• Transcript
  • Show Notes

Elie Honig is joined by University of Alabama Law student Kyra Perkins. They discuss the lasting impact of the Chauvin trial, the recent announcement of DOJ’s pattern or practice investigations, and a vision of policing for the future. 

Join Elie every Monday and Wednesday on Third Degree for a discussion of the urgent legal news making the headlines. Third Degree takes on a bit of a different flavor on Fridays, when Elie speaks with a rotating slate of America’s most impressive law school students, exclusively for members of CAFE Insider. 

Third Degree is brought to you by CAFE Studios and the Vox Media Podcast Network. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio and Music Producer: Nat Weiner; Editorial Producer: Noa Azulai.

REFERENCES AND SUPPLEMENTAL MATERIALS:

  • “Attorney General Merrick B. Garland Announces Investigation of the City of Minneapolis, Minnesota, and the Minneapolis Police Department,” Department of Justice, 4/21/21
  • “Department of Justice Announces Investigation of the Louisville/Jefferson County Metro Government and Louisville Metro Police Department,” Department of Justice, 4/26/21
  • “Newark police: No officer fired a single shot in 2020, thanks to de-escalation program,” News12, 12/30/20
  • H.R.7120 – George Floyd Justice in Policing Act of 2020, 116th Congress (2019-2020)

Published April 30, 2021

Elie Honig:

From CAFE and the Vox Media Podcast Network, this is Third Degree, I’m Elie Honig. Welcome everybody to another of our Friday episodes. And I am joined today by our favorite Alabamian. Is that my saying that right? Kyra Perkins.

Kyra Perkins:

That is correct. Roll tide.

Elie Honig:

Are you known as Alabamians?

Kyra Perkins:

I am known as an Alabamian, born and raised.

Elie Honig:

I want to, first of all, thank you because you’re coming on in the midst of first year law school, final exams. Now, I remember this being a stressful time and people who haven’t gone to law school may not know that essentially your entire grade is based on final exams. I’m not trying to make you nervous here, Kira, but how are you feeling?

Kyra Perkins:

It’s interesting. I love my classes and I love being in law school, but there is something very stressful about knowing that my entire semester grade falls to a four-hour final that I will be taking this afternoon.

Elie Honig:

Well, you’re going to ACE it. I have 100% faith in you. I know you’re smart. I know you can adapt on the fly, so go kick this exam’s ass. Since the last time I spoke with you, we have had the conclusion of the Derek Chauvin trial in Minneapolis, and you and I spoke about it in the middle of the trial, your last time on. And so I want to ask you how you took the verdict and how it felt for you and what it means for you. Bigger picture as a young person, as a young Black woman, as a law student. Talk to me a bit about what it meant to you.

Kyra Perkins:

As a law student, I would say that it was a really important moment for me, for accountability. I think that we have become so desensitized to a lot of these issues because we’re so used to seeing police officers get off for various acts of brutality. And I think even more so as a Black woman, it gave me hope. It gave me a sense of pride in seeing somebody be held accountable. I will say that that was a little bittersweet, just because for me and a number of Black students, we were worried about police retaliation after this. I know that one of my older law student friends actually messaged us in a group message and said, “Does anybody need money for dinner to get dinner shipped to you because you were afraid to leave your house today?” And that’s just the reality of being a Black person in America. Seeing a officer be held accountable can still be a scary thing for us because you don’t know how other officers are going to react.

Kyra Perkins:

But I will say that it gave me a lot of hope in where our justice system is going. And I think that that’s something that I’m really trying to hold onto right now, which is faith in our justice system. As a law student that’s one thing I never want to lose.

Elie Honig:

It’s so interesting that reaction that you note, that you and some of your friends had that would never candidly have occurred to me, the idea, the fear of potential backlash. And I’m glad to hear you say that it gave you some hope. I think you and I agree, and I think virtually everybody agrees that while it was a very important moment and send an important signal to the world, it also does not mean that everything is fixed, far from it. And you and I have talked quite a bit about how things really can get better in a systematic way. And I think, look, it’s always the most pointed when you have an individual who’s been charged with such an abuse that it’s a crime, and to see that individual get justice and get convicted and get a verdict, I think is the pinnacle and the most important thing that we have to do.

Elie Honig:

And that one of the things about the Chauvin trial was it was such an extreme example. The manner of killing was so flagrant, was so right out there on videotape that if it had not resulted in a conviction, I think we all would be asking, where are we? And so I think a lot of people shared the reaction that you have. Now, let’s talk a bit about though how things can change beyond this, beyond this verdict and where this could lead and what are some other potential avenues for really systemic change. And to that note this week, we’ve learned that the justice department, the United States Department of Justice has now launched very quickly back-to-back to what we call pattern and practice investigations. These are investigations of entire police departments top to bottom, the two being Minneapolis, where of course, George Floyd was killed and Louisville where Brianna Taylor was killed.

Elie Honig:

So let me ask you this first Kira, so the Obama administration did a whole bunch of these pattern and practice investigations. The Trump administration essentially stopped doing them altogether, except for one limited one that they launched in Springfield, Massachusetts, and now the Biden administration has signaled that they intend to bring these back. But the pattern, if you look at the Obama and now Biden administrations is the pattern and practice investigations are chasing the highest profile police abuses, the highest profile police shootings. Under Obama, we had Ferguson Missouri following the Michael Brown killing. We had Chicago following Laquan McDonald. Now we’ve got Minneapolis, Louisville. Does it make sense? What does it say about us that this is the way we go about choosing? We, meaning our government, our DOJ goes about choosing where to focus its resources for systemic reform. Should we just be following where was the latest high profile shooting?

Kyra Perkins:

I think that that’s probably the, not the worst way to do it, but I don’t think that’s the smartest approach because what we end up having is for one, a government that publicly seems like they’re only trying to cover up on the backend or solve problems on the backend, which leads to Black people, having to be victims of police brutality and murder, in some instances, before anything is ever done. I believe in being proactive and not reactive. So I really think that we should actually start looking into the departments that maybe aren’t making the news, because at the end of the day, they may have a lot of practices that just did not make the news. And that’s really a big concern. It’s also the issue of having to have a victim before there is any action. And so in the case with Brianna Taylor, for example, we don’t know how many issues happened in Louisville before they started to do these pattern and practice investigations. I just think it’s a little too reactive and not proactive enough, if that makes sense.

Elie Honig:

No, it makes complete sense. I totally understand. I think it’s indisputable that this can’t be the optimal method. If you’re looking for the most bang for your buck. We only have so many resources at DOJ. You can’t do pattern and practice on every police department or even 10% of the police departments. You can only do maybe five or 10 a year as a practical matter. The Obama administration did a couple of dozen over the four years. There’s got to be a better way to identify the most troubled police departments because while one incident can certainly thrust an entire police department, right to center stage, there’s got to be wider ranging data that identifies the real more deeply corrupt and problematic police departments. I mean, I guarantee you that there are police departments out there that if you looked at the data, if you looked at the discriminatory application of stops and searches and frisks and arrests are way worse than the ones where we’ve chosen to follow high profile police shooting.

Elie Honig:

So I think DOJ would probably even concede that. I mean, it’s not at all a secret. They’re pretty transparent about the fact that they are following up on these high profile shootings. I mean, in the announcements that Merrick Garland made, he mentioned Brianna Taylor, he mentioned George Floyd. So that’s the one hand, but I do also think about it from the other hand, which is maybe there is some benefit to following wherever the most attention has landed. And that perhaps you rally more political support and that matters if people can say, well, that department has to have something seriously wrong because that’s the department we know from this story. And perhaps there’s also a symbolic statement behind it. Especially in those cases, by the way, where DOJ found itself unable or unwilling to charge. If you remember in the Ferguson case, DOJ investigated it and found that there was not a chargeable crime there, but I think they made an important statement by saying, however, we are going to dig in and they found some really serious problems within the Ferguson Police Department.

Elie Honig:

So what do you think of that? Do you see an argument for doing it this way for following the high profile incidents?

Kyra Perkins:

I see the argument that you’re making Elie and I do understand that. I think my biggest concern is that at the end of the day, we are going to be chasing the biggest stories. There’s a lot of lack of accountability that will happen. There’s a lot of police departments that will continue on with these practices with nobody investigating them. For example, like you said, with Ferguson while it’s great that they did do the investigation because charters couldn’t be brought, how long were those patterns and practices in place and how many minorities were victim to those practices before the investigation happened. Like you said, there’s not enough resources for us to investigate every police department, which is why I think that the best action would either be legislation on a federal or national scale, or just increasing the amount of time that police officers are in training.

Kyra Perkins:

I think from what I read the longest police training is 36 weeks. That’s less than a year. And then we’re putting them on the street to deal with violent crimes, mental health issues, and a lot of other things that they just have not had the training to be equipped with. And it leads to these situations.

Elie Honig:

Yeah. I know from experience, typically police training is about a half a year and it’s shocking. Look, they do the best they can, there’s no question, but I’ve been involved with academies and some of these kids really, I use the word kids colloquially, but they’re 23, 24 years old and they’re getting out of the academy and they’re carrying guns and on the streets. So I think anything that would increase even the way we think about police education longer-term, I think is important. And when you talk about these pattern and practice investigations, it’s important that people understand they are very resource intensive. They take a long time, we’re still working through some of the Obama era, what we call consent decrees, which is the agreement the police department ends up entering with DOJ. So the downside is they take forever, they are costly.

Elie Honig:

We can’t possibly even begin to hit the worst 10% of police departments from a federal level. But I will also tell you on the flip side, they do make a big difference. And the one I know about is Newark here in New Jersey, and I’ve actually been involved with the Newark consent decree on both ends. When I was at the AGs office, I was involved in some of the training and the review of policies. And we went from square one, we redid the use of force policy. When we started this around 2015, they weren’t using body cameras. A major metropolitan police department was not using body cameras. And so we made them do that. And I will tell you, I understand police culture, I think better than the average even prosecutor because of my time with the State where I did a lot of police stuff. I had to on multiple occasions, go up to the Newark Police Department and give a talk to the entire police department on how to use body cameras.

Elie Honig:

And I still remember doing that one because they had a huge chunk of the forest. I don’t think it was the whole Newark Police Department. Maybe it was just whoever was on duty that day. And I gave the talk in the arena where the Nets used to play basketball where the Devil’s play hockey, Prudential Center, big arena. And I stood on the floor and they sat on the seats and I had to give this talk and they didn’t like it. They didn’t want to hear it. They didn’t want to hear about having to wear body cameras. And why don’t you wear a camera at your job and that kind of stuff. But you know what, here we are years later and it’s completely normal and it’s completely accepted. So it’s a difficult process, but it really does pay dividends.

Elie Honig:

And I should say, and I’m proud of this. I mean, I had a fairly minor role in all this, but the Newark Police Department went the entire year of 2020 without firing a single shot in duty, not a single officer fired one bullet from their gun. Although I have to say sadly hours after new years on January 1st, 2021, they were involved in a fatal shooting. So you can’t celebrate anything. But I think the fact that Newark has come along slowly, but really in a tangible way is a credit to these pattern and practice investigations. And now I think it’s a good thing that DOJ is re-investing resources. Obviously more resources would be preferable. There’s a lot of focus on legislation now in particular, the George Floyd Justice and Policing Act, which is a piece of federal legislation that’s out there being debated.

Elie Honig:

And I chuckle because I don’t know what it’s going to take for the Democrats to ever get anything done. I mean, they finally win the White House. They win the House, they keep the House, they win the Senate and they still can’t get major legislation like this passed largely because of the Senate filibuster and they need 60 votes. Do you see any path here? Do you see any path legislatively, politically for the George Floyd Justice and Policing Act or anything like it to become the law of the land?

Kyra Perkins:

I think that based on the current setup we have in the Senate and the fact that there is only a slight majority for the Democrats, I really don’t. I wonder if there are certain concessions that could be made in the act in order to get it passed through the Senate. But I wonder if it makes sense to make those concessions because after all, if you can see too much, what is the point of even having the act at all? I hope that at some point the conservative senators do realize that this should not be a political issue. There should not be a situation where any officer’s allowed to take a life and cannot be held accountable for his actions or even worse, does not have to wear a body camera for example, so that those actions are not well-documented and recorded. I think that the likelihood just based on how the Senate is split right now with a very slight Democratic majority, I don’t necessarily see us getting this passed.

Kyra Perkins:

I feel that there may be some concessions that could be made to get it passed through the Senate, but I don’t know if it’s worth it to make those concessions at the end of the day, if you make too many concessions, are you actually going to end up solving the problem that you are trying to remedy at this point? I believe that unfortunately, this should not be a partisan issue. There should not be two sides on this issue. Americans, no matter what their career choice are, should be held accountable for their actions. And if you do something that is seen by the public as unjust, then you should be held accountable for that. And it should be documented. There is no reason that we are in 2021 and body cameras are not the normal for every officer in America. The fact that they can get away with some of these things because it’s not recorded and it’s not documented, should not be a partisan issue. Accountability and justice in America in 2021 should be the norm and it should not be a political discussion.

Elie Honig:

Body cameras are one that always blew my mind because as I said before, I spent a lot of time promoting and pushing and requiring them in New Jersey. And I used to say, why is this controversial? I mean, body cams protect good cops. I saw plenty of cases where cops were accused of doing things wrong and the body cam actually vindicated them and showed they did nothing wrong. So good cops should like body cameras, bad cops should not like them, which is all the more reason that all citizens and politicians should be in favor of body cameras. It is still shocking to me that body cameras are in any way controversial, especially when you see how important the evidence can be from not just the George Floyd case, but so many of the other cases that are out there now, I mean, otherwise we’d have unreliable witness testimony and people would remember it differently.

Elie Honig:

I mean, imagine the George Floyd case without any video, there was cell phone video too, but you would have disputes about how long Chauvin was on him. You would have disputes about where the knee was. I mean, it would have been a much different case, much more difficult to prosecute. So what pieces of legislation, what aspects of the George Floyd Policing Act do you think are most important? In other words, if you had to prioritize, if you were an aid on the Democratic side of the Senate and you were told, look, we’re only going to be able to get through a couple of these provisions, but you get to choose which ones, which provisions do you think, which potential reforms, legislatively do you think can make the biggest impact?

Kyra Perkins:

I think that there are really two that I would think are the most important here that is first and foremost, ending qualified immunity. That’s something that’s been in discussion for years at this point. I think it is very important that we end qualified immunity for police officers. But also I think one of the big things to me in this act is that it makes it easier to prosecute police officers accused of misconduct by lowering the legal standard from willfulness to recklessness. And anyone who has ever sat in a one L criminal law class knows that that difference from willfulness to recklessness is a very big deal. The lower standard makes it much easier to prosecute for crimes, especially in violence. Where, for example, with George Floyd, you’re on his neck, is that willful or is that reckless? When you have a recklessness standard, it’s a lot easier to have justice and accountability I believe. So those would be my two main suggestions. I think that qualified immunity should have been done away with for a very long time. And I think that lowering the standard for willfulness to recklessness is also very important.

Elie Honig:

Yeah. Those are two big ones. The lowering the standard is really interesting because the federal criminal violation that you can use to charge a cop who abuses his authority, it’s confusing because it’s called violation of civil rights, but it’s a criminal charge. Like you say, requires prosecutors to prove willfulness, which means the cop deprived another person of their constitutional rights. It’s technically the right to be free of unreasonable seizure when someone’s beaten or shot. It’s a little bit of a strange way to think about it, but that’s the technical way. Willfulness means you have to show that the cop knew what he was doing and knew that he was depriving someone of a right, which is crazy. You don’t have the court say, you don’t have to prove that the cop was thinking in constitutional terms. Like I now shall deprive you of your fourth amendment right. But you have to prove that the cop basically said, I’m going to intentionally deprive this person of his right to Liberty and to not be unduly harassed by the cops.

Elie Honig:

That is really hard to show. And it’s also out of step with what you normally have to show in most criminal cases, it’s a higher level and it’s a more specific level of intent than you would normally have to show. So lowering that to even just intentional or reckless, I think would make a big difference. And by the way, DOJ has passed on a lot of these cases over the years, they’ve found that they didn’t have enough to charge or they couldn’t meet the legal standard. From Michael Brown to Eric Garner, we’ll see if they decide to charge in the Chauvin case. I’m not sure it’s going to be necessary given what sentence he could get. But DOJ, a lot of times when they announce that they are now investigating a case, everyone goes hooray for the feds. And I can say that because I was a fed and everyone.

Elie Honig:

The feds are always seen as the good guys and the heroes, but you know what? A lot of times they don’t end up coming through with charges here. And they always will point to that statute and say, well, willful is too hard to meet. So that’s one. Qualified immunity is interesting. And I want to make sure people understand what this is and is not. Qualified immunity has nothing to do with criminal charges. I think people sometimes think that it sounds like it because the word immunity, well, if you’re immune, now, you can be charged if you’re a police officer. What qualified immunity means is police officers cannot be sued for money damages in their own personal capacity. So unless they do something, that’s just so far off the rails, that it doesn’t even count as being in the course of their employment.

Elie Honig:

So for example, the family of George Floyd cannot sue Derek Chauvin the individual, however, to some extent, it’s more academic than anything else because what do they do? They sue the city, they sue the police department. The family of George Floyd got a very large $27 million settlement that you’ll remember was announced right in the middle of jury selection. However, I think the argument for getting rid of qualified immunity is give the police the right incentives. They should be worried about their own bottom line, their own wallets. Is that essentially the argument that you’re onto?

Kyra Perkins:

I very much believe in deterrence. And at the end of the day, are we really deterring officers if they know that what they do will not cost them specifically? I think it’s an important deterrence.

Elie Honig:

I think that’s exactly the point of it is deterrence. I mean, the reality is people aren’t going to get rich from suing cops and most cops make modest salaries, but I think the idea is make it personal for the cops. I mean, look, of course, you can always get charged with a crime, but the idea of having civil liability, I think would be an additional deterrent. I do see the political angle there. I mean, police unions are vehemently against this. I will say that as prosecutors, we had qualified immunity as well. And I’ll tell you it was something we were thankful for. Because as a prosecutor, you do get sued quite a bit. A lot of times by people who you’ve charged and convicted and they’re in prison. And so they have nothing better to do than to sue you and claim that you targeted them and you surveilled them because you hate them and you do get these lawsuits. And you know that you’re largely covered if you’re just doing your job, unless you are again so far out of bounds that you can’t even be said to be on the job.

Elie Honig:

So qualified immunity, there are criticisms of it. But I think there is some necessity as well. And perhaps there’s ways to limit it, to protect people who are willing to do these jobs in the public and to not expose them to potential bankruptcy just based on lawsuits that oftentimes not always, but when you’re a prosecutor, oftentimes are frivolous. So that’s a controversial one. I do see there being politics behind that one. Well, Kira, thank you again for joining me, there’s really so much at stake right now. I do feel like this is a bit of a moment and an opportunity and I hope it doesn’t fade away. I feel like things fade so quickly from our memories. We have a mass shooting and everyone’s very intent on gun legislation for what, 24 or 48 hours? We have a big trial and a verdict that everyone’s paying attention to. And a lot of attention to the George Floyd Justice and Policing Act, and then we’re human beings and we move on.

Elie Honig:

So I don’t have any magic solutions, but I think it’s important that young people and people in schools continue to talk about these things and keep focus on them.

Kyra Perkins:

I wholeheartedly agree with you. I love having these discussions. I love being able to talk this out. Not only with you Elie, but with my friends and with my family. I think we are, like you said, in a very important moment in history where people are actually having these discussions, whether they’re actually in the law field or not. And it’s been a really cool thing to see the amount of friends that I have, who don’t know the law and they don’t follow politics, but they’ve been asking a lot of questions about what’s going on.

Elie Honig:

Yeah. And as it pertains to law students, now I do hope and believe that years from now, you will hear a generation, your generation, talking about how a defining moment for them was watching this trial happen while they were in law school. If you talk to people of my generation, a lot of people will tell you they made career choices because of 9/11, because of the impact that that had on them and the way it changed their view of the world. And I hope and think that this will be an event like that in the sense that it guides people and moves people to action for your generation. So Kira as always such a pleasure to talk with you, thank you for sharing your thoughts with us. Good luck with finals.

Kyra Perkins:

Thank you so much, Elie.

Elie Honig:

Thanks everyone for listening to this episode of Third Degree and check out our new episode coming Monday. As always send us your thoughts, questions or comments. [email protected] Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Eisenman, Chris Boylan, Sean Walsh, and Margot Maley.