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No defense for the indefensible

Demonstrators protest in Centennial Olympic Park, Friday, May 29, 2020 in Atlanta. Protests were organized in cities around the United States following the death of George Floyd during an arrest in Minneapolis. (AP Photo/Mike Stewart)


Do you think it’s enough? 

I don’t. 

They killed him. They killed him in cold blood. It was the apotheosis of brutality, and the peak of shame. But it was not an aberration, not an absurd deviation from the normal. What happened to George Floyd happened by design, intentionally, carefully. 

At the time of writing this, Derek Chauvin, the officer who placed his knee on the neck of a defenseless, unarmed black man—a clear, visceral, material rending of the way whiteness suffocates black bodies in America and across the world—has been charged with third degree murder. In Minnesota, third degree murder primarily constitutes depraved-heart murder, in which there is an actus reus, a violent and criminal act that directly causes death, but no clear mens rea, or explicit mental drive to kill. This distinction is generally intended to differentiate between premeditated murder and a murder that occurs primarily by circumstance (as in, the comission of another crime, violent assault, kidnapping, etc in which the victim dies). 

Within the parameters of Minnesota criminal law, and within the justice system as it stands, this is the highest charge that prosecutors can level against Derek Chauvin. This is the right charge to be leveled against him in the context of the law as it stands

But I believe there is a failure here, a failure that the law cannot adequately speak to because of its very foundation in often obfuscatory classically liberal assumptions. In this sense, the law can serve justice only to an extent, in a mutilated way, in a way that does not accurately consider the extremity of the circumstances at hand. 

I have said that the murder of George Floyd was intentional. But I have also said that the highest charge that can be leveled against Chauvin is one of a depraved heart.

The central issue here is that the law is concerned with Chauvin’s heart, his character, his mental state, his person. It is concerned with who he is, or was, when he murdered George Floyd. It locates the weight of justice on him as a subject divorced from his surroundings, his context, his personhood as it relates to his day to day activities, his social position, his power. There was no intent to kill because there was no clearly provable premeditated desire in Chauvin’s heart, whatever that is supposed to mean, to directly cause Floyd’s death. It was an indifference to his suffering, a momentary callousness, so they charge.

This is inadequate because it is not Chauvin as just a person, as a flat, neutral subject, who killed George Floyd. It was Chauvin as a white police officer who killed George Floyd, a person who was put into a position of power in which he had been authorized, by the law, by the state, by the institution of American policing to wield power over life and death itself, and to use that power primarily, foundationally, to terrorize black communities. Yes, the charge is that Chauvin himself was indifferent to whether or not Floyd died. But it’s not as if Chauvin was a random civilian shooting a gun into a crowd, or an angry drunk who went too far in a fist fight. Chauvin was an officer of the state. Chauvin was part of an institution that possesses the power to sanction death. And he imagined he had impunity, the right, the freedom to be indifferent, to be callous, to be heinous. 

The reason I consider George Floyd’s murder intetional is because it occurred within a structure of power that conditioned and created Chauvin’s mens rea, created his mind. This is not an argument that the law can easily, or even possibly, accommodate. It is not something that is immediately clear when one is looking for the charged individual’s wrong-doing. 

What has to be considered in Chauvin as a cop, as a member of a police force, and what that means when considering the intentionality and culpability of the entire system of governance that structures itself on black suffering. 

Chauvin murdered George Floyd from a different kind of intentionality. An intention that isn’t seated in directly provable personal animus, or premeditated, planned thought. It is the intentionality of a system that produces subjects who are by design callous to the death of black folk, and who wield force with the intent of reifying that indifference. 

I am well-versed in the dynamics of right wing political organizing. I want to give a brief, oversimplified look into what sort of dynamics I believe are at play here. 

The goal of any powerful, long-lasting right wing movement, organization, or social body is to take individuals, who imagine themselves as aggrieved in some capacity, and actively render them into pieces of a collective whole, one that can operationalize power to invert their imagined aggrievedness. There is a collective social apparatus, an infrastructure of power, to which those individuals are bound. And there is an active transformation of identity that occurs when those individuals are bound to the corporate whole. They are made into particular kinds of individuals, particular kinds of actors, who can serve the interest of the social organ itself. 

Police officers are the individuals. Policing as an institution is the social body. And police are made to feel in constant danger. American courts have typically upheld the total discretion and impunity of police officers based on the assumption that police are a special kind of actor, one that is in siege. The culture of policing, and the ways in which police unions, spokespeople, etc, often frame policing is as a dangerous profession. Police are imagined to valiantly sacrifice their safety for the good of the community. 

What typically occurs then is that policing as an institution capitalizes on this danger officers are thought to put themselves in and responds by organizing them into a collective that seeks to circumvent that aggrievedness, that danger. They argue publicly, both in legal and popular spaces, that they have a right to commit violence as a form of self-defense. The work of the institution of policing is to right the imagined wrong of police officers’ being in harm’s way, and to correct that, by pushing for the right to kill, the right to harm, the right to dominate.

But who are they defending against? Criminals, they say. Criminals who are proto-typically imagined as black, and whose existence in the imagination is so inextricably linked to the idea of blackness in America that to posit any functional divorce is impossible. Racism is fundamentally at the core of this fear that exists, and police officers use the excuse of fear, which in and of itself is primarily hatred, to argue impunity for themselves. Cops reserve the right, because they imagine themselves, and the law equally imagines them, as heroes fighting against society’s villains. Of course criminality is applied to a number of other non-black bodies, but it is in blackness, as defined by American whitness, white power, and the evils of American institutions, that forms the core of this imagined criminality. And it is because blackness, while defining whiteness, while reifying its power, is always thought to be threatening toward it.

And so when individual cops are brought into the folds of policing as an institution, they are trained to exert that impunity. And they are trained to do so because it is the central goal of policing as an institution—to preserve the authority to kill, all in the name of defense against black folk. 

Indifference to black life and death becomes necessary for any cop who is well-ingrained into the institutional apparatus of policing. To be a part of the whole, to be the right kind of cop who can preserve the institution of policing, one has to be apathetic to black deaths. And by apathetic, I mean willing to go to extreme lengths to terrorize black communities, to exert power, and to kill if permitted to do so. 

In the case of Chauvin, I cannot prove whether or not he intentionally tried to kill George Floyd. But he did try and make him suffer. Death may not have been a direct consideration. But the systematic apathy for black life and the disdain officers hold for black bodies is intrinsic to the system of policing, and the inevitable end result of the indifference officers hold to black existence is that they exert their power, their control, their state-sanctioned strength to terrorize. 

This is all to say that perhaps Chauvin’s personal mens rea was not conditioned by a planned desire to explicitly kill. But his mens rea was conditioned by his position as an individual, part of a corporate whole, a system that intentionally renders cops indifferent, violent, powerful and racist, an amalgam of dispositions that by design leads to wide scale black death. 

So who is culpable? What is culpable? 

George Chauvin. But also, policing as an institution.

Justice does not stop at prosecuting one police officer. 

It begins by dismantling the institution of power that makes those officers.

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