Derek Chauvin
In this image from video, defendant, former Minneapolis police Officer Derek Chauvin, listens to verdicts at his trial for the 2020 death of George Floyd, Tuesday, April 20, 2021, at the Hennepin County Courthouse in Minneapolis, Minn. (Court TV via AP, Pool)

A Hennepin County jury convicted Derek Chauvin of two counts of murder and one count of manslaughter, rendering individual justice for George Floyd. The crime that the jury should have been able to consider and deliberate upon, however, is one that they had no jurisdiction to enforce—a crime against humanity, specifically, the crime of apartheid.

Derek Chauvin was tried in the courtroom, but the social order that produces Chauvins was not. The focus of the trial was on a specific time and place, rather than with the larger pattern of police violence against Black people. During his closing argument, Steve Schleicher of the prosecution team emphasized that the trial is “not a prosecution of the police,” but that of an officer “who doesn’t follow the rules, who doesn’t follow procedure, who doesn’t follow training, who ignores the policies of the department.”

The Blue Wall of Silence completely shattered during trial. Multiple police officers, including the police chief, testified that they believed what Chauvin did was improper and unauthorized. Lt. Johnny Mercil said, “We didn’t train this. This is not who we are.”

Schleicher’s strategy at closing was clear: to paint Chauvin as a rogue police officer to convince the jury to deny Chauvin the benefit of the doubt typically given to police officers on trial for use of excessive force. At the end of his closing, Schleicher drove his point home strongly: “This wasn’t policing,” he said. “This was murder.”

The strategy succeeded. Undoubtedly, the jury saw Chauvin, not as a police officer engaged in his official duties, but as a malicious individual who committed a terrible, unspeakable act.

The jury saw Chauvin’s actions through the eyes of George Floyd and the helpless bystanders who watched him being brutally tortured for an interminably long nine minutes. The jury empathized with the witnesses who emotionally broke down on the stand. They empathized with Charles MacMillan, a 61-year-old bystander, who sobbed uncontrollably as he expressed his sorrow that he could not save Floyd’s life.

In trials of police officers accused of illegal killings, the law requires courts and jurors to look at the killing from the police officer’s perspective. They are told to empathize and to put themselves in the officer’s shoes. In doing so, jurors are asked to see African Americans as lethal threats, as “super human,” as clear and present dangers.

Imagine the humiliation and psychic injury inflicted on Blacks when they are instructed to look at themselves through the perspective of a white police officer who brutalized or killed an African American. This time, however, Blacks were not forced to experience what W.E.B. Du Bois called that “peculiar sensation, this double-consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity.” This time, a racially diverse jury looked at the murder through African American eyes, and what they saw was the naked brutality of Chauvin’s cold-blooded murder of Floyd.

The Chauvin defense attempted, clumsily, to put black criminality on trial. Often that tactic succeeds. This time it did not.

While the prosecution’s strategy did succeed in producing individual justice, Schleicher, the prosecutor, was wrong to claim that what Chauvin did was “not policing.” It was. Chauvin was a rogue cop, but what he did was consistent with systematic racist policing throughout the nation.

If we view his actions through the lens of systemic racist policing, to call what he did murder and manslaughter is inadequate. The terms fail to capture the nature of his actions. Chauvin committed what in international criminal law is called an “atrocity crime”—a crime against humanity.

Three key features make the law governing crimes against humanity an appropriate frame to judge and analyze Chauvin’s murder of Floyd—and other police killings of Blacks. First, a crime against humanity under international law is one of such atrocity and severity that it violates what Professor David Luban calls “the core humanity that we all share.” A crime against humanity contains “only the worst things that people do to each other.” Second, it is a crime committed against victims because of their group membership rather than because of their individual traits or circumstances. And third, it is a crime that is part of a “widespread or systematic attack against any civilian population.”

In other words, a crime against humanity implicates the state, not just individual bad actors, in systemic abuse of power, in systemic infliction of violence and harm against civilians. In fact, misconduct may be criminal, but it is not a crime against humanity if the individual act cannot be linked to the broader “widespread or systematic attack.”

Understanding Floyd’s murder as a crime against humanity means locating it within a pervasive pattern of police brutality against African Americans nationwide. It means concluding that Chauvin’s actions were not the isolated actions of an individual bad actor, but were consistent with routine and normal police interactions with Blacks. To see Floyd’s murder as a crime against humanity, then, is about seeing it as an act of systemic racism.

Various acts such as murder, torture, or rape can be considered a crime against humanity under the Rome Statute of the International Criminal Court. But one specific act in particular aptly describes Chauvin’s murder of Floyd– what is called a “crime of apartheid,” defined in the statute as an inhumane act “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”

What is an example of an institutionalized regime of systematic domination of one racial group over another? I contend that systemic racism against Blacks in the United States going back to slavery is an example. One manifestation of that systemic racism is entrenched racial residential segregation throughout cities in the United States.

That system, entrenched racial segregation, lies at the core of everything that is wrong with Floyd’s murder. Chauvin did not just put his knee to Floyd’s neck in isolation. He did so in the context of racial segregation in Minneapolis. Floyd’s murder took place on the border between white and black neighborhoods in Minneapolis. When Chauvin put his knee to Floyd’s neck, he was policing the color line, making sure that the border between white and black remained firm and intact.

In fact, Professor Aya Gruber contends that what Chauvin did amounted to an act of “bluelining,” which she defines as the maintenance of “raced and classed spatial and social segregation through the threat and application of” police violence. Bluelining consists of police practices aimed at keeping Blacks in what Gruber calls their “spatial and social place.” In other words, confining Blacks to their segregated neighborhoods, to ensure they do not readily cross the border into privileged white neighborhoods. Bluelining is about “controlling race, space, and place” in order to maintain the racial status quo of white privilege and power and black subordination and powerlessness. In the language of crimes against humanity, bluelining is a means of maintaining a regime of systematic domination by one racial group over another racial group through widespread and systematic inhumane acts—a crime of apartheid. The fact that police killings occur more frequently in neighborhoods that are racially segregated further supports the claim that police violence against Blacks is part and parcel of deliberate bluelining.

Chauvin will not be tried in an international court for a crime of apartheid. But framing his murder of Floyd as a crime against humanity broadens the narrative beyond how the prosecution framed it during trial. It’s about clearly connecting racist policing and the persistence of racial segregation, so that we can transform policing rather than merely seeking individual accountability for individual police officers like Chauvin. The conviction of George Floyd’s murderer is not the end of a chapter; it signals the beginning in earnest of real police reform.

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Follow Reginald C. on Twitter @ReginaldOhLaw. Reginald C. Oh teaches Constitutional Law at the Cleveland-Marshall College of Law at Cleveland State University.