Reading a suspect their “Floyd Rights”
At the point of detainment, a police officer should make a declaration of rights to the detainee, in substance, as follows:
"You have the right to be treated with dignity, respect, and without injury at all times. It is my duty to ensure you are not harmed. I will not use force unless it is absolutely necessary. If the use of force is necessary, only the very minimum force will be used and excessive force will never be used.”
A Call for “Floyd Rights”
Law Mandating that All Police Protect Human Dignity During Detainment and Arrest
The physical act of taking a suspect into custody is a moment of extreme vulnerability, fear, and uncertainty for many people in America. The general concept of human rights refers to rights and values that are universal, inalienable, and inherent to all people. The right to liberty and security of the person, as enshrined in the Fourth Amendment of the U.S. Constitution, is infringed upon when persons are arrested and detained by the police.
"Floyd Rights" are rights that attach to a suspect at the moment the right to liberty and security of the person is infringed upon by the police. Police must observe and respect our fundamental rights. If our rights are clearly defined and easily understood, this ensures their protection. Miranda is an example of this. When our "Miranda Rights" were carved out by the U.S. Supreme Court in 1966, every officer in this country had to police in a manner that did not violate these rights.
Floyd Rights are to be orally conveyed to a suspect immediately prior to the act of police detainment, or immediately following the act of detainment if dangerous exigencies exist requiring immediate police protocol to prevent imminent, serious physical harm to the suspect or third parties.
Floyd Rights are designed to reframe the way police act toward a suspect prior to the deprivation of an individual's Fourth Amendment rights. Calmly conveying orally to a suspect their "Floyd Rights" is a mechanism for increased transparency, de-escalation, and providing police services in a constitutionally lawful and morally upright way.
At the point of detainment, a police officer should make a declaration of rights to the detainee, in substance, as follows: “You have the right to be treated with dignity at all times. It is my duty to ensure you are not harmed. I will not use force unless it is absolutely necessary. If the use of force is necessary, only the very minimum force will be used and excessive force will never be used unless strictly necessary to protect you or others from serious physical harm.”
In particular, Floyd Rights seeks the following substantive changes of law at the federal, state, and municipal levels:
1. At the time of arrest, the police must orally inform the arrested person, of:
(a) the reason for the person’s arrest;
(b) the person’s right to be treated with dignity, respect and without injury at all times during the arrest and detainment process;
(c) the person’s right to be detained without the use of force by voluntarily consenting to detainment. Explaining that only the minimum force necessary to achieve the lawful objective will be used and that the use of excessive force will never be used.
(d) the person’s right to notify a family member or another appropriate person and their counsel;
(e) the person's right to have any disclosed or objectively apparent physical or psychological condition reasonably accommodated when required to prevent injury during the detainment process; and
(f) the right to access water.
2. Suppose the person to be arrested is a juvenile. In that case, the police must undertake reasonable efforts to ascertain and contact the juvenile's parents, guardians, custodians, or another appropriate person of the juvenile's imminent arrest and the nature of the alleged offense.
3. Whenever police use force in the process of an arrest, the arresting officer must document the use of force undertaken and all efforts utilized by the arresting officer to de-escalate the use of force.
4. Police may use force only when it is absolutely and strictly necessary and the use of force must always be proportionate to the lawful objective pursued. The means of force employed may never be more than is strictly necessary to achieve the lawful objective.
5. In the performance of their duties, police officers must respect and protect human dignity and maintain and uphold the human rights of all persons.
Questions & Answers
What are Floyd Rights?
Most people are familiar with Miranda Rights. Floyd Rights are fundamental rights that apply when people in America are detained or arrested by police, which is that moment our rights to liberty and security of our person are infringed. Floyd Rights require the police to inform us at the moment of detainment: “You have the right to be treated with dignity, respect and without injury at all times. It is my duty as an officer of the law to ensure that no harm comes to you. I will only use the very minimum force necessary and excessive force will never be used unless absolutely necessary to protect you or others from imminent physical harm. Any disclosed physical or psychological condition will be accommodated.”
Why are Floyd Rights important?
The physical act of being taken into custody by the police is a moment of extreme vulnerability, fear, and uncertainty for many people in America. Police must observe and respect our fundamental rights. If our rights are clearly defined and easily understood, this ensures their protection. Floyd Rights curtail the use of police force and police force cannot be used unless absolutely and strictly necessary and the means of force employed may not be more than is strictly necessary to achieve the lawful objective. Also, the act of informing a suspect of their rights and safeguarding those rights at the point of detainment operates to naturally de-escalate high tension situations and, thereby, curtail the use of force by police officers.
Do Floyd Rights seek to raise the legal standard when police can use force?
Yes. In most jurisdictions in the U.S., officers may use extreme force, including deadly force, so long as it is objectively reasonable to do so in the circumstances of each case. In addition to defaulting to the officer’s subjective judgments and reasoning, the reasonableness standard is vague and opaque. When an officer forms the belief that they are in imminent danger they are likely to believe that excessive or deadly force is justified under both the law and training. These police decisions are guided by intuitions that are influenced by factors such as race and place that often shape an officer’s interpretation of danger and bias their decisions to use excessive or deadly force.
Will the “strictly necessary” standard limit the use of force by the police?
Yes. The strictly necessary standard requires police officers to exhaust all alternatives before escalating the use of force. This would shift the legal standard so that if an officer is perceiving a threat and there are alternatives to using excessive force, the officer must use those alternatives first. The strictly necessary standard applies to all use of force by the police, not just the use of lethal force.
Is the strictly necessary standard used in other parts of the world?
Yes. Most European countries conform to the European Convention on Human Rights, which allows police to use force only when it is "absolutely necessary."
Doesn’t the new “California Act to Save Lives” law follow the strictly necessary standard?
No. On August 19, 2020, Governor Newson signed into law The California Act to Save Lives, or AB 392. The new law updates California’s long-standing use-of-force statute, which has been on the books since 1872. Although the new law raises the legal standard allowing California police to use deadly force only when “necessary”, the new law fails to define the term “necessary” and instead uses a sophistry stating that an “officer is justified in using deadly force . . . when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary.” As such, even though the new law alleges a necessary standard, that necessary standard is informed by the reasonable officer standard. Furthermore, the California law does not require an officer to exhaust all other alternative measures before using deadly force. In addition, the California Act to Save Lives only heightens the legal standard as it relates to the police’s use of deadly force. Floyd Rights seeks to raise the threshold on any and all use of police force -- lethal or otherwise -- to the strictly necessary standard.
Does the “The George Floyd Justice in Policing Act” follow the strictly necessary standard?
Yes and No. Yes, as it relates to the police use of lethal force only. However, the House passage of the bill does not have sufficient Senate support, or Executive branch support, to become law. On June 26, 2020, The George Floyd Justice in Policing Act, or H.R. 7120, was passed by the Democratic-controlled chamber and mainly along party lines in a 236-181 vote. The bill would, among other things, ban police officers’ use of chokeholds and no-knock warrants, limit legal protections currently provided to law enforcement officials, develop a national standard for the use of force and create a national registry to track police misconduct; require that deadly force be used only as a last resort and requires officers to employ de-escalation techniques first, and changes the standard to evaluate whether law enforcement use of deadly force was justified from whether the force was “reasonable” to whether the force was “necessary.”
Immediately after the bill was passed, the Trump Administration issued a public Statement opposing the House passage of H.R. 7120, the George Floyd Justice in Policing Act of 2020.
What is Floydrights.org?
Floydrights.org is a nonprofit established in Boulder, Colorado. Floydrights.org’s mission is to effectuate substantive legal change at the federal, state and municipal levels through scholarship, research and legislative lobbying efforts designed to achieve a human-rights-first policing framework that promotes human dignity and the sanctity of life, while, at the same time, rebuilding the public’s trust in the police.