Pretrial Hearing in Criminal Cases Over George Floyd Killing

On June 29, Hennepin County District Judge Peter Cahill held a pretrial hearing in the George Floyd criminal cases against Derek Chauvin,Tou Thao,Thomas Lane and J. Alexander Kueng.[1]

The judge scheduled another pretrial hearing for September 11 and for the trial tentatively to start on March 8. Although the prosecutors seem to be pushing for a consolidated trial, defense counsel are expected to request separate trials so that should be a future issue for the court to resolve.

None of the officers entered pleas at the hearing, but Lane’s attorney told the court he would be filing a motion to dismiss the case against his client for alleged insufficiency of evidence. Afterwards Kueng’s attorney filed a document with the court advising that his client intends to plead not guilty, claiming self-defense and use of reasonable and authorized force.

One of the major issues at the hearing was whether public officials’ statements about the cases might call for a change of venue from Minneapolis in Hennepin County to another county. Robert Paule, the attorney for Thao, said he was planning to make such a motion in light of public statements by Police Chief Arradondo and Department of Public Safety Commissioner Harrington, who have called Floyd’s death a “murder,” along with other statements by Gov. Tim Walz and Attorney General Keith Ellison.

Judge Cahill acknowledged these statements, and said people who are aligned with the state’s stance on the case are pushing it toward a change of venue. “It’s in everyone’s best interest” that no public statements about the case be made, the Judge said, noting that they’ve come from family, friends and law enforcement officials. “What they’re doing is endangering the right to a fair trial” for all the parties.

“They need to understand that; at this point they need to be aware of that,” Cahill said, and asked Assistant Attorney General Matthew Frank if prosecutors are addressing the matter with public officials. In response, Frank said, “We are just as interested in fair trial and are acutely aware of the issues you talk about. We have asked people not to talk about this case … we’ve done our best to make the court’s concerns known to them and will continue to do so.”

The Judge also admonished two members of Floyd’s family for visibly reacting to his statements at the hearing. Afterwards George Floyd’s uncle, Selwyn Jones, told journalists he was offended by the Judge’s comments.

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[1] Xiong, Former officers to appear in court Monday in George Floyd killing, StarTribune (June 29, 2020); Xiong, In George Floyd case,  judge warns that public officials speaking out could force venue change, StarTribune (June 30, 2020); Neuman, Tentative Trial Date Set For Ex-Minneapolis Officers Accused in George Floyd Death, MPR News (June 29, 2020); Chakraborty, Four ex-cops Linked to George Floyd’s death appear in court, judge sets 2021 trial date, Fox News (June 29, 2020); Bailey & Berman, Ex-Minneapolis officers charged in George Floyd’s killing get tentative trial date in March, Wash. Post (June 29, 2020); Arango, In Court, Derek Chauvin’s Lawyers Say Officials Have Biased the Case, N.Y. Times (June 29, 2020); Wernau & Barrett, Officers charged in George Floyd’s Killing Appear Before Judge, W.S.J. (June 30, 2020); George Floyd judge warns he may move trials if officials keep talking about the case, Guardian (June 29, 2020).

 

 

 

Developments in Criminal Cases Over Death of George Floyd

The four defendants in the criminal cases over the death of George Floyd last week made an unusual request for pretrial and trial audiovisual coverage which the court denied, in part. The issues in the cases were analyzed by criminal law experts. And some personal background information of the four defendants have been publicly discussed. After examining these developments, we will  await the results of the pretrial hearing in the four cases on June 29th.[1]

 Motion for Pretrial and Trial Audiovisual Recording [2]

On June 25 the attorneys for the four criminal defendants made a motion for audiovisual recording of pretrial and trial proceedings in the cases. Thomas Plunkett, the attorney for J. Alexander Kueng, on behalf of all defendants, asserted that such relief was “necessary to provide the Defendants with a fair trial in light of the State’s and other governmental actors multiple inappropriate comments and to assure an open hearing in light of the ongoing pandemic.” Those officials, said Plunkett, included “Public Safety Commissioner John Harrington, Minneapolis Mayor Jacob Frey and Minneapolis Police Chief Medaria Arradondo.”

More specifically, Plunkett said, “this relief is necessary to blunt the effects of the increasing and repeated media attacks from the various officials who have breached their duty to the community. These State comments have crescendoed to an extraordinary volume this week with the Chief pronouncing that ‘[w]hat happened to Mr. Floyd was murder.’ The State’s conduct has made a fair and unbiased trial extremely unlikely and the Defendants seek video and audio coverage to let a cleansing light shine on these proceedings. Doing otherwise allows these public officials to geld the Constitution.”

Attorney General Keith Ellison responded by saying that although he supports a public trial, “Cameras could alter the way the lawyers present evidence. Cameras in the courtroom could subject the participants in the trial to heightened media scrutiny and thereby be distracting to conducting the trial.” The chances of  “creating more sensation than understanding” was “very high,” Ellison said.

The Hennepin County District Judge, Peter Cahill, immediately denied the motion for such pretrial coverage while reserving decision on the motion for such coverage of the trial. The Judge stated that Minnesota court rules require both the defense and prosecution to agree for such coverage for pretrial proceedings and that the prosecution did not so agree. In addition, said the Judge, such coverage “would risk tainting a potential Hennepin County jury pool.”

Analysis of Issues in These Criminal Cases[3]

A journalist reports, “Veteran defense attorneys say the prosecution’s case against Chauvin is strong, while a series of unique circumstances pose challenges to both prosecutors and defense attorneys.”

Several facets of these cases seem to favor the prosecution. These cases do not involve “split-second” decisions on use of force which often lead a jury to avoid second guessing such decisions. Moreover, “Floyd warned the officers of his own impending death after repeatedly telling them he couldn’t breathe,” and bystanders were making the same warning. Finally the three officers charged with “aiding and abetting” could cause a crack in the alleged “blue wall of silence” protecting officers.

Indeed, at their initial appearances, the attorneys for Lane and Kueng argued that their clients were rookies who relied on Chauvin, a 19-year veteran and their training officer, for guidance at the scene.

A prominent local criminal defense attorney, Joe Friedberg, thought that Lane’s twice suggesting turning Floyd over and later performing CPR on him was strong evidence he had no intent for Floyd to die.

Another local criminal defense attorney, Robert Richman, had a different reaction. He thought that Chauvin “could direct the blame at Lane, who was holding down Floyd’s leg as Floyd lay stomach-down in the street, and Kueng, who was holding onto Floyd’s back. It seems that keeping someone … in a prone position on your stomach and having pressure placed on your back causes respiratory difficulties.” Perhaps “it was the other two officers holding him down that caused the breathing difficulties,” rather than Chauvin kneeling on the side of Floyd’s neck.

Another complication was the existence of two different autopsy reports. “The Hennepin County Medical Examiner’s Office found that Floyd died when his heart stopped  while he was being restrained, noting that the presence of fentanyl intoxication and recent methamphetamine were “other significant conditions” while the autopsy commissioned by the attorneys for Floyd’s family said he died of asphyxia. These provide bases for defense arguments that Floy had started to die before Chauvin put his knee on the neck.

New Rule for Use of Bodycam Footage[4]

On June 27 Minneapolis Mayor Jacob Frey and Police Chief Medaria Arradondo announced a new rule for officers’ review of their body camera footage. Now the officer “as soon as practical” must write and submit his or her written report of the incident before looking at that footage and before talking with anyone other than the incident commander and the lead investigator. This new rule purportedly will provide a more accurate account of the officer’s recollection of the incident.

The Police Officers’ Backgrounds[5]

The police personnel files for the four officers and published articles reveal the following  details:

  • Derek Chauvin. He attended Park High School in Cottage Grove, Minnesota, but did not graduate. After getting his GED he attended Dakota County Technical College, Inver Hills Community College and Metropolitan State University, all in Minnesota. Previous jobs include working security, and food service including at a McDonald’s. Chauvin also had two periods of active service in the U.S. Army. From September 1996 to February 1997 he was stationed in Rochester, Minnesota with a job in military police. He served again from September 1999 to May 2000 in military police, at Hohenfels, Germany where his job duties as including criminal investigations, traffic enforcement and proactive patrol.

During his 19-year career with the Minneapolis Police Department, Chauvin was involved with several police shootings, includes both commendations and more than 15 conduct complaints. Almost all the complaints were closed without discipline, records show, suggesting the allegations weren’t sustained. The nature of the complaints wasn’t made public. The file includes a 2008 letter of reprimand Chauvin received for the two violations involving “discretion” and a squad car camera. “This case will remain a B violation and can be used as progressive discipline for three years,” the letter notes. Chauvin received a Medal of Commendation in 2008 for disarming a man outside the El Nuevo Rodeo club on E. Lake Street while working security off-duty in his uniform. He was also recommended for a Medal of Valor in 2006 related to the shooting death of Wayne Reyes, a stabbing suspect who fled in his truck with officers in pursuit. When Reyes stopped and climbed out of the truck, police said he swung his sawed-off shotgun toward the six officers, all of whom fired their weapons.

Chauvin his married , but immediately after his arrest for the Floyd death, she filed for divorce with her attorney saying, “She is devastated by Mr. Floyd’s death and her utmost sympathy lies with his family, with his loved ones and with everyone who is grieving this tragedy.”

  • Tou Thao. The 11-year veteran and native Hmong speaker from Coon Rapids, Minnesota first applied to the department as a community service officer following stints in food service and as a security guard. He was among those laid off three days before Christmas in 2009 as the police department faced a $13 million budget shortfall. In a termination letter, a supervisor assured him the action was not related to his job performance. Officials called him back to work almost exactly two years later.

Thao and another officer were the subjects of a 2017 police brutality lawsuit. Lamar Ferguson, a black man, alleged that in 2014 the two officers told him they were serving a warrant for his arrest, then beat him, breaking his teeth, while he was handcuffed. The city of Minneapolis paid $25,000 to settle the civil rights case.

  • Thomas Lane. A University of Minnesota graduate in sociology of law, criminology and deviance. He worked with at-risk youth as a juvenile detention guard and probation officer in the Twin Cities before applying as a police recruit at age 35. He also had volunteer work mentoring Somali youth and school kids.
  • Alexander Koenig. At age 26, he is the youngest of the four officers and is of mixed-race and identifies as African-American. In 2010 he and two siblings made several trips to Haiti to help at an orphanage, once after its 2010 earthquake.He was captain of the varsity soccer team at Patrick Henry High School in Minneapolis, where he graduated in 2012. He also played for the Cruz Azul Minnesota soccer club. He attended Monroe College, Minneapolis Community & Technical College and the University of Minnesota, graduating from the last in 2018 with a major in sociology of law, criminology and deviance and becoming conversational in the Russian language. His work history includes a job as security monitor at the University of Minnesota and working in loss prevention at Macy’s. He also worked at Target, and he coached youth baseball and soccer at the Brooklyn Center Community Center.

Kueng had seen a sibling arrested and treated poorly by sheriff’s deputies and had told friends he was joining the police to help protect people close to him from police aggression as the best way to fix a broken system.

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[1] This blog has published posts about the Floyd death and related issues of police reform. See List of Posts to dwkcommentaries—Topical: George Floyd Killing; List of Posts to dwkcommentaries—Topical: Police Reform.

[2]  Xiong & Montemayor, Judge denies audiovisual coverage of hearings for former officers charged in George Floyd killing, StarTribune (June 26, 2020).

[3] Xiong, In trial over George Floyd’s killing, both defense, prosecution face unique challenges, StarTribune (June 27, 2020).

[4]] Klecker, Minneapolis mayor, police chief announce tighter body-camera rules, StarTribune (June 29, 2020).

[5] Bjorhus & Sawyer, Personnel records shed light on four Minneapolis police officers charged in George Floyd’s death, StarTribune (June 4, 2020); Bjorhus, A deeper look at the four officers fired after George Floyd death, StarTribune (June 1, 2020); Barker, Eligon & Furber, Officers Charged in George Floyd’s Death Not Likely to Present United Front, N.Y.Times (June 4, 2020); Barker, The Black Officer Who Detained George Floyd Had Pledged to Fix the Police, N.Y. Times (June 27, 2020); Wernau, The Other Police Officers Charged in George Floyd Killing, W.S.J. (June 29, 2020).

 

Congress Fails To Pass Federal Police Reform Bills   

On June 24 and 25, the divisions between the Republican-controlled U.S. Senate and the Democrat-controlled U.S. House again emerged, this time to prevent, in all likelihood, the adoption of any federal police reform bills this year.

U.S. Senate[1]

On June 24 the Senate was prepared to debate The Justice Act, a bill authored by Senator Tim Scott (Rep., SC), that would encourage state and local police departments to change their practices, by limiting the use of chokeholds, requiring new de-escalation training for officers and better systems for tracking misconduct  and penalizing departments that did not require the use of body cameras. It, however,  would not alter the qualified immunity doctrine that shields officers from lawsuits or place new federal restrictions on the use of lethal force.

The Senate Democrats criticized this bill as insufficient to respond to the problem of systemic racism in law enforcement as the basis for an objection to consideration of the bill. This forced a motion for consideration that, under Senate rules, needs at least 60 votes to pass, but only had 55 votes with Democrats Doug Jones of Alabama and Joe Manchin III of West Virginia and Independent Angus King of Maine joining 52 Republicans. Majority Leader Mitch McConnell (Rep., Tenn.) voted against that motion so that subsequently he could make a motion for reconsideration by announcing his intent to switch his vote.

After this defeat, Senator Scott stated on the floor that he had had offered to give Democrats as many as 20 votes on proposed modifications to his bill that they were demanding, but that they had refused to accept. Privately, Democrats noted that revising the bill would have also required the approval of 60 senators, a threshold they feared they would not be able to meet.

It is still possible that the Scott bill could be brought up again this year in the Senate by the Majority Leader, Senator Mitch McConnell switching his vote from “Yes” to “No” on a motion for reconsideration.

In the meantime, on June 25 the Senate by unanimous consent separately passed a provision of Mr. Scott’s bill to establish a commission on the social status of black men and boys, tasked with recommending policies to improve government programs.

U.S. House[2]

 On June 25, the U.S. House passed, 236-181, the George Floyd Justice in Policing Act.

Representative Karen Bass (Dem., CA), the lead sponsor of the bill, said, “The legislation is the first-ever bold, comprehensive approach to hold police accountable, change the culture of law enforcement, empower our communities, and build trust between law enforcement and our communities by addressing systemic racism and bias to help save lives. Congressional Black Caucus Chair Karen Bass (D-CA), Senators Cory Booker (D-NJ) and Kamala Harris (D-CA), and House Judiciary Committee Chair Jerrold Nadler (D-NY) introduced the George Floyd Justice in Policing Act of 2020 on June 8, 2020. The legislation has 231 cosponsors in the House and 36 cosponsors in the Senate.”

“Under the George Floyd Justice in Policing Act, for the first time ever federal law would: 1) ban chokeholds; 2) end racial and religious profiling; 3) eliminate qualified immunity for law enforcement;[3] 4) establish national standard for the operation of police departments; 5) mandate data collection on police encounters; 6) reprogram existing funds to invest in transformative community-based policing programs; and 7) streamline federal law to prosecute excessive force and establish independent prosecutors for police investigations.”  In greater detail, the Act:

  • “Prohibits federal, state, and local law enforcement from racial, religious and discriminatory profiling, and mandates training on racial, religious, and discriminatory profiling for all law enforcement.
  • Bans chokeholds, carotid holds and no-knock warrants at the federal level and limits the transfer of military-grade equipment to state and local law enforcement.
  • Mandates the use of dashboard cameras and body cameras for federal offices and requires state and local law enforcement to use existing federal funds to ensure the use of police body cameras.
  • Establishes a National Police Misconduct Registry to prevent problematic officers who are fired or leave on agency from moving to another jurisdiction without any accountability.
  • Amends federal criminal statute from “willfulness” to a “recklessness” standard to successfully identify and prosecute police misconduct.
  • Reforms qualified immunity so that individuals are not barred from recovering damages when police violate their constitutional rights.
  • Establishes public safety innovation grants for community-based organizations to create local commissions and task forces to help communities to re-imagine and develop concrete, just and equitable public safety approaches.
  • Creates law enforcement development and training programs to develop best practices and requires the creation of law enforcement accreditation standard recommendations based on President Obama’s Taskforce on 21st Century policing.
  • Requires state and local law enforcement agencies to report use of force data, disaggregated by race, sex, disability, religion, age.
  • Improves the use of pattern and practice investigations at the federal level by granting the Department of Justice Civil Rights Division subpoena power and creates a grant program for state attorneys general to develop authority to conduct independent investigations into problematic police departments.
  • Establishes a Department of Justice task force to coordinate the investigation, prosecution and enforcement efforts of federal, state and local governments in cases related to law enforcement misconduct.”

It would make lynchings a federal hate crime, ban federal officials from using chokeholds, ban federal funds to state and local law enforcement agencies that do not bar chokeholds, bar law enforcement from racial and religious profiling, make it easier to prosecute police officers for misconduct and allow civilians to recover some damages if their constitutional rights are found to have been violated by police, a change to the judicial doctrine known as qualified immunity.

It should be noted that three Republican representatives voted for this bill: Brian Fitzpatrick (PA), Will Hurd (TX) and Fred Upton (MI).

 Conclusion

As a Democrat you supports various means of reforming policing in the U.S., I am disappointed that the Congress was unable to agree on such measures.

However, I think it was a political mistake for the Senate Democrats to block consideration of the Senator Tim Scott reform bill. As I understand what happened in the Senate, the Democrats had no objections to the bill’s provisions. Instead, they objected that the bill did not go far enough. Their objections could have been made during the debate on the Scott bill, with or without proposed amendments that probably would be defeated by the Republican majority. Moreover, by allowing the Republicans to approve the bill would allow the Democrats to provide political support to Republican Senator Tim Scott.

This assessment was shared by Marc A. Thiessen, a fellow of the conservative American Enterprise Institute, a former speechwriter for President George W. Bush, a Fox News contributor and a Washington Post columnist,  He emphasized that stopping such a debate in the Senate eliminated the possibility of having such a discussion in that body for the foreseeable future and even the possibility of having some Democratic amendments adopted. Thiessen claims that the bill already included some Democratic proposed additions: making lynching a federal hate crime, creating a national policing commission to review the U.S. criminal justice system, barring chokeholds by federal officers, withholding federal funds from state and local law enforcement agencies that do not bar chokeholds and that do not report use of non-knock warrants to the U.S. Justice Department. Indeed, according to Thiessen, Senator Scott had said he would vote to support  some of the proposed amendments.[4]

Such a Democratic strategy also would have avoided the embarrassing comment by Senator Richard Durbin (Dem., IL) that the Scott bill was “a token, half-hearted approach,” by an African-American man who personally had experienced police discrimination that compelled the subsequent apology from Senator Durbin.

Moreover, the Democrat-controlled House the next day adopted the more comprehensive reform bill which they wanted and which the Republican-controlled Senate undoubtedly will reject when it goes there.

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[1] U.S. Senate, Justice Act, 116th Congress, 2d Sess. (full text); U.S. Senate, JUSTICE Act (Just and Unifying Solutions to Invigorate Communities Everywhere): Section-by-Section Analysis,  116th Congress, 2d Sess.; Senator Scott, Press Release: Senator Tim Scott Delivers Fiery Speech on Senate floor After Senate Democrats Stonewall Legislation on Police Reform Across America (June 24, 2020); Senator Scott, Press Release: Senate Democrats Block Police Reform from Coming to Communities Across America (June 24, 2020); Edmondson & Fandos, Senate G.O.P. Unveils Narrow Policing Bill, Setting Up a Clash with Democrats, N.Y. Times (June 17 & 24, 2020); Edmondson, Senate Democrats Block G.O.P. Police bill, calling It Inadequate, N.Y.Times (June 24, 2020); Kim, Senate Democrats block GOP policing bill, stalling efforts to change law enforcement practices, Wash. Post (June 24, 2020); Balko, Both parties’ police reform bills ae underwhelming. Here’s why, Wash. Post (June 24, 2020); Peterson & Zitner, Senate Democrats Block GOP Policing Bill, W.S.J. (June 24, 2020); Editorial, The No Debate Democrats, W.S.J. (June 24, 2020); Bobi, Police Reform Stalls Out in The Senate, HuffPost (June 24, 2020).

[2] Representative Bass, Press Release: House Passes George Floyd Justice in Policing Act (June 25, 2020); George Floyd Justice in Policing Act (full text);  Congressional Black Caucus, Fact Sheet: George Floyd Justice in Policing Act ; House Passes George Floyd Justice in Policing Act, N.Y. Times (June 25, 2020); Andrews, House Passes Democrats’ Policing Bill, but No Path Seen for Deal, W.S.J. (June 25, 2020); Carney, Gridlock mires chances of police reform bill, The Hill (June 25, 2020); Brufke, Three GOP lawmakers vote for Democrat-led police reform bill, The Hill (June 25, 2020).

[3] The qualified immunity defense was established by the U.S. Supreme Court in Monell v. Department of Social Services (1978) that victims can’t recover damages from the city under the Civil Rights Act of 1871 unless the police misconduct was a breach of an “official policy or custom.” Subsequent Supreme Court cases have reaffirmed that standard to limit liability to “the plainly incompetent” and “those who knowingly violate the law.” (Malley v. Briggs (1986); Mccleary v. Navarro (1982), and just this month the Court refused to hear current cases challenging that standard. (Reuters, Supreme Court Rejects Cases Over ‘Qualified Immunity’ for Police, N.Y. times (June 15, 2020).)  As Peter Schuck, a professor emeritus at Yale Law School, pointed out, a simple amendment of that 1871 statute would eliminate this defense. (Schuck, The Other Police Immunity Problem, W.S.J. (June 24, 2020).) 

[4] Theissen, Democrats’ shameful vote against Tim Scott’s police reform bill, Wash. Post (June 25, 2020).

 

Minneapolis Police Chief and Union President Agree: Chauvin Rightfully Fired for Killing George Floyd 

On June 22 and 23, the Minneapolis Police Chief Medaria Arradondo and the President of the Police union, Bob Kroll, agreed that the firing of Police Officer Derek Chauvin over the killing of George Floyd was justified.

DerikPolice Chief’s Statement[1]

“In Spring of 2013, the City settled the David Smith lawsuit, agreeing to pay the estate of David Smith $1.1 million and his attorneys $1.975 million. In addition to this payment, the City agreed “to provide additional training to its sworn police officers regarding positional asphyxia in the Minneapolis Police Department’s 2014 training cycle.”

“Today, in response to data requests, the City is releasing data on the training after the Smith settlement.”[2]

“I can confirm that MPD fulfilled the training requirement. 2014 in-service training, which was given to all officers, covered getting an arrestee from a prone position into a recovery position (seated or on the arrestee’s side) where the maximal restraint technique or a neck restraint has been used. The reason for getting an arrestee into a recovery position is to prevent positional asphyxiation, and the training covered situations where positional asphyxiation is of primKARE-11ary concern. This training therefore met the settlement agreement’s requirement of “additional training . . . regarding positional asphyxiation.” I can confirm that Chauvin and Thoa had this training.” (Emphasis added.)

“Additionally, MPD went beyond the requirements of the settlement and enacted policy changes in June 2014. The policy changes explicitly require moving an arrestee from a prone position to a recovery position when the maximal restraint technique is used and require continuous monitoring of an arrestee’s condition.”

“It is important to note that getting an arrestee into a position where he or she can breathe is something that is hammered into all of our officers, and this began even before the Smith settlement’s required 2014 training. Even though the Smith settlement did not require training until 2014, we provided training in 2012 and 2013, and continuing thereafter.”

“In 2012, the department issued an announcement to all sworn officers and posted a video on positional asphyxiation. The announcement stated that the video ‘serves as a reminder that whenever a subject is restrained, there is a direct correlation between their ability to breathe and the position their body is in.’ The announcement required that the video be shown at all roll calls.”

“Additionally, in 2013 in-service MPD trained on the dangers of in-custody deaths. This training covered ‘compressional asphyxia’ as a cause of in-custody deaths.”

“MPD continues to stress training on the risks of in-custody deaths and the importance of putting restrained arrestees into the recovery position as soon as possible. There is simply no way that any competent officer in MPD would be unaware of the need to get an arrestee into a recovery position so that he or she can breathe freely.”

Mr. George Floyd’s tragic death was not due to a lack of training—the training was there. Chauvin knew what he was doing. I agree with Attorney General Ellison: what happened to Mr. Floyd was murder. Chauvin had his knee on Mr. Floyd’s neck for over seven minutes, and for those last minutes he knew that Floyd was non-responsive. Mr. Floyd shouted out that he couldn’t breathe; bystanders shouted out that Mr. Floyd had stopped talking; then they shouted out that Mr. Floyd had become nonresponsive; and finally they shouted out that Mr. Floyd was dying. Further, one of the officers on the scene told Chauvin that Mr. Floyd should be put into a recovery position and he eventually told Chauvin that he could not find Mr. Floyd’s pulse. The officers knew what was happening—one intentionally caused it and the others failed to prevent it. This was murder—it wasn’t a lack of training. This is why I took swift action regarding the involved officers’ employment with MPD.” (Emphasis added.)

Kroll’s Statement[3]

In a June 23 interview on a  local television station, KARE-11, Kroll said Minneapolis police officer Derek Chauvin’s placing his knee near Floyd’s neck for nearly eight minutes “was sickening. It’s something that should never have occurred. No officer can condone that. Ourselves included.” The reporter then asked, “And is what Officer Chauvin did right?” Kroll responded, “Again, no. In my mind, no. I don’t think any officer would say that it’s right. Absolutely not.” Moreover, “We’ve got a pretty good picture of what Chauvin did. It’s easy to form judgment there and terminate, which we were able to make a quick decision that yes, we’re not going to represent [him with respect to the termination of] his employment.”

Kroll also said he would not be resigning as president of the union after consulting with union members and Chief Arradondo, all of whom suggested that Kroll stay in his position. Kroll added, “The chief and I have always had a very good working relationship. Better than any of his (predecessors). He’s an honest, truly nice man. I consider him a friend… I’ve socialized with him more than any other chief.”

Police Union Officials’ Statements[4]

Earlier that same day (June 23)  Kroll was interviewed by Gayle King on “CBS This Morning.” He said the lengthy “social-media” video of the Floyd killing that was taken by a 17-year-old bystander “does look and sound horrible,” but that he needs to see the officers’ body-worn camera footage, which the union is entitled to under its contract with the Department, before making a judgment on the criminal charges against the four officers. “We will be on the right side of history.”

Kroll also said that members of his union are being unfairly “scapegoated by political leaders in our city and our state, and they have shifted their incompetent leadership, failed leadership onto us and our membership, and it is simply unjust.”

Also interviewed by Gayle King were three other union officers. Its Vice President Sherral Schmidt, who is Kroll’s designated successor, said, “I’m not one that likes to Monday morning quarterback things. If I was there, I probably would have put him on his side in a recovery position once he went unconscious.”

Rich Walker, an African-American member of the union board, added, “”The narrative that is being pushed in the media is that white police officers are out on these streets just to kill black men, and this is absolutely farthest from the truth. Police officers are not out here just randomly hunting black people to kill them. That’s just terrible.”

In another segment on “CBS This Morning,” Brian Peters, the Executive Director of the Minnesota Police and Peace Officers Association (MPPOA), which is paying for the legal defense of the four officers in the Floyd case, said Chauvin’s action during the Floyd arrest “betrayed the badge. And there’s no excuse for it.”

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[1] Minneapolis Police Dep’t, Statement of Chief Medaria Arradondo (June 22, 2020); Bjorhus, Police chief: George Floyd’s death was a ‘murder,’ not about lack of training, StarTribune (June 23, 2020).

[2] On September 9,  2010, David Smith, who was mentally ill, was acting bizarrely at the downtown Minneapolis YMCA. Two Minneapolis policeman, responding to a 911 call, approached Smith and after he “grew fierce” stunned him with a Taser and forced him to the floor. The officers then held him face down while one placed a knee in his back and held him down for about four minutes, which made it impossible for Smith to breathe. After he had stopped breathing, one of the officers tried CPR before the paramedics arrived. Smith died in hospital about a week later. The Smith family subsequently filed a lawsuit for damages that resulted in a $3.075 million settlement. After the recent killing of George Floyd, the Smith family submitted a data practices act request to the Police Department for information on whether it had fulfilled its commitment to require all officers to obtain the previously mentioned training. (Furst, May 25: Minneapolis pays $3 million in police misconduct case, StarTribune (June 1, 2013); Bjorhus & Sawyer, Family of man who suffocated in police custody in 2010 asks whether police received training promised in settlement, StarTribune (June 10, 2020)..)

[3] Walsh, Minneapolis police union head says Chauvin firing is justified but rank and file officers being scapegoated, StarTribune (June 24, 2020); Thiede & Raguse, Police union president Bob Kroll says he will not resign, kare-11.com (June 23, 2020) (includes video of interview).

[4] Walsh, Kroll: Floyd video did ‘look and sound horrible,’ but says union being scapegoated by ‘failed’ leaders, StarTribune (June 23, 2020) (includes the video of the CBS interview).

 

Minnesota Legislature’s Special Session Fails To Pass Police Reform Measures    

Early Saturday morning, June 20, the Special Session of the Minnesota Legislature adjourned without passing any police reform measures. Nor did they pass a bonding bill for various state projects or a measure to provide federal COVID-19 aid for local governments.[1]

The Minnesota House had passed 20 police reform bills that would tighten the state’s deadly force laws, put the attorney general in charge of all cases where deadly force is used, ban “warrior-style” training for law enforcement and restore voting rights for felons on probation. The Senate, on the other hand, had passed a more modest police reform package that would have required reporting and intervention in deadly force cases and a state officer licensing board to ban chokeholds and neck restraints.

Early Saturday morning the Democrats in the House made a counteroffer that eliminated their proposals for having the attorney general investigate all police killings and restoring the right to vote to convicted felons. But The Senate Republicans apparently did not respond.

This result was disappointing, but not too surprising with the Senate controlled by the Republicans and the House by the Democratic Farmer Labor Party (the DFL).

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[1] Bierschbach, Van Berkel & Condon, Minnesota Legislature adjourns without agreement on key issues, StarTribune (June 20, 2020); Bogel-Burroughs & Healy, Protesters Demanded Police Reform. Minnesota Lawmakers Left Without Passing a Bill, N.Y. Times (June 20, 2020); Bierschbach, Gov. Tim Walz implores Minnesota lawmakers to pass policing reforms while ‘the world is watching,’ StarTribune (June 18, 2020).

 

Dispute About Arbitration for Terminated Cops

As former Minneapolis mayor, R. T. Rybak, persuasively has argued, police unions frequently undermine efforts to reform policing here and elsewhere.[1]

Now a dispute has emerged about arbitrators decisions about police officers who had been terminated for misconduct.

A StarTribune journalist examined the record of terminated Minnesota police officers getting their jobs back in arbitration.[2] “More than 80 po­lice of­fic­ers across Min­ne­so­ta were fired and fought their dis­charge in ar­bi­tra­tion over the past 20 years. A­bout half got their jobs back,” and “the true figure could be slightly higher” because “Min­ne­so­ta’s pub­lic re­cords laws pro­hib­it re­leas­ing any in­for­ma­tion at all when ar­bi­tra­tors o­ver­turn a de­ci­sion to fire a cop with­out im­pos­ing any type of dis­ci­pline. Such total ex­on­era­tions, while un­com­mon, are erased from pub­lic re­cord.”

The current Minneapolis Police Chief, Medaria Arradondo, shares this view of arbitration. He said, ““There is noth­ing more de­bili­tat­ing to a chief from an em­ploy­ment mat­ter per­spec­tive, than when you have grounds to ter­mi­nate an of­fi­cer for mis­con­duct, and you’re deal­ing with a third-par­ty mech­a­nism that al­lows for that em­ploy­ee to not only be back on your de­part­ment, but to be pa­trol­ling in your com­mu­ni­ties.” This is why he has withdrawn from further contract negotiations with the union and why he wants the Minnesota Legislature to pass legislation to reduce the scope for arbitration of terminated officers.

This harsh judgment of such arbitrations needs qualification, said the StarTribune journalist. “Some [termination] cases nev­er go to ar­bi­tra­tion, and some are ne­go­ti­ated and clas­si­fied as res­ig­na­tions or re­tire­ments.”

A stronger defense of labor arbitration was provided by Stephen F. Befort, a professor at the University of Minnesota Law School and a part-time labor arbitrator. He starts by explaining that labor arbitration is “a due process review of discipline and discharge decisions. The process entails an informal evidentiary hearing before a neutral decision maker. Minnesota law currently requires that all public sector collective bargaining agreements provide for the binding arbitration of disciplinary disputes. The arbitrator’s task is to determine whether the employer had just cause to support the discipline or discharge decision.”[3]

In this process arbitrators “are individuals who have developed expertise in labor relations and personnel matters. Federal and state agencies maintain rosters of arbitrators who meet certain qualifications. Arbitrators are not appointed by these agencies, but instead the parties to the dispute (i.e. municipalities and unions) mutually select one or three arbitrators from a roster to hear and resolve the dispute.”

Befort then reports that Minnesota arbitrators upheld discharge decisions by all kinds of employers (not just police) in 52 percent of over 2,000 such cases over 20 years while employees won reinstatement and full back pay in only 20 percent of the cases. The other 28 percent of the cases were “’split’ decisions in which discharges were reduced to some lesser form of discipline such as suspension without pay.” These statistics came from a 2015 book by Befort and two faculty colleagues which was “the largest empirical study of arbitration outcomes ever undertaken.”

Moreover, Befort claims that the above statistics are similar to those for police arbitration over a four-year period according to an article by one of his University of Minnesota Law School students that was published in an American Bar Association journal. These statistics were upholding police officers terminations, 53%; overturning such terminations, 23%; and split outcomes, 24%.

Finally Befort points out that if there were no labor arbitrations, the alternatives are leaving the employers’ decisions unreviewable or the more expensive and slower court litigation, neither of which is desirable.

Conclusion

As a retired attorney who specialized in business litigation, I was intimately familiar with the costs (beneficial to law firms and lawyers) and delays in resolution in such court litigation. Moreover, I became aware of the frequent adverse psychological impact of such litigation on the parties to the disputes. Therefore, I became an advocate for alternative dispute resolution (ADR), especially mediation but also arbitration, and served as Chair of the Minnesota State Bar Association’s Alternative Dispute Resolution Section.[4]

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[1] See Former Minneapolis Mayor Discusses Police Reform Problems, dwkcommentaries.com (June 21, 2020).

[2] Bjorhus, Fired Minnesota officers have a proven career saver: arbitration, StarTribune (June 21, 2020).

[3] Befort, Counterpoint: In defense of arbitration, StarTribune (June 19, 2020).

[4] See these posts to dwkcommentaries.com: Ruminations on Lawyering (April 20, 2011)(interest in ADR and chairing ADR Section); My First Ten Years of Retirement (April 23, 2011)(service as arbitrator); International Commercial Dispute Resolution (Aug. 11, 2011)(arbitration); Intraocular Lenses Litigation (Aug. 18, 2011) (litigation against ex-employees); Employers’’ Lawsuits Against Former Employees (Aug. 25, 2011); List of Posts to dwkcommentaries—Topical: LAWYERING.

 

Former Minneapolis Mayor Discusses Police Reform Problems

R.T. Rybak, former Mayor of Minneapolis (2002-2013) believes that police unions and their leaders are major reasons why past efforts at reforming policing in Minneapolis and elsewhere in this country have had problems and why current reform efforts are facing difficulties.[1]

He says this as he struggles with competing police images. On the one hand, Rybak has seen “police officers perform extraordinary acts of courage at explosive crime scenes, protect women from domestic abuse, build trusted relationships with immigrants who are terrified the government will take their children, and so much more.” On the other hand, he also has seen “toxic us-versus-them police cultures—in which an officer who might individually make the right call becomes silently complicit when a fellow officer goes rogue.This culture enabled three officers in my city to stand by while [George] Floyd was killed.” [2]

The latter culture is understandable when “officers see the worst things happening in their city on any given shift. After being in danger every night, officers gradually stop seeing the humanity in the people and neighborhoods they patrol. Instead, they go back to the precinct with the only people who can really understand what they are going through. People with exceptionally tough jobs serving complex humans naturally vent when they are together.”

“But the tribalism that can build up within police departments is far more consequential. Us versus them—meaning police versus criminals—slowly curdles into police versus the people: Who would live in these crime-infested neighborhoods where we risk our lives? Waiting to stoke that resentment are police-union leaders such as [Bob] Kroll [the President of the Police Officers Federation of Minneapolis], who defend even the more aggressive acts of officers and, even in a case as extreme as [George] Floyd’s death, prevent any self-examination by blaming the victim.”

“As matters stand, the public—through its elected representatives—has also ceded far too much power to the police unions that enable bad behavior. Floyd’s death underscores that police work should be subject to oversight, and officers who violate policy and misuse their power should be subject to discipline. But the unions’ power is most notable in contracts that limit the accountability that, as the community can now see, is so desperately needed. The lack of accountability seems incongruous because the mayors and city councils that negotiate with police unions include some of the country’s most progressive elected officials and represent some of the country’s most progressive constituencies.”

“Yet when duly elected officials propose reforms, police unions do not merely oppose them; they actively work to thwart them. Last year, Minneapolis Mayor Jacob Frey banned so-called warrior-style training, which emphasizes physical threats to police officers rather than the benefits of de-escalating confrontations. . . . Kroll and the police federation defied Frey’s move by offering warrior-style training of their own.”[3]

“Some local officials have also hesitated to demand tougher reforms in contracts because police unions often spend heavily in local elections to oppose any politician who challenges them. I know what that’s like. The union supported me near the end of my first race for mayor. But after I took office, we disagreed over the police budget and my choice of police chief. When I ran for reelection, the police union went all out to defeat me: It helped pay for polling to identify the strongest candidate to run against me and pounded voters relentlessly with literature and broadcast ads that portrayed me as soft on crime. [Nevertheless,] I got more than 60 percent of the vote. The police federation also made a massive investment to defeat an incoming council member, Betsy Hodges, who still won overwhelmingly. Eight years later, again, despite massive police opposition, she was elected mayor.”

“Electing mayors and city-council members who support such reforms is not enough. Police-union leaders use back channels to go around local officials and get more conservative state legislators to block meaningful changes. That dynamic holds true in Minnesota, where a Republican state representative, who was also a Minneapolis [police] officer, helped overturn a residency requirement for police. Today more than 90 percent of Minneapolis officers live outside the city. The legislature also has stonewalled attempts by the city to get supervisory positions removed from police-federation ranks. As a result, some of the people directing and disciplining officers, and developing the union contract, are actually negotiating with the union of which they are a member.”

“In return, police unions have helped their enablers on the state and national levels. Police-federation leaders endorse Republicans in most gubernatorial races. Last fall, Kroll appeared with President Donald Trump at a rally in Minneapolis and was interviewed wearing a ‘cops for trump’ T-shirt on Fox News.”

“If progressive local officials want wholesale reform of police tactics and culture, they will have to do something that runs counter to their own culture: take on union leaders. [After all,] Minnesota’s chapter of the American Federation of Labor and Congress of Industrial Organizations—an umbrella group that does not include the police federation—recognizes that Kroll isn’t merely taking his members’ side in a labor-management dispute. In a recent statement calling for Kroll’s resignation, the Minnesota AFL-CIO president, Bill McCarthy, faulted him for trying to justify Floyd’s killing rather than participate in a dialogue about reform. McCarthy also accused Kroll of failing the labor movement. ‘Unions exist to protect workers who have been wronged,” McCarthy declared, “not to keep violent people in police ranks.’”

“I used to say that the majority of officers are good but silently let a minority set the dominant culture. But now I believe that no one can be called a ‘good officer’ if they are not working actively and openly to change the culture and unseat their toxic union leaders. The silence of the ‘good officers’ so far is deafening, but a glimmer of hope came recently when more than a dozen brave Minneapolis officers bucked their union, condemned the officer who murdered George Floyd, and vowed to regain the community’s trust.”[4]

“In general, intimidated local officials overestimate the political muscle of police unions. Their credibility with the public is even more diminished in the aftermath of [George] Floyd’s death. So now is the time to push for reforms that hold police departments more accountable to the public.”

“I am not suggesting that cities should try to bust police unions. Far from it. Working people need and deserve the protections that collective bargaining provides. In a better world, a police-union leader could help the public understand how hard the job can be—but could also set the moral and professional standards for officers, rather than defend them no matter what they do.”

“While the breakdown between the police union and the public’s elected representatives has been especially acute in Minneapolis, I know from my discussions with other mayors that many other communities experience similar tensions. These relationships must be fundamentally reshaped. When cities lack the power to provide basic oversight of their officers and cannot break down an us-versus-them culture, they cannot prevent future deaths like that of George Floyd.”

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[1] Rybak, I Was Mayor of Minneapolis. I Know Why Police Reforms Fail, Atlantic (June 10, 2020). See also Mannix, Killing of George Floyd shows that years of police reform fall far short, StarTribune (June 20, 2020).

[2]  It must not be forgotten that the Minneapolis Chief of Police immediately fired the four officers involved in the killing of George Floyd, that soon thereafter serious criminal charges were filed against all four and the City banned chokeholds and neck restraints under an agreement with the Minnesota Department of Human Rights that was incorporated in a court injunction. See List of Posts to dwkcommentaries—Topical: GEORGE FLOYD CASE.

[3] Jany, Minneapolis police union offers free ‘warrior’ training, in defiance of mayor’s ban, StarTribune (April 24, 2019).

[4] Olson, Minneapolis police officers issue open letter condemning colleague in George Floyd’s death, pledging to work toward trust, StarTribune (June 12, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

 

 

Another Minneapolis Policeman in George Floyd Cases Makes Bail

On June 19, Police Officer J. Alexander Kueng posted bail of $750,000 (with conditions) and was released from jail.[1]

He has been charged with aiding and abetting second degree murder and second degree manslaughter. The next hearing for him and the other three officers is on June 29.[2]

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[1] Faircloth, Second fired Minneapolis police officer charged in Floyd’s death is released from jail, StarTribune (June 20, 2020).

[2] The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

 

Training New Minneapolis Police Recruits     

The City of Minneapolis requires more than a year of training before swearing in a new police officer.[1]

This training includes 14-16 weeks at the Minneapolis Police Academy, whose website says it is “structured as a paramilitary program” (emphasis added) with written and practical testing covering the following topics:

  • Defensive Tactics
  • Community Orientated Policing
  • Firearms
  • Defensive Driving
  • Report Writing
  • Ethics
  • Traffic Enforcement
  • Crime Scene Investigation
  • Physical Training.

After graduation from the Academy, they are promoted to Officer rank for an additional six months of Field Training with an experienced officer.

Minneapolis Commander Charles Adams, a 34-year veteran in charge of recruitment and training new recruits on community engagement, said the video of the physical restraint of George Floyd made him think “murder,” a widespread sentiment within the Department even among officers who usually urge a wait-and-see approach when colleagues are accused of wrongdoing. This incident also damaged improvements in teaching new recruits to be more accountable to communities like the predominantly black North Side where Adams grew up.

This effort includes implicit bias training, discussions of the aggressive policing tactics of the 1960s that damaged public trust in law enforcement and a simulated video of an officer talking disrespectfully to a black motorist only to learn later that she was the wife of a high-ranking police officer.

Nevertheless, “many of the nation’s police academies and 18,000 departments have long emphasized a warrior mentality, with officers trained for battle and equipped with the gear and weapons of modern warfare. This helps to create a warrior culture with training on firearms, self-defense and use of force.” It also “reinforces a ‘thin blue line’ police culture perpetuated in many departments by higher-ups and unions. “There’s just this constant reiteration that cops are in constant danger,” said  Randy Shrewsberry, Executive Director of the Institute for Criminal Justice Training Reform.

The Minneapolis Department last year banned warrior-style training, but its police union offers to pay for officers to receive it from outside vendors.

Andrew Arashiba, an American-Japanese citizen and a former Minneapolis police officer, is suing the City for racial and age discrimination. He has said a training officer told him not to activate his body camera at times when it was required unless he had notified other officers first and also scolded him for not using force against a drunken older man, “You missed a free slap.”

A former Minneapolis police inspector, Michael Friestleben, said the “emphasis on officer safety in training can make officers feel as though they will constantly be under attack in the streets, and that can be a barrier to developing meaningful relationships with the communities they serve.”

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[1] Minneapolis Police Department, Minneapolis Police Academy; Eligon & Levin, In Minneapolis, Looking for Police Recruits Who Can Resist Warrior Culture, N.Y. Times (June 19, 2020).

Use of Chokeholds and Neck Restraints by Other Minnesota Police Departments   

MINNPOST (a nonprofit, nonpartisan online news service) recently contacted 21 Minnesota police departments, most outside the Twin Cities metro area, to find out whether they allowed chokeholds and neck restraints.[1]

Of these departments, 18 said their officers are not allowed to use neck restraints or chokeholds of any kind — except as deadly force if the officer fears for his own life. They included Anoka County, Austin, Brainerd, Brooklyn Park, Duluth, Fergus Falls, Mankato, Moorhead, Rochester, Sartell, Sherburne County, St. Louis County, St. Paul, Stearns County and the Minnesota State Patrol.

The bans in Rochester and Brooklyn Park were only imposed last week even though vascular neck restraints could help shorter officers, especially women, take someone bigger into custody.

Many said “the practices had been out of use for as long as they could remember, largely because they can be dangerous.” The New Ulm police chief Dave Borchert, said, “I was actually surprised when I learned that Minneapolis still had it to be honest with you. I would have thought that would have been gone for decades.”

Three (Winona, Willmar and Bloomington) said their officers currently are allowed to use the non-lethal form of neck restraint:

  • According to Winona’s Deputy Chief Tom Williams, its “police are trained to use a vascular restraint that cuts off blood flow to knock someone unconscious.’ For example, “it can be used when you’re ‘grappling with someone’ in close contact and can’t reach other weapons like a taser. Police are supposed to incapacitate a person, then give them aid and make sure blood is returning to their head. Winona police can also use a respiratory chokehold to cut off air flow, but it can only be used as deadly force.”
  • In Willmar, “police captain Mike Anderson said his department teaches a ‘shoulder pin restraint,’ where an officer applies pressure to one side of a person’s neck but doesn’t cut off air supply. They do not teach chokeholds.”
  • The deputy chief of the Bloomington Police Department, Mike Hartley, said his department authorizes a vascular neck hold, which can be used to knock someone temporarily unconscious. While he said the department is always evaluating the effectiveness and safety of its techniques, they’re not considering eliminating the hold right now.

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[1] Orenstein, How common is it for Minneapolis police departments to authorize chokeholds, ‘neck restraints,’ MINNPOST (June 15, 2020). /