Memorial Day, 2020 | Part 2

Summary

Revisionist History: Memorial Day, 2020 | Part 2 - A Detailed Summary

Hosted by Pushkin Industries, "Revisionist History" with Malcolm Gladwell delves into the overlooked and misunderstood aspects of significant events. In the episode titled "Memorial Day, 2020 | Part 2," released on March 20, 2025, Gladwell re-examines the tragic death of George Floyd from the perspective of Thomas Lane, the first police officer to respond to the scene. This summary captures the episode’s key discussions, insights, and conclusions, enriched with notable quotes and timestamps for context.

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1. Setting the Scene: The Incident of May 31, 2020

[01:10]
Malcolm Gladwell opens the episode by recounting the events of Memorial Day night in Minneapolis. He introduces Thomas Lane, a rookie police officer who had been with the Minneapolis Police Department (MPD) for only four days at the time of George Floyd's death. The episode explores Lane's firsthand experience and his interactions with Officer Derek Chauvin during the arrest.

[01:31]
Gladwell describes the composition of the investigative team present that night: "Two investigators from the Minnesota Bureau of Criminal Apprehension, one FBI agent, two attorneys, and the first police officer to arrive at the scene, Thomas Lane."

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2. Thomas Lane’s Account of the Arrest

[02:09]
Thomas Lane details the circumstances leading up to George Floyd's restraint:
"We were dispatched to a forgery and progress report at the Tough Foods... He was still here, holding a bill... he’s in the car over there. Go get him before he drives off."

[02:55] & [03:09]
Lane and his partner, Alexander King, approach Floyd's Mercedes. Observing suspicious behavior, Lane directs Floyd to show his other hand. Floyd's reluctance and movement cause Lane to draw his gun, culminating in Chauvin stepping in with his knee on Floyd's neck.

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3. Mitigated Speech and Authority Dynamics

[07:28]
Gladwell introduces the concept of "mitigated speech" through Lane’s interaction with Chauvin:
"He has to be on his side. I just worry about the delirium or whatever."
This approach, where Lane softens his concerns, mirrors situations in other high-stakes environments where subordinates hesitate to challenge superiors, potentially leading to catastrophic outcomes.

[10:00]
Gladwell draws parallels to aviation incidents, illustrating how mitigated speech can prevent critical warnings from being heard, thereby exacerbating emergencies.

---

4. The Fat Tail Phenomenon in Policing

[15:04]
Through discussions with criminologist Andrew Papakristos, the episode delves into the "fat tail" distribution within police departments, where a small percentage of officers are responsible for a disproportionate number of misconducts.
"The distribution of complaints has a fat tail. Gerry Finnegan, recipient of a grand total of 175 complaints... Derek Chauvin needs to be stopped before he kills someone."

[19:03]
Gladwell emphasizes how removing these "bad apples" can prevent widespread issues:
"A few cops have a lot of complaints, but the majority have almost none."
This insight underscores the importance of targeted interventions rather than broad institutional reforms.

---

5. Internal Challenges: Police Unions and Accountability

[27:01]
The episode shifts focus to the role of police unions in protecting officers within the fat tail. Mayor Jacob Fry discusses the complexities of defunding the police and the entrenched power of unions:
"The raises were limited in exchange for giving over to the police federation quite a bit of managerial authority."

[29:03]
Daniel Oates, a seasoned police chief, provides a technical analysis of collective bargaining agreements that hinder the removal of problematic officers. He highlights the high rates of reinstatement following appeals, which undermines efforts to improve police culture: "In Minneapolis, in the years leading up to the death of George Floyd...the arbitration then overturns the decision that we made."

---

6. Systemic Impediments to Reform

[32:08]
Gladwell discusses the systemic barriers that prevent effective policing reforms. For instance,
"Many police union contracts are full of provisions that hamper internal investigations of wrongdoing."
This systemic protection allows officers like Derek Chauvin to remain unaccountable despite multiple complaints and incidents.

---

7. The Aftermath and Broader Implications

[25:38]
The episode concludes by reflecting on the widespread impact of Floyd's death:
"In the fevered days after Floyd died, there were hundreds of people on the streets of Minneapolis. Peaceful protests turned into riots and lootings."
Gladwell argues that addressing the fat tail could have prevented not only Floyd’s death but also the ensuing social unrest.

[35:15]
In his final analysis, Gladwell asserts that understanding and targeting the fat tail in policing is crucial for meaningful and effective reform:
"One bad apple can infect the whole barrel."
He advocates for systemic changes that focus on removing the most problematic officers to improve overall police culture and prevent tragedies.

---

8. Production Credits and Acknowledgments

Gladwell acknowledges the production team and contributors who supported the episode, highlighting the collaborative effort behind the insightful analysis presented.

---

Conclusion:
In "Memorial Day, 2020 | Part 2," Malcolm Gladwell meticulously dissects the tragic death of George Floyd by examining the interplay between individual actions and systemic structures within the police force. Through Thomas Lane’s perspective, the episode illuminates how entrenched power dynamics and protective mechanisms within police unions perpetuate misconduct. Gladwell's exploration of the fat tail phenomenon offers a nuanced understanding of policing challenges, advocating for focused reforms that target the root causes of systemic failure.

By weaving personal narratives with broader sociological concepts, Gladwell provides listeners with a comprehensive analysis that not only recounts the events of that fateful day but also encourages deeper reflection on institutional accountability and reform.

Transcript

[Unknown Speaker]

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[Malcolm Gladwell]

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[Thomas Lane]

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[Malcolm Gladwell]

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[Thomas Lane]

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[Malcolm Gladwell]

May 31, 2020 Six days after the death of George Floyd, a small group of people gather in a room somewhere in downtown Minneapolis.

[Investigator]

So, okay, so let's just. We're going to try to run this like we typically run these, right? I'm just going to identify everybody in the room here for the record. Okay?

[Malcolm Gladwell]

Two investigators from the Minnesota Bureau of Criminal Apprehension, one FBI agent, two attorneys, and the first police officer to arrive at the scene at the corner of 38th and Chicago that day, Thomas Lane. He's there to give a statement about what happened. If you've ever watched videos of the death of George Floyd, Lane is the tall one six, seven, right next to Derek Chauvin restraining Floyd's legs?

[Investigator]

I guess. Just tell us in your own words with as much detail as possible.

[Malcolm Gladwell]

What.

[Investigator]

Happened from your perspective.

[Thomas Lane]

Okay. We were dispatched to a forgery and progress report at the Tough Foods. I believe in the call notes, it said that the suspect was still on scene in a Mercedes. We drove to the call. We didn't activate our lights and sirens just because I believe we're relatively close. We got there and entered the building, entered Cub Boots of Business. There's a staff member there that said, you know, they're still here. He goes, he was holding a bill and he goes, they gave me this. It's a big 20. They're. He pointed across the street and they're like, he's. It's. He's in the car over there. You know, go get him before he drives off. So I said, you know, and he started walking out. And I was like, you know, just head back in. We'll take care of it.

[Malcolm Gladwell]

Lane and his partner, Alexander King, walk across the street to the parked Mercedes. There are two men in the front seats. Lane knocks on the window with his flashlight. The men turn and see the officers.

[Thomas Lane]

They've all started kind of digging underneath the seat. What looked like they were reaching for something. And I said that to King. I said, they're moving around quite a bit. As I was coming across the street, I walked up to the driver's side of the vehicle. I knocked on the glass, and the driver was sitting with his hand down below the seat, kind of leaning forward like this. And I said, let me see your other hand. And I directed them, let me see your other hand. He didn't do that. And he was just, you know, oh, it's not a big deal or whatever. And he kept his hand down there, and he just glanced back. So I took my gun out and, you know, and I said, let me see your. Your other hand. Put your hand up. Gave him commands to do that. I'm not sure how many. I think they gave a few. And I don't know why, but he quickly went like this, like, pulled his hand out real fast. And I kind of, like, took a step back and was like, jesus, you know, what are you doing?

[Malcolm Gladwell]

My name is Malcolm Gladwell. You're listening to Revisionist History, my podcast about things overlooked and misunderstood. This episode is part two of our examination of Derek Chauvin's murder of George Floyd. In this episode, I want to look at the case from a different perspective through the eyes of the first police officer to approach George Floyd. Thomas Lane, who at the time had been a fully fledged member of the Minneapolis Police department for only four days. May 25, 2020, was Memorial Day, a lovely Minneapolis summer evening. People are outside, walking about. It's just after 8pm When Lane and his partner pull up to the Cup Foods on the corner of 38th and Chicago. Lane pulls Floyd out of his car, handcuffs him, sits him on the sidewalk, takes his information, then walks Floyd over to the squad car and puts him in the back seat. Only Floyd doesn't want to get in the backseat, so Lane and his partner King try to force him into it. Then a second squad car pulls up. Derek Chauvin gets out. Floyd is struggling so much with Lane and King that he cuts his mouth badly enough that Lane calls an Ambulance Lane thinks Floyd is on drugs. He's acting erratically, and they found a glass pipe on him when they searched him. They decide to keep him restrained so he can't move or hurt himself anymore. They call EMS a second time and upgrade their request to code three. The most urgent level, life threatening, immediate response lights and sirens. So far, all of this is nothing out of the ordinary.

[Investigator]

So was there more to calling the paramedics than just checking his mouth?

[Thomas Lane]

I think that I had mentioned that, you know, this could be possibly excited delirium or something. Okay.

[Malcolm Gladwell]

Excited delirium is something that Lane must have learned about at the police academy. A state of extreme agitation, aggression and distress. It's not an officially recognized clinical diagnosis.

[Thomas Lane]

Listen, that was the other thing for stepping it up because he might be in medical distress.

[Investigator]

Were you getting a sense that Mr. Floyd was having a medical emergency? I mean, obviously hindsight, but at the.

[Thomas Lane]

Time, yeah, I felt maybe that something was going on.

[Investigator]

But you thought he was passing out?

[Thomas Lane]

Yeah.

[Malcolm Gladwell]

Chauvin puts his knee on Floyd's neck. Lane turns to Chauvin and shares his concern. This man's not doing well.

[Investigator]

And you articulated that.

[Thomas Lane]

Yeah.

[Malcolm Gladwell]

Okay.

[Investigator]

And. Well, how was that suggestion received by your partners?

[Thomas Lane]

They. No one. Yeah, they said just, this is fine. Said this is. We're just going to hold him here until EMS arrives. So I suggested, you know, with excited delirium, you know, maybe we should roll him on his side just to, you know, if he's like. I think it's something I previously learned at a previous job where he rolled on his side for a recovery position or something.

[Malcolm Gladwell]

In the video of the Floyd arrest, you can hear Lane make his case to Chauvin. He says, you want him on his side? Meaning should we roll him over so he can breathe?

[Thomas Lane]

I just worry about the delirium or whatever.

[Malcolm Gladwell]

You want him on his side? No, he's staying put where we got him. Okay. Just worry about the excited delirium or whatever. That's why we got the ambulance coming. Okay. I suppose. A minute later, Lane says, I think he's passing out. Meaning Floyd's in trouble. Let's get off him. Nothing happens. A minute after that, Lane says, once again, want to roll him on his side? As in, he shouldn't be on his stomach. Lane is trying to do the right thing. He understands the gravity of the situation. But the crucial thing here is the way Lane sets out to convince Shomin. He doesn't make a declarative statement. We should put him on his side. He has to be on his side. He asks a question, he softens it. Should we. Should we put him on his side? He mentions excited delirium. He's concerned about Floyd's safety. But he undercuts that concern with words that soften his alarm. I just worry about excited delirium or whatever. And then finally, after Chauvin shuts him down. Okay, I suppose. Passive aggressive agreement. Sociologists call this mitigated speech. One of the greatest causes of plane crashes for years was mitigated speech. In a cockpit. The first officer would see something dangerous and try to let the captain know. But he would do it in such a mitigated way that the captain wouldn't take the new information seriously. I wrote about one of those cases in my book Outliers. It involved a 1982 Air Florida flight out of Washington, D.C. it was a snowy day. The plane had been in line for takeoff for an unusually long time. And the first officer thinks the plane has a dangerous amount of ice on its wings and should go back for de icing. Listen to how he tries to convince his superior officer, the captain. Look how the ice is just hanging on this back. Back there. See that? The captain says nothing. The first officer tries again. See all those icicles on the back there and everything? The captain ignores him. The first officer tries a third time. The boy, this is a losing battle here. Trying to de ice those things gives you a false sense of security, that's all. That does nothing. The plane is inching to the front of the line. Let's check those wing tops again. Since we've been sitting here a while. The first officer starts with a hint. Look at that ice. Then a question. See those icicles? Then a suggestion. Let's check those wingtops. Each time he's removing one layer of mitigation, getting closer and closer to what is really on his mind, which is that he's terrified. But only at the very end does he finally get there. It's just after takeoff as the plane plunges into the Potomac. We're going down, Larry. And the captain says, I know it. Thomas Lane is in exactly the same position as that first officer on the plane. Both of them understand the gravity of the situation they're in. The plane has ice, the man on the ground is in trouble. But they have a superior who is fixated, who doesn't see what is happening, who is either incapable of processing any new information or doesn't want to. And neither of the subordinates feel they can just come out and say no because they're subordinates. The State investigator questioning Lane about what happened that Memorial Day picked up on this very thing.

[Investigator]

You obviously bring it up, so it's clearly something you're thinking about. What prevented you from just kind of taking charge of that and making the call.

[Thomas Lane]

I was basically going off Officer Chauvin's experience and what he was saying, like this is, we're gonna hold here until Ian. That's right.

[Malcolm Gladwell]

Lane had been a police officer for four days. Then he reveals another crucial fact. Listen.

[Investigator]

Well, you had contact with him before the state, correct?

[Malcolm Gladwell]

Him meaning Chauvin.

[Thomas Lane]

I. You want me to get into it?

[Malcolm Gladwell]

Yes.

[Thomas Lane]

Okay. So he was one of the other training officers in the precinct that I worked in. So I had interaction with Calvin before the incident, and he gave me guidance on how to handle certain calls.

[Malcolm Gladwell]

He had given me guidance on how to handle certain calls. He says, correct me if I'm wrong.

[Investigator]

But you sound like you used him as a resource during your 10 day evaluation.

[Thomas Lane]

Yeah, there was a few calls where I was with another training officer and he could give me advice on how to best handle the call situation.

[Malcolm Gladwell]

Thomas Lane's problem wasn't just that he had only been on the force for four days, that he was a rookie and chauvin was a 19 year veteran. It's that Lane knew Chauvin. He went to Chauvin for advice. How do you defy someone in that position?

[Capital One Bank Guy]

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[Malcolm Gladwell]

Not long ago, a retired Chicago police officer named Jerry Finnegan gave an interview to the Dog Walk podcast hosted by Eddie from Barstool Sports.

[Jerry Finnegan]

I mean, honestly, Eddie, I loved that job. There isn't a day that goes by I'm 61, and there's not a day that goes by that I say, fuck, I'd like to be out there, you know, fucking chasing these bad dudes.

[Malcolm Gladwell]

Finnegan is fit, close, cropped hair. I don't think a cop movie has ever been made that didn't include someone who looks and sounds just like Jerry Finnegan.

[Jerry Finnegan]

The fucking adrenaline was just incredible. And, you know, I used to say it was like you would have ringside tickets to the greatest show on earth.

[Malcolm Gladwell]

Eddie and Finnegan talked for almost an hour. Finnegan was promoting his new podcast, the magnificently titled Finnegan's Take Reminiscences from his years on the force. And at some point, Finnegan starts to speculate about why his path to promotion was so often blocked by his boss.

[Jerry Finnegan]

I didn't know it at the time, Eddie, but I had the most complaints in the city.

[Andrew Papakristos]

Is that why he next to you?

[Jerry Finnegan]

Probably, yeah. Yeah, probably.

[Malcolm Gladwell]

Wait. Chicago police officers are ranked by their complaints the way pop music singles are ranked on the Billboard charts. Yes, they are. The rankings are compiled by an organization called the Citizens Police Data Project. Their website consists of a searchable online database of 250,000 complaints lodged against members of the CPD from 1988 to 2018. And what you learn from looking at the list is that the distribution of problematic police officers within the Chicago Police Department is not uniform. Those quarter of a million complaints are not evenly sprinkled across all the many thousands of officers in the database. A few cops have a lot of complaints, but the majority have almost none. If you made a graph out of the whole Chicago Police Department, there would be a long low line stretching as far as the eye could see, hovering just above the horizontal axis until the very end when the line would suddenly jump. As the statisticians would say. The distribution of complaints has a fat tail. And who stands at the very fattest part of the tail? Gerry Finnegan, recipient of a grand total of 175 complaints.

[Andrew Papakristos]

Do you remember the day that you decide to go on the take, so to speak?

[Jerry Finnegan]

Yeah.

[Thomas Lane]

Can you get into that one?

[Jerry Finnegan]

Sure, sure. We came into a house in the 11th district, chased a guy in there with a gun and searching around, found some dope that was bagged up, kept searching and found a paper bag with money. There were about eight of us and took the money out of there and then split it up. And then, I don't know, was nervous about it, but after it was over, I was thinking, fuck it, it's dope money. I'm not taking it from, you know, your grandmother.

[Malcolm Gladwell]

Finnegan ended up doing 10 years in prison for tax evasion and planning a murder for hire plot against a fellow officer. He also cost the city over a million dollars in legal settlements, which, given his position as the Lex Luthor of rogue Chicago police officers, shouldn't be that much of a surprise. Problems with fat tails turn out to be everywhere. Here's another one. New York City has 2,500 automated cameras which in 2023 handed out 7 million speeding tickets. But are those tickets evenly distributed across all the city's drivers? No. There's a fat tail. There were 186 drivers who got more than 100 tickets in one year. That's an average of one ticket every three to four days. Super speeders. Most of us get a ticket and slow down. Next time, we take the hint. Not the super speeders. On average, that group of 186 each had $11,000 in unpaid traffic fines. In my last book, Revenge of the Tipping Point, I had a whole chapter on Covid. You know what Covid was? Fat tail. Most of us, when we were infected with COVID emitted such a small amount of virus that we didn't pose that much of a danger to others. But there are a very small number of people who, for reasons we don't entirely understand, when they have Covid, produce a massive amount of virus. Super spreaders. Those are the ones who cause outbreaks. I could go on. The lesson of New York's superspeeders and Covid's super spreaders is that before you figure out how to solve a problem, you have to ask yourself, am I dealing with a skinny tail distribution where everyone plays a roughly equal part in contributing to the issue? Or do I have a fat tail distribution where my problem is a very small number of very rotten apples? The world's problems are divided into fat tails and skinny tails. And policing is most definitely fat tail.

[Andrew Papakristos]

I mean, even you mentioned George Floyd. In Chicago, we had the Laquan McDonald shooting where he was murdered 16 times. He was shot by the cops, and those cops were in the top 6% of the police force. They've been involved in payouts from the city for misconduct and use of force and tens of millions of dollars before the shooting.

[Malcolm Gladwell]

That's Andrew Papakristos, a criminologist at Northwestern University. If you're a regular listener, you've heard him on this podcast before. He's talking about a police officer named Jason Van Dyke, another member of the Chicago Police Department, use of force, peloton, he who shot a teenager, Laquan McDonald, 16 times for no apparent reason.

[Andrew Papakristos]

So if you had gotten rid of this small percentage or done something different besides shuffle them around, not only would you have saved lives, you would have saved tens of millions of dollars. You would have saved all of the trauma associated with Laquan McDonald's shooting, the unrest in the city, how it layered into these things.

[Malcolm Gladwell]

It's not just, though, that the officers at the very edge of the distribution do more bad things than anyone Else it's that, and this is crucial, they lead others, people who wouldn't otherwise be in the fat tail, to do bad things as well.

[Andrew Papakristos]

There are a bunch of studies, ours included, that show my bad behavior as a police officer is actually affected by the bad behavior of my partners. So over time, I'm going to look more like you.

[Malcolm Gladwell]

This is called network spillover. And Papa Christos was part of a group of criminologists who used the Citizens Police Data Project to figure out exactly how large this spillover effect is. They looked at that mountain of data and grouped all of the officers in networks, drawing lines between the people who worked together. They found that if there was no one in your network who received a use of force complaint, then your chance of getting a use of force complaint was minimal. But if you had even a modest number of aggressive officers in your circle, your chances of being accused of violence went up by 26%, which is massive. And this is the problem with Derek Chauvin. He's in the Minneapolis Police Department's fat tail. He was the poster child for the Minneapolis fat tail. He had a mountain of complaints. And because he's a training officer, a 19 year veteran, the senior officer in nearly every crime scene he arrives at, he spills over into his network. If Chauvin had never shown up that night, if the second squad car never got called, if the whole incident was managed entirely by Lane and his partner, George Floyd would have lived. Thomas Lane would have rolled him over. There would have been no national eruption of pain and outrage. You wouldn't even know the name George Floyd. But Chauvin shows up. That's the core of the problem. On the corner of 38th and Chicago.

[Unknown Speaker]

I think anyone who sits through all of that evidence, you know, they hear the couple of times that Officer Lane talks about potentially rolling him over.

[Malcolm Gladwell]

That's Manda Sirtich, one of the US Attorneys who prosecuted Lane. She knows the evidence well. And specifically the role Lane and his partner, Alexander King played that day.

[Unknown Speaker]

I think he's actually the one who announces when George Floyd passes out, it's as though he's passing out.

[Malcolm Gladwell]

Yeah.

[Unknown Speaker]

And then he's sitting right there next to King when King twice says, I can't find a pulse. And they both continue to restrain him for more than two minutes after they know he doesn't have a pulse. I think that's the point where, I mean, it just becomes unacceptable not to intervene. It doesn't take any sort of training whatsoever. As the witnesses on scene demonstrated. It doesn't Take any training or even more than a few years on the earth to recognize that he needs medical assistance. And you can't have someone on his neck.

[Malcolm Gladwell]

Lane ended up spending two and a half years in federal prison for his part in Floyd's death. Sirtich and her colleagues felt that he bore at least some portion of the blame. I understand their argument, although I have to say I do not agree with it. A rookie cop on his fourth day on the force tries to right a wrong and fails because his superior officer is a bad apple. Can we really blame him? Haven't all of us in other situations done a version of the same act of mitigated speech? Are you sure we should do that? That's a little much, don't you think? Is that really safe? But where I hope we can all agree is on the broader lesson here. One bad apple can infect the whole barrel. The fat tail matters. Which is why the first step in any attempt to fix a problem with a fat tail distribution is to get rid of the fat tail target. The super speeders contain the super spreaders. Get rid of Jerry Finnegan. Stop Derek Chauvin before he kills someone, not afterwards. Right? If only it were that simple.

[Unknown Speaker]

Foreign.

[Capital One Bank Guy]

Banking with Capital One helps you keep more money in your wallet with no fees or minimums on checking accounts and no overdraft fees. Just ask the Capital One bank guy. It's pretty much all he talks about. In a good way. He'd also tell you this podcast is his favorite podcast, too. Ah, really? Thanks, Capital One bank guy. What's in your wallet? Terms apply. See capitalone.com bank capital1na member, FDIC.

[Malcolm Gladwell]

In the fevered days after Floyd died, there were hundreds of people on the streets of Minneapolis. Peaceful protests turned into riots and lootings. Buildings were burned. Hundreds of millions of dollars of damage was done. And one night, the crowd came calling for Jacob Fry, the mayor of Minneapolis.

[Jacob Fry]

There was a group of about 2,000 people that came to my home and they demanded that I come out and talk to them. And I certainly was not in the habit of avoiding my position on the topic. And so my wife, who was seven months pregnant or so, said he had get out there and just tell them the truth.

[Malcolm Gladwell]

Fry was 39 at the time. He'd been elected mayor three years earlier.

[Jacob Fry]

I didn't have security or anything. I walked out there. They called me up to the front and asked if I would defund the police. And at the time, this was a very new phrase. And so I asked them what they meant by it, and they say, well, why don't you get rid of the police? It was pretty clear. And I said no. And I got shamed and booed.

[Malcolm Gladwell]

In the footage of the demonstration that played on the evening news, you can see the mayor walking stiffly through the crowd wearing a mask that says, I can't breathe.

[Jacob Fry]

I mean, it was like Game of Thrones style, walking through a ton of people that were throwing things at me and spitting on me. But I was certain I did the right thing. There was no question in my mind that refusing to defund the police was the right thing to do.

[Malcolm Gladwell]

Fry was following the logic of the fat tail. Yes, there may have been frustration with law enforcement at large, but if the problem is a small number of bad apples, then what sense is there in upending the whole institution? What you should be doing is cutting off the fat tail. The crowds outside chanted, defund the police. But in response, Fry started making a different argument. This is what the mayor said at one of the first of the many press conferences he gave after the death of George Floyd. Unless we are willing to tackle the elephant in the room, which is the police union, there won't be a culture shift in the department. Could you talk a little bit more about that in the context of Minneapolis? When you said that, what did you mean?

[Jacob Fry]

So here's basically what happened over several decades with this collective bargaining agreement. The raises were limited in exchange for giving over to the police federation quite a bit of managerial authority. And so the practice largely was, let's keep people's property taxes down so that you don't have these magnificent increases in wages, wage. And in exchange for that, the chief will hand over authorities. That should so obviously be with the chief.

[Malcolm Gladwell]

The issue Fry is talking about, the police federation or the union having more authority than it should has become a common complaint in many other cities as well.

[Daniel Oates]

Everyone thinks that a police chief should just get rid of bad cops.

[Malcolm Gladwell]

That's Daniel Oates. He started his career in the 1980s in the NYPD and rose to be chief of four separate big city police departments. After George Floyd was killed, he wrote an op ed for the Washington Post. You could be forgiven if you missed it. It was a pretty technical analysis of law enforcement, collective bargaining agreements.

[Daniel Oates]

What I tried to explain in that Post article is that we, as a democracy, in all the societies in which I worked, the four major cities in which I worked, the voters created inhibitors to the police chief, simply firing someone who deserves to be fired.

[Malcolm Gladwell]

At one point in his career, Oates was chief of police in Aurora, Colorado. A mid sized suburb of Denver. He had 650 officers in his department. In his more than eight years as chief, there were 16 he wanted to fire. That was his fat tail. A very small number of his officers were proving to be a problem. They were violent, they had drinking problems. He caught them lying on their field reports. On and on. He negotiated complicated severance agreements with 12 of the 16. They agreed to leave the Aurora PD, but with a clean record, so it was possible for them to get a job somewhere else. The remaining four he fired. But then in three of those cases, his decision was reversed on appeal. So of the 16 bad apples who he thought were not worthy of a role in law enforcement, he succeeded in removing one. The problem is that many police union contracts are full of provisions that hamper internal investigations of wrongdoing. In a normal criminal investigation, the police question any suspect as soon as possible. But in investigations of allegations against officers, many unions delay that first round of questioning for days, if not weeks. Long enough for stories to be straightened out. And before that first interview, in some cities, the police department has to hand over all of its evidence and and witnesses in advance to the defendant's attorney. A practice that would be highly unusual in a standard criminal investigation. Daniel Oates says that he ran into this problem when he was called in to clean up the Miami Beach Police Department.

[Daniel Oates]

So as you can imagine, once you pour over all the evidence with your attorney, you understand what management has and what management can prove. And you can tailor your answers to questions so as to avoid the worst possible sanction effectively if necessary. You know, if to save your job you can lie because you know management can't disprove the law.

[Malcolm Gladwell]

Did they, did they change that provision in your time there?

[Daniel Oates]

No, no, that's still state law in Florida.

[Malcolm Gladwell]

How much did that in the end frustrate your ability to improve the quality of policing in Miami Beach?

[Daniel Oates]

It makes it extremely challenging.

[Malcolm Gladwell]

A small number of officers betray the standards of the profession. But unions protect that fat tail. It's not the 95% of honest, hard working police officers who need an extra few weeks to get their stories straight or who require advanced access to all the evidence and witnesses against them. Gerry Finnegan needs all those things. Derek Chauvin needs all those things. Somehow a system intended to serve the interests of the many in the thin tail has ended up serving the interests of the crooked few in the fat tail.

[Daniel Oates]

I can tell you this, that nobody despises bad cops more than good cops.

[Malcolm Gladwell]

That's Kathleen O'Toole. She ran both The Seattle and Boston police departments.

[Daniel Oates]

When I fired people, inevitably, I received countless messages from other police officers who said, well, chief, that should have happened 10 years ago.

[Malcolm Gladwell]

Now, suppose, even given all these impediments, a police chief does manage to terminate a problematic officer. The fight isn't over. There is one final impediment, maybe the biggest of all. The officer has the right of appeal. In many cases, the accused officer is allowed to restart the entire process from scratch, only this time not with an impartial judge, but with an arbitrator that the union plays a role in choosing with the result. Well, you can guess. A law professor in Chicago named Steven Rushin recently made a list of how often a fired police officer gets reinstated on appeal in most big American cities. Ready? Miami Dade, 37%. Oklahoma City, 40%. Phoenix, 40%. Washington D.C. 45%. Philadelphia, 62%. Denver, 67%. And finally, the grand prize winner, San Antonio, 70%. And where did this increase exact scenario play out? Minneapolis. In the years leading up to the death of George Floyd.

[Jacob Fry]

There are more than a few instances when we have terminated someone. It works its way up through that arbitration, and the arbitration then overturns the decision that we made. How does that feel for a chief who's making tough calls? You make the tough call, you spend a ton of attorney time litigating a case, and then you ultimately lose. That person comes back on. How does that help culture? Because that same person is going to talk to all the other officers saying, hey, I did this thing. I got off. This whole concept of a chief making a decision to terminate or discipline and having that decision overturned is detrimental to that chief's ability to run a police department and shift the culture. They got to be able to set the tone.

[Malcolm Gladwell]

Jacob Fry had firsthand evidence of what happens when you can't set the tone. Derek Chauvin. He didn't suddenly emerge as a bad apple on the night of May 25, 2020. He'd been a bad apple for a long time. You heard the tape in the last episode. In 2017, he beat a kid over the head with a flashlight, opening a wound that required stitches, then put him in a chokehold, threw him on the ground, and put his knee on his neck while the boy sobbed in pain, all for no reason. That was his trademark move. The other officers didn't say anything. They just walked silently out of the room. So the bad apple stayed in the barrel for three more years until he comes across George Floyd on the corner of 38th and Chicago and puts his knee in his neck and just stays there even after Floyd has stopped breathing. And Thomas Lane tries to get him to stop multiple times, but then he just gives up and sits there on Floyd's dead body. Just like Derek Chauvin. Revisionist History is produced by Nina Byrd Lawrence, Lucy Sullivan and Ben Nadaff Haffrey. Our editor is Karen Shakurji. Fact checking Sam Russick. Mastering by Jake Gorski. Production support from Luke Lamond. Our executive producer is Jacob Smith. Special thanks to Sarah Nix and El Hafe. Greta Cohn. I'm Malcolm Gaba.