long-embedded in the police structure in the country. Historically, Blacks have been unfairly perceived as dangerous, uneducated and violent individuals who threaten social order. Police force as a disciplinary community cultivates solidarity and togetherness that tends to identify Black citizens as opponents. The culture of racial discrimination exists not only in historical American slavery, but even in law enforcement profession in modern times.  

With reference to a study conducted by Amnesty International USA (Amnesty International, 2015, p. 4), African-Americans are disproportionately killed by police when compared to other racial groups. While Black individuals consist of 13.2% of the American population, 24.2% died as a result of police use of firearms (Ibid. P.5) . In the violent death of George Floyd, it is noticeable that the three other officers were standing there watching and preventing bystanders from intervening. It is widely criticized that their behaviour ‘bespeaks a wall of everyday routine and indifference that has such profound cultural roots at this point that it’s not just unconscious bias’ (Pazzanese, 2020). One can relate to another large-scale shooting of Blacks that took place immediately after the occurrence of Hurricane Katrina, which is also known as the ‘Katrina Massacre’. Six African-American individuals who were unarmed, saw officials from New Orleans Police Department were chasing after and firing at them. Believing that the police officials were criminals trying to shoot them, they fled away from the direction of the police. Two victims died in the incident and only one victim was physically unharmed. None of the supposed suspects committed any crime. The New Orleans Police Department originally attempted to cover up the incident by falsely reporting that civilians fired on an officer and returned fire as a result. The police also fabricated evidence by planting a firearm at the scene.  The incidents of George Floyd and the Katrina Massacre demonstrate two main problems which lie in the American police system: (1) systemic racism against the Black community; and (2) ineffective internal investigation system on police misconduct. 

Article 26 of the ICCPR ensures that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’ and ‘the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race’. With reference to Article 2 of the International Convention on Elimination of All Forms of Racial Discrimination, the US is obliged, among others, to ‘uphold its duties to condemn racial discrimination in all its forms’, to ensure that national and local public authorities shall not practice racial discrimination and to take effective measures to review national and local policies in order to comply with such obligation. 

The Act introduces radical reform to the criminal justice system to eliminate the origins of systemic racism in police force. The law enforcement officials have been widely criticized for the lack of transparency of their misconduct. Databases that are currently available such as Mapping Police Violence are initiated by private groups (Collins, 2021) and there is no official governmental report issued to track how many lives are lost due to police brutality on racial basis (Amnesty International, 2015). In order to effectively identify trends of racist practices, it is necessary to establish a comprehensive database. The Act mandates states and local authorities to collect data to report on use of force by law enforcement agencies based on factors including victims’ race, gender, sex, disability etc (U.S. House Judiciary Committee, n.d.). 

Prior to the Act, section 242 of Title 18 of the United States Code makes it a crime ‘for a person acting under color of any law to wilfully deprive a person of a right or privilege protected by the Constitution or laws of the United States’ (emphasis added) (The United States Department of Justice, 2020). As such, the Act changes the mens rea standard of ‘wilfulness’ to that of ‘knowingness’ or ‘recklessness’. This effectively lowers the threshold to hold a police officer to be accountable for their racist actions. 

Furthermore, the Act grants new subpoena power to attorney general to investigate law enforcement agencies which are allegedly engaged in ‘pattern or practice’ violations at a state or local level (Collins, 2021). This will reduce the frequency of police misconduct which involve unconscious discrimination. 

  1. Police use of excessive force in dispensing peaceful demonstrations and media reporting 
  1. Unregulated police use of force in controlling protests 

The Movement sparked mass demonstrations nationally and globally seeking termination of systemic racism and achievement of racial equality. However, the practices and treatment adopted by these agencies in crowd control raise concern about violations of human rights law including the right to freedom of peaceful assembly and association as guaranteed under Article 21 and 22 of the ICCPR (Office of the United Nations High Commissioner for Human Rights, 1966); (Request for the Convening of a Special Session on the Escalating Situation of Police Violence and Repression of Protests in the United States, 2020). 

Unnecessary and disproportionate physical force and firearms were used by law enforcement officials in confronting the largely peaceful protests and demonstrations. Weapons arranging from chemical irritants, kinetic impact projectiles and arbitrary arrests and detentions were applied indiscriminately. The use of tear gas and pepper spray further intensified the matter due to the occurrence of COVID-19 crisis. 

During the protests following George Floyd’s death, media workers and journalists were targeted by law enforcement officials in order to prevent and obstruct their report. Article 19 of the ICCPR guarantees everyone’s right to freedom of opinion and expression (Office of the United Nations High Commissioner for Human Rights, 1966). As stated by the Human Rights Committee, ‘free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights’ (Human Rights Committee, the United Nations, 2011). While carrying out their duties, media representatives were targeted and attacked with chemical irritants, kinetic impact projectiles, arrests and detentions. There were even incidents recording journalists suffering serious injuries including being blinded after being shot (Amnesty International Ltd, 2020, p. 44). Journalists in Minnesota were being arrested for curfew violations despite receiving exemptions for conducting their duties (Ibid, p. 46). 

  1. Militarization of law enforcement officers 

There were substantial evidence which verified militarization of police during the largely peaceful protests (Amnesty International Ltd, 2020, p. 24). In response to these demonstrations, police officers were wearing riot gears with helmets and vests, and carrying shields and batons or even police dogs as the first resort (Ibid, P.23). Oftentimes, militarization of law enforcement officers in assemblies would create the atmosphere that confrontation and conflict is inevitable rather than easing the tension. As a result, it would escalate into intensified violence and disorder (Ibid, p. 24). 

On 1 June 2020, nearly 3000 heavily armed riot police dressed in military-style uniforms with no insignia, emblems or name badges were seen in Washington D.C. After investigation, it was verified that these law enforcement personnel composed of officers were from the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the US Department of Homeland Security and the Bureau of Prisons. At that time, there were already approximately 3000 National Guard troops locating at the federal district. These agents were seen to deploy excessive forces upon protestors and arbitrarily detain and arrest individuals. Military forces often receive limited training, experience and suitable equipment in crowd control and protest management (Ibid, p. 26). 

The National Institute of Justice provides guidelines to the use of force by means of a continuum which consists of officer presence, verbalization, empty-hand control, less-lethal methods and lethal force. Lethal force should only be employed ‘if a suspect poses a serious threat to the officer or another individual’ (National Institute of Justice, 2020). The adoption of excessive force by law enforcement personnel in dispensing the largely peaceful assemblies is obviously disproportionate and unnecessary and contradicts with the international human rights principles. 

Militarization of local law enforcement agencies were criticized as a result of the Law Enforcement Support Program (the ‘1033 Program’) through which the Department of Defence is authorized to transfer surplus property, including military grade equipment, to local enforcement agencies (Amnesty International Ltd, 2020, p. 26). With the implementation of Executive Order 13688 issued by President Obama in October 2015, prohibition and controlled equipment list was made, and acquisition process for controlled equipment was laid out. The 1033 Program has been revoked by the Executive Order issued by President Trump in 2017 (Ibid., p. 28). There is no doubt that militarization of the local law enforcement agencies led to the escalation of police violence as seen in the mass demonstrations of the Movement. 

Since May 2020, at least 93 bills have been introduced in 35 states which aim at suppressing street protests. For instance, the new laws in Florida include vague and broad definitions of ‘riot’, ‘mob intimidation’ and ‘obstruction’ which provide ‘excessive discretion to law enforcement authorities to intimidate and criminalize legitimate protest activities’ as stated by  Clément Voule, the Special Rapporteur on the rights to peaceful assembly and of association of the UN (Office of the United Nations High Commissioner for Human Rights, 2011). An accused can be immune from liability if the injury or death he or she caused ‘arose from’ conduct by someone ‘acting in furtherance of a riot’ (Ibid.) . These state laws which aim to suppress individuals from exercising their right to peaceful assemblies and association must be narrowly construed and applied only in limited circumstances. 

George Floyd’s death and the Movement reveal multiple pitfalls in human rights protection in the US contrary to the international standards as guaranteed under the ICCPR – i.e. right to life, right to peaceful demonstrations and expression. The author investigated deficiencies in the legal system and systemic racism as the ultimate causes of lack of police accountability for use of lethal force which eventually bring about result of unjustified police violence.  It is expected that the Act would improve transparency and accountability in applying such lethal force upon innocent citizens. 

The immediate aftermath of the killing of George Floyd resulted in mass protests of the Movement which highlighted police unreasonable suppression of peaceful demonstrations. More stringent internal guidelines have to be imposed in regulating actions of law enforcement agencies in demonstrations. Peaceful protests should not be restrained. Safety of journalists, medical teams and legal observers should be ensured. Local police, instead of military forces, shall be employed in crowd control as they are well-trained for such purposes. Regional law enforcement personnel should not be equipped with excess firearms and military resources. By ensuring individuals’ right to life, right of freedom of peaceful assemblies and of expression, it is aspired that we shall be one step closer in achieving our visions set out in the ICCPR. 

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Published by Impala Global

Our goal is to ensure that the global health and human rights implications of technology are considered to ensure an inclusive future.

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