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Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics.  Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject.  My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical.  If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading!  Happy watching!

 


George Floyd: The Few Bad Apples Dodge

Tagged Criminal Defence Blog

June 2, 2020

THE FEW BAD APPLES DODGE

Responding to claims of systemic racism within American policing, White House Security Advisor, Robert C. O’Brien said, “a few bad apples” are giving law enforcement a “terrible name”.  

Predictably, the “bad apples” metaphor has once again been trotted-out as a way of explaining the unscrupulous actions of a one or a few people within a group – in this case, the police. This is done to shield the rest of the group from being broad smeared with a tainted brush.  Of course, the statement “a few bad apples” is incomplete, for the whole statement goes “a few bad apples spoils the bunch”.  As written by James Downie of the Washington Post:

Anyone who’s followed debates over criminal justice and race in the United States is familiar with the “bad apples” dodge. Law-and-order conservatives lean on this excuse to explain away police abuse and shield American policing as a whole. It’s an unintentionally revealing choice of words, since the full idiom goes, “a few bad apples spoil the bunch.” 

https://www.washingtonpost.com/opinions/2020/05/31/time-toss-bad-apples-excuse/

As written by Andrew Cohen in a post titled “How a Few Bad Apples Spoil the Bunch”:

 It’s not just the “bad apples” within police departments who cause citizens to lose confidence and trust in their local police. It’s not just the cops who engage in discrimination or other forms of misconduct. It’s these “good apples,” too, the ones who obey the law, and the rules, but who countenance, excuse, justify, or defend the bad behavior of their friends and colleagues. So many “good apples” spend so much time defending the “bad apples” that it becomes hard to tell which apples are which.

https://www.themarshallproject.org/2017/09/27/how-bad-apples-spoil-the-whole-bunch

A POLICE CULTURE PROBLEM?

The killing of George Floyd by police in Minneapolis, Minnesota is an example of a couple of good (or at least better) apples, “spoiled” by the actions of a clearly bad apple. What the bad apples metaphor helps to illustrate is that there is culture problem in policing – not just in the United States, but in Canada and likely elsewhere.  

The culture problem is not merely caused by bad apples, it’s arguably also exacerbated by poor training of police who are not psychologically well equipped for the rigors of work that by necessity requires patience, common sense, intelligence and strong communication skills. 

By way of example, recently in Lethbridge, Alberta, police executed an armed takedown of a person who was clearly wearing a costume. As I have previously argued, this is an example where common sense left the brain of all of the cops involved.  

https://calgary-law.ca/blog/may-the-fourth-be-with-you-stormtroopers-day-in-lethbridge-alberta/

A few months ago, a police officer in Pelican Narrows, Ontario threatened to shoot and kill an indigenous man who was on his knees. 

https://calgary-law.ca/blog/more-than-just-an-utterance-differential-treatment-for-crimes-by-police/

These are just a couple examples, designed to show that Canada is not immune to arguably excessive use of force by police. 

In the Lethbridge example, the police justified their actions on public safety grounds, citing concerns for themselves, the costume wearer and the public.  That said, anybody who knows anything about a gun understands that drawing a firearm does not necessarily create a safer environment; for once it’s drawn, the trigger can be pulled.  Pushing somebody’s face into the pavement is certainly not safe for the person whose face is being mashed into concrete.  Placing a person in handcuffs and confining them is in no way safe for that person’s physical and psychological integrity.  To my mind, whenever the police engage the public with violence – especially the innocent public – they diminish the public’s confidence in the police service as whole. 

Real policing is not what we see in the movies, it’s a delicate interactive process that requires patience, common sense, intelligence and a respect for the people who law enforcement has taken an oath to serve and protect. 

POOR TRAINING?

Robert C. O’Brien not only commented about “bad apples”, he suggested that “there are cops that maybe don’t have the right training”.   This should give little or no comfort, for how can we have any confidence that poorly or insufficiently trained officers are in any way properly educated in use of force and de-escalation techniques?  Frankly, this Calgary criminal lawyer has serious concerns about poorly trained police being allowed to carry dangerous weapons (such as firearms). I have concerns that poorly trained police are tasked with the responsibility of deciding when somebody commits a crime. I have concerns that poorly trained police are permitted to physically engage members of the public with force. 

To my mind, feeble deflection attempts by persons such as Mr. O’Brien do little to change the culture, only the narrative. Apologists for State violence are dangerous because their words have the potential to marginalize the real victims.

ENTITLED VIOLENCE

While the Lethbridge example is one where citizens should be concerned about the hazy application of intelligence and common sense, what happened between the Minneapolis Police and George Floyd represents a horrific abdication of “sense” in every respect.  What the George Floyd video shows is more than just the horror of watching that poor man perish under the knee of a police officer in broad daylight, it shows a police service acting on the basis of what I call “entitled violence”. 

 

What I mean by “entitled violence” is that the people perpetrating it have all the hallmarks of believing they were legally permitted to do it.  To my mind, the video does not merely show the actions of a few bad apples, it is evidence of  a casual approach by police to using violence against a person in their custody. 

To highlight my point, watch the George Floyd video.

Officer Derek Chauvin casually kneeled on Floyd’s neck for upwards of 7 minutes; in three of the seven minutes Floyd was clearly unresponsive.  Look how entitled Chauvin appears as he kneels on Floyd.  When Floyd went unresponsive, he even appeared to double-down on his restraint maneuver (see video). 

 Casual Chauvin Entitled Violence Alberta criminal lawyers opinion

 

For at least some of the time while Chauvin was kneeling on Floyd’s neck, Officer J. Alexander Kueng knelt on Floyd’s legs. 

Kueng on legs Lethbridge criminal lawyers opinion

 

According to a news report, Officer Thomas K. Lane allegedly pointed a gun at Floyd.  

While all of this was happening, Officer Tou Thao held the onlooking public at bay while life seeped from Floyd’s body.  Look how casual Thao stands as he guards Chauvin from the pleading public.

 Thao guarding Calgary criminal lawyers opinion

 

Most important, there is no evidence that a single officer thought engage Chauvin with words  as simple as “that’s enough”.

GANG

A common definition for “gang” is a group of three or more people identified by a common name or sign who are engaged in criminal activity. In Canada, being a “party to an offence” means that the “party” aided, abetted or had an intention-in-common with the principle who committed the crime.  Applying the Floyd case, Chauvin is the principle, the rest of the police are parties.

Kueng (wearing a police uniform) potentially aided Chauvin by kneeling on Floyd’s legs. Thao (wearing a police uniform) clearly aided Chauvin by guarding him from the bystanders who pled for Floyd’s life.  Lane (wearing a police uniform) possibly aided Chauvin by threatening Floyd at gunpoint. None of Lane, Kueng or Thao did anything to stop the assault perpetrated by Chauvin (who was wearing a police uniform). 

It is noteworthy that the bystanders, behaving with simple common sense, were able to recognize the peril of the situation long before any of these allegedly trained police officers.  Indeed, using "common sense", all of us can clearly see that the knee-to-neck technique clearly placed Floyd in distress. Perhaps Minneapolis Mayor, Jacob Frey, said it best: “I believe what I saw and what I saw is wrong on every level.”

To my mind – and hypothesizing on the basis of Canadian law -- the police involved with George Floyd acted as group of three or more people (“a gang”) and therefore, are prosecutable for a crime.  Whether some or all are convicted must be decided by due process within the justice system.  The larger issue, however, concerns whether this event will result in sweeping changes within police departments across the United States and perhaps the world (including Canada). In my opinion, the police service in Canada is no less susceptible to these kinds of wrongs against the public. In Canada, I think some police officers must be thinking “but for the grace of God go I”.

CONCLUSION

Many will say that we can’t brush all police, from all jurisdictions with the brush of what happened in Minneapolis.  To some extent, this is true. However, in my view (and indeed the view of some Alberta criminal lawyers), until good cops start to defend the public from bad cops, and until police stop acting with entitled violence, there is a justifiable basis to broadly judge police departments across North America.  The problem is not merely with a few bad apples, the problem is that these bad apples are actually spoiling the bunch. To borrow a quote from Gabrielson v. Hindle, [1987] A.J. 1758:

 …police forces are given a very special niche in our society. They represent us in the protection of our property and our well-being from abuses and ravages of those who commit crime. They are given special powers and a corresponding standard of conduct is demanded of them. Police powers are to be used intelligently, fairly, and without rancour or favour. There are some rough people wandering around our country and the police must be alert to ensure that the appropriate measure of law enforcement is available to impose the will and requirement of the State upon such persons. It is for this reason that police are permitted to carry arms. They are selected for physical prowess. They are well trained in the use of weapons and martial arts and are provided with the best equipment, including highly and efficient communication systems. But notwithstanding all of these, good police work stems to a very large extent through the use of common sense and from gaining of, and retention of the respect of the public. 

So with all privileges go responsibility. 

Let me say that again, “with all privileges go responsibility”.

Remember, for every Derek Chauvin, there are thousands of cases of excessive use of force by police that have gone unreported, unidentified and un-redressed. 

 

David G. Chow


Calgary Criminal Lawyers | Cochrane Criminal Lawyers | Lethbridge Criminal Lawyers | Alberta Criminal Lawyers


This entry was tagged Criminal Defence Blog and posted on June 2, 2020


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