George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count III       

As noted in a prior post, on July 15, the family of George Floyd filed a federal civil action with two claims (Counts II and III) for money damages against the City of Minneapolis and one claim (Count I) against the four ex-police officers who were involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng. This post will discuss Count III.[1] while Counts I and  II were discussed in prior posts.

Legal Basis

Count III is asserted against the City of Minneapolis under 42 U.S.C. section 1983, which states as follows:

  • “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

Count III also is based upon so-called “Canton Liability,” which refers to the U.S. Supreme Court case, Canton v. Harris, 489 U.S. 378 (1989), which held that a municipality may be held liable under section 1983 for constitutional violations resulting from its failure to train its employees where such failure to train in a relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the police come into contact.

Factual Allegations

The Parties

“6. Plaintiff Kaarin Nelson Schaffer (“Schaffer”) resides in Hennepin county, Minnesota, and is an attorney duly licensed to practice before the State and Federal; Courts of Minnesota. On July 6, 2020, Schaffer was appointed as trustee for George Floyd’s next of kin.”

“7. Mr. Floyd is survived by next of kin including his children and siblings.”

“8. Minneapolis is and was at all times material hereto a political subdivision of the State of Minnesota, organized and existing under and by virtue of the laws of Minnesota.”

“9. The Minneapolis Police Department (“MPD”) is and was at all times material hereto a Minneapolis agency, providing the vehicle through which the City fulfills its policing functions.”

“Count III – 42 U.S.C. §1983 – Canton Liability”

“247. Plaintiff hereby incorporates and re-alleges all preceding paragraphs as though fully pleaded herein.”

“248.Minneapolis failed to properly train or modify its training to Defendant Officers and its other officers, including but not limited to, matters related to the reasonable and appropriate use of force during such arrests, and intervention in the excessive use offorce by fellow officers.”

“249. Effectuating an arrest, using force to effectuate an arrest, and intervening in the use of force is a usual and recurring situation with which Minneapolis law enforcement officers and other agents encounter on a regular basis.”

“250. As such, Minneapolis was aware of a need for more and different training.Minneapolis specifically knew that its officers needed training regarding the use of prone restraint and was required to provide its officers with such training.”

“251. Minneapolis also specifically knew that its officers needed specific training on the use of neck restraints.”

“252. With deliberate indifference to the rights of citizens, Minneapolis failed to provide adequate training to its officers on the use of prone and neck restraint.”

“253.Minneapolis was aware that deprivation of the constitutional rights of citizens was likely to result from its lack of training and the failure to modify its training.”

“254. As such, Minneapolis was deliberately indifferent and exhibited reckless disregard with respect to the potential violation of constitutional rights.”

“255. The failure to train and/or to appropriately modify training constituted official Minneapolis policies, practices, or customs.”

“256. Minneapolis’s failure to train and/or to modify training was behind the acts and omissions the Defendant Officers made toward Mr. Floyd.”

“257. As a direct and proximate result of Minneapolis’s acts and omissions, Mr. Floyd suffered injuries, experienced pain and suffering, and ultimately died.”

“258. As a direct and proximate result of the acts and omissions described herein, Mr. Floyd suffered compensatory and special damages as defined under federal common law and in an amount to be determined by jury.”

“259. Plaintiff is entitled to recovery of costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988.”

“260. The conduct described in all of the preceding paragraphs amount to wrongful acts and omissions for purposes of Minnesota Statute Section 573.02, subdivision 1.”

“261. As a direct and proximate result of these wrongful acts and omissions, Mr. Floyd’s next of kin have suffered pecuniary loss, including medical and funeral expenses,loss of aid, counsel, guidance, advice, assistance, protection, and support in an amount to be determined by jury.“

Conclusion

All of the legal references and assertions by the parties, of course, are subject to legal research to determine their current validity in light of any subsequent federal statutes and decisions by the U.S. Supreme Court and lower federal courts, especially by the U.S. District Court for the District of Minnesota and its direct appellate court (the U.S. Court of Appeals for the Eighth Circuit).As previously noted, Count I of this Complaint against the four ex-officers and Count II against the City have been covered in prior posts.[2]

Now we await the defendants’ responses to this Complaint and other further developments in this civil case and in the criminal cases against the four ex-officers.

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[1] Read the lawsuit filed by family of George Floyd against Minneapolis, four ex-police officers, StarTribune (July 15, 2020).

[2] George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death, dwkcommentaries.com (July  17, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count II, dwkcommentaries.com (July 18, 2020).

 

George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death

As noted in a prior post, on July 15, the family of George Floyd filed a federal civil action for money damages against the four ex-police officers who were involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng. Now we examine that complaint against these four individuals in Count I of the Complaint.

Count I of the Complaint[1]

Legal Basis.

That charge was set forth as Count I of the Complaint for alleged Fourth Amendment violation under 42 U.S.C. section 1983, which provides as follows:

  • “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

The Fourth Amendment to the U.S. Constitution states, in part,  “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, shall not be violated.”

“The Parties”

“6. Plaintiff Kaarin Nelson Schaffer (“Schaffer”) resides in Hennepin County, Minnesota and is an attorney duly licensed to practice before the State and Federal Courts of Minnesota. On July 6, 2020, Schaffer was appointed as trustee for george floyd’s next of kin.”

“7. Mr. Floyd is survived by next of kin including his children and siblings.”

“10[-11.] Upon information and belief, Defendant Chauvin is and was at all times material hereto a citizen of the United States and the state of Minnesota, . . . was at all times material hereto employed by the MPD as a duly appointed and sworn police officer, and was acting in his individual capacity and/or under color of state law, and within the scope of his employment.” [The same allegations are made against Defendants Thao, Lane and Kueng (Complaint, paras. 12-17.]

“Factual Allegations”

“George Floyd’s Death”

“18. At approximately 8:00 p.m. on May 25, 2020, the Defendant Officers were dispatched to the Cup Foods corner store located at 3759 Chicago Avenue, Minneapolis, Minnesota in response to a call alleging that Mr. Floyd had engaged in potential fraud, a non-violent offense.”

“19. Defendants Lane and Kueng were the first to arrive on the scene and observed Mr. Floyd seated inside a vehicle.”

“20. Defendants Lane and Kueng placed Mr. Floyd under arrest and secured both of Mr. Floyd’s hands in handcuffs behind his back without incident.”

“21. Mr. Floyd did not physically resist arrest.”

“22. Mr. Floyd was unarmed and did not at any point physically or verbally threaten the officers, nor did he attempt to flee.”

“23. After he was securely handcuffed, Mr. Floyd remained calm and complied with each of the officers’ commands as directed, including sitting down against a wall and walking with the officers across the street without incident.”

“24. Defendants Chauvin and Thao arrived on the scene after Mr. Floyd had been secured in handcuffs and while he was calmly speaking with Defendants Lane and Kueng.”

“25. None of the Defendant Officers had knowledge of any information to reasonably believe that Mr. Floyd was armed, violent, or potentially dangerous.”

“26. Defendant Chauvin was a MPD Field Training Officer (“FTO”) and Defendant Kueng was his trainee.”

“27. Probationary officers are assigned to FTOs to supervise their actions in the field for a short period following their training.”

“28.Per City of Minneapolis policy, probationary officers are not permitted to ask FTOs questions or ask FTOs for advice or guidance while being supervised by FTOs.”

“ 29. Once across the street, Mr. Floyd expressed to Lane and Kueng that he was experiencing claustrophobia.”

“30. Despite Mr. Floyd expressing claustrophobia and distress, Lane suggested to the other officers they employ the “maximal restraint technique”- a technique in which an arrestee is restrained in a prone position.”

“31.Without provocation or justification, the Defendant Officers took Mr. Floyd to the ground and placed him face down in the street, with the left side of his face pressed against the pavement.”

“32. Defendants Lane and Kueng kneeled on Mr. Floyd’s back and legs, putting their body weight onto Mr. Floyd and pinning him to the ground.”

“33. Upon information and belief, Defendant Kueng twisted Mr. Floyd’s arms to the side of his body and held them in this position.”

“34. Defendant Chauvin drove his left knee into the back of Mr. Floyd’s neck, supporting his body weight by Mr. Floyd’s neck as Mr. Floyd’s face pressed into the ground.”

“35. Lane asked the others if they should raise Mr. Floyd’s legs, and Chauvin responded that the position Mr. Floyd was in was ‘good.’”

“36. Chauvin, Lane, and Kueng kept Mr. Floyd in prone position with their body weight on top of him for nearly nine minutes.”

“37. Defendant Thao stood just feet away from Mr. Floyd’s head and from the other Defendant Officers.”

“38. Mr. Floyd said to Defendant Officers ‘Tell my kids I love them- I’m dead.’”

“39. Mr. Floyd said to Defendant Officers ‘Please, please- I can’t breathe! Please,”

“40. Mr. Floyd groaned and cried. ”

“41. An onlooker stated to Defendant Officers ‘You got him down- let him breathe at least, man,’ as Mr. Floyd continued to state that he could not breathe.”

“42. A Defendant Officer told Mr. Floyd to ‘relax.’”

“43. Chauvin asked Mr. Floyd ‘What do you want?’ Mr. Floyd repeated that he could not breathe and asked Chauvin to get off of his neck.”

“44. Mr. Floyd began to cry out for his mother and remarked ‘I’m through.’ Mr. Floyd remarked that his stomach hurt, his neck hurt, and that he needed some water, and repeated that he could not breathe.”

“45. Defendant Chauvin responded that Mr. Floyd should stop talking.”

“46. Mr. Floyd stated ‘They’re gonna kill me, man.’”

“47. An onlooker stated to Defendant officers that Mr. Floyd’s nose was bleeding and exhorted the officers to look at Mr. Floyd’s nose.”

“48. Defendant Officers did not check on Mr. Floyd after hearing that he was bleeding.”

“49. Another onlooker noted ‘That’s wrong, right there, to put your knee on his neck.’”

“50. Mr. Floyd again cried that he could not breathe.”

“51. An onlooker stated to Defendant Officers that Mr. Floyd was not resisting arrest and asked the Defendant Officers to put Mr. Floyd in the police vehicle that was less than an arm’s length from where Mr. Floyd was being forcefully held down.”

“52. An onlooker repeated that Mr. Floyd’s nose was bleeding and asked how long Defendant Chauvin planned to hold Mr. Floyd down.”

“53. During this exchange, Mr. Floyd groaned ‘I cannot breathe. I cannot breathe. He’ll kill me. He’ll kill me.’”

“54. Lane suggested to the other officers that Mr. Floyd be rolled onto his side, stating, ‘I am worried about excited delirium, or whatever.’”

“55. Lane admitted to investigators that Mr. Floyd was not resisting in any manner at  this time.”

“56. Chauvin replied, contrary to national law enforcement best practices, ‘That’s why we have him on his stomach.’‘

“57. No officer attempted to move from Mr. Floyd’s body or roll him onto his side.”

“58. Thao exclaimed ‘This is why you don’t do drugs, kids!’ to Mr. Floyd and to the concerned onlookers.”

“59. Mr. Floyd was terrified, knew that he was dying, and cried for ‘Mama.’”

“60. One onlooker told the Defendant Officers that Defendant Chauvin was obstructing Mr. Floyd’s breathing, to which Defendant Thao responded, ‘Okay.’”

“61. Defendant Chauvin then re-adjusted the position of his leg and knee to increase the amount of force and weight exerted by his knee on Mr. Floyd’s neck.”

“62. The onlooker repeated that Chauvin was stopping Mr. Floyd’s breathing and that Mr. Floyd was not resisting.”

“63. Mr. Floyd spoke his last words: ‘Please- I can’t breathe.’”

“64. An onlooker told Defendant Officers that Mr. Floyd was no longer speaking, and repeated that Mr. Floyd’s nose was bleeding.”

“65. Approximately 30 seconds after the onlooker noted that Mr. Floyd had stopped speaking, Mr. Floyd lost consciousness completely; his eyes closed and face slackened, and he ceased moving completely.”

“66. After holding Mr. Floyd in a prone position for approximately five minutes, and noticing that Mr. Floyd was not moving, Lane said ‘Want to roll him on his side?’”

“67. Kueng checked Mr. Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.”

“68. Despite Lane and Kueng’s statements, the Defendant Officers continued to maintain their positions.”

“69. Several onlookers shouted that Defendant Officers should ‘look at [Mr.Floyd],” that Mr. Floyd’s breathing was stopped, and that Defendant Chauvin needed to get off of Mr. Floyd’s neck.”

“70. In response, and without removing his knee from Mr. Floyd’s neck, Defendant Chauvin removed a canister of mace from his belt and pointed it toward the onlookers, while Defendant Thao stepped forward toward the onlookers.”

“71. Thao not only did not come to Mr. Floyd’s aid, but he actively prevented bystanders from doing so.”

’72. Onlookers continued to express concern to Defendant Officers, making statements including ‘He cannot breathe,’ ‘Look at him,’ ‘He’s not responsive right now,’ ‘Does he have a pulse?’ ‘Is he breathing right now?’ and ‘He’s handcuffed!’”

“73. An onlooker approached Defendant Thao and urged him by name to check Mr. Floyd for a pulse, to which Defendant Thao responded ‘Don’t do drugs, guys.’”

“74. Another onlooker identified herself as a healthcare professional of the City of Minneapolis Fire Department and asked that Defendant Officers check Mr. Floyd for a pulse; in response, Defendant Thao told her to ‘get on the sidewalk.’”

“75. Mr. Floyd was ultimately kept in a prone position with the weight of the officers on his neck and back for approximately eight minutes and forty-six seconds.”[2]

“76. Mr. Floyd was unconscious for approximately four of those minutes, yet the Defendant Officers not only did not help him, but continued to cause George’s death and further extinguish any chance for Mr. Floyd’s survival.””

“77.Chauvin kept his knee on Mr. Floyd’s neck for the entirety of those eight minutes and forty-six seconds.”

“78. The entire time Mr. Floyd was kept in that prone position, he remained handcuffed, compliant, and within the complete physical control of the three officers kneeling on top of him.”

“79. While Mr. Floyd was kept in the prone position, he never resisted or attempted to flee.”

“80. The Defendant Officers could hear the statements made by each other, by Mr. Floyd, and by the onlookers while Mr. Floyd was kept in the prone position.”

“81. Defendant Officers held Mr. Floyd in a neck restraint long after he stopped moving altogether.”

“82. An ambulance arrived, and Mr. Floyd was placed in the ambulance; Mr. Floyd was immobile and his body was limp.”

“83. Defendant Chauvin kept his knee on the neck of Mr. Floyd even after EMTs arrived and began to check for a pulse.”

“84. Defendant Lane conceded to investigators that Mr. Floyd was not resisting at the time of his death and had been rendered unconscious during his restraint.”

“85. At no time, did Defendant Officers Lane, Kueng, or Tao physically intervene in the use of a neck restraint exhibited by Defendant Chauvin.”

“The City of Minneapolis and the MPD’s Failure to Terminate Dangerous Officers”

‘160. Upon information and belief, Chauvin was the subject of 17 citizen complaints from 2006 to 2015, only one of which resulted in discipline, in the form of a letter of reprimand.”

“161. Upon information and belief, Chauvin has participated in the shooting and killing of at least three different individuals, including Wayne Reyes, Ira Latrell Toles, and Leroy Martinez.”

“162. In 2005, Defendant Chauvin engaged in a reckless police chase resulting in the deaths of three individuals but was not discharged from the Minneapolis Police Department.”

“163.Upon information and belief, the MPD has observed unlawful or otherwise improper conduct by Chauvin throughout his career but has tolerated it and refused to remedy or mitigate it.”

“164. Chauvin was precisely the type of reckless and dangerous officer that Kroll and other leaders of the Minneapolis Police Department encouraged him to be.”

“165. Upon information and belief, Thao was the subject of six citizen complaints from 2013 to 2017, none of which have resulted in discipline.”

“166. In 2017, Thao was the subject of a lawsuit for his use of excessive force, which the City of Minneapolis paid money to settle on his behalf.”

“167. Upon information and belief, the MPD has observed unlawful or otherwise improper conduct by Thao throughout his career but has tolerated it and refused to remedy or mitigate it.”

 Count I—42 U.S.C. sec. 1983—Fourth Amendment Violations

“194. Plaintiff incorporates and re-alleges all preceding paragraphs as though fully pleaded herein.”

“195.The conduct by the officers identified in this count and described herein constituted excessive and deadly force in violation of the Fourth Amendment of the United States Constitution, and clearly established law.”

“196. At all material times, Defendants Chauvin, Lane, and Kueng were each acting under color of state law, as agents of Minneapolis, and within the scope of their employment and authority as duly-certified law enforcement officers of the City of Minneapolis.”

“197. At all times material hereto, Defendant Chauvin was acting in a supervisory capacity as a Field Training Officer and directly participated in violating Mr. Floyd’s federal rights. Defendant Chauvin is therefore liable in both his individual and supervisory capacities.”

“198. At all material times, Chauvin, Lane and Kueng had no reason to believe that Mr. Floyd was armed or dangerous.”

“199. At all material times, Chauvin did not have a reasonable fear of imminent bodily harm when he kneeled on Mr. Floyd’s neck, nor did Chauvin have a reasonable belief that any other person was in danger of imminent bodily danger from Mr. Floyd.“

“200. At all material times, Lane and Kueng did not have a reasonable fear of imminent bodily harm when they kneeled on Mr. Floyd’s back, nor did they have a reasonable belief that any other person was in danger of imminent bodily danger from Mr. Floyd.”

“201. Every reasonable officer would have known that using force against a compliant, handcuffed individual who is not resisting arrest constitutes excessive force in violation of the Fourth Amendment.”

“202. Chauvin’s use of deadly force in applying direct pressure to and kneeling on Mr. Floyd’s neck was objectively unreasonable and violated clearly established law.”

“203. Lane and Kueng’s use of force in applying direct pressure to and kneeling on Mr. Floyd’s back was objectively unreasonable and violated clearly established law.”

“204. It was objectively unreasonable for Chauvin, Lane, and Kueng to maintain Mr. Floyd in a prone position without properly monitoring his breathing or pulse.”

“205. It was a violation of Mr. Floyd’s Fourth and Fourteenth Amendment rights for Chauvin, Lane, Kueng, and Thao not to render medical aid following Mr. Floyd’s complaints that he could not breathe and Mr. Floyd’s loss of consciousness, each of which demonstrated a serious medical need.’”

“206. As a result of Chauvin, Lane, and Kueng’s unjustified, excessive, and illegal, and deadly use of force, Mr. Floyd experienced conscious pain and suffering.”

“207. As a result of Chauvin, Lane, and Kueng’s unjustified, excessive, illegal, and deadly use of force, Mr. Floyd died.”

“208. In addition to these uses of unjustified, excessive, illegal, and deadly uses of force, each of the Defendant Officers had a duty to intervene on behalf of a citizen whose constitutional rights were being violated in their presence by another officer.”

“209.Thao, Lane, and Kueng all recognized that the force being used, including but not limited to Chauvin kneeling on Mr. Floyd’s neck, was excessive and unreasonable under the circumstances.”

“210. Defendants Lane, Kueng, and Thao each observed and were in a position to intervene to stop Defendant Chauvin’s use of constitutionally unreasonable deadly force against Mr. Floyd.”

“211. None of the Defendant Officers ever had a reasonable fear of imminent bodily harm, nor did they have a reasonable belief that any other person was in danger of imminent bodily danger from Mr. Floyd at any point in time.”

“212.Defendants Lane and Kueng’s failure to intervene in Defendant Chauvin’s use of constitutionally unreasonable deadly force violated Mr. Floyd’s clearly established Fourth Amendment rights.”

“213.Defendant Thao’s failure to intervene in the other Defendant Officers’ use of constitutionally unreasonable force violated Mr. Floyd’s clearly established Fourth Amendment rights.”

“214. As a result of the failure to intervene by Thao, Lane, and Kueng, Mr. Floyd experienced conscious pain and suffering.”

“215. As a result of Thao, Lane, and Kueng’s unjustified failure to intervene in the excessive use of force, Mr. Floyd died.”

“216.As a direct and proximate result of the acts and omissions described herein, Mr. Floyd suffered compensatory and special damages as defined under federal common law and in an amount to be determined by jury.”

“217. Punitive damages are available against Chauvin and are hereby claimed as a matter of federal common law under Smith v. Wade, 461 U.S. 30 (1983), and, as such, are not subject to the pleading requirements or the differing standard of proof set forth in Minn.Stat. Ann. § 549.20.”

“218. Plaintiff is entitled to recovery of costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988.”

“219. The conduct described in all of the preceding paragraphs amount to wrongful acts and omissions for purposes of Minnesota Statute Section 573.02, subdivision 1.”

“220. As a direct and proximate result of these wrongful acts and omissions, George’s next of kin have suffered pecuniary loss, including medical and funeral expenses, loss of aid, counsel, guidance, advice, assistance, protection, and support in an amount to be determined by jury.”

Conclusion

Count I’s recitation of the four ex-officers’ encounter on May 25th with George Floyd is consistent with other reports by journalists who have seen the bodycam footages, the transcripts of those footages and with the criminal complaints against the four ex-officers.[3]

All of the legal references and assertions by the parties, of course, are subject to legal research to determine their current validity in light of any subsequent federal statutes and decisions by the U.S. Supreme Court and lower federal courts, especially by the U.S. District Court for the District of Minnesota and its direct appellate court (the U.S. Court of Appeals for the Eighth Circuit).

Subsequent posts will examine the Complaint’s two counts against the City of Minneapolis.

Then we await the four ex-officers’ responses to Count I and other further developments in this civil case and their criminal cases.

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[1] Complaint, Kaarin Nelson Schaffer, as Trustee for the next of kin of GEORGE P. FLOYD, Jr., Deceased v. Derek Chauvin, in his capacity as a Minneapolis police officer; Tou Thao, in his capacity as a Minneapolis police officer; Thomas Lane, in his capacity as a Minneapolis police officer; J. Alexander Kueng, in his capacity as a Minneapolis police officer; and the City of Minneapolis, Case 0:20-cv-01577-SRN-TNL (July 15, 2020).

[2] The criminal complaints against the four ex-officers stated that they had held Mr. Floyd on the pavement for 8 minutes and 46 seconds. Subsequently the prosecution said that there had been an arithmetical error in the calculation and that the correct length was 7 minutes and 46 seconds. (See Revised Length of Time for Minneapolis Police Restraint of George Floyd, dwkcommentaries.com (June 18, 2020).)

[3] Count I’s recitation of the four ex-officers May 25th encounter with George Floyd is consistent with other reports of watching the ex-officers’ videocam footages, the transcripts of those footages and the criminal complaint against those four men. (See these posts to dwkcommentaries.com: The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd (June 12, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death (June 14, 2020); Journalist’s Report on Viewing Two Bodycam Footages of George Floyd Killing (July 15, 2020). See also Arango, Furber & Bogel-Burroughs, Footage of Police Body Cameras Offers Devastating Account of Floyd Killing, N.Y. Times (July 15, 2020). The exception is the length of time of the ex-officers’ physical restraint of Mr. Floyd noted in footnote # 2.