Defendant Thao Interviewed About George Floyd by Bureau of Criminal Apprehension

According to the StarTribune, on or about June 2 (“eight days after George Floyd’s killing on May 25th”), then Minneapolis police officer Tou Thao, before he had been criminally charged, was interviewed for about 100 minutes regarding the George Floyd arrest and killing, by the Minnesota Bureau of Criminal Apprehension (BCA) and the Federal Bureau of Investigation (FBI). The video of that interview is now part of the public file of his criminal case. [1]

Again according to the StarTribune,Thao in this interview first was “questioned about his professional history before spending about 12 uninterrupted minutes summarizing his encounter with George Floyd on that fateful day. Then Thao was questioned by a BCA special agent.

Here we will review details of that BCA interview.

Thao’s Own Summary

In his own summary, Thao said he and officer Derek Chauvin responded to a call for backup near Cup Foods. The call sounded urgent and their squad car was the ony one available. About half-way there, the dispatch was ended, but the two of them decided to go anyway because of their experience that Cup Foods was often a gang hang-out hostile to the police and because the officers already there (Thomas Lane and J. Alexander Kueng) were “rookies.”

When they arrived, the rear driver-side door of the other squad car was open. Kueng told them that the suspect had refused to sit in the rear seat of the squad car and had gotten himself out of the car. The suspect was not calm and appeared to be “high” on something.

A crowd was gathering, and Thao called to change the call for an ambulance from “Code 4” (Situation under control) to “Code 3” (“EMERGENCY SITUATION – To be answered immediately, but in a manner enabling the responding units to reach the scene as quickly and safely as possible. MS 169.03 and 169.17 require the use of red lights and siren for emergency”). Thao hoped the medics could provide a better assessment and restraint of the suspect.

Thao and the three other policemen decided not to “hobble” the suspect, i.e. use a Hobble Restraint device with nylon webbing, heavy-duty metal swivel hook and self-locking jawed alligator clip.

Thao focused on traffic and a “loud and hostile” crowd by putting himself between the crowd and the other three officers and suspect in order to prevent the crowd from attacking the other three officers. “As the crowd is starting to grow and become loud and hostile toward us, I decided to forgo [monitoring] traffic and put myself in between the crowd and the officers … and just spend the majority of my attention looking at the crowd — make sure they don’t charge us or bull rush us as the officers on the ground are defenseless,” Thao said, adding that he was a “human traffic cone.”

Eventually the ambulance arrived and Lane left with the suspect in the ambulance.

As the StarTribune noted, during his own summary, Thao did not mention anything about what the other three officers were doing or what the suspect was saying.

BCA’s Questioning of Thao

 When Thao and Chauvin were driving to Cup Foods, they were told someone who had appeared to be intoxicated had passed a “fake bill.” No recall of any mention of weapons or violence.

When they arrived, the suspect already was handcuffed. Thao did not think of any alternative way of restraining the suspect. He was just backup. He did not suggest just talk with the suspect, whom he never touched.

Thao had had  Crisis Intervention Training (CIT), and he had used it before, But he did not suggest doing that because he did not know what already had happened.

Nor did Thao check on the suspect at any point. “No, because my job is scene security. I would trust [the other officers] . . . God gave me only one body and two hands and two legs. I can’t be in two places at once.”

He hoped the paramedics would know what to do. They could restrain the suspect better. Just hold him down without handcuffs.

Thao did not hear Lane say anything about “excited delirium.” From his training, Thao believed “excited delirium” was a mental health or drug-related condition when someone acts erratically with no apparent self-awareness and potentially is explosive or violent.[2]

Thao did hear the suspect say he couldn’t breathe, but he was talking, which meant he was breathing.

Thao saw Chauvin struggling with the suspect. At some point he saw Chauvin’s left knee on the suspect’s neck. There is a specific technique for use of a knee that was taught in training. Thao has never used that technique and had never seen Chauvin use it before.

Most of the time Thao was focused on traffic and the crowd, which at some point said the suspect was not moving. Thao assumed the other officers would take appropriate action.

After Floyd and Lane left the scene in the ambulance, Kueng recommended that they lock up the vehicle Floyd had been driving and leave it parked on the street. Thao thought Kueng did not recognize the potential gravity of the situation so Thao responded, “We’re not going to leave the scene” and took steps to secure the car and the scene as evidence.

Later when he was told that the suspect [Mr. Floyd] had died, Thao said, “I didn’t want anyone to die. It was kind of a somber moment, especially for me. My heart kind of sank.”

At the very end of the interview, Thao was asked, “Do you think you could have done something differently to intervene?” His response: “I’m under the belief that you can always do something differently on every single call… I guess I would be more observant toward Floyd.”

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[1] Xiong, Officer charged in George Floyd’s killing tells investigators his job wasn’t to check on Floyd, video shows, StarTribune (Aug. 15, 2020); Raiche, Former MPD officer Tou Thao reveals to investigators what he could’ve done differently in Floyd case, KSTP.com (Aug. 14, 2020); Shen, Minneapolis cop Tou Thao told investigators he feared George Floyd ‘would have superhuman strength if he was on drugs’ and admits ‘his heart sank’ when he died on the sidewalk, dailymail.com (Aug. 15, 2020); Assoc. Press. Officer minimized role in Floyd’s death during questioning, StarTribune (Aug. 15, 2020); BCA interview with Tou Thao after George Floyd killing is released, StarTribune (Aug. 15, 2020) (video); Exhibits Attached to Affidavit of Matthew Frank, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Aug. 12, 2020) (Ex. 4 (Thao BCA Interview on flash drive)).

[2] Three distinguished medical scientists have said that “excited delirium” is “pseudoscience.” (See Concept of “Excited Delirium” Is Junk Science, dwkcommentaries.com (July 21, 2020).)

 

Derek Chauvin’s Policing Background

On July 19, the New York Times published a report on its investigation of the policing background of Derek Chauvin, the former Minneapolis police officer who led the February 25th physical restraint and killing of George Floyd.[1] Here are the highlights of that report.

From the start of his career with the Minneapolis Police Department in 2000, “Chauvin stood out as gung-ho.”

In May 2013, Kristofer Bergh, than a 17-year old, and three friends were playing “Nerf Gun Assassin” when one of them accidently fired an orange dart out the window. Chauvin and another officer “pulled up, pointed their guns at the teenagers and shouted orders laced with expletives.” The four teenagers then were put into the police car  for what seemed like an hour. As they were being released, Chauvin said, “Most of you will be 18 by the end of the year. That means you’ll be old enough for ‘big boy jail.’” This led to a complaint against Chauvin. And one of these boys, now in their early 20’s, told the Times reporters that Chauvin “was overly aggressive and not understanding that we were just kids.”

Moreover, many interviewees said Chauvin “did his job as if he were playing a role — a tough Dirty Harry on the lookout for bad guys” and he “seemed to operate at an emotional distance from those around him. Mr. Chauvin was a quiet and rigid workaholic with poor people skills and a tendency to overreact — with intoxicated people, especially — when a less aggressive stance might have led to a better outcome.” In other words, he “was awkward. Other officers often didn’t like him or didn’t know him. He didn’t go to parties and didn’t seem to have many friends. Some neighbors knew so little about him that they didn’t even know he was a police officer until after his arrest.”

An unnamed officer said, “In a group setting he would never connect and [instead] stand there like a small child. I was put off by his lack of communication skills. You never felt like he was present.”

Lucy Gerold, a retired police commander, said Chauvin “occasionally . . . would seem a little  cocky” and was “the guy not everybody liked or wanted to work with.” When he left work “in full uniform,” he “stood ramrod straight like he was still in the military.”

Although Chauvin received some kudos for his work, he did receive 22 complaints or internal investigations. According to Dave Bicking, a board member of the Twin Cities’ Communities United Against Police Brutality, this is a high number and “should have definitely raised alarm with the department and triggered a review,” when most officers might get one or two complaints in the same period of time.

As has been noted in other reports, the Times says that Chauvin on most weekends for 17 years worked an off-duty police gig outside the El Neuvo Rodeo nightclub in south Minneapolis, whose owner said he “often overreacted when he saw something that bothered him, like unruly behavior around the club, including drunk patrons congregating on the street — especially on ‘urban nights’ when the clientele was largely Black.” Chauvin also frequently used pepper spray when there was a disturbance at the club, and when the owner complained, he merely said, “That is protocol.”

George Floyd also worked on security at that nightclub, but the owner said she does not recall ever seeing the two men together. Apparently the Times’ reporters never sought out other nightclub employees to see if they ever saw any contact between the two men, including any conflicts or arguments. This should have been an obvious line of inquiry to see if Chauvin had some grudge against Floyd that the May 25th encounter near Cup Foods gave Chauvin an opportunity to redress.

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[1] Barker & Kovaleski, Officer Who Pressed His Knee on George Floyd’s Neck Drew Scrutiny Long Before , New York Times (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.

Journalist’s Report on Viewing Two Bodycam Footages of George Floyd Killing       

A StarTribune journalist, Chao Xiong, reported on his July 15th viewing the initial portions of the bodycam footage of the February 25th encounter with George Floyd by ex-police officers Thomas Lane and J. Alexander Kueng.[1] Here are highlights of that journalist’s report:

  • Lane’s video “showed that Floyd was given no explanation for why he was being questioned before Lane pointed a gun at him, swore at him, physically touched him multiple times and forced him out of his vehicle into the street.”
  • Lane’s video showed that “as the first officer to engage with Floyd on May 25, [Lane] did not inform Floyd that he was being investigated for allegedly using a fake $20 bill at Cup Foods before [Lane] pointed a gun at him, swore at him multiple times while Floyd repeatedly said ‘please’ and asked what was going on, [and Lane] reached his hands into Floyd’s car and touched him several times and forced Floyd out of the vehicle.”
  • About two minutes into Lane’s video, Floyd said, “I didn’t do nothing,” while “holding his left hand visibly up in the air as he sat in the driver’s seat.”
  • Lane’s video shows him yelling ’Put your [expletive] hands up right now!” at Floyd “while aiming a gun in his right hand at Floyd. ‘Let me see your other hand.’”
  • “About 11 minutes into Lane’s video, Lane grabbed Floyd’s leg and helped Chauvin and Kueng flip Floyd from his back onto his stomach in the street.”
  • “Lane’s video showed that he asked twice about rolling Floyd onto his side, but did not appear to express any sense of urgency, fear or persistence in his voice.”
  • “An ambulance arrived about 20 minutes after Lane first arrived at the scene and [a first responder] spoke to a store manager. . . . [Thereafter a] first responder took Floyd’s pulse at his neck and walked away without a sense of urgency. Ambulance staff loaded Floyd into the ambulance. Lane boarded the ambulance as well.
  • “Lane’s video also showed that medics who arrived at the scene did not appear alarmed or rushed in assisting Floyd after taking his pulse, and that about three minutes passed before anyone began performing CPR on Floyd, who had been unresponsive for several minutes by then.”
  • “About three minutes after the ambulance first arrived at the scene, Lane began performing CPR on Floyd at the instruction of a first responder.”

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[1] Xiong, Bodycam video in George Floyd killings show officer pulled gun, swore and touched Floyd multiple times without explanation, StarTribune (July 15, 2020). See also Bailey, George Floyd’s family files wrongful-death lawsuit against city of Minneapolis and former officers, Wash. Post (July 15, 2020) (another journalist’s report on the footage).

 

 

May 25th Calls for Help at George Floyd Scene 

Additional evidence discloses the transcript of the initial 911 call from Cup Foods on May 25th that started George Floyd’s encounter with the Minneapolis police and death plus other 911 calls while George Floyd was being pinned on the pavement at 38th Street and Chicago Avenue.

First, here is the initial 911 call, 8:01 p.m., from the Cup Foods store:[1]

  • Caller:{S]omeone comes our store and give us fake bills and we realize it before he left the store, and we ran back outside, they was sitting on their car. We tell them to give us their phone, put their (inaudible) thing back and everything and he was also drunk and everything and return to give us our cigarettes back and so he can, so he can go home but he doesn’t want to do that, and he’s sitting on his car cause he is awfully drunk and he’s not in control of himself.
  • Operator: what type of vehicle does he have?
  • Caller: And…. um he’s got a vehicle that is ah…ah he got a vehicle that is ah…one second let me see if I can see the license. The driver license is BRJ026.
  • Operator: Okay, what color is it?
  • Caller: It’s a blue color. It’s a blue van.
  • Operator:Blue van?
  • Caller:Yes, van.
  • Operator:Alright blue van, gotcha. Is it out front or is it on 38th St.?
  • Caller: Ah it’s on 38th St.
  • Operator:On 38th St. So, this guy gave a counterfeit bill, has your cigarettes, and he’s under the influence of something?
  • Caller:Something like that, yes. He is not acting right.
  • Operator:What’s he look like, what race?
  • Caller: Um, he’s a tall guy. He’s like tall and bald, about like 6…6½, and she’s not acting right so and she started to go, drive the car.
  • Operator:Is it a girl or a boy that did this?
  • Caller: It is a man.
  • Operator: Is he white, black, Native, Hispanic,  Asian?
  • Caller:Something like that.
  • Operator:Which one? White, black, Native, Hispanic, Asian?
  • Caller: No, he’s a black guy.”

Second, here (in bold) are the 911 calls while Mr. Floyd was pinned to the pavement on 38th Street that are interspersed with events at the scene according to this blogger’s judgment and the criminal complaint against Officer Derek Chauvin:[2]

  • 8:08 p.m. Officers Thomas Lane and J.A. Kueng arrive at the scene.
  • 8:14 p.m. Officers Lane and Kueng “stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”
  • 8:?? p.m. Officers Derek Chauvin and Tou Thao arrive at the scene.
  • 8:19:38 p.m. Chauvin “pulled Mr. Floyd out of the passenger side of the squad car . . . and Mr. Floyd went to the ground face down and still handcuffed. Kueng held Mr. Floyd’s back and Lane held his legs.”
  • 8:24:24 p.m. “Mr. Floyd stopped moving.”
  • 8:25:31 p.m. The “the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, ‘want to roll him on his side.’ Kueng checked Mr. Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”
  • 8:?? p.m. 911 call from an off-duty firefighter, who said, “I am on the block of 38th and Chicago and I literally watched police officers not take a pulse and not do anything to save a man, and I am a first responder myself, and I literally have it on video camera. I just happened to be on a walk so, this dude, this, they (expletive) killed him so…” The firefighter asked to speak to the officers’ supervisors, but the line disconnected.
  • 8:27:24 p.m. Chauvin “removed his knee from Mr. Floyd’s neck. An  ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”
  • 8:30? p.m. 911 dispatcher who was watching real-time footage of the Floyd arrest called a supervisor and said, “I don’t know, you can call me a snitch if you want to but we have the cameras up for [squad] 320’s call, and…I don’t know if they had to use force or not, but they got something out of the back of the squad, and all of them sat on this man, so I don’t know if they needed you or not, but they haven’t said anything to me yet.” The unnamed supervisor responded, “Yeah, they haven’t said anything yet…just a takedown, which doesn’t count, but I’ll find out.” The dispatcher replied, “No problem, we don’t get to ever see it so when we see it we’re just like, well, that looks a little different, but…” This call ended at 8:31 p.m.
  • 8:32 p.m. 911 call by a bystander who said an officer “pretty much just killed this guy that wasn’t resisting arrest.”
  • 8:45 p.m. A supervisor, Sgt. David Pleoger, arrived at the scene.

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

[1] Minneapolis Police Department, 911 Call Transcript. Incident Number: 20-1401629, (May 25, 2020), 20:01:14); Martinez, Minneapolis releases transcript of George Floyd 911 call, CBS News (May 29, 2020).

[2] Jany, Phone tapes: Concerned Minneapolis 911 dispatcher asked police supervisor to respond to George Floyd scene, StarTribune (June 15, 2020). The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd, dwkcommentaries.com (June 12, 2020).

 

The Criminal Complaints Against the Other Three Policeman Involved in George Floyd’s Death 

As is now well known, four Minneapolis policemen were involved in the May 25th death of George Floyd.

On May 29th and June 3rd criminal charges were filed against Derek Chauvin, the one who placed his knee against Floyd’s neck; the later superseding pleading set forth charges of second and third degree murder and second degree manslaughter, all as discussed in a prior post.

Also on June 3rd Minnesota Attorney General Keith Ellison filed criminal charges against the other three policemen who were involved—Thomas K. Lane, J.A. Kueng and Tou Thao: aiding and abetting second degree murder and second degree manslaughter.[1]

In announcing these new charges and the additional charge against Chauvin, Ellison said the cases were still under investigation and encouraged anyone with additional evidence to come forward and cooperate. “We are following the path of all evidence, wherever it leads. We are investigating as quickly as we can, because speed is important. We are also investigating as thoroughly as we can, because thoroughness is also important — and thoroughness takes time.”

“[Such] thoroughness is important because every link in the prosecutorial chain needs to be strong. It needs to be strong because trying this case will be hard. Winning a conviction will be hard. I say that not because I doubt our resources or abilities or resolve, but because history shows that trying and winning a case like this one is hard.“[2]

At their initial hearing in June bail for each of the three officers was set at $1 million (without conditions) and $750,000 (with conditions), and on June 10 Lane posted bail of $750,000 and was released from jail.[3]

Here we will examine and analyze the specific allegations of these charges against the other three policemen.

Criminal Charges Against the Other Officers

All three face the same two Counts:

Count I. Aiding and Abetting Second Degree Murder (Unintentional While Committing a Felony)(Minn. Stat. 609.19.2(1) with reference to 609.05.1. “That on or about May 25, 2020, in Hennepin County, Minnesota, [Lane/Kueng/Thao]  intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other to commit the crime, namely causing the death of a human being, George Floyd, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting, namely assault in the third degree.”

Count II. Aiding and Abetting Second Degree Manslaughter (Culpable Negligence Creating Unreasonable Risk) (Minn. Stata. 609.205(1) with reference to 609.05.01. “That on or about May 25, 2020, in Hennepin County, [Lane/Kueng/Thao] intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other to commit the crime, namely caused the death of another, George Floyd, by his culpable negligence, creating an unreasonable risk and consciously took the chances of causing death or great bodily harm to another, George Floyd.”

The three complaints also contained the following essentially identical Statement of Probable Cause (except where indicated, Lane, Kueng and Thao had unique passages). These three Statements of Probable Cause also are the same, in many respects, as the Statement of Probable Cause in the Chauvin complaints):

  • “On May 25, 2020, someone called 911 and reported that a man bought merchandise from  a Cup Foods at 3759 Chicago Avenue in Minneapolis, Hennepin County, Minnesota with counterfeit $20 bill. At 8:08 p.m. Minneapolis Police Department (MPD) Officers Thomas Lane . . . and J.A. Kueng . . . arrived  with their bodyworn cameras (BWCs) activated and running. The officers learned from store personnel that the man who passed the counterfeit $20 was parked in a car around the corner  from the store on 38th Street.”
  • “BWC video obtained by the Minnesota Bureau of Criminal Apprehension shows that the Officers approached the car, Lane on the driver’s side and Kueng on the passenger  side. Three people were in the car; George Floyd was in the driver’s seat, a known adult male was in the passenger seat and a known adult female in the backseat. As [Lane] began speaking with Mr. Floyd, [Lane] pulled his gun out and pointed it at Mr. Floyd’s open window and directed Mr. Floyd to show his hands. When Mr. Floyd put his hands on the steering wheel, [Lane] put his gun back in its holster.”
  • “While [Kueng] was speaking with the front seat passenger, [Lane] ordered Mr. Floyd out of the car, put his hands on Mr. Floyd and pulled him out of the car. [Lane] handcuffed Mr. Floyd.”
  • “Once handcuffed, Mr. Floyd  walked with [Lane] to the sidewalk and sat on the ground at [Lane’s] direction. When Mr. Floyd sat down he said, “thank you man” and was calm. In a conversation that lasted just under two minutes, [Lane] asked Mr. Floyd for his name and identification. [Lane] asked Mr. Floyd if he was “on anything” and noted there was foam at the edges of his mouth. [Lane] explained that he was arresting Mr. Floyd for passing counterfeit currency.”
  • “At 8:14 p.m., . . . [Kueng] and [Lane] stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”
  • “MPD Officers Derek Chauvin and Tou Thao then arrived in a separate squad car.”
  • “[Lane] together with the other officers made several attempts to get Mr. Floyd in the backseat of their squad car by pushing him from the driver’s side. As the officers were trying to force Mr. Floyd in the backseat, Mr. Floyd repeatedly said that he could not breathe. Mr. Floyd did not voluntarily sit in the backseat and the officers physically struggled to try to get him in the backseat.”
  • “Officer Chauvin went to the passenger side and tried to get  Mr. Floyd into the car from that side and [Lane] and [Kueng] assisted.”
  • “Officer Chauvin pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed. [Kueng] held Mr. Floyd’s back and [Lane] held his legs. Officer Chauvin placed his left knee in the area of Mr. Floyd’s head and neck. Mr. Floyd said, ‘I can’t breathe’ multiple times and repeatedly said ‘Mama’ and ‘please,’ as well. At one point, Mr. Floyd said ‘I’m about to die.’ Officer Chauvin and the other two officers stayed in their positions.”
  • [Only in Thao Complaint: “[Thao] initially obtained a hobble restraint from the squad car to restrain Mr. Floyd in that manner, but the officers chose not to use it and maintained their positions. During this time [Thao] looked directly at how Chauvin was restraining Mr. Floyd with Chauvin’s knee on Mr. Floyd’s neck area, and observed that the three officers had Mr. Floyd subdued in this manner. [Thao] then became concerned about a number of citizens who had gathered and were watching the officers subdue Mr. Floyd, and potential traffic concerns, and so {Thao] stood between those citizens and the three officers restraining Mr. Floyd. When one citizen stepped off the curb, imploring Chauvin to get off of Mr. Floyd, [Thao] put his hands on the citizen to keep him back.”
  • “One of the officers said, ‘You are talking fine’ to Mr. Floyd as he continued to move back and forth. [Lane] asked, ‘should we roll him on his side?’ and Officer Chauvin said, ‘No, staying put where we got him.’ [Lane] said, ‘I am worried about excited delirium or whatever.’ Officer Chauvin said, ‘That’s why we have him on his stomach.’ Officer Chauvin and Kueng held Mr. Floyd’s right hand up.”[Only in Lane Complaint: “Despite his comments, [Lane] took no actions to assist Mr. Floyd, to change his position, or to reduce the force the officers were using against Mr. Floyd.”] [Only in Kueng Complaint: “[Kueng] was in between Chauvin and Lane and in a position to hear their comments.”] Officer Chauvin and [Keung] held Mr. Floyd’s right hand up. None of the three officers moved from their positions.”
  • “While Mr. Floyd showed slight movements, his movements and sounds decreased until at 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. [Lane] said, ‘want to roll him on his side.’ [Keung] checked Mr. Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”
  • “At 8:27:24, Officer Chauvin removed his knee from Mr. Floyd’s neck. An  ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”
  • “The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. While the ME did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease, and toxicology testing revealed the presence of fentanyl and evidence of recent methamphetamine use. The ME opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions, and the presence of the drugs contributed to his death. The ME listed the cause of death as ‘ [c]ardiopulmonary arrest complicating law enforcement subdural, restraint, and neck compression,’ and concluded the manner of death was homicide.”[4]
  • Officer Chauvin, [Lane and Kueng] subdued Mr. Floyd prone to the ground in this manner for nearly 9 minutes. During this time, Mr. Floyd repeatedly stated he could not breathe and his physical condition continued to deteriorate such that force was no longer necessary to control him. Officer Chauvin had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous. Officer Chauvin’s restraint of Mr. Floyd in this manner for a prolonged period was a substantial causal factor in Mr. Floyd’s losing consciousness, constituting substantial bodily harm, and Mr. Floyd’s death as well.”

 Analysis of the Complaints Against the Other Three Officers

 The predicate for all counts against the other three officers is a finding of Chauvin’s being guilty of second degree murder and/or second degree manslaughter that were analyzed in a prior post.

Under that scenario, the most direct statutory provision for the other policemen is the following: “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” (Minn. Stat. section 609.05, subd. 1.)(emphasis added).)

Here, there can be no claim that any of these three officers advised, hired, counseled or conspired with or otherwise procured Chauvin to use his knee to restrain Mr. Floyd on the ground for such a long period of time. Thus, the issue for these three officers is whether each of them aided Chauvin in some way to do so.

Since Lane and Kueng physically helped Chauvin in pinning Mr. Floyd to the pavement, they were clearly ‘intentionally aiding” Chauvin in pinning Mr. Floyd.

In addition, the two of them along with Thao failed to intervene to stop Chauvin from his pinning of Mr. Floyd. This raises the issue of  whether the word “aids” includes failure to intervene to stop the commission of the crime of second degree murder or second degree manslaughter. Legal research should examine that issue under cases in Minnesota and other states.

This statutory provision about aiding and abetting is buttressed by the Minneapolis Police Department’s Manual, which under the heading “Duty To Intervene” states: “ Sworn employees have an obligation to protect the public and other employees.” (Manual sec. 5-303.01(A).) And “It shall be the duty of every sworn employee present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.” (Manual sec. 5-303.01(B).)

The Statement of Probable Cause clearly states that these three officers were in close proximity to Chauvin’s pressing his knee against Floyd’s neck, observed that action and Floyd’s reactions, heard Floyd’s saying he could not breathe and had the opportunity to intervene and stop the pressing of Floyd’s neck, but failed to do so.. Indeed, after Floyd stopped moving, they had three more minutes to intervene and stop the pressing of the neck before Chauvin did so himself, but none of the three intervened to stop that action. And after Floyd stopped breathing, they all had nearly two minutes (113 seconds) to intervene, but again did not do so. Lane came closest to doing so when he twice suggested that Floyd be turned over, but then he and the others did nothing further after Chauvin rejected the suggestion. And Officer Kueng could not find a pulse, but then he and the others did not intervene to stop Chauvin’s action in the following near two minutes (113 seconds) of that conduct.

Conclusion

These criminal charges against the other three policemen, according to Christy E. Lopez,  a professor at Georgetown Law School and a former attorney in the U.S. Justice Department’s Civil Rights Division, are “appropriate, but difficult.”  It would be good for the public . . . [and] in the best interest of police.” However, “Social science tells us that intervening to prevent wrongdoing in the middle of a tense incident is far more difficult than we recognize. Notwithstanding the legal duty, there are inhibitors to intervention that most officers will be unable to overcome in the moment unless they have been prepared in advance.”[5]

Lopez adds, “Progressive police agencies and reform advocates have long recognized the importance of officer intervention. Indeed, police have a legal “duty to intervene,” and the Minneapolis Police Department changed its force policy in 2016 to require officers to intervene if they witness another officer using excessive force. The Minnesota attorney general’s Working Group Report on Police-Involved Deadly Force Encounters, released this year, similarly recommended that all law enforcement officers in Minnesota be required to intervene to prevent unreasonable force.”

Such a change, she says, requires training of the police. But “creating a police culture of peer intervention requires more than training. It requires agency reinforcement at every level, and accountability for officers who fail to intervene when they clearly should have — as, again, the video of Floyd’s death depicts.”

The difficulties of one policeman’s intervening to stop another’s abuse are illustrated by a Buffalo New York female officer’s 2016 intervention to stop a white officer’s choking a handcuffed black  protester. The white officer then accused her of jimping on him as he struggled for control and prevailed in an arbitration that led to her being fired. Since then she has been pursuing a lawsuit for reinstatement and passage of a new state law for protection of those who intervene.[6]

At the initial hearing for these three officers, the attorneys for Lane and Keung argued how could new cops like their clients tell or order Chauvin, a policeman with at least 19 years of experience, to stop pressing his knee against Floyd’s neck. Moreover, their lawyers did not mention what may well be true, that there is a culture of policemen backing up each other, and if you intervene and develop a reputation within the police force of being someone who cannot be trusted, then you will not be able to get timely backup when you need it.[7]

This conflict has emerged in other ways.

Immediately after the killing and before the firing of the four police officers involved in this case, Minneapolis Police Federation President Lt. Bob Kroll  stated, ““Now is not the time to rush to judgment and immediately condemn our officers. We ask that the community remain calm and the investigation be completed in full.” And on June 1, Kroll said he was working with the union’s attorneys to help the four fired officers get their jobs back because they were “terminated without due process” while devoting most of his comments to criticizing the city’s handling of resulting riots and making policemen “scapegoats” for the violence.[8]

In addition, the bringing of these criminal charges and the associated protests against the Minneapolis police have caused seven of those officers to resign while another half dozen are in the process of leaving. “Morale has sunk to new lows in recent weeks, say department insiders, as officers reported feeling misunderstood and squeezed by all sides: by the state probe; by protesters, who hurled bricks and epithets their way; by city leaders, who surrendered a police station that later burned on national television, and by the media. Numerous officers and protesters were injured the rioting.”9]

Others at the Police Department have responded differently.[10]

The Minneapolis Police Chief, Medaria Arrandondo, immediately “condemned and fired the four officers involved. He visited the location where Floyd was killed. He spoke directly to Floyd’s family members on national television. He pledged to cooperate with the state’s probe into his department’s practices and make ‘substantive policy changes.’”

On June 11, 14 Minneapolis police officers wrote an open letter to Minneapolis citizens and everyone else. Claiming to speak on behalf of “the vast majority” of their colleagues, the letter’s signatories– Cmdr. Charlie Adams, who now runs its community engagement efforts; Lt. Mark Klukow, who now works in the First Precinct in downtown Minneapolis; Lt. Rick Zimmerman, who runs the homicide unit; Sgt. Darcy Klund, who commands the First Precinct community response team; John Delmonico, the former head of the police union; and others–  said the following:

  • “We wholeheartedly condemn Derek Chauvin. We Are With You in the denouncement of Derek Chauvin’s actions on Memorial Day, 2020. Like us, Derek Chauvin took an oath to hold the sanctity of life most precious. Derek Chauvin failed as a human and stripped George Floyd of his dignity and life. This is not who we are.”
  • “We Are With You and want to communicate a sentiment that is broad within our ranks. We ask that our voices be heard. We are leaders, formal and informal, and from all ranks within the Minneapolis Police Department. We’re not the union or the administration. We are officers who represent the voices of hundreds of other Minneapolis Police Officers. Hundreds. We acknowledge that Chief Arradondo needs each of us to dutifully follow him while he shows us the way. We stand ready to listen and embrace the calls for change, reform and rebuilding.”
  • “We Are With You moving forward. We want to work with you and for you to regain your trust.”

The next event in this important legal proceeding will be hearing in all four criminal cases in Hennepin County District Court on June 29.

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[1] Press Release, Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floy, three former officers with aiding and abetting 2nd degree murder. (June 3, 2020); Complaint, State v.Tou Thao, Prosecutor File No. 33.EC55.0227, Court File No. 27-CR-20-12949 (Dist. Ct., 4th Judicial Dist. June 3, 2020); Complaint, State v. Thomas Kiernan Lane, Prosecutor File No. 33.EC56.0227, Court File No. 27-CR-20-12951 (Dist. Ct., 4th Judicial Dist. June 3, 2020); Complaint, State v. J. Alexander Kueng, Prosecutor File No. 33.EC57.0227, Court File No. 27-CR-20-???? (Dist. Ct., 4th Judicial Dist. June 3, 2020); Shammas, Beilware & Dennis, Murder charges filed against all four officers in George Floyd’s death as protests against biased policing continue, Wash. Post (June 3, 2020); Kornfield, Guarino, Beachum, Thebault, Mettier, Knowles, Chiu, Shepard & Armus, 3 more officers charged in Floyd’s death as protesters gather for 9th night, Wash. Post (June 4, 2020); Montemayor & Xiong, Four fired Minneapolis officers charged, booked in killing of George Floyd, StarTribune (June 4, 2020).

[2] Press Release, Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floyd, three former officers with aiding and abetting 2nd degree murder. (June 3, 2020).

[3]  Initial Hearings in Criminal Cases for Killing of George Floyd, dwkcommentaries.com (June 10, 2020); Karnowski, Judge: $750K bail for 3 ex-officers accused in Floyd death, StarTribune (June 4, 2020); Xiong, Bail set at $1 million for three ex-Minneapolis police officers charged in Floyd case, StarTribune (June 4, 2020); Walsh, Fired Minneapolis police officer Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 11, 2020).

[4]  Complaint, State v. Chauvin, #  27-CR-20-12646 (Henn. Cty. Dist. Ct. (June 3, 2020).

[5]  Lopez, George Floyd’s death could have been prevented if we had a police culture of intervention, Wash. Post (May 29, 2020).

[6] Sondel & Knowles, George Floyd died after officers didn’t step in. These police say they did—and paid a price, Wash. Post (June 12, 2020).

[7] Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).

[8] Navratil & Jany, As Mayor Frey calls for officer’s arrest, violence intensifies in Minneapolis, StarTribune (May 28, 2020); Jany & Navratil, Kroll, Minneapolis union head, blasts city’s riot response in letter to officers, StarTribune (June 1, 2020).

[9] Jany & Sawyer, Seven Minneapolis police officers resign after George Floyd protests, citing lack of support from city leaders, StarTribune (June 13, 2020).

[10] Jany & Evans, After George Floyd’s death, Minneapolis police chief is caught in force’s racial legacy, StarTribune (June 8, 2020); 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 Complaint Against Derek Chauvin Over the Death of George Floyd

On May 29, Minneapolis’ Hennepin County Attorney, Mike Freeman, issued the first criminal Complaint over the May 25th death of George  Floyd. It stated there was probable cause that former Minneapolis Policeman Derek Michael Chauvin had caused the death of George Floyd in a manner that constituted Third Degree Murder and Second Degree Manslaughter under Minnesota law.[1]

On June 3 the above complaint was superseded by a second criminal Complaint against Chauvin that was issued by Minnesota Attorney General Keith Ellison, who had been appointed only two days earlier by Minnesota Governor Tim Walz to assume overall responsibility for the case. This pleading added the charge of second degree murder.[2]

As noted in a prior post, on June 8 Chauvin had his initial hearing in this case and his bail was increased to $1,250,000 without conditions and $1 million with conditions; his next hearing is scheduled for June 29, when he is expected to enter his plea to the charges.

The Second Criminal Complaint Against Chauvin[3]

COUNT I: Second Degree Murder (Unintentional While Committing a Felony).

The Complaint alleges In violation of Minnesota Statute 609.19.2(1), “on or about May 25, 2020, in Hennepin County, Minnesota, . . . Chauvin, caused the death of a human being, George Floyd, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force of violence or a drive-by shooting, namely assault in the third degree.”

Section 609.19.2(1) od Minnesota Statutes states, “Whoever does . . . the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years: causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.”

“Assault” is defined in Minnesota Statutes section 609.02.10 as(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.” And “assault in the third degree” is defined in section 609.223.1 as “Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.”

‘Bodily harm” is defined in Minnesota Statutes 609.02.7 as “physical pain or injury, illness, or any impairment of physical condition,” while ”substantial bodily harm” in section 609.02.8 is defined as “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.”

Thus, the key factual issues for this Count are (1) whether Chauvin’s placing of his knee on Floyd’s neck and not removing that hold was done with intent to cause Floyd to fear immediate bodily harm or death or with intent to inflict or attempt to inflict bodily harm on Floyd; (2) whether Chauvin’s placing of his knee on Floyd’s neck and not removing that hold caused Floyd substantial bodily harm; and (3) whether Chauin’s placing his knee on Floyd’s neck and not removing that hold caused Floyd’s death.

COUNT II: Third Degree Murder (Perpetrating Eminently Dangerous Act and Evincing Depraved Mind)

The Complaint alleges,“In violation of Minnesota Statute 609.195(a),on or about May 25, 2020, in Hennepin County, . . . Chauvin caused the death of another, George Floyd,  by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”

That statute states, “Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.”

Thus, the key factual issues for this Count are (1) was Chauvin’s placing his knee on Floyd’s neck and not removing that hold an eminently dangerous act; (2) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold evince a depraved mind; and (3) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold cause Floyd’s death.

COUNT III: Second Degree Manslaughter (Culpable Negligence Creating Unreasonable Risk)

The Complaint alleges, In violation of Minnesota Statute 609.205(1), “on or about May 25, 2020, in Hennepin County, Minnesota,  . . . [Chauvin] caused the death of another, George Floyd,  by his culpable negligence, creating an unreasonable risk and consciously took the chances of causing death or great bodiliy harm  to another, George Floyd.”

That statute states, “A person who causes the death of another by . . . [the person’s] culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to [another] is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.” “Great bodily harm’ is defined as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” (Minn. Stat. sec. 609.02.8.)

Thus, the key fact issues on this Count are (1) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold create an unreasonable risk of causing death or great bodily harm to Floyd; (2) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold consciously take the chances of causing death or great bodily harm to Floyd; and (3) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold cause Floyd’s death.

Statement of  Probable Cause

“On May 25, 2020, someone called 911 and reported that a man bought merchandise from  a Cup Foods at 3759 Chicago Avenue in Minneapolis, Hennepin County, Minnesota with counterfeit $20 bill. At 8:08 p.m., Minneapolis Police Department (MPD) Officers Thomas Lane and J.A. Kueng arrived with their bodyworn cameras (BWCs) activated and running. The officers learned from store personnel that the man who passed the counterfeit $20 was parked in a car around the corner from the store on 38th Street.”

“BWC video obtained by the Minnesota Bureau of Criminal Apprehension shows that the Officers approached the car, Lane on the driver’s side and Kueng on the passenger  side. Three people were in the car; George Floyd was in the driver’s seat, a known adult male was in the passenger seat and a known adult female in the backseat. As Officer Lane began speaking with Mr. Floyd, he pulled his gun out and pointed it at Mr. Floyd’s open window and directed Mr. Floyd to show his hands. When Mr. Floyd put his hands on the steering wheel, Lane put his gun back in its holster.”

“While Officer Kueng was speaking with the front seat passenger, Officer Lane ordered Mr.  Floyd out of the car, put his hands on Mr. Floyd and pulled him out of the car. Officer Lane handcuffed Mr. Floyd.”

“Once handcuffed, Mr. Floyd  walked with Officer Lane to the sidewalk and sat on the ground at Officer Lane’s direction. When Mr. Floyd sat down he said, “thank you man” and was calm. In a conversation that lasted just under two minutes, Officer Lane asked Mr. Floyd for his name and identification. Officer Lane asked Mr. Floyd if he was “on anything”and noted there was foam at the edges of his mouth. Officer Lane explained that he was arresting Mr. Floyd for  passing counterfeit currency.”

“At 8:14 p.m., MPD Officers Kueng and Lane stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”

“MPD Officers Derek Chauvin (the defendant) and Tou Thao then arrived in a separate squad car.”

“The officers made several attempts to get Mr. Floyd in the backseat of their squad car by pushing him from the driver’s side. As the officers were trying to force Mr. Floyd in the backseat, Mr. Floyd repeatedly said that he could not breathe. Mr. Floyd did not voluntarily sit in the backseat and the officers physically struggled to try to get him in the backseat.”

“[Chauvin] went to the passenger side and tried to get  Mr. Floyd into the car from that side and Lane and Kueng assisted.”“[Chauvin] pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed. Kueng held Mr. Floyd’s back and Lane held hie legs . [Chauvin] placed his left knee in the area of Mr. Floyd’s head and neck. Mr. Floyd said, ‘I can’t breathe’ multiple times and repeatedly said ‘Mama’ and ‘please,’ as well. At one point, Mr. Floyd said ‘I’m about to die.’ [Chauvin] and the other two officers stayed in their positions.”

“One of the officers said, ‘You are talking fine’ to Mr. Floyd as he contintued to move back and forth. Lane asked, ‘should we roll him on his side?’ and [Chauvin] said, ‘ No, staying put where we got him.’ Officer Lane said, ‘I am worried about delirium or whatever.’ [Chauvin] said, ‘That’s why we have him on his stomach.’ [Chauvin] and Kueng held Mr. Floyd’s right hand up. None of the three officers changed their positions.”

“While Mr. Floyd showed slight movements, his movements and sounds decreased until at 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, ‘want to roll him on his side.’ Kueng checked Mr.Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”

“At 8:27:24, [Chauvin] removed his knee from Mr. Floyd’s neck. An  ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”

“The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26,     2020. While the ME did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease, and toxicology testing revealed the presence of fentanyl and evidence pf recent methamphetamine use. The ME opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions, and the presence of the drugs contributed to his death. The ME listed the cause of death as ‘ [c]ardiopulmonary arrest complicating law enforcement subdural, restraint, and neck compression,’ and concluded the manner of death was homicide.”[4]

[Chauvin] and Officers [Lane] and Kueng subdued Mr. Floyd prone to the ground in this manner for nearly 9 minutes. During this time, Mr. Floyd repeatedly stated he could not breathe and his physical condition continued to deteriorate such that force was no longer necessary to control him. [Chauvin] had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous. Officer Chauvin’s restraint of Mr. Floyd in this manner for a prolonged period was a substantial causal factor in Mr. Floyd’s losing consciousness, constituting substantial bodily harm, and Mr. Floyd’s death as well.”

“[Chauvin] is in custody.”

Analysis of Second Complaint Against Chauvin

In addition to the previously stated factual issues under the Minnesota criminal statutes xfor the three counts of the Complaint, others are raised by  the Minneapolis Police Department Policy and Procedures Manual, which at the time recognized both a “choke hold” and “neck restraint” as permissible under certain circumstances.[5]

The Manual stated that a “Choke Hold’ is a “deadly force option” by “applying direct pressure on a person’s trachea or airway (front of the neck), blocking or obstructing the airway.” (Manual sec. 5-311(I).)

“Deadly force” is defined in the Manual, quoting Minn. Stat. sec. 609.066, subd. 2, as “Force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing death or great bodily harm.” (Manual sec. 5-302.)

“Neck restraint,” on the other hand, is stated in the Manual as a “non-deadly force option” and is defined as “compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints.” In addition, the Manual  “authorizes two types of neck restraints: Conscious Neck Restraint and Unconscious Neck Restraint.”

  • “The “Conscious Neck Restraint:The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure.” It “may be used against a subject who is actively resisting.”
  • The “Unconscious Neck Restraint:The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure.” It “shall only be applied in the following circumstances:
    • 1. On a subject who is exhibiting active aggression, or;
    • 2. For life saving purposes, or;
    • 3. On a subject who is exhibiting active resistance in order to gain control of the subject; and if lesser attempts at control have been or would likely be ineffective.”

These provisions raise the factual issues of whether or not Chauvin was applying “direct pressure” on Mr. Floyd’s “trachea or airway” and thus using a “chokehold.” The other requirement for chokehold seems established: he at least reasonably should have known that this procedure  created a “substantial risk of causing death or great bodily harm,” especially after the warnings by bystanders and by Lane and Kueng.

If, however, Chauvin was not applying direct pressure on Mr. Floyd’s trachea or airway and was not applying a “chokehold,” he was applying a “neck restraint.” But the Complaint definitely suggests that Mr. Floyd was not “actively resisting” and thus it was not a”conscious neck restraint.” In addition, the facts alleged in the Complaint strongly suggest that Mr. Floyd was not “exhibiting active aggression . . . [or] resistance. . . and that it was not used for “life saving purposes.” And thus it was not a valid “unconscious neck restraint.” Moreover, had Chauvin received “training from the MPD Training about neck restraints”? If not, then his use of a neck restraint was not authorized.

Criminologists who have seen the videotape of Chauvin’s treatment of Floyd say that Chauvin’s  “knee restraint not only puts dangerous pressure on the back of the neck, but that Mr. Floyd was kept lying on his stomach for too long. Both positions. . .run the risk of cutting off someone’s oxygen supply.”[6]

A professor at the University of South Carolina School of Law who studies policing. Seth W. Stoughton, said. “Keeping Mr. Floyd in the facedown position with his hands cuffed behind his back is probably what killed him.” About 20 years ago police training started emphasizing avoiding that prone position. Moreover, Stoughton offered, applying the knee to the back of the neck rather than to the sides risks killing or seriously injuring someone by cutting off the air supply or damaging the cervical spine and other delicate bones in the neck. No department permits such a technique in ordinary circumstances.

Mylan Masson, who directed a law enforcement training course at Hennepin Technical College in Minnesota, said she stopped teaching the knee restraint technique to new police officers after the Eric Garner case in 2014.

These criminologist also said that the fact that Mr. Chauvin kept applying pressure when Mr. Floyd was no longer struggling made it appear to be a case of an officer trying to punish a suspect for doing something the police did not like. Philip M. Stinson, a former police officer and now a criminal justice professor at Bowling State University, said it was “a form of ‘street justice,’ . . . bullying [to teach] someone a lesson—next time you will think twice about what you do.”

As a New York Times journalist observed, “For police trainers and criminologists, the episode appears to be a textbook case of why many police departments around the country have sought to ban outright or at least limit the use of chokeholds or other neck restraints in recent years: The practices have led too often to high-profile deaths.”

Conclusion

 An immense debt of gratitude is owed by everyone to the 17-year-old woman who was at the scene and pulled out her cell phone to video record this police encounter.The next day she said, “I started recording as soon as I heard him trying to fight for his life. The world needed to see what I was seeing.” She added, “Stuff like this happens in silence too many times. She hopes her video can in some way bring about “peace and equality. We are tired of police killing us.”  Later her attorney said, “She had no idea she would witness and document one of the most important and high-profile police murders in American history. If it wasn’t for her bravery, presence of mind, and steady hand, and her willingness to post the video on Facebook and share her trauma with the world, all four of those police officers would still be on the streets, possibly terrorizing other members of the community.”[7]

Her example should be remembered by everyone should we ever be in a similar situation. Get out your cell phone and video the encounter. Indeed, Minneapolis Police Chief Medaria Arradondo encouraged others to do the same when confronted with such a scene involving officers’ actions. “Record. Record, absolutely. Record, call. Call a friend. Yell out. Call 911. We need a supervisor to the scene. Absolutely. I need to know that. We need to know that. So the community plays a vital role and did two weeks ago.”

Without that video in the George Floyd case, just imagine how difficult it would be to mount such a prosecution.

However, there still will be challenges for the prosecution in this case.[8]

Former Ramsey County Attorney Susan Gaertner said the prosecution needed to be “painstakingly thorough” with this case and that such cases “are way more complicated and the burden on the prosecution is higher than I think the public understands.”  Of the same opinion was Thomas Heffelfinger, former U.S. Attorney for Minnesota, who said, “It’s not a slam dunk and these cases never are. These cases are hard to prove and we have to make sure we do it correctly.”

Those comments are perfectly understandable in cases where the policeman has to make split-second decisions when his or her life is at stake. But that is not this case here. So I wonder about these assessments by Gaertner and Heffelfinger even though they are both capable attorneys whom I know and who have significant criminal law experience that I do not share.

Another Minnesota attorney, Stephen Grego, saw the following challenges. First, inflammatory statements from elected officials in Minneapolis may have created substantial pretrial prejudice, leading to a change of venue from Hennepin County, which in turn could decrease minority juror representation. Second, causation will be a contested issue with the defense emphasizing the medical examiner’s findings of “fentanyl intoxication” and “recent methamphetamine use” to argue that Chauvin did not cause the death. Third, Minnesota law gives police officers broad discretion to use force when making an arrest. Fourth, can a person with a “depraved mind” direct his or her actions against a specific individual?

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[1] Read the complaint charging ex-Minneapolis officer Derek Chauvin in the death of George Floyd, StarTribune (May 30, 2020); Xiong & Walsh, Ex-police officer Derek Chauvin charged with murder, manslaughter in George Floyd death, StarTribune (May 29, 2020); Hennepin County attorney announces charges against Derek Chauvin (Video). StarTribune (May 29, 2020); Assoc. Press, Ex-Minneapolis officer faces 12-plus years on murder count, StarTribune (May 29, 2020); Bjorhus, Derek Chauvin in custody,; other officers lay low, StarTribune (May 30, 2020); Walsh, Hennepin County Attorney Mike Freeman faces new challenge in case against former Minneapolis police officer, StarTribune (May 31, 2020); Hill, Tiefenthaler, Triebert, Jordan, Willis & Stein, 8 Minutes and 46 Seconds: How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020).

[2] Montemayor, Minnesota AG Keith Ellison to take over case in Floyd killing, StarTribune (June 1, 2020); Montemayor, Ellison center stage in case of officer charged with murder, StarTribune (June 1, 2020); Four fired Minneapolis police officers charged, booked in killing of George Floyd, StarTribune (June 4, 2020); Jany & Xiong, BCA investigators in George Floyd killing sought access to police training and medical records, surveillance footage, StarTribune (June 1, 2020); Editorial, Ellison can help build trust that justice will be served in Floyd case, StarTribune (June 2, 2020).

[3] Hennepin County Medical Examiner, Press Release Report (Case No. 2020-3700  (June 1, 2020);Click to access 2020-3700%20Floyd,%20George%20Perry%20Update%206.1.2020.pdf

Click to access 2020-3700%20Floyd,%20George%20Perry%20Update%206.1.2020.pdf

 

Hennepin County Medical examiner declares George Floyd death homicide, Fox9 News (June 1, 2020); Forliti & Karnowski, Hennepin County autopsy concludes Floyd died of homicide caused by restraint, neck compression, Pioneer Press (June 1, 2020); Navratil & Walsh, Hennepin Medical Examiner classifies George floyd’s death as ‘homicide,’ StarTribune (June 2, 2020). The Floyd attorney and family commissioned another autopsy that might become an issue in the criminal cases. (See Xiong, George Floyd’s family blasts county autopsy, calls for peaceful protests, StarTribune (June 2, 2020); Autopsy report shows Floyd tested positive for coronavirus, Assoc. Press (June 4, 2020); Walsh, George Floyd autopsy report released; he tested positive for COVID-19 in April, StarTribune (June 4, 2020).

[4]  Complaint, State v. Chauvin, #  27-CR-20-12646 (Henn. Cty. Dist. Ct. (June 3, 2020).

[5] On June 8, the Hennepin County District Court approved a Stipulation and Order compelling the City of Minneapolis to amend the Police Policy and Procedure Manual to prohibit the use of all neck restraints and choke holds for any reason. (Court Approves Agreement on Police conduct Between City of Minneapolis and Minnesota Department of Human Rights, dwkcommentaries.com (June 9, 2020).

[6] Winston, Medical examiner Testifies Eric Garner Died of Asthma Caused by Officer’s Chokehold, N.Y. Times (May 15, 2019)

[7] Walsh, ‘World needed to see,’ says woman who took video of man dying under officer’s knee, StarTribune (May 26, 2020);

Walsh, Teen who recorded George Floyd video wasn’t looking to be a hero, her lawyer says, StarTribune (June 11, 2020).

[8] Grego, Prosecution of the four officers won’t be easy, StarTribune (June 8, 2020); MacFarquar, In George Floyd’s Death, a Police Technique Results in a Too-Familiar Tragedy, N.Y.Times (May 29, 2020); Dewan & Kovaleski, Thousands  of Complaints Do Little to Change Police Ways, N.Y. Times (May 30 & 31, 2020)(review of Minneapolis Police Department); Miller, Former prosecutors weigh case against Minneapolis officers, MPR (June 1, 2020) (interview of Susan Gaertner & Tom Heffelfinger); Hennessy & LeBlanc, 8:46: A number becomes a potent symbol of police brutality, StarTribune (June 4, 2020);Xiong, A timeline of events leading to George Floyd’s death as outlined in charging documents, StarTribune (June 4, 2020).

 

What Happened to George Floyd in Minneapolis on May 25, 2020

By now, everyone in the U.S. and the rest of the world knows or could know that on the evening of May 25 in Minneapolis, Minnesota (at 38th Street and Chicago Avenue) George Floyd, a 46-year-old African American man, was killed by a Minneapolis policeman (Derek Chauvin) in the presence of three other Minneapolis policemen (Alexander Keung, J. Alexander Lane and Tou Thao).[1] Here is what is believed to be a fair summary of those horrendous 17 minutes of police encounters with Floyd and certain preceding events that evening:

  • That evening Floyd buys a package of cigarettes at a convenience store (Cup Foods) and pays for it with a $20 bill.
  • After Floyd left the store, a store employee inspects the $20 bill and believes it is forged. Two store employees then go outside and see Floyd in the driver’s seat of a dark blue Mercedes SUV across 38th Street .     
  • The two store employees go to the SUV and one of them from the driver’s side and the other from the passenger’s side of the SUV ask for the return of the package of cigarettes of a man in the passenger seat and Floyd in the driver’s seat. The request is denied.
  • The two employees return to the store and presumably one of them or another employee dials 911 to report a customer who had paid for cigarettes with an alleged forged $20 bill. They apparently also said that the African-American man appeared to be drunk and was now in a SUV across the street from the store.
  • At 8:08 p.m. two MPD officers (Lane and Keung) arrive at the scene and a store employee directs them to an African-American man (Floyd) in the driver’s seat of the Mercedes SUV across 38th Street.  This starts the approximate 17 minutes of police encounters with Floyd before he is removed on a gurney by medics in an ambulance.
  • Lane arrives at the driver’s side of this SUV and with his revolver drawn tells the African-American man (Floyd) to put his hands on the steering wheel. Floyd immediately does so without resistance and Lane puts the revolver back in his holster.
  • Lane then pulls Floyd out of the car, and he and Keung handcuff  Floyd’s hands behind his back and take him across the sidewalk and seat him on the sidewalk with his back to the brick wall, all without any resistance by Floyd.
  • At 8:14 p.m. Lane and Keurig had Floyd get up from the sidewalk and walk across 38th Street to their squad car and tried to get him into the back seat. Floyd said he was not resisting, but could not get into back seat because he is claustrophobic. But officers get him into the back seat.
  • At 8:19 p.m. Officers Chauvin and Thao arrive at the scene in a different squad car. Chauvin pulled Floyd out of the back seat of the first squad car with Floyd, still handcuffed, who falls to the pavement. Clausen then puts his left knee on the neck of the fallen Floyd while Kueng held Floyd’s back and Lane one of his legs.
  • At some time Lane asked Chauvin if they should roll Floyd on his side, but Chauvin says “no” and the officers do not change what they are doing.
  • At 8:24 p.m. Floyd stopped moving.
  • At 8:25 p.m. Floyd appeared to stop breathing and Lane asked again if they should move Floyd onto his side, but Chauvin again refused to do so.
  • At 8:27 p.m. Chauvin moved his leg off Floyd’s neck or 8 minutes and 46 seconds after he had placed his knee on the neck and 2 minutes and 53 seconds after Floyd had become non-responsive. The latter happened when an ambulance and emergency medics arrived and placed Floyd on a gurney to go the Hennepin County Medical Center..
  • At 9:25 p.m. Floyd was pronounced dead at the Medical Center after an hour of unsuccessful attempts to revive him.

Subsequent posts will examine the criminal charges brought against Chauvin and then against the other three policemen, their initial court appearances, initial comments by Hennepin County Attorney Mike Freenman, subsequent comments by Minnesota Attorney General Keith Ellison and the commencement of efforts to change and reform various aspects of Minnesota and federal criminal law and procedure.

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[1] E.g., Hill, Tiefenthaler, Triebert, Jordan, Willis & Stein, 8 Minutes and 46 Seconds: How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020);  Hennesy & LeBlanc, 8:46: A number becomes a potent symbol of police brutality, Star Tribune (June 4, 2020); Xiong, A timeline of events leading to George Floyd’s death as outlined in charging documents, StarTribune (June 4, 2020).