President Biden’s Executive Order on Policing

On May 25, 2022, President Joe Biden signed the Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety.[1] This lengthy Order calls for the creation of national standards for the accreditation of police departments and a national database of federal officers with substantiated complaints and disciplinary records, including those fired for misconduct. It also will instruct federal law enforcement agencies to update their use-of-force policies to emphasize de-escalation. The Order also restricts tactics like chokeholds and no-knock warrants and grants incentives to encourage state and local agencies to adopt the same standards while also banning the transfer of most military equipment to police.[2]

The signing was done on the second anniversary of the killing of George Floyd in the presence of members of his family as well as Vice President Harris, members of his Cabinet and lawmakers.

President Biden’s Comments on the Order

This order is “a measure of what we can do together to heal the very soul of this nation; to address the profound fear and trauma, exhaustion that particularly Black Americans have experienced for generations; and to channel that private pain and public outrage into a rare mark of progress for years to come.”

“Two summers ago, in the middle of a pandemic, we saw protests [about the killing of George Floyd] across the nation the likes of which you hadn’t seen since the 1960s.They unified people of every race and generation.  Athletes and sports leagues boycotted and postponed games.  Companies and workers proclaimed ‘Black Lives Matter.’  Students staged solidarity walkouts. From Europe to the Middle East to Asia to Australia, people saw their own fight for justice and equality in what we were trying to do.”

“The message is clear: Enough!”

“[A]lmost a year later, a jury in Minnesota stepped up and they found a police officer guilty of murdering George Floyd, with officers and even a police chief taking the stand to testify against misconduct of their colleagues.  I don’t know any good cop who likes a bad cop.”

But for many people, including many families here, such accountability is all too rare.  That’s why I promised as President I would do everything in my power to enact meaningful police reform that is real and lasting. That’s why I called on Congress to pass the George Floyd Justice in Policing Act, to send it to my desk.”

“This is a call to action based on a basic truth: Public trust, as any cop will tell you, is the foundation of public safety.  If they’re not trusted, the population doesn’t contribute, doesn’t cooperate.”

“For the wheels of justice are propelled by the confidence that people have in their system of justice.  Without that confidence, crimes would go unreported.  Witness[es] fear to come forward; cases go unsolved; victims suffer in isolation while perpetrators remain free; and ironically, police are put in greater — greater danger; justice goes undelivered.”

“Without public trust, law enforcement can’t do its job of serving and protecting all of our communities.  But as we’ve seen all too often, public trust is frayed and broken, and that undermines public safety.”

“The families here today and across the country have had to ask why this nation — why so many Black Americans wake up knowing they could lose their life in the course of just living their life today — simply jogging, shopping, sleeping at home.  Whether they made headlines or not, lost souls gone too soon.”

“Members of Congress, including many here today . . . spent countless hours on the George Floyd Justice in Policing Act to find a better answer to that question. The House passed a strong bill.  It failed in the Senate where our Republican colleagues opposed any meaningful reform.”

“So we got to work on this executive order, which is grounded in key elements of the Justice in Policing Act and reflects inputs of a broad coalition represented here today. Families courageously shared their perspectives on what happened to their loved ones and what we could do to make sure it doesn’t happen to somebody else. Civil rights groups and their leaders of every generation who have given their heart and soul to this work provided critical insights and perspectives. The executive order also benefits from the valuable inputs of law enforcement who put their . . . lives on the line every single day to serve.”

“Here today, I want to especially thank the International Association of Chiefs of Police, the Fraternal Order of Police, as well as the National Organization of Black Law Enforcement Executives, the Federal Law Enforcement [Officers] Association, the Police Executive Research Forum, Major City Chiefs Association, and others who . . . stepped up and endorsed what we’re talking about today.”

“This executive order is going to deliver the most significant police reform in decades.  It applies directly, under law, to only 100,000 federal law enforcement officers — all the federal law enforcement officers.  And though federal incentives and best practices they’re attached to, we expect the order to have significant impact on state and local law enforcement agencies as well.”

“Here are the key parts:

“First, the executive order promotes accountability.  It creates a new national law enforcement accountability database to track records of misconduct so that an officer can’t hide the misconduct. It strengthens the pattern-and-practice investigations to address  systemic misconduct in some departments.  It mandates all federal agents wear and activate body cameras while on patrol.”

Second, the executive order raises standards, bans chokeholds, restricts no-knock warrants, tightens use-of-force policies to emphasize de-escalation and the duty to intervene to stop another officer from using excessive force. . . .”

Third, “the executive order modernizes policing.  It calls for a fresh approach to recruit, train, promote, and retain law enforcement that [is] tied to advancing public safety and public trust.
Right now, we don’t systematically collect data, for instance, on instances of police use of force.  This executive order is going to improve that data collection.”

Other Comments on the Order

As an executive order, it is not as comprehensive as a federal statute on these subjects, but because of Republican opposition Congress has refused to adopt such legislation this term. Moreover, as a federal order it cannot and does not compel state and local law enforcement agencies to adopt the policies set forth in the order; instead, as previously noted, it provides incentives for state and local agencies to do so.

“Larry Cosme, president of the Federal Law Enforcement Officers Association, said the order will have the most direct impact on the nation’s 100,000 federal officers, given that Biden’s ability to act unilaterally on policies for local and state police is limited. But Cosme [also] said the document could serve as a ‘national role model for all law enforcement around the country. We’ve engaged in hundreds of hours of discussions, and this can inspire people in the state and local departments to say: ‘This is what we need to do.’”

“Cosme emphasized that the order will include sections aimed at providing more support for officer wellness, including mental health, and officer recruitment and retention at a time when many departments are facing low morale and staffing shortages. ‘No officer wants anyone, not the suspect or the victim, to lose their life. We want the maximum safety for everyone in the country.’”

The order also drew support from other leaders of major policing organizations.

Jim Pasco, the executive director of the Fraternal Order of Police, said he thought the order’s revised use-of-force language would “bring more clarity and better guidance to officers” but without causing them to become so risk-averse that they fail to protect themselves and others when necessary. “It’s not a question of stricter or less strict,” Mr. Pasco said. “It’s a question of better framed. And a better-constructed definition of the use of force.” He added: “It’s not a sea change.”

Chuck Wexler, executive director of the Police Executive Research Forum, “It’s the nature of American policing. We don’t have a national police force, no national standards and no way of making every department comply with national standards. What this does is, when you don’t have Congress acting on a police bill, you have the president of the United States setting the tone: ‘Here’s what I expect of federal agencies and, therefore, I think state and local will follow.’”

Another supporter of the order, the NAACP by its President, Derrick Johnson, said, ‘We know full well that an executive order cannot address America’s policing crisis the same way Congress has the ability to, but we’ve got to do everything we can. There’s no better way to honor George Floyd’s legacy than for President Biden to take action by signing a police reform executive order.’”

Marc Morial, a former New Orleans mayor who is president and chief executive of the National Urban League, called the order ‘a very important step. We recognize that this process is not going to be easy. This is a long fight. I’m going to accept this first important step by the president because it’s a powerful statement, and it reflects what he can do with his own executive power.’”

The American Civil Liberties Union by Udi Ofer, its deputy national political director, offered cautious support for the executive order, saying much would depend on how it was carried out. “Correct implementation of this standard will be pivotal for its success,” he said. “We have seen jurisdictions with strong standards where officers still resort to the use of deadly force, so just having these words on paper will not be enough. The entire culture and mentality needs to change to bring these words to life, and to save lives.”

Christy E. Lopez, a Georgetown University Law professor and expert on policing issues, [3] praised the order, but noted, that the order is not self-executing, but “will take an enormous amount of effort and focus, particularly by Attorney General Merrick Garland and the Justice Department, but by other federal agencies as well, to ensure that the mandated guidance, studies, grants, task forces and databases are not only created but remain faithful to the goals of the executive order. And that is going to require advocates to keep persistent pressure on the government.” This order “is not legislation. This means, for example, that those of us who support modifying qualified immunity for officials accused of violating a plaintiff’s rights, or creating direct municipal liability for police misconduct, must still push Congress to pass the necessary laws. An even bigger limitation is that while the executive branch can provide state and local governments support and incentives to reduce the harms of policing, it cannot direct them to do so. The bulk of that work must continue to be done in cities, counties and states across the country.”

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[1] White House, Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (May 25, 2022);

[2] White House, Remarks by President Biden and Vice President Harris at Signing of Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety (May 25, 2022); Biden Set to Issue Policing Order on Anniversary of George Floyd Killing, N.Y. Times (May 24, 2022); Biden signs executive order on policing on the anniversary of George Floyd’s death, Wash. Post (May 25, 2022); Biden signs police reform executive order on anniversary of George Floyd’s murder, Guardian (May 26, 2022); Lopez, Biden’s order is a good start on police reform, But Congress must also act, Wash. Post (May 27, 2022)

[3] See Importance of Pending Federal Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Jan. 24, 2022).

Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd   

On May 18, 2022, former Minneapolis Police Officer Thomas Lane in state court pleaded guilty to the charge of aiding and abetting manslaughter of George Floyd on May 25, 2020. [1]

Before Hennepin County District Court Judge Peter Cahill, this guilty plea was part of a plea agreement which dismissed the separate charge of aiding and abetting second-degree murder and for a sentence of three years imprisonment in federal prison to be served concurrently with his upcoming sentence for his February 2022 conviction in federal court for violating Floyd’s civil rights. The state court sentencing is scheduled for September 21.[2]

Minnesota Attorney General Keith Ellison issued a statement saying, “Today my thoughts are once again with the victims, George Floyd and his family. Nothing will bring Floyd back. He should still be with us today.” Ellison then said, “I am pleased Thomas Lane has accepted responsibility for his role in Floyd’s death. His acknowledgment he did something wrong is an important step toward healing the wounds of the Floyd family, our community, and the nation. While accountability is not justice, this is a significant moment in this case and a necessary resolution on our continued journey to justice.”  Lane’s attorney, Earl Gray, however, declined to comment on this development.

Two other ex-MPD officers, Tou Thao and J. Alexander Kueng still face state charges of aiding and abetting second-degree murder and manslaughter in Floyd’s death. That trial is scheduled to commence on June 13. [3]

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[1] Olson, Ex-MPD officer Thomas Lane pleads guilty to manslaughter charge for role in George Floyd’s murder, StarTribune (May 18, 2022); Forlitti & Karnowski (AP), Ex-cop pleads guilty to manslaughter in George Floyd killing, Wash. Post (May 18, 2022); Ex-Minneapolis police officer pleads guilty to manslaughter in George Floyd’s death, NBC News (May 18, 2022); Minnesota Attorney General, ‘Pleased Thomas Lane has accepted responsibility ‘: Attorney general Ellison statement on guilty plea in death of George Floyd (May 18, 2022). Apparently in April, Lane, Kueng and Thao rejected a plea deal (details not publicly available) offered by the Minnesota Attorney General’s Office. (Jimenez, 3 former police officers charged in George Floyd’s death reject plea deal, CNN.com (April 13, 2022).

[2] Federal Criminal trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentareis.com (Feb. 25, 2022).

[3] Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd, dwkcommentaries.com (April 30, 2022).

Presidential Historian Jon Meacham’s Remarks About Walter Mondale at His Memorial Service

At the May 1st Memorial Service for former Vice President Walter Mondale, Presidential Historian Jon Meacham delivered the following remarks.[1]

“The story begins the year before he was even old enough to vote. It was a late July afternoon in 1948, and Fritz Mondale, then all of 20, had been put in charge of the Second Congressional District for Hubert Humphrey’s U.S. Senate campaign. No one knew what second prize was. The annual Martin County Farm Bureau Federation picnic at Fox Lake Park needed a speaker, and Mr. Mondale arranged for Humphrey to headline the event.”

“The political climate was charged and complicated in that American summer. There was anxiety at home, communist aggression abroad, as a Democratic president sought to govern a fractious party and a divided country. As Mark Twain once said, history may not repeat itself, but it does rhyme. Seen as too liberal by the right and too conservative by the left, Harry Truman would say he didn’t give Republicans hell; he just told them the truth and they thought it was hell.”

“In his own party President Truman faced opposition over his desegregation of the military and his push for civil rights. Only weeks before the Martin County picnic, Mayor Humphrey’s civil rights speech at the Democratic convention in Philadelphia had helped send Dixiecrats, segregationist Dixiecrats, out of the hall and back into the Old Confederacy.”

“But far from the Olympian drama of Philadelphia, in Martin County, after the 4-H club band had played, Humphrey took the stage. He was passionate and funny. He said, ‘Kick the rascals out, and vote the new rascals in.’ Afterward Humphrey thanked his young ally, telling Mr. Mondale: ‘Your work is needed. We have so much to do.’”

“Mr. Mondale was over the moon. ‘After that day,’ he recalled, ‘I think I never stopped.’”

“’I think I never stopped.’ And we live in a better, nobler, more perfect Union because Walter Frederick Mondale never stopped.”

“Now, for the politicians in the room — and there might be one or two of you who snuck through customs — an election result: In 1948, Humphrey carried Mondale’s territory, the very Republican Second District, by 8,500 votes. It was Mr. Mondale’s first victory, and it was a sweet one, second only perhaps to his seven dates-in-six-months courtship of Joan Adams.”

“The son of a Methodist minister and farmer, as a child Walter Mondale absorbed a gospel that he never stopped seeking to put into practice: That we are summoned to love our neighbors as ourselves, to lift up the most vulnerable among us — to feed the hungry, to clothe the naked, to strengthen the weak.”

“There’s nothing more important — nothing more American — than that: To enlist in the perennial battle to make real the founding ideal of this nation, that we are in fact created equal.”

“Now, we can, and we will, and we do disagree about the means of governance. But at our best, Americans have agreed on the end of our common project: To give everyone, in Lincoln’s phrase, ‘an open field and a fair chance.’”

“Walter Mondale devoted his life to that cause. He never stopped seeking a fuller, freer, fairer America. And his years in the arena are testament to a truth of human experience: That the polls and the passions of the moment are just that — of the moment. Headlines come and go; history endures. The tumult of politics rage; true service stands long after the furies of the moment have passed.”

“Walter Mondale understood something fundamental: That we are at our best not when we build walls, but when we build bridges; not when we point fingers, but when we lend a hand; not when we fear, but when we hope. And from age to age, history honors those who put ‘We the People’ above the will to power; the rule of law above the reign of party; and difficult truths above self-serving fictions.”

“Now, the Mondales were a stoic people. His father, Theodore, fought a stutter, struggled to farm, went to seminary, and raised a son, Fritz, who knew hardship but lived in hope.”

“It was a hope that drove him all his life. He was born a year before the stock market crash. His childhood was shaped by the Great Depression. He believed in hard work — he liked to say that he was the only pea-lice inspector to ever become Vice President of the United States. I didn’t check it, but I think he’s on safe ground. Some might have preferred it. He served in the U.S. Army, went to law school on the GI Bill, and always gave back to the country that had made his life possible.”

“Now, he was often caricatured, as you all know, as a big-government liberal. But he’s better understood as a Cold War liberal — a man devoted, at home and abroad, to freedom and to fairness.”

“Freedom and fairness: Bear those words in mind. For they are the words that shaped Walter Mondale’s consequential life — and Lord knows they are the words that must guide us still.”

“In the struggle between democracy and dictatorship in the 20th century, Fritz Mondale cast his lot with neither the utopians of the left nor the reactionaries of the right. He stood, instead, for the centrality of the individual, for the sanctity of liberty, and for the pursuit of possibility against the totalitarian impulse.”

“As attorney general of Minnesota he was instrumental in the Gideon case that gave indigent defendants the right to counsel. He brokered the deal that would end segregation forever in the Democratic Party, long the bastion of Jim Crow.”

“And then, he came to the Senate. In the mid-1960s, in the seat that Hubert Humphrey had won the year of that Farm Bureau picnic, Sen. Mondale sensed a vital intersection of forces. To him, as he put it, it was ‘as if we took the intellectual heritage of Franklin Roosevelt, the moral inspiration of John Kennedy, and a decade of pent-up demand for social change and converted them into social reality.’ As a senator he was a crucial voice for the Voting Rights Act of 1965. He led the battle for fair housing in 1968, mastering the Senate in that essential hour.”

“And he never stopped. His causes included Title IX to open opportunities for women. Head Start and elementary and secondary education. Filibuster reform. Nutrition and antipoverty programs. Workers’ rights. Environmental protections. Consumer protections. Early attention to the crisis of climate change. The domestic side of the Church Committee, which revealed the FBI’s wiretapping and harassment of Martin Luther King Jr. The transformation of the vice-presidency in the Carter years. A challenge to apartheid that ignited the chain of events that led to the release of Nelson Mandela. And the nomination of a woman, Geraldine Ferraro, to run with him on a national ticket.”

“Walter Mondale was a giant of the Senate, a formidable vice president, and a truth-telling presidential nominee of his party who never stopped standing by principle.”

“To be sure, it was not always the smoothest of rides. Fritz Mondale knew the vicissitudes of politics as well as any American ever has. When he explored a run for president in 1976, he recalled that ‘after a year I was running six points behind ‘I Don’t Know’ … and I wanted to challenge him to a debate.’ Mr. Mondale would tell the story of Sam Donaldson’s asking Ronald Reagan in 1984, ‘What do you want for Christmas?’ And Reagan: ‘Minnesota.’ When Mondale went to ask George McGovern when did it stop hurting to lose the presidency, Sen. McGovern said, ‘I don’t know. I’ll tell you when it happens.’”

“Walter Mondale loved his family. He loved fishing, Shakespeare, Dairy Queen, the United States Senate, Hubert Humphrey, cigars and the state of Minnesota.”

“And most of all he loved America — its complexities and its hopes, its promise and its possibilities. He thought of himself as a public servant, as a citizen with an obligation to the common good. To him, government was not the enemy, or the problem, but rather a manifestation of love of neighbor and of country.”

“On the night of his defeat in 1984 he spoke not only to the moment, as painful as it was, but to history, saying: ‘Let us continue to seek an America that is just and fair. That has been my fight … I’m confident that history will judge us honorably.’”

“And so it has.”

“One of Mr. Mondale’s favorite verses of scripture tells us much. ‘I have fought the good fight,’ St. Paul said; ‘I have finished the race, I have kept the faith.’” [2 Timothy 4:7]

The first part of that chapter of Second Timothy is quoted less often, but is worth remembering. ‘Preach the word,’ the apostle wrote; ‘be prepared in season and out of season.’” [2 Timothy 4: 1-2]

“In season and out of season — justice knows no season. Truth knows no season. Freedom knows no season. Fairness knows no season. Walter Mondale knew that. He lived by that. And today we salute him for that.”

“There are children in America today who will not go hungry because of Fritz Mondale. There are Black people in America today who can vote, and work, and live more freely and fairly because of Fritz Mondale. There are women in America today who see no limit to their dreams because of Fritz Mondale. There are safer cars in America, there are rivers of clean water in America, there are enclaves of untouched wildlife in America today because of Fritz Mondale.”

“He never stopped believing in this country. He never stopped fighting for its people. And thankfully, he never stopped defending democracy.”

“He never stopped. And nor, in his memory, must we.”

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[1] Read presidential historian Jon Mecham’s remarks at Walter Mondale’s memorial service, StarTribune (May 2, 2022). Professor Meacham is the Carolyn T. and Robert M. Rogers Chair in American Presidency at Vanderbilt University.

 

 

 

 

 

 

 

 

 

 

Memorial Service for Walter Mondale 

On May 1, 2022, a memorial service for Walter “Fritz” Mondale was held at the University of Minnesota’s Northrup Auditorium. He had died on April 19, 2021, but a service at that time was not possible because of the COVID-19 pandemic, and his son, Ted, said his father “didn’t want to lie in state; he didn’t want to be in Washington, he wanted to be here with you” because “you reflected what he would care about and who he is.”[1]

Remarks at the Service

Remarks at this service were provided by U.S. President Joe Biden, former U.S. Presidents Jimmy Carter, Bill Clinton and Barack Obama, Minnesota’s U.S. Senators Amy Klobuchar and Tina Smith, Minnesota Governor Tim Walz, former Minnesota Governor Arne Carlson, University of Minnesota President Joan Gabel, Larry Jacobs (the Walter F. and Joan Mondale Chair for Political Studies at the Humphrey School of Public Affairs, University of Minnesota), Jon Meacham (the Robert M. Rogers Chair in the American Presidency at Vanderbilt University), Josie Johnson (Minnesota civil rights icon), Rev. Tim Hart-Andersen (senior pastor at Mondale’s Minneapolis church, Westminster Presbyterian) and Mondale’s sons, Ted and William. (Some of these comments will be contained in subsequent posts.)

Similar comments were voiced by others in the Washington Post.[2]

The Song “Tomorrow”[3]

The song “Tomorrow” from the musical “Annie,” one of Mondale’s favorite songs, was sung at the memorial service by 14-year-old Lillian Hochman from Hopkins, Minnesota. She had met Mondale when she was in preschool with his granddaughter and subsequently joined her family for weekend breakfasts with Mondale while he followed her budding stage career with Minneapolis’ Children’s Theater Company. Although he was out of town when she performed in “Annie” in 2017, he told her that the show was his favorite.

Lillian is pretty sure she knows why this song was a favorite for Mondale. She said the title character in the show sings this song to President Franklin D. Roosevelt, promising that despite the Great Depression, “the sun’ll come out tomorrow.” The song is “really about bringing hope to a nation and to the president, which I think is one reason for it’s [being Mondale’s] favorite song and show.”

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[1] Bierschbach & Nelson, Leaders, family and friends remember “Fritz” Mondale, StarTribune (May 1, 2022); Vice President Walter F. Mondale ’56 Eulogized at Memorial Service at Northrup, University of Minnesota (May 1, 2022); Remarks by President Biden at the Memorial Service of Vice President Walter Mondale, White House (May 2, 2022); Baker, Biden Extols Mondale as ‘One of the Great Giants of American History,’ N.Y. Times (May 1, 2022); Regan & Viser, Biden pays tribute to friend and mentor Walter Mondale, Wash. Post (May 1, 2020); Mena, Biden Honors Walter Mondale at Memorial, W.S.J. (May 1, 2022); Klobuchar Delivers Remarks At Memorial Service for Former Vice President Walter Mondale (May 1, 2022); Excerpts from speeches and letters read at Walter Mondale’s memorial service, StarTribune (May 2, 2022); Read presidential historian Jon Mecham’s remarks at Walter Mondale’s memorial service, StarTribune (May 2, 2022).

[2] Mannes, Analysis: Her’s what Kamala Harris owes to Walter Mondale, Wash. Post (April 25, 2021); Balz, Mondale lost the presidency but permanently changed the office of vice presidency, Wash. Post (April 19, 2021); Tumulty, Opinion: Walter Mondale reinvented the vice presidency. Both Biden and Harris should thank him for it, Wash. Post (April 19, 2021).

[3] Hewitt, ‘Annie’ star sang tribute to family friend Walter Mondale at memorial, StarTribune (May 2, 2022).

 

 

 

 

Chauvin Appellate Brief Regarding State Court Conviction for Murder of George Floyd

On April 25, 2022, attorneys for Derek Chauvin submitted a brief in support of his appeal to the Minnesota Court of Appeals from his conviction and sentencing by the state District Court for his involvement in the death of George Floyd.

Chauvin’s Brief for the Appeal[1]

Here are the principal points of Chauvin’s brief:

  • The pervasive prejudicial publicity, jurors’ concerns for their safety if they did not convict Chauvin and physical threats to the courthouse required the court to change venue, continue the trial, or fully sequester the jury and its failure to do so violated Minnesota Rule of Criminal Procedure 25.02 and the U.S. Constitution’s 6th and 14th
  • More specifically, the pretrial publicity surrounding the case, which was pervasive and overwhelmingly hostile to Chauvin and law enforcement in general, combined with the riots, the threat of violence from a possible acquittal, the City of Minneapolis’ announcement of its $27 million settlement of claims by the Floyd family in the middle of jury voir dire, jurors’ express concerns for their own personal safety and at least two jurors expressing negative views of the Minneapolis Police Department, the media’s spying on the attorneys and disclosing courthouse security measures required the court to change venue, continue the trial or fully sequester the jury, and its failure to do so violated Minnesota Rule of Criminal Procedure 25.02 and the U.S. Constitution’s 6th and 14th Amendments.
  • The third-degree murder charge against Chauvin, for which he was convicted, must be dismissed because his actions were directed only against one person—George Floyd—and because the Minnesota Supreme Court has decided that such a charge requires actions against more than one person.
  • The second-degree felony-murder charge against Chauvin was invalid because as a police officer he was authorized to “touch” or “assault” Floyd as he resisted arrest and because the court did not instruct the jury that the reasonable use of force by a police officer must be judged from the perspective of a reasonable officer on the scene.
  • The trial court also erred by allowing cumulative evidence by seven expert witnesses on their opinions on the reasonable use of force by Chauvin.
  • The court improperly excluded evidence of MPD training materials showing a police officer placing his or her knees on a suspect’s back.
  • The court erroneously excluded testimony by Morries Hall, a passenger in Floyd’s car, on Floyd’s ingestion of fentanyl and being in a state of excited delirium.
  • The court erroneously failed to take actions to correct prosecutorial misconduct regarding failure to timely disclose certain evidence.
  • The court erroneously failed to make a record of defense counsel’s “sidebar” arguments.
  • The court erroneously used Chauvin’s alleged abuse of a position of authority as an aggravating sentencing factor to justify an upward departure from the presumptive sentencing range.

We now await the prosecution’s responses to these arguments.

Chauvin’s Guilty Plea to Federal Criminal Charges Over Floyd’s Death[2]

Presumably the prosecution will find counter arguments in Chauvin’s December 15, 2001, guilty plea in federal court to two counts of depriving Mr. Floyd of his federally-protected civil rights by pinning his knee against Mr. Floyd’s neck  and by failing to provide medical care for him on May 25, 2020, ultimately causing his death.

In the Plea Agreement and Sentencing Stipulations in that federal case, which Chauvin signed and stipulated that he “fully understands the nature and elements of the crimes with which he has been charged  [in that federal case]” and “admits that the following facts are true, and that those facts establish his guilt beyond a reasonable doubt [to those charges].”

  • Chauvin “held his left knee across Mr. Floyd’s neck, back, and shoulder, and his right knee on Mr. Floyd’s back and arm. As Mr. Floyd lay on the ground, handcuffed and unresisting, [Chauvin] kept his knees on Floyd’s neck and body, even after Mr. Floyd became unresponsive. This offense resulted in bodily injury to, and the death of, George Floyd.”
  • “On May 25, 2020, [Chauvin] was on duty and acting under color of law as a patrol officer for the [MPD]. Through his experience as an MPD patrol officer, [Chauvin] was familiar with MPD policies and training regarding the authorized use of force, including the requirement that an officer use force only in proportion to a subject’s resistance and the requirement that an officer stop using force when a subject is not resisting. . . . [Chauvin] was also aware of MPD policy and training that once an arrestee is in custody, the arrestee is the officer’s responsibility to protect, and accordingly, officers are required to provide emergency medical aid to an arrestee who needs it, including CPR immediately if there is not pulse and other basic first aid, even while awaiting Emergency Medical Services (EMSA). Finally, [Chauvin] was trained that if an arrestee is in the prone position, that position may make it more difficult to breathe, and thus, officers should move that arrestee to a side recovery or seated position.”
  • “After an attempt to seat Mr. Floyd in a squad car, [Chauvin] and Officers Kueng and Lane maneuvered Mr. Floyd, who was handcuffed and requesting to be placed on the ground, out of the vehicle and face-down on the street. Mr. Floyd remained restrained, prone and handcuffed on the ground for approximately ten minutes. During this entire period, [Chauvin] held his left knee on Mr. Floyd’s neck, back, and shoulder area and his right knee on Mr. Floyd’s left arm and upper back.”
  • “After the initial restraint, Mr. Floyd stopped resisting officers. [Chauvin] admits that no later than the time the officers decided not to apply the hobble to Mr. Floyd, [Chauvin’s] continued use of force became objectively unreasonable and excessive based on a totality of the circumstances. After that point, [Chauvin] continued his unreasonable restraint of Mr. Floyd until after the paramedics arrived.”
  • “[Chauvin] admits that in using this unreasonable and excessive force, he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] knew that what he was doing was wrong, in part, because it was contrary to his training as an MPD officer. [Chauvin] chose to continue his use of force even though he knew from MPD policy and training that once Mr. Floyd was compliant, [Chauvin] should have gotten off of him and moved him into a side recovery or seated position.”
  • “[Chauvin] also knew there was no legal justification to continue his use of force because he was aware that Mr. Floyd not only stopped resisting, but also stopped talking, stopped moving, stopped breathing, and lost consciousness and a pulse. [Chauvin] chose to continue applying force even though he knew Mr. Floyd’s condition progressively worsened. [Chauvin] also heard Mr. Floyd repeatedly explain that he could not breathe, was in pain, and wanted help.”
  • “[Chauvin] knew that what he was doing was wrong-that continued force was no longer appropriate and that it posed significant risks to Mr. Floyd’s life based on what he observed and heard about Mr. Floyd.”
  • “[Chauvin] also willfully violated Mr. Floyd’s constitutional right not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs. [Chauvin] admits that he failed to render medical aid to Mr. Floyd, as he was capable of doing, and trained and required to do.”
  • “At the time [Chauvin] failed to render medical aid to Mr. Floyd, [he] saw Mr. Floyd lying on the ground, in serious medical need, and eventually unconscious and pulseless, and recognized Mr. Floyd was in clear need of medical aid. At no point during the entire period that Mr. Floyd was on the ground did [Chauvin] or anyone else move Floyd onto his side, start CPR, or provide medical aid of any kind to Mr. Floyd. [Chauvin’s] failure to render medical aid resulted in Mr. Floyd’s bodily injury and death.”
  • “[Chauvin] agrees that the appropriate base offense level is second-degree murder because he used unreasonable and excessive force that resulted in Mr. Floyd’s death, and he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] admits that his willful use of unreasonable force resulted in Mr. Floyd’s bodily injury and death because his actions impaired Mr. Floyd’s ability to obtain and maintain sufficient oxygen to sustain Mr. Floyd’s life.”

Conclusion

Given these express written admissions by Chauvin, why is it necessary for the Minnesota Court of Appeals, the Minnesota Attorney General’s Office and Chauvin’s attorneys to go through the intensive and costly process of examining the various issues in Chauvin’s appeal of his state court conviction and sentencing?

This blog welcomes comments expressing why such efforts are necessary.

=============================

[1] Appellant’s Brief, State v. Chauvin, Minn. Ct. Appeals, No. A21-1228 (April 25, 2022); Assoc. Press, Chauvin appeals murder conviction for killing George Floyd, StarTribune (April 28, 2022); Chappell, Derek Chauvin appeals his conviction for George Floyd’s murder, MPRNews (April 27, 2022); Scully, Derek Chauvin asks court to  overturn conviction in George Floyd killing, The Hill (April 27, 2022); Wolfe & Rose, Derek Chauvin appeals his murder conviction in death of George Floyd, CNN.con (April 27, 2022).

[2] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing George Floyd, dwkcommentaries.com (Dec. 16, 2021); Plea Agreement and Sentencing Guidelines (pp. 2-6), U.S. v. Chauvin, U.S. Dist. Ct., D. MN (Case No. 21-CR-108 (PAM-TNL) (Dec. 15, 2021). The federal court’s Docket Sheet for this case has the following entries, but the referenced documents are currently not available to the public: (a) 4/1/22 entry for erroneous filing of transcript of 12/15/21 Change of Plea Hearing; (b)  4/5/22 entry for filing of corrected version of that transcript; and (c) 4/27/22 entry for Preliminary Presentence Report on Chauvin.

 

 

Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd 

On April 25, 2022, Hennepin County District Court Judge Peter A. Cahill issued the Trial Scheduling and Management Order and Memorandum Opinion regarding the June 13, 2022, commencement of the trial of three former Minneapolis policemen (Tou Thao, Thomas Kiernan Lane and J. Alexander Kueng) over the killing of George Floyd on May–, 2020.[1]

Trial Management Order

  1. Specified information about any expert witnesses not previously disclosed shall be submitted by May 1, 2022.
  2. Motions in limine shall be submitted by May 13, 2022, with supporting memoranda by May 20 and responsive memoranda by June 3.
  3. Trial witness lists shall be submitted by May 13, 2022.
  4. Trial exhibit lists and proposed jury instructions shall be submitted by June 10, 2022.
  5. Trial will commence at 9:00 a.m. on June 13, 2022, in Hennepin County Courtroom C-1856.
  6. Limits at trial on the number and conduct of the parties’ attorneys or support staff were specified.
  7. Limits at trial on the number and conduct of spectators at trial for the Media Coalition and the George Floyd and defendants’ families were specified.
  8. Hearing on motions in limine or administrative matters will be heard on June 13, 2022, and, if necessary, on subsequent days.
  9. Jury selection will begin on June 14, 2022.
  10. Jurors and potential jurors shall be partially sequestered.
  11. Opening statements and presentation of evidence will begin on July 5, 2022.
  12. Witnesses, prior to testifying, shall be sequestered.
  13. Audio and video recording and livestreaming of the trial will not be allowed except as expressly permitted by Minn. R. Gen. P. 4.02(d).
  14. At least three overflow courtrooms with audio and video feed from the trial courtroom will be provided for family members of George Floyd and the defendants, the media and the public.

The Court’s Memorandum Opinion

The last 27 pages of this Court document set forth the legal bases for the following conclusions:

  • The Minnesota Rules of Practice Do Not Currently Authorize Livestreaming of Trials Over the Objection of a Party;
  • The Unusual and Compelling Circumstances of the Covid-19 Pandemic at the Time of the Chauvin Trial Have Substantially Abated and the Supreme Court Rules in Force in the First Half of 2021 Mandating Social Distancing, Mask Wearing, and Other Precautionary Measures Due to the Covid-19 Pandemic Are No Longer in Force, Obviating Resort to Rule 1.02;
  • This Court Now Is Precluded by Rule 4.02(d) from Ordering Livestreaming of the Trial Over Objections of the Defendants; and
  • Partial Jury Sequestration Is Appropriate.

Reactions [2] 

An attorney for the Media Coalition, which wanted livestreaming of the trial, said that this order was “deeply disappointing [because] thousands of people interested in this important trial won’t be able to watch it. The court’s decision is based on its view that, with the world returning to normal after the pandemic, it must revert to Supreme Court rules that require everyone involved to consent to cameras before they are allowed. The defendants don’t consent. Our Supreme Court needs to change the rule. They are working on it. I wish they could have worked faster.”

Minnesota Assistant Attorney General, Matthew Frank, in a motion before the issuance of this order, said that prohibiting a livestream after allowing one during Chauvin’s trial could harm public confidence in the process. “In the public’s mind, this trial and Chauvin are linked. If this court eliminates audio-visual coverage at this late hour, the broader public may receive the unintended message that they no longer have the right to observe proceedings.”

====================================

[1] Trial Scheduling and Management Order and Memorandum Opinion, State v. Thao, Lane & Kueng, Hennepin County District Court files 27-CR-20-12949, 27-CR-20-12951, 27-CR-20-12953 (April 25, 2022).

[2] Mannix, Judge: Trial of 3 ex-Minneapolis police officers in George Floyd death won’t be livestreamed, StarTribune (April 26, 2022); Karnowski (AP), Trial of 3 ex-officers in Floyd death won’t be livestreamed, StarTribune (April 26, 2022).

U.S. State Department’s Latest Report on Cameroon Human Rights

On April 12, 2022, the U.S. State Department released its 2021 Country Reports on Human Rights. This report is the latest annual report for nearly five decades that “strive[s] to provide a factual and objective record on the status of human rights worldwide.” The 2021 report covers 198 countries and territories. [1]

Cameroon Human Rights[2]

Here is the outline of the details on the status of various human rights in each of the 198 countries and territories, including Cameroon:

Section 1. Respect for the Integrity of the Person

  1. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
  2. Disappearance
  3. Torture and Other Cruel, Inhuman, or Degrading treatment or Punishment
  4. Arbitrary Arrest or Detention
  5. Denial of Fair Public Trial
  6. Arbitrary or Unlawful Interference with Privacy, Family, Home, Or Correspondence

Section 2. Respect for Civil Liberties

  1. Freedom of Expression, Including for Members of the Press and Other Media
  2. Freedom of Peaceful Assembly and Association
  3. Freedom of Religion
  4. Freedom of Movement and the Right To Leave the Country
  5. Status and Treatment of Internally Displaced People
  6. Protection of Refugees

Section 3.  Freedom to Participate in the Political Process

Section 4.  Corruption and Lack of Transparency in Government

Section 5.  Governmental Posture Towards International and           Nongovernmental Investigation of Alleged Abuses of Human Rights

Section 6.  Discrimination and Societal Abuses

Section 7. Worker Rights

Executive Summary of Cameroon Human Rights

The report on Cameroon begins with the following Executive Summary.

“Cameroon is a republic dominated by a strong presidency. The president retains power over the legislative and judicial branches of government. The ruling political party, the Cameroon People’s Democratic Movement, has remained in power since its creation in 1985. The country held legislative elections in February 2020 that were marked by irregularities. The ruling party won 152 of 180 National Assembly seats. Paul Biya has served as president since 1982. He was last reelected in 2018 in an election marked by irregularities.”

“The national police and the national gendarmerie are responsible for internal security. The former reports to the General Delegation of National Security and the latter to the Secretariat of State for Defense in charge of the Gendarmerie. The army shares some domestic security responsibilities; it reports to the minister delegate at the presidency in charge of defense. The Rapid Intervention Battalion reports directly to the president. Civilian and military authorities did not maintain effective control over the security forces. There were credible reports that members of the security forces committed numerous abuses.”

“Casualties rose in the Anglophone crisis in the Northwest and Southwest Regions. Anglophone separatists used improvised explosive devices with greater success. ISIS-West Africa increased attacks in the Far North Region. The government continued to crack down on the opposition Cameroon Renaissance Movement, and in December several of its members were sentenced to prison for terms ranging from one to seven years following protests in 2020.”

“Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings by the government and nonstate armed groups; forced disappearances by the government; torture and cases of cruel, inhuman, or degrading treatment or punishment by the government and nonstate armed groups; harsh and life-threatening prison conditions; arbitrary arrests or detention; political prisoners or detainees; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; punishment of family members for offenses allegedly committed by an individual; serious abuses in a conflict, including abductions and unlawful recruitment and use of child soldiers by nonstate armed groups; serious restrictions on freedom of expression and media, including violence, threats of violence, or unjustified arrests or prosecutions against journalists, censorship, and criminal libel laws; substantial interference with the right of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; serious restrictions on freedom of movement; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious government corruption; lack of investigations and accountability for gender-based violence; trafficking in persons; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons; and the existence or use of laws criminalizing same-sex sexual conduct between adults.”

“Although the government took some steps to identify, investigate, prosecute, and punish officials who committed human rights abuses or corruption, it did not do so systematically and rarely held public proceedings. Impunity remained a serious problem.”

“Armed separatists, Boko Haram and ISIS-West Africa, and criminal gangs also committed human rights abuses, some of which were investigated by the government.”

Conclusion[3]

Commenting on this report, U.S. Secretary of State Antony Blinken said governments around the world, including Russia and China, grew more repressive last year. One example was the increasingly brazen way governments were “reaching across borders to threaten and attack critics” while some governments such as Cuba, Egypt and Russia were quick to lock up critics at home. Blinken also noted there had been “a serious erosion of human rights” in Afghanistan.

==================================

[1] U.S. State Dep’t, 2021 Country Reports on Human Rights (April 12, 2022).

[2] U.S. State Dep’t, 2021 Country Reports on Human Rights Practices: Cameroon (April 12, 2022).

[3] Crowley, U.S. Report Describes a Global Retreat on Human Rights and Democracy, N.Y. Times (April 12, 2022);U.S. State DRyan, Human rights and democracy eroding worldwide, U.S. finds, Wash. Post (April 12, 2022).

 

U.S. State Department’s Latest Report on Cuban Human Rights

On April 12, 2022, the U.S. State Department released its 2021 Country Reports on Human Rights. This report is the latest annual report that for nearly five decades has striven “to provide a factual and objective record on the status of human rights worldwide.” The 2021 report covers 198 countries and territories. [1]

Cuban Human Rights[2]

Here is the outline of the details on the status of various human rights in each of the 198 countries and territories, including Cuba:

Section 1. Respect for the Integrity of the Person

  1. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
  2. Disappearance
  3. Torture and Other Cruel, Inhuman, or Degrading treatment or Punishment
  4. Arbitrary Arrest or Detention
  5. Denial of Fair Public Trial
  6. Arbitrary or Unlawful Interference with Privacy, Family, Home, Or Correspondence

Section 2. Respect for Civil Liberties

  1. Freedom of Expression, Including for Members of the Press and Other Media
  2. Freedom of Peaceful Assembly and Association
  3. Freedom of Religion
  4. Freedom of Movement and the Right To Leave the Country
  5. Status and Treatment of Internally Displaced People
  6. Protection of Refugees

Section 3.  Freedom to Participate in the Political Process

Section 4.  Corruption and Lack of Transparency in Government

Section 5.  Governmental Posture Towards International and Nongovernmental Investigation of Alleged Abuses of Human Rights

Section 6.  Discrimination and Societal Abuses

Section 7. Worker Rights

Executive Summary of Cuban Human Rights

The report on Cuba begins with the following Executive Summary.

“Cuba is an authoritarian state. The 2019 constitution codifies that Cuba remains a one-party system in which the Communist Party is the only legal political party. On April 19, President Miguel Diaz-Canel replaced former president Raul Castro as first secretary of the Communist Party, the highest political entity of the state by law. Elections were neither free nor fair nor competitive.”

“The Ministry of Interior controls police, internal security forces, and the prison system. The ministry’s National Revolutionary Police are the primary law enforcement organization. Specialized units of the ministry’s state security branch are responsible for monitoring, infiltrating, and suppressing independent political activity. The national leadership, including members of the military, maintained effective control over the security forces. There were credible reports that members of the security forces committed numerous abuses, and the number of political prisoners increased dramatically, with many held in pretrial detention under extremely harsh and degrading conditions.”

“On January 28, security forces violently arrested more than 20 artists and journalist peacefully protesting in front of the Ministry of Culture for the release of detained artists. On July 11, spontaneous peaceful protests broke out across the island. In the largest and most widespread demonstrations in decades, tens of thousands of citizens across the country poured into the streets to demand an end to repression as well as to criticize the government’s failure to meet their basic needs and its poor response to COVID-19. Social media posts helped spread news of the protests among citizens. Security forces responded with tear gas, beatings, and arrests. First Secretary of the Communist Party and President Miguel Diaz-Canel went on national television to call on “all revolutionaries and communists to confront these protests,” a reference to Article Four of the 2019 constitution, which gives citizens the right to “combat through any means, including armed combat” any who “intend to topple the political, social, and economic order established by this constitution.” Many of those arrested reported cruel and degrading treatment in prison. In October authorities denied permission for a protest planned for November 15 and threatened organizers. The government conducted summary trials for some protesters; sought long prison sentences, some up to 30 years, in hundreds of cases; and held other protesters in extended pretrial detention. Some activists chose to go into exile, and the government forced others to do so.”

“Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings, by the government; forced disappearance by the government; torture and cruel, inhuman, and degrading treatment of political dissidents, detainees, and prisoners by security forces; harsh and life-threatening prison conditions; arbitrary arrests and detentions; political prisoners; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; reprisals against family members for offenses allegedly committed by an individual; serious restrictions on freedom of expression and media including violence or threats of violence against journalists, censorship, and criminal libel laws used against persons who criticized government leadership; serious restrictions on internet freedom; severe restrictions on the right of peaceful assembly and denial of freedom of association, including refusal to recognize independent associations; severe restrictions on religious freedom; restrictions on internal and external freedom of movement; inability of citizens to change their government peacefully through free and fair elections, including serious and unreasonable restrictions on political participation; serious government corruption; a lack of investigation of and accountability for gender-based violence; trafficking in persons, including forced labor; and outlawing of independent trade unions.”

“Government officials, at the direction of their superiors, committed most human rights abuses. As a matter of policy, officials failed to investigate or prosecute those who committed these abuses. Impunity for the perpetrators remained widespread, as was impunity for official corruption.”

Conclusion[3]

Commenting on this report, U.S. Secretary of State Antony Blinken said governments around the world, including Russia and China, grew more repressive last year. One example was the increasingly brazen way governments were “reaching across borders to threaten and attack critics” while some governments such as Cuba, Egypt and Russia were quick to lock up critics at home. Blinken also noted there had been “a serious erosion of human rights” in Afghanistan.

============================

[1] U.S. State Dep’t, 2021 Country Reports on Human Rights (April 12, 2022).

[2] U.S. State Dep’t, 2021 Country Reports on Human Rights Practices: Cuba (April 12, 2022).

[3] Crowley, U.S. Report Describes a Global Retreat on Human Rights and Democracy, N.Y. Times (April 12, 2022).; Ryan, Human rights and democracy eroding worldwide, U.S. finds, Wash. Post (April 12, 2022).

 

Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict

On February 23, U.S. District Court Judge Paul Magnuson gave the Court’s instructions to the jury, and the jury engaged in their deliberations for the rest of the day and most of the next day. On the afternoon of February 24, the jury rendered its verdict. [1]

                                                     Jury Instructions

The Judge told the jurors they must view the evidence in light of what a “reasonable officer at the scene” would have done “without the benefit of 20-20 hindsight” and then “determine whether the decision to use force on Floyd was reasonable under the circumstances that were tense and rapidly evolving.” 

Moreover, “it violates the Constitution for a police officer to fail to intervene if he had knowledge of the force and an ability to do so.” 

On each count, if the jurors find an officer guilty, they must determine whether the officer’s actions caused Floyd’s death. (If the jury so finds, longer sentences would be permissible.)

                                                        Jury Verdict [2]

On the afternoon of February 24, after total deliberations of 13 hours over two days, the jury rendered its verdict that all three defendants were guilty of all charges.

                                            Reactions to the Verdict [3]

Afterwards, Assistant U.S. Attorney LeeAnn Bell said, “[A]s one of the brave bystanders said, ‘George Floyd was a human being.’ He deserved to be treated as such.”

George Floyd’s brother, Philonise Floyd, said, “This is something we want everybody to remember: If you kill somebody, you’re going to get time.”

Minnesota Attorney General Keith Ellison stated, “Once again, the principle that no one is above the law and no one is beneath it has been upheld. The verdicts vindicate the principle that officers have a duty  and a responsibility to intervene and recognize when a fellow officer is using excessive force.”

Christy E. Lopez, a professor at Georgetown University Law Center and an expert on police training, commented that this verdict “could significantly change law enforcement culture, compelling agencies to make sure that officers are properly trained and are upholding their duties. It shifts the entire narrative from misconduct being about just acts of commission to misconduct also being about acts of omission.” [4]

Other experts noted that “this case focused on a more widespread problem than a single officer’s act of violence: the tendency of officers to stand by when they witness a fellow officer committing a crime.”

==============================

[1] Olson & Mannix, Jury wraps first day of deliberating federal civil rights case against 3 ex-Minneapolis officers in George Floyd death, StarTribune (Feb. 23, 2022); Bogel-Burroughs, Jurors to Weigh Fate of Officers Who Restrained George Floyd as He Died, N.Y. Times (Feb. 22, 2022).

[2]Olson & Mannix, Ex-Minneapolis officers guilty on all civil rights charges related to George Floyd’s death, StarTribune (Feb. 24, 2022); Former Minneapolis Police Officers Found Guilty of Violating George Floyd’s Civil Rights, W.S.J. (Feb. 24, 2022); Former Minneapolis officers found guilty of violating George Floyd’s civil rights, Wash. Post (Feb. 24, 2022).

[3] Walsh, Reaction to guilty verdicts ranges from proper police accountability to worries of chilling effect on cops, StarTribune (Feb. 24, 2022); Arango, Bogel-Burroughs & Senter, 3 Former Officers Are Convicted of Violating George Floyd’s Civil Rights, N.Y. Times (Feb. 24, 2022).

[4] See Importance of Pending Federal Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Jan. 24, 2022)(discussion of Professor Lopez’ work on police training), https://dwkcommentaries.com/2022/01/24/importance-of-pending-federal-criminal-case-over-killing-of-george-floyd/

 

Federal Criminal Trial for Killing George Floyd: Closing Arguments

On February 22, 2022, the United States for the prosecution and the attorneys for the defendants Tou Thao, J. Alexander Kueng and Thomas Lane presented their closing arguments to the jury. [1]

The Charges Against the Defendants

Thao and Kueng are charged with failing to intervene on Floyd’s behalf while the two of them and Lane are charged with with failing to provide medical aid to Floyd while Derek Chauvin was using unreasonable force.

Prosecution’s Closing Argument

Assistant U.S. Attorney Manda Sertich emphasized the length of time that Mr. Floyd had suffered while the officers did not provide aid. They watched and listened, but did not help as Chauvin killed a man “in broad daylight on a public street.” They knew Floyd needed aid. They had been trained that every second counted to start life-saving procedures for an unresponsive man. They had the ability to help, but they didn’t.

Thao had “done nothing” for 4 minutes and 40 seconds as Floyd called out for help. Instead he “mocked” Floyd by telling bystanders that this is “why you don’t do drugs, kids.” During that same time, Kueng ignored Floyd’s pleas as he crouched “shoulder to shoulder” with Chauvin, never urging him to let up. Kueng also laughed when Chauvin said the dying man talked a lot for someone who said he couldn’t breathe. Lane, who was holding Floyd’s legs, had chosen “not to stop the horror unfolding under his nose, only suggesting that Chauvin roll Floyd onto his side, but  “doing nothing to give Floyd the medical aid he knew he so desperately needed.”

Even as Floyd said he could not breathe for a 27th time, the officers “were only halfway through their crime.”

The falsity of the defense is proved by ordinary citizen bystanders, including a nine-year old, who cried out for the officers to intervene. “These civilians didn’t have a badge. They didn’t have other officers who could back them up. They knew these officers had more power than they did, more authority than they did and could cause trouble for them. And they still insisted.”

“These defendants knew what was happening, and contrary to their training, contrary to common sense, contrary to basic human decency,” they “chose not to aid George Floyd, as the window into which Mr. Floyd’s life could have been saved slammed shut. This is a crime. The defendants are guilty as charged.”

Defendants’ Closing Arguments

The three defense counsel collectively argued that their clients had deferred to the judgment of Chauvin, the senior officer on the scene; that their attention had at times been diverted from Floyd’s deteriorating condition; and that restraining Floyd was necessary because he had taken fentanyl and earlier had refused to get into the back of a squad car after being accused of using a counterfeit $20 bill to buy a package of cigarette.

Defense counsel also argued that the prosecution had made misleading arguments and that this case had been brought because of political pressure.

Lane’s attorney noted that he had asked Chauvin if they should roll Floyd onto his side and thus had not been charged with failure to intervene. In addition, when paramedics had arrived, Lane told them that Floyd was unresponsive and then Lane rode with Floyd in the ambulance and applied chest compressions.

Kueng’s attorney said the crowd of bystanders had created an unusual and hostile situation.

Prosecution Rebuttal

Another Assistant U.S. Attorney, LeeAnn Bell, emphasized that the key to the case was a police officer’s duty: “In your custody, in your care.”

==============================

[1] Mannix & Olson, In closing arguments at trial of three former Minneapolis officers, attorneys spar over ‘willful intent,’ StarTribune  (Feb. 22, 2022); Mannix, Defense of former officers puts Minneapolis ‘paramilitary’ training on trial, StarTribjne (Feb. 22, 2022); Barrett, Prosecutor Says Ex-Officers ‘Chose to Do Nothing’ in Floyd arrest, W.S.J. (Feb. 22, 2022);