Tag: Derek Chauvin

Initial Hearings in Criminal Cases for Killing George Floyd

There are now four criminal cases against former Minneapolis police officers for the killing of George Floyd, all pending in the Hennepin County District Court in Minneapolis, and all four have had their brief initial hearings.

Derek Chauvin [1]

On June 8 Chauvin made his initial appearance by a video feed from a room at the Minnesota State Prison in Oak Heights, Minnesota. The only issue was the amount of his bail,  and the hearing lasted only 15 minutes without any comments by Chauvin or his attorney, Eric Nelson.

The prosecutor, Minnesota Assistant Attorney General Matthew Frank, said that the “severity of the charges” and the strong public opinion against Chauvin made him a more likely flight risk if he were released and, therefore, requested the bail be increased from $1 million to $1.25 million. The attorney for Chauvin, Eric Nelson, did not object, and Hennepin County District Judge Jeannice Reding, increased the bail to $1.25 million without conditions and to $1.0 million with conditions.

Chauvin’s next hearing, when he is expected to enter a plea to the charges, will be on June 29.

Judge Reding was appointed to the bench in January 2006, by Governor Tim Pawlenty (Rep.) and was elected to continue in that position in 2008 and 2014. After graduating cum laude from the University of Minnesota Law School in 1990, she was an attorney in a private Minneapolis law firm for seven years, a Minnesota Administrative Law Judge for two years and a Hennepin County District Magistrate and Referee for eight years. She is a founding member and past treasurer of the Minnesota American Indian Bar Association and served as a guardian ad Litem for children of tribal members in the tribal court of the Shakopee Mdewakanton Sioux Community.

J. Alexander Kueng, Thomas Lane & Tou Thao

Each of these three officers has been charged with aiding and abetting second-degree murder and second-degree manslaughter. At their initial hearing on June 4, Hennepin County District Court Judge Paul Scoggin set bail for each at $1 million without conditions or $750,000 with conditions. [3]

The prosecutor, Minnesota Assistant Attorney General, Matthew Frank, argued for high bail amounts because the charges were “very serious” and due to intense public interest each of these defendants was a flight risk. Each of the attorneys for the defendants objected to such amounts and instead argued for bail between $50,000 and $250,000.

Lane’s attorney, Earl Grey, disputing the complaint’s allegation that Chauvin had pulled Floyd out of one of the squad cars, claimed instead that Floyd had reisited arrest, “asserted himself” and  “flew out” of the squad car. Gray also emphasized that on the day of the Floyd death Lane was only on his fourth day as a full-time officer. Therefore, Gray argued, ““What is my client supposed to do but follow what the [senior] officer says? What was [Lane] supposed to do … go up to Mr. Chauvin and grab him and throw him off?” Instead, Lane thought he was doing what was right because he twice asked Chauvin whether they should roll Floyd over. “The strength of this case,” said Gray, “is extremely weak.” As a result, Gray said he would move to dismiss the complaint for lack of evidence.

More generally, Grey said Lane previously had worked as a juvenile counselor at a few “juvenile places” in the Twin Cities and once received a community service award from Mayor Jacob Frey and Minneapolis Police Chief Arradondo for volunteering with children.

Keung’s attorney, Thomas Plunkett, made a similar argument. He said, “At all times Mr. Keung and Mr. Lane turned their attention to that 19-year veteran. [They] were trying to communicate that this situation needs to change direction.” In addition, Plunkett said that  Keung is a black man who grew up in north Minneapolis with a single mom who adopted four at-risk children from the community and that Keung has always lived within 10 miles of his childhood home, was captain of the soccer team at Patrick Henry High School, where he graduated, coached youth soccer and baseball, and volunteered to build a school in Haiti. “He turned to law enforcement because he wanted to make that community a better place,” his lawyer said.

Thao’s attorney, Robert Paule, had a different tack. He said Thao had given a statement to investigators from the Minnesota Bureau of Criminal Apprehension (BCA) and that he is not a flight risk because he has deep roots in the community. He  is a lifelong resident of the metro area, is married and has children.

Judge Scoggin was appointed to the bench in 2015 by Governor Mark Dayton (DFL) and elected to continue in that office in 2016. His J.D. was awarded cum laude in 1984 by the University of Minnesota Law School, after which he was an Assistant Hennepin County Attorney through 2014 with a stint in 2009-10 as an International Prosecutor with the European Union External Action.

Conclusion

Subsequent posts will examine the  criminal complaints against the four officers and their second hearing scheduled for June 29.

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[1] Stanley & Xiong, $1.25M bail set for Derek Chauvin at his initial appearance Monday in George Floyd’s death, StarTribune (June 8, 2020); Karnowski, Officer charged in Floyd’s death held on $1 million bail, StarTribune (June 8, 2020); Bail Set for Up to $1.25 Million for Officer Charged With Murder in George Floyd Case, N.Y. Times (June 8, 2020).

[2] Xiong, Two ex-Minneapolis police officers charged in George Floyd’s death cast blame on more senior colleague, StarTribune (June 5, 2020); Gordon & Richmond, Duty to intervene: Floyd cops spoke but didn’t step in, StarTribune (June 7, 2020); Karnowski, Officer charged in Floyd death held on $1 million bail, StarTribune (June 8, 2020); Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).

[3] On June 10, Lane posted cash bail of $750,000 with conditions (surrendering firearms, remaining law-abiding and making all future court appearances) and was released from jail. (Walsh, Fired Minneapolis police officer, Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 10, 2020).)

 

 

Ban on  Police Choke Holds and Neck Restraints in Agreement Between City of Minneapolis and Minnesota Human Rights Department

On June 5, the City of Minneapolis and the Minnesota Department of Human Rights announced an agreement to ban Minneapolis police from using choke holds and neck restraints and to require officers to intervene when inappropriate force is used. The agreement was approved that same day by the Minneapolis City Council and signed by Mayor Jacob Frey, who said, “George Floyd’s service yesterday underscored that justice for George requires more than accountability for the man who killed him – it requires accountability from elected leadership to deep, structural reforms. Today’s agreement with the state will help bring those layers of accountability. This unprecedented energy and momentum for police reform has left Minneapolis poised not just to address our shortcomings, but to become a model for shifting police culture and uprooting systemic racism.” [1]

The agreement is in the form of a Stipulation and Order to be signed by a Hennepin County District Judge after the Department files a lawsuit against the City, which a StarTribune article says happened in the afternoon of June 5, but which was not yet publicly available..[2] This is a result of the Department’s  June 2nd filing a civil rights charge against the City related to the George Floyd death and launching a general investigation of whether and how the Minneapolis Police Department has for the past 10 years engaged in discretionary practices toward people of color.[3]

This Stipulation, if and when it is approved by a district judge, would order the City of Minneapolis as follows:

  1. BAN CHOKEHOLDS: “Within 10 days of the Effective Date, the City will amend Police Department Policy and Procedure Manual §§ 5-100 (Code of Conduct), 5-300 (Use of Force), and 5-311 (Use of Neck Restraints and Choke Holds) to prohibit the use of all neck restraints or choke holds for any reason.”
  2. “DUTY TO REPORT: Regardless of tenure or rank, any member of the City’s Police Department who observes another member of the City’s Police Department use any unauthorized use of force, including any choke hold or neck restraint, in violation of this Stipulation and Order, has an affirmative duty to immediately report the incident while still on scene by phone or radio to their Commander or their Commander’s superiors.”
  3. “DUTY TO INTERVENE: Regardless of tenure or rank, any member of the City’s Police Department who observes another member of the City’s Police Department use any unauthorized use of force, including any choke hold or neck restraint in violation of this Stipulation and Order, must attempt to safely intervene by verbal and physical means, and if they do not do so shall be subject to discipline to the same severity as if they themselves engaged in the prohibited use of force.”
  4. “CROWD CONTROL AUTHORIZATION: During protests and demonstrations, use of all crowd control weapons must be authorized only by the Chief of Police, or if the Chief is unavailable, the Chief’s designee at the rank of Deputy Chief or above. Crowd control weapons include, but are not limited to, chemical agents, rubber bullets, flash-bangs, batons, and marking rounds. The Police Department shall contemporaneously document the person who authorized the use of crowd control weapons and retain such documentation for a period of not less than seven years. Accordingly, within 10 days of the Effective Date, the City will amend Police Department Policy and Procedure Manual § 5-313 to reflect that chemical agents, regardless of canister size, may be used during crowd control situations if authorized only by the Chief of Police, or if the Chief is unavailable, the Chief’s designee at the rank of Deputy Chief or above. Any other provisions of the Police Department Policy and Procedure Manual that identify the authorized use of other crowd control weapons must also be amended within 10 days of the Effective Date to reflect that use of such weapons must be authorized only by the Chief of Police.”
  5. “TIMELY DISCIPLINE DECISIONS: For all recommendations that are pending as of the Effective Date of this Stipulation and Order, the Police Chief must issue a decision on any recommendation from the City’s Office of Police Conduct Review (OPCR) within 45 calendar days of the Effective Date. For all recommendations of merit provided by the OPCR after the Effective Date of this Stipulation and Order, and for the duration of this Stipulation and Order, the Police Chief must issue a written memorandum explaining the basis their decision, including the relevant facts, policies and law supporting the decision, within 30 calendar days. If and when permitted by Minn. Stat. § 13.43, the decision and written memorandum will be immediately made available to the public via the City’s website and must also be available for physical inspection. Within 90 calendar days of the Effective Date of this Stipulation and Order, the City shall amend any city ordinances to conform to the requirements of this paragraph. The City shall also amend any city ordinances to fashion an appropriate remedy for the person filing the complaint if a determination on the OPCR’s recommendation of merit is not made within the 30 calendar day time period.”
  6. “BODY WORN CAMERA FOOTAGE REVIEW: Civilian body worn camera footage analysts and investigators in the OPCR will have the authority to proactively and strategically audit body worn camera (BWC) footage and file or amend complaints on behalf of the Minneapolis Civil Rights Department. Within 90 calendar days of the Effective Date, the City of Minneapolis will submit to the Department of Human Rights a plan for detailing how it intends to strategically utilize this audit function to identify discriminatory practices in policing, including officer misconduct.”

In addition, the Stipulation, if and when it is approved by a district judge, would order the City of Minneapolis to do certain things to aid the Department’s current investigation as well as the following for “Building Toward Systemic Change:”

  1. “On or before July 30, 2020, the City Attorney shall prepare a report listing the State of Minnesota Laws that impede public transparency of police data and/or prevent the Mayor and Chief of Police and/or impede civilian oversight from disciplining and terminating police officers who do not adhere to Minneapolis Police Department policies and standards. “
  2. “The City shall prohibit all forms of retaliation, intimidation, coercion, or adverse action against any person, including any City employee, who reports misconduct or cooperates with MDHR’s Commissioner’s charge investigation. Any violation of this provision shall be considered a material breach of the Order and may result in further enforcement action by MDHR.“

12.“All forms of retaliation, interference, intimidation, and coercion against a City employee or any member of the public who reports misconduct or cooperates with MDHR’s Commissioner’s charge investigation, are strictly prohibited. This prohibited conduct includes anyone employed by the City’s Police Department, or a representative of such employee, who intentionally aids, abets, incites, compels, or coerces a person to engage in any of the practices forbidden by this Stipulation and Order.”

  1. “The City shall notify all employees that it is unlawful to intentionally obstruct or prevent any person from complying with the MHRA, MDHR’s Commissioner’s Charge investigation, or any order issued thereunder, or to resist, prevent, impede, or interfere with the Commissioner or any of the Commissioner’s employees or representatives in the performance of their duties.”

Minneapolis Mayor Jacob Frey said, ““George Floyd’s service yesterday underscored that justice for George requires more than accountability for the man who killed him — it requires accountability from elected leadership to deep, structural reforms.”

Presumably the Minneapolis Police Union has a right to intervene in this lawsuit and to oppose the proposed Stipulation and Order that would have to be ruled on by the district court.

We will wait to see whether they do so and what happens.

Reactions

These proposed revisions of the MPD Manual, in this blogger’s opinion, should be approved by the court after a hearing.

If and when approved by the court, however, they would only go into effect for subsequent actions by the police. Therefore, they are not relevant to the pending criminal cases about the killing of George Floyd. However, provisions of the existing MPD Manual will be relevant to these cases as discussed below.

Case Against Derek Chauvin[4]

That  Manual states that a “Choke Hold’s 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.” (Manual sec. 5-311.)

  • “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.”
  • “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.”

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.”

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.”

Case Against Other Officers

The existing MPD Manual, 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).)

Conclusion

 Subsequent posts will cover the future court hearing and decision on the proposed changes to the MPD Manual while other posts will analyze the pending criminal cases and developments.

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[1] Navratil,Tentative agreement would ban chokeholds, neck restraints by Minneapolis police, StarTribune (June 5, 2020); Minneapolis to ban the use of chokeholds in response to George Floyd’s death, N.Y. Times (June 5, 2020); Governor Walz, Walz-Flanagan Administration, City of Minneapolis Agree on Immediate Changes to Minneapolis Police Department Policies (June 5, 2020); Chavez, Sanchez & Alonso, Minneapolis City council votes to ban chokeholds one day after George Floyd memorial, cnn.com (June 5, 2020); Collins, Chapman, Martinez & Li, Weekend George Floyd Protests Planned, Seeking Reforms, W.S.J. (June 5, 2020); ‘Layers of accountability’: Mayor Jacob Frey Signs Restraining Order Forcing Immediate Reforms in Mpls. Police Dept., CBS Minnesota (June 5, 2020).

[2] Stipulation and Order [unsigned], State of Minnesota v. City of Minneapolis Police Department, City of Minneapolis (undated2020) (unsigned).

[3] Berkl & Navratil, Minnesota Human Rights Department launches probe into Minneapolis police, StarTribune (June 3, 2020);

Minn. Dep’t Human Rts., Civil Rights Investigation into Minneapolis Police Department (June 3, 3030); Governor Walz, Walz Administration’s Department of Human Rights Files Civil Rights Charge Against Minneapolis Police Department (June 2, 2020).

[4] MacFarquar, In George Floyd’s Death, a Police Technique Results in a Too-Familiar Tragedy, N.Y.Times (May 29, 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).