George Floyd Protests Test the Law

who developed the theory of intersectionality. Is this unrest a reaction to George Floyd's death or was it a combination of things coming together? Well, I think it's clear that it was a combination of many things coming together. There of course, had been many deaths since the last moment of civil unrest over police killing of black people. Um, and that's just been again a study beat. It hasn't

been at all arrested since the last major uprising. And then one has to also take into account that the killing that that prompted all of this caught on video, particularly egregious, particularly statistic comes on the heels of a vigilante style of slaying that happened in Georgia, and the killing also of a black woman, Brianna Taylor in her

bed uh, in her own home. So I think it was a sort of the constant reminder of the procarity of black life and that uh, it's simply amplifying the fact that black lives were being lost by COVID UM, thousands upon thousands of Black lives being lost to COVID, And the overall impression, UH, at least coming from the White House, if not more broadly for many UM governors, and it seems more broadly from the community at large, is that this loss of life is not particularly significant.

So I think the frustration building up around the constant messaging that your lives really don't matter UM was a tinder box waiting to happen. Are you surprised at the extent of the reaction, not only in this country but worldwide? Not having lived through now two other moments in history where there's been broad UM reaction. I think that some part of the strength of this lene and the depth of it is because they're they're sort of a recognition

that there's the moment of outrage. There's protests, there's promises that something is going to happen, and then nothing happens, I mean literally very little happy ends, and then other avenues are are shut off. UM. I think, at least in in the minds of many people here in the United States, peaceful protests taken up by UH Kaepernick, for example, UM the football player resulted in him being um actually unable to do his job, being uh verbally assaulted by

the President of the United States. So the message seems to be not that there's a proper way and an improper way. There is no way to actually protest and create the meaningful avenue towards change. And I think that messaging is the one that is so completely, um debilitating, so frustrating that it it generates UM sort of mass outrage and the desire to demand a different outcome. This time, we saw some police kneeling in solidarity with the protesters,

and we saw violent confrontations in other places. How should police and government leaders be handling this? Is there any right way to handle this? Well? I was very impressed by some of the performances that I saw by police officials and in fact some police I saw a clip from Houston where the chiefs of police there has offered to escort UM George Floyd's body back to Houston. I think that is utterly unprecedented. UM the police chief UH in UH Minneapolis taking off his hat in speaking UH

to the family. Now, many people will say that these are symbolic, and they are indeed symbolic. They will point out that there are ways that even these police chiefs UM could do more and maybe constrained from doing more, given the structural realities that we have a highly militarized UH police force across the country, and many constraints that might otherwise be placed on them have been removed or not are not actually actionable because of law, Supreme Court doctrine,

and politics. So the structural dimensions of racialized policing are still a problem. But these symbolic gestures, I think are cracks in the blue wall. They are acknowledgements that what we saw there was utterly inhumane, completely and totally inexcusable, and reflection of what police officers are able to do or feeling hour to do when of the death of black people in the last five years UM have resulted

in no charges against the police officers. So a symbolic crack is an important moment, an important recognition that there is something that's too much. Now, the fact that that something is something like this con on tape UM and that's so vicious doesn't say a lot, But the fact that it's meaningful that they did it says a lot. So I think that's good. My worry at this moment, frankly, is that the UH media UM engagement with the protests, of focusing exclusively pretty much UM at this point, it

seems on the violence. UH undermines these symbolic moments, and it undermines the the fact that the vast majority of people protesting our protesters, to to say, the protesters and looters are one and the same, UH is the same kind of group logic and group punishment that contributes to precisely the kinds of things that the protesters are protesting against.

So now the question is whether the media can break out of the cycle of of of focusing on the fires and the sirens and not at least trying to balance that with attention given to the demands of the protesters and the possibilities of resolving this through de escalation as opposed to um the siren UH, the literal siren and the metaphoric siren that we're seeing in the coverage right now. I want to turn to the charges for

a moment. So we see now this video, and most people look at this and say, this is an open and shut case for the police officer to be convicted. However, we see that before, and it's it's rare that a police officer gets convicted in these circumstances. Yes, it is rare.

UM when need only go back to the last the time that UM there was UH controversial UH acquittal, and that was you know, the Rodney King UH acquittal, when there was an there was video tape of basically a gang beating of Rodney King, and many people, I was among them, I thought that this was going to come out differently because so many times they conflict was over what actually happened. So there's a long history of black

UH witnesses not being believed. It used to be a matter of law, the black witnesses couldn't even testify against white people. We had the echoes of that in contemporary UH court cases against police officers. But a lot of people thought this is on tape, So we cannot lose here. And I think some part of the outrage was, my God, even when it's on tape, even when you can see um uh, police officers swarming a black man, um who's prone on the ground and beating him senseless, potentially even

killing him, we still can't get a conviction. And I think what a lot of folks don't really understand is how it happened. And one of the ways it happened was that the defense attorney said, um, you show us the in the still picture where the force became excessive. It only becomes excessive when Rodney King complies. And because Rodney kinging is trying to shield himself from the blows, there's no moment in which he's prone, still complying with

the police officers. This is another reason by so many chokeholds um did not result in a conviction, even when the chokeholds killed the person, Because when you're when you're dying and your body is dying, it flails, it moves, it tries to breathe. And again they were able to say, well, the person is not compliant, so he can, uh, the

officer can continue applying the force. The thing that's different about this video is that it is abundantly clear that the officer continues to apply the force after after George Floyd is no longer responsive a full two minutes after, so some of the controversy about the charges. At that point, it becomes clear that this officer is intending to inflict maximum harm on him and it should be up to the jury to decide whether that intention is enough to

justify a murder conviction. I, for one, the family, the attorneys, many people think that, uh, a charge can be made out. And let me just point out one of the things that happens in the criminal justice system all the time is that people are the prosecutor's charge and they also include lesser charges and leave it up to the jury to decide if that's sufficient for ordinary um criminal um defendants. Why is that not sufficient, uh for this police officer

and the rest of them? I might add, So you think that it should have been a higher charge than third degree murder. I think that he could have charged for all and leave it to the jury to decide. I do understand, and this makes sense to a lot of people. They really need to get a conviction. They really need to get a conviction so there's reason to to worry that sometimes juries might react to what they

perceive as an overcharge, leading to an acquittal. So some of my colleagues are saying that this, in fact is the safest bet, and I agree that it is safer, but I also think there's a symbolic dimension to actually denouncing what is seen. One has to recall as well that there's a police officer in Minnesota that was recently convicted of the same charge, and his act involved shooting

someone who apparently startled him. So it was a split second choice that was shown to be criminally negligent, and he was convicted. These are two different levels, though. What Chalmon did and what this officer did just seems to be incredibly different, and so the symbolic story of basically making these the same seems not to capture what it was that drives so many people, you know, to angry

protests when they saw that video. Let me ask you this, there are calls for the three other officers to be charged. Should they be charged equally or should they be charged as accessories? Well, I think minimally they should be charged as accessories, and I would not be opposed to them. Actually being charged along with Chamin. We have to remember that in our criminal justice system, there are many people serving many years for actions that they helped facilitate, even

though they didn't themselves do it. Felony murder, for example, is a commonly used way of accusing, prosecuting, and convicting everyone who's involved in a criminal enterprise, whether they were the ones that actually inflicted the fatal blow or shot the fatal bullet, are not um. So our criminal justice system recognizes that everyone is accountable and can be made accountable for an act that they helped facilitate. Look at that videotape. Two of the other officers were actually holding

him down. Another one was effectively keeping any other humanitarian aid at bay. How can they not be responsible? How can they be sitting in their homes safely at this moment when thousands of people um are in the streets and many people are being arrested. So one I have to remember that the point of charging is to denounce behavior that this society has a judge to be criminal

and immoral. I wonder if there is a defense out in that that George Floyd had underlying conditions and it was a combination of factors that led to his death, whether that will be something the defense can use to win another acquital here. I'm so glad you mentioned that, because one of the sub struggles in many of these cases is the choice of the corner to attribute the death of a person who's died at the hands at

least to underlying condition. And it's interesting there there's some evidence that one of the officers who tried to suggest that perhaps they were getting into the territory of this excited delirium so that perhaps they should stop, seemed to be aware of this fact that they were moving into a terrain in which if they didn't do something, this person might die, and it would be kind of an open question as to whether this was a homicide for

which they were responsible. This is all to say that there's a whole system that allows this to continue, and part of that system is not to acknowledge that had this encounter not happened, then this person would not be dead. And that is in fact, one of the real eyebrow raising concerns of moving forward in this case and in

many of the others. That's Professor Kimberly Crenshaw of Columbia Law School, the Supreme Court rejected calls by churches in California and Illinois to block restrictions on worship services during the coronavirus outbreak, but the orders came in a closely

divided five to four decision. Joining me is. Richard Garnett, a professor at the University of Notre Dame Law School, tell us what the church was objecting to, sure well, UM, So this this particular UH litigation involving regulations of in person religious services, and of course we've seen lots of these all over the country. UM came out of California, and the church was objecting to what they saw, as you know, overly restrictive limits on again in person religious

service gatherings UM. And you know, litigation commenced, this being America, litigation usually does. And the church was seeking for what's called an injunction that as they wanted the court to stop UM the order that was in place UM limiting their in person services, and the federal courts out in California declined to do that. So things were moving kind of quickly on the ground because as as the church was asking the Supreme Court to step in and to

put a stop um to the to the restrictions. UM governor knewso uh came out with kind of a modified order. So under the current order, and we're speaking on Monday, UM, religious services that are in person are permitted, but they're limited in terms of the percentage capacity. I believe it's UM or to a hundred people, UM, whatever's whatever's greater. And so the church's argument to the Supreme Court was that, look, we want you to enjoy this policy of violence the

free exercise clause. And the reason it does is because it's it's discriminating against religious services. But if it's not treating in person religious services UM the same way as it's treating analogous secular activities. But the wrinkle here is is just um uh, what is it exactly that we should be comparing in person religious services to um so.

On the one side, and this is the church's argument, the claim is, look, UM, in person religious services should be treated just like say, grocery stores or factories or um restaurants and so on, which are which are currently allowed to be open under less restrictive rules in California.

And the state's argument was that, well, no, actually, religious services are more like you know, movies, or theater events or concerts or sporting events where you know, large numbers of people are congregating for extended periods of time and maybe singing, and so if you want to you know, the free exercise clause does it does ban discrimination? We agree, but um, uh there is no such discrimination happening here because religious services are being treated like the state says

similar things. So what split the justices? So coming out of Supreme Court, the the interesting thing to watch and this is what divided the justices, Um was you know, whether these in person religious services should be thought of as being uh more like grocery stores, are more like movies, and uh that's what That's what the Justice has divided on. But it is worth remembering, and some of the press

coverage didn't quite get this right. Uh, the Supreme Court didn't sort of carefully evaluate and decide that in fact,

the California rules are constitutional. Um. The Chief Justice Robberts was careful to emphasize that this is kind of an unusual pers fejural situation where you have a litigant who's trying to stop a policy that's in place before it's really been litigated, and that that's what you know an emergency injunction is and in situations like that, Um, the Court is reluctant to intervene too hastily, write the Court.

The Supreme Court, generally speaking, likes to have the facts developed a little bit more um through the normal course of litigation before it wags in. So it's entirely possible that UM Justice Kavanaughs dissenting opinion that that the California ruled is not permissible. That might well be what the Supreme Court would say eventually, or it might well be what the Court will say eventually. It's that's pretty much what another federal court UM in the Sixth Circuit has said.

So it would be a mistake, I think, for the governor of California or for anybody else to assume that the policy now has the kind of Supreme Courts constitutional blessing. Um. What happens instead, I think, is that the Court is taking seriously the fact that the facts on the ground are fluid and changing. And if this litigation continues, there could well come a day when when a federal court says, no, Um.

You know, temporary measures are one thing, but you can't indefinitely um place these kinds of limits on in person religious services. Because you know, our our First Amendment embodies a commitment to the idea that religious exercise is really important,

then it has to be treated um as such. And while of course I think all the justices agreed that, you know, stopping a pandemic and stopping the spread up virus is a very important government interest, I think everybody also agrees that we don't just switch off the constitution just because we're in a public health emergency. And so I think this litigation will continue, um. But but for now, the Court didn't want to uh step in and sort of second s the local officials without the benefit of

more fact development. Chief Justice Roberts said that judges must give elected officials wide latitude to make health and safety judgments during a pandemic. It seems to go further than just saying this is more like a movie theater than

a grocery store. Yeah. I think that's consistent with what I was saying, in the sense that um, uh, you know, some difference is appropriate, and that that provides a good reason for the Court not to swoop in and put a stay on the order before the regular litigation process has time to develop. The facts. I mean, I think I think it's a mistake. I don't think the Chief Justice means to say that, um, local officials can just invoke public health and then they get a blank check

that that's I think that's a misunderstanding of the Court's presidents. Um. You know, judicial reviews still exists even when we're talking about public health. But but certainly for the Chief Justice, and this is consistent with his jurisp students generally. UM, there's a sense that unelected federal judges here, he's sounding a lot like his his boss, Chief Justice rankuist Um.

Unelected federal judges should appropriately, um defer to local officials who are on the ground, who have closer access to the facts and so on. But I don't take the Chief Justice. I could be wrong, I would say, but I don't take the Chief Justice to be saying, you know, because of a virus, uh, the first Amendment is judicial review under the First Amendment is suspended. I think that would be a mistake. So how did he balance public

health and religious freedom and his decision? Well, again, the decision, I think what's doing the most work is not so much his sense of the balance, because I think he'd want to say it's not at this point in the procedure. Um, it's not really up to the court to kind of

on its own try to balance these competing things. I mean, certainly of dis exercise as a fundamental constitutional right and protecting public health is an important public um object for for the Chief Justice, though because of the unusual posture where you're seeking an emergency stay, I think his view was that's what makes some difference appropriate in a different

procedural context. So maybe a couple you know, weeks or maybe months from now, it might well be that the Court then have to say, well, wait a minute, it actually is up to us now to have to kind of on our own, use our independent judgment to decide whether the state in question, if it's California or somebody else,

has appropriately tailored the regulations. Um. Again, even in a time of a public health emergency, you know, restrictions on constitutional rights have to be justified, and um, even if defference is appropriate when you're talking about a request for an emergency injunction. Again, I'd be surprised if this opinion means that there's kind of a blank check too officials to indefinitely limit in person religious services, especially as they

start to open up, um more and more other services. Again, the first Amendment, you know, the free exercise right is not completely absolute, but it is fundamental and um uh. The Constitution allows religious services to be regulated under neutral laws, but it doesn't allow religious services to be treated worse than things that are similar. So eventually, I think the question of you know, again, what our religious services more like, uh,

would have to be litigated. But I think it's going to take a little more time to get a developed record on that point. And you'll see, you'll see you'll see disagreements among the court. So and we've we've seen that already. I mean the Ninth Circuit, which was the case that went up to the Supreme Court last week. Um, you know, they seem to lean in favor of comparing churches to theaters, and the six Circuits seemed a lean in favor of comparing them more to the grocery stores.

So we'll see how that plays out. Why do you think the Liberals joined in the majority but didn't sign on to Robert's opinion. I'm not sure. Yes, I guess I'm reluctant to read too much into it, because again, you know, this was um and a lot of people have I think missed this. This This wasn't the case that the court had accepted for review and actually decided

five four instead. Um, they didn't have to issue opinions at all, right they Justice Gagan received the request first day, and she referred it to her colleagues for a vote. And oftentimes these things are resolved without any opinion at all. It's just an order, you know, the motion the motions denied. Right, Um, this wasn't a request for um, what we call stertiary or review. Uh. If such a petition comes in at some point, we might well see the court grant because

it only takes four justices to grant. I don't read a whole lot into those justices not um uh not signing on It could be that, you know, because um, Justice Roberts usually agrees with those other four about religious freedom matters, that he felt the need to kind of explain and respond, uh to kind of publicly make it clear that, um, you know, he's he's on board with the importance of the of the free exercise of religion.

But um, anything else on my part is really just speculations as to why the other four didn't jore it didn't join, But again it's not unusual for justices to not join opinions that have to do only with orders. Do you think that his opinion gives enough guidance to lower courts about how to proceed in these matters? Now? Um? Well, I think it provides uh, some guidance or at least some clues for uh, how appellate courts are going to

treat reques for injunctions right emergency injunctions. Um. I I don't think it's it ought to be seen as providing a blueprint blueprint, sorry, for how these cases should be regarded, um, resolved on the merits when they're presented, because again the justices don't just don't have the benefit really of the

usual course of litigation. And going forward, some lower courts probably probably will, but I suspect that you will see some, especially a pellet courts, kind of sounding a similar theme of you know, for now we're going to defer to local officials. But um, again, the facts are fluid, and these orders are changing, and there they vary from state to state and locality to locality, and as the as we learn more about the coronavirus, and as the nature

of the threat UM changes hopefully improves UM. I think the restrictions on in person religious services will will have to evolve and will have to be lifted, because again, religious services can't be treated worse than other similar activities. Thanks for being on Bloomberg Law. Rick. That's Richard Garnett, a professor at Notre Dame Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg

dot com slash podcast. I'm June Basso. This is Bloomberg