Federal Criminal Trial for Killing of George Floyd: Defendant J. Alexander Kueng’s Testimony 

On February 16-17, Defendant J. Alexander Kueng took the witness stand in his federal criminal trial. Here is a summary of his testimony.[1]

Kueng first described his growing up in north Minneapolis, the oldest of five children as the son of a Black father and white mother. He attended Sheridan Elementary School and Patrick Henry High School. Police officers often came to his home because of problems created by his younger siblings. This prompted his not being a “fan of police” and later his decision to become a police officer to do a better job.

He went to college in New York State to play soccer. But after tearing his ACL, he returned home and graduated from the University of Minnesota with a degree in sociology and criminology. He then worked in security and loss prevention at Macy’s on Nicollet Mall and then was a community service officer with the MPD before the 2018 Super Bowl in the city.

On May 25, 2020, Kueng was a rookie policeman, only a few days off  probationary status.

Although he was in the first squad car on the scene and, therefore, was supposed to be the one in charge, everyone knew “it’s always the senior officer who is in charge,” i.e., Derek Chauvin, who was “very quiet, by the book, knowledgeable and commanding respect from other officers.” Chauvin was “fair but tough.”

At the scene, Kueng discussed his early attempt to push George Floyd into the back seat of a squad car. Floyd pushed back, slamming Kueng’s face on the Plexiglass divider in the car. “His behavior just went to extreme measures. He started shaking very violently and seemed to have no pain response.” This prompted Kueng to wonder if this man was suffering from excited delirium. “I felt I had no control. I felt like any moment he could shove me off.”

A little later Kueng, who was kneeling on George Floyd’s back, while Derek Chauvin had his knee near Floyd’s neck and Thomas Lane held his legs, testified that he was concerned about their ability to stop Floyd from thrashing around and, therefore, disagreed with Lane’s suggestion of changing the restraint. Instead, Kueng trusted and deferred to Chauvin as his senior officer.

Indeed, he agreed with his counsel’s suggestion that cadets are taught unquestioned obedience to their superiors, especially in light of probationary officers being subject to being  fired at will. He believed that Chauvin could still have him unilaterally terminated. As a result, he worried about that possibility on every shift. Therefore, he never told Chauvin to get off Floyd. “I would trust a 19-year veteran to figure it out.”

When Kueng could not find a pulse for Floyd, who was face down on the street, he told Chauvin that he could not find a pulse and assumed that it was up to Chauvin to check for a more accurate assessment and make decisions on the “difficult balance between scene safety and medical care.” Kueng also said he was unable to confirm that  Floyd did not have a pulse because he was unable to check for a carotid pulse as he had been trained.

Kueng also described his training of how to secure a site and the need to check someone’s neck pulse if he or she is in distress.

Under cross examination, Kueng was shown material from an emergency medical responder course he took that said someone might not be breathing adequately even though the person was talking and listed things to check for. Kueng agreed that such a situation called for reassessment and agreed that he was trained to roll someone on his side to help him breathe.


[1] Karnowski & Webber, Officer Charged in Floyd killing says he deferred to Chauvin, AP News (Fe. 16, 2022); Mannix & Olson, Kueng testifies of attempting to place Floyd in squad: “I felt like I had no control,’ StarTribune (Feb. 16, 2022); Karnowski & Webber, Officer charged in Floyd killing says he deferred to Chauvin, AP News (Feb.17, 2022); Karnowski & Webber, Prosecutors question officer in Floyd killing about training, AP News (Feb. 17, 2022),  Olson & Mannix, Kueng says he didn’t see ‘serious medical need’ when George Floyd  fell unresponsive, StarTribune (Feb. 17, 2022),



Federal Criminal Trial for Killing of George Floyd: Defendant Tou Thau’s  Testimony

At the end of the prosecution’s case on February 14, Attorneys for all three officers immediately moved to have charges dismissed, but Judge Magnuson denied their motions from the bench, though he said he would consider written briefs on the subject.

Then two of the three defendants —J. Alexander Kueng and Tou Thau–said they intend to testify in their defense. The other defendant—Thomas Lane—at the start of the trial through his attorney said he also so intended, but on February 14, his attorney said Lane wanted to think about it overnight.[1]

Here then is a summary of the testimony of the first defendant, Tou Thao.

Tou Thao[2]

Thao said he first encountered police when he was 7 or 8 years old and his father beat him and a younger brother with an extension cord to break up their fight and when their mother intervened, the father beat her with the cord and retrieved a gun and threatened to kill them all. The three of them then fled to an aunt’s nearby house and called 911. When the police arrived, he accompanied them to the family home and unlocked the door so the police could arrest his father.

Years later after he flunked out of Anoka-Ramsey Community College and was working at Cub Foods, he decided to pursue his childhood interest in becoming a police officer. He is married  with three young children.

Thao testified that in his 2009 police training, pinning a suspect on the ground with a knee was presented as an appropriate technique in certain situations. Thao provided these photos from his training: (a) two recruits using their knees  in a “two-person prone handcuffing drill” with a person face-down on the ground; (b) two officers holding two “proned-out” (on their stomachs) people, one is handcuffed while the other is being handcuffed; (c) Thao and another classmate with an actor-suspect prone, hands behind his back, and Thao said the two classmates both were using their knees to restrain the “suspect;” (d) recruits marching in formation with sticks for riot control; (e) cops practicing with gas masks while being sprayed with tear gas; (f) trainees in Phalanx formation (V-shape). They also had cadence running when instructor would say something and the recruits would respond in chorus. Thao says he was never told it was improper to use knees to restrain except wrapping their legs around a suspect’s neck was prohibited.

After this training he was laid off and was unemployed before he was hired as a security guard at Fairview Riverside Hospital in Minneapolis for almost a year before he was re-hired by MPD. There he saw notations in hospital records for excited delirium. Sometimes a doctor or nurse asked him to restrain a patient.

On May 25, 2020, while eating dinner with his partner Derek Chauvin they were called to respond to an out-of-sector forgery call. It was a “Priority 1 call—get there fast, suspect still on scene.” While going there in a squad car with Chauvin, they were told over the phone or radio that there was a struggle with the suspect (Floyd) so they activated their car’s lights and siren, but after being told the scene was OK, they turned them off. Dispatch called them off the call, but they continued to Cup Foods because it had a reputation of being hostile to police as a well-known Bloods gang hideout.

Thao  said when he and Chauvin arrived, the other officers were struggling with Floyd to put him in a squad car and for Thao it was obvious Floyd “was under the influence of some kind of drugs” and in a state of “excited delirium.” Although Thao heard Floyd saying, “I can’t breathe,” he could not see anything that would have interfered with his breathing.

While at the scene, Thao pulled out of his squad car a hobble device to help restrain Floyd, but the officers decided not to use it because it would have complicated the work of the ambulance crew on their way there. Thao also called Dispatch to speed up the EMS response because he knew it was a matter of “life or death.”

Thao said he had “no idea” something serious had happened to Floyd until Minneapolis firefighters arrived on the scene after Floyd had been taken away in an ambulance. Until then, he testified, he had no idea something serious had happened to Floyd. In all of this, Thao never touched Floyd.

Under cross examination, Thao admitted that Floyd appeared unconscious at the scene, that officers have a duty to intervene when colleagues break the law and delaying CPR for even a minute can greatly diminish a person’s chances of survival.  He also said “it was a possibility” that when he was looking down at Floyd on the pavement, he knew what was going on. Thao testified that he was taught that it sometimes was OK to use neck restraints to help handcuff someone. But Thao agreed that using a knee to get someone under control is different from using it to restrain someone who’s already handcuffed — and that the neck should be avoided once someone is under control. Asked if what Chauvin was doing was a trained neck restraint, Thao replied, “I don’t believe so.”

Thao said he took a position on the street to serve as a “human traffic cone” to keep human traffic away from the other officers. He heard onlookers becoming more anxious about Floyd’s condition and calling on them to check his pulse. He, however, did not see any of the other officers roll Floyd over and perform CPR and presumed that meant Floyd was breathing and not in cardiac arrest. Thao also explained his body cam video at the scene.

At four minutes into restraint, Thao admits Floyd’s pleas were getting weaker. But, he says, that is a sign that the restraint was working. If Floyd had excited delirium, he needs to be kept on the ground. During the fifth minute, he admits no bystanders have stepped off the curb or taken steps toward him, but we’re trained not to underestimate a crowd. He refuses to admit that he could check on Floyd’s status. He did not tell his partners what bystanders were saying. Nor did he tell them that Floyd had “stopped speaking, went unconscious and that [he] had gotten requests from the crowd to check his pulse.”

In his prior interview by the MBCA, Thao said, “I could tell the officers on the ground were getting tired. Everyone’s breathing hard.”

Seng Yang.

Thao’s wife, Seng Yang testified briefly that her husband was law-abiding.


[1] Olson & Xiong, At least two ex-officers plan to testify in federal civil rights trial as defense prepares to present its case, StarTribune (Feb. 14, 2022); Forliti & Karnowski, Prosecution rests in 3 cops’ trial in George Floyd killing. AP News (Feb. 14, 2022); Bailey, Prosecution’s case against former officers charged in George Floyd’s death ends with teenage witness, Wash. Post (Feb. 14, 2022);

[2] Vera & Kirkos, First of the officers involved in George Floyd’s death testifies during federal civil rights trial, CNN.com (Feb. 15, 2022); Xiong & Olson, Ex-officer Tou Thao takes the stand in civil rights trial for Floyd death, StarTribune (Feb. 15, 2022); Karnowski & Webber, Officer in George Floyd’s killing testifies about training, AP News (Feb. 15, 2022); Karnowski & Webber, Officer says he assumed fellow cops were caring for Floyd, AP News (Feb. 15, 2022); Barrett, Former Minneapolis Police Officer Takes Stand in Federal Trial Over George Floyd’s Killing, W.S.J. (Feb. 15, 2022); Olson & Mannix, Thao testifies he didn’t convey crowd’s concerns about George Floyd to Chauvin, Kueng takes the stand, StarTribune (Feb. 16, 2022); Karnowski & Webber, 2 officers testify at federal trial in George Floyd killing, AP News (Feb. 16, 2022).



Further Criticism Over Dr. Nystrom’s Comments About “Excited Delirium” 

The prior post discussed comments about “excited delirium” by Dr. Paul Nystrom, who also is a moonlighting MPD police officer, that were skeptical about AMA and other criticism over the concept of “excited delirium.”[1] Those comments have triggered vigorous dissent. [2]

On February 14, Minneapolis Mayor Jacob Frey said he was “irate” when he learned of these comments by Dr. Nystrom. According to the Mayor, “The direction we gave was very clear. We wanted this to be a substantive — not a cosmetic — change. I directed very clearly to move away from excited delirium as both a term and a concept. … The video you’re referencing was not in line.”

In addition, the Mayor directed “the department to immediately terminate their contract with Dr. Nystrom.”

Similar criticism was voiced by Hennepin Healthcare CEO Jennifer DeCubellis, Chief Medical Officer Dr. Daniel Hoody and Chief Health Equity Officer Dr. Nneka Sederstrom. They said their organization had “failed to follow through on our promise to no longer teach excited delirium and to be intentional in addressing systemic racism.  Systemic racism is deeply imbedded in law enforcement and health care systems, including ours. We failed to address it here when we had the opportunity and, in doing so, have caused further pain and mistrust. We are extremely sorry for the further harm this has caused to our community.”

Interim Minneapolis Police Chief Amelia Huffman had additional comments. She said when Nystrom gave an outline of the revised training in person to [MPD] command staff he did not include “this digression into really his thoughts about the controversy” that were included in the final training video and that “did not meet what we asked for . . . and wasn’t appropriate.”


[1] New Evidence of “Excited Delirium” Training by MPD, dwkcommentaries.com (Feb. 13, 2022).

[2] Mannix, Mayor Frey: Hennepin Healthcare doctor failed to follow directive on ‘excited delirium’ training, StarTribune (Feb. 14, 2022).

New Evidence of “Excited Delirium” Training by MPD

So far, prosecution witnesses repeatedly have testified that the Minneapolis Police Department (MPD) has rejected the concept of “excited delirium” as a valid medical concept for use by its police officers in confronting suspects.

On February 12th, however, Andy Mannix of the StarTribune reported that its public records request has discovered a recent MPD training video that teaches officers how to respond to excited delirium and using studies with “excited delirium” in the titles.

In this training video, Dr. Paul Nystrom, an emergency physician at Hennepin Healthcare and also a moonlighting MPD police officer, says officers should no longer use the words “excited delirium” to describe the real phenomenon and instead use a name like “severe agitation with delirium.” He also stated, “We all agree the entity exists.” But, says Mannix, not everyone agrees, especially the American Medical Association.

Dr. Nystrom, however, in the video criticizes “specialists” and “experts” who have rejected the science of excited delirium. “I wouldn’t go into an operating room and tell an anesthesiologist how to practice. Most of us [policemen] don’t appreciate somebody else getting in our lane when they don’t do the things we do.”

He also uses the same acronym used in the previous training—“NOTACRIME” to help officers remember how to identify the syndrome:” “N=Nudity; O=Objects (person acting violently toward objects such as glass or shiny objects).”

This new training has been endorsed by MPD’s Deputy Chief of Professional Standards, Troy Schoenberger, who said it meets AMA policy, including having a medical professional teach the course. He added, “This training was important in the transition away from the use of the term ‘excited delirium,’ while still recognizing that there are symptoms that officers may observe, along with his [Nystrom’s] recommendations as to how to properly care for patients exhibiting those symptoms.”

A contrary opinion on the new training was voiced by Dr. Michael Freeman, an associate professor of forensic medicine at Maastricht University in the Netherlands. The new training, he said, is “window dressing” that fails to meet the AMA policy, and instead reinforces dangerous police practices based on shoddy research.

Also critical of the new training was Dr. Max Fraden of Hennepin Healthcare. “This is a change in name only. And the issue with excited delirium is not the name.” Last year Fraden and other hospital staff presented a petition to the its  leadership to stop training law enforcement on the concept, and leadership responded by saying they had stopped such training in 2018 and any new training would involve “trauma-informed care” and anti-racist framework.” Fraden, however, said the new video “seems very opposed to what Hennepin leadership says their policy is.”

Mayor Frey’s office said it “will be reviewing with external medical experts what appears to be a failure to follow a directive,” and the Mayor has directed the department to terminate its contract with Dr. Nystrom.


1 Federal Criminal Trial for George Floyd Killing: Prosecution Witnesses (Part (I), dwkcommentaries.com (Feb. 2, 2022); Federal Criminal Trial for George Floyd Killing (Part (II), dwkcommentaries.com (Feb. 11, 2022).

2 Mannix, Minneapolis Police Department still teaching controversial ‘excited delirium’ syndrome—despite claiming it had stopped, StarTribune (Feb. 12, 2022),









Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part II) 

On Monday morning (February 7) the federal criminal trial of former Minneapolis policemen (J. Alexander Kueng, Thomas Lane and Tou Thau) resumed in the federal courthouse in St. Paul before U.S. District Judge Paul Magnuson and a jury of 12 and 6 alternates. During the first phase of the trial (January 24-28, 31 and February 1-2), the prosecution presented 11 witnesses.[1]  The following is a summary of the testimony of the eight prosecution witnesses who testified in this resumption of the trial through February 11.[2]

Dr. David M. Systrom, Jr.

A physician at Boston’s Brigham and Women’s Hospital and assistant professor of medicine at Harvard Medical School and an expert witness for the prosecution, Dr. Systrom first described how the lungs and diaphragm work: breathing in compresses the stomach, spleen and liver with carbon dioxide being the waste product of cellular metabolism, and if it does not leave the body, it will build up in blood and tissue (acidosis.)

In his opinion, George Floyd died of asphyxia due to compression of his upper airway and inadequate breathing caused by being held in prone position. Yet this “was an eminently reversible respiratory failure right up until the time he lost consciousness.” It “was quickly reversible if the impediments to breathing were removed.” But they were not removed, and the “fatal combination” of “obstruction and restriction” of his breathing ultimately caused him to lose consciousness and his heart to stop.

Dr. Systrom noted how “Floyd’s position on the ground with his arms cuffed behind his back and the officer on top of him was problematic” as the arms and shoulders work as “adjunct respiratory  muscles” to help create space for full diaphragmatic breathing.  This restricted breathing resulted in low lung volume and inability to draw sufficient breathe leading to complaints about “shortness of breath” followed by Floyd’s loss of consciousness.

Also supporting Systrom’s opinion was Floyd’s end-tidal carbon dioxide level of 73 milliliters of mercury, twice the normal level and “life threatening” and often associated with an increase in the hydrogen ion concentration in the blood and low oxygen. In addition, he testified that there was no evidence suggesting a heart rhythm disorder or effects of methamphetamine or fentanyl.

Even after Floyd’s heart stopped, Dr. Systrom testified, there was still a chance to save him if CPR had been started immediately, but that did not happen.

Nicole Mackenzie

MPD’s medical support coordinator, Mackenzie testified that Kueng and Lane recently were in her MPD academy “emergency medical responder” class. They were taught about the need to roll subjects into the “side recovery position” so they could breathe instead of keeping them prone on their stomachs. They also were taught that responders have a duty of care to people in medical emergencies.

Kueng and Lane, she testified, acted inconsistently with that training when they continued to restrain Floyd after he became compliant and showed clear signs of needing help, including struggling to breathe.

When Mackenzie was asked about Thao, his attorney’s objection was sustained because Thao was not present in the video shown by Mackenzie.

That attorney presented PowerPoint training materials used by MPD until last year showing officers pinning a man down by his neck when responding to an excited delirium call and another showing a nude man punching through a wooden fence and fighting off a horde of police officers trying to subdue him. Under those circumstances, Mackenzie said, “your normal techniques for compliance might not work” and restraining someone, even with a knee, might be a life-saving measure.

Vik Bebarta

Another prosecution expert witness was Vik Bebarta, professor of emergency medicine, toxicology and pharmacology at the University of Colorado in Denver. She testified that Floyd died from “a lack of oxygen to his brain” when he was “suffocated and his airway was closed [and] he could not breathe.” “When the airway is blocked, you pass out, stop breathing and your heart stops.”

In addition, he said that the amounts of methamphetamine and fentanyl were too low to have caused his death. Videos of Floyd in Cupp Foods before the encounter with the police outside showed him carrying a banana and talking to clerks and other customers. Floyd was alert. “There is no sign that he was showing any signs of an imminent drug overdose.”  In contrast, someone “heavily impaired would not laugh or smile or have a conversation.” In addition, Floyd subsequently was able to walk handcuffed with police from his car to the police car across the street.

Bebarta also said Floyd did not display any symptoms typically associated with the excited delirium condition, such as high pain tolerance, superhuman strength and endurance and he did not die from what would be referred to as that condition.

Under cross examination, Bebarta admitted that police officers do not have the education and experience of medical doctors, but they learn basic life support and “have the ability to check a pulse and check for breathing.”

Bebarta also noted the three-minute lag between (a) paramedic Derek Smith’s arriving on the scene and checking Floyd’s carotid artery for a pulse  and (b) the start of chest compressions in the ambulance when every minute of delay in starting CPR reduces a patient’s chances of survival by 10%.

Under cross-examination by Paule, Bebarta says the slang “speedball” refers to Heroin and cocaine. Sometimes people “rectally” take drugs that sometimes is referred to as “hooping.” “Excited delirium” is not a diagnosis and does not have a good list of symptoms, but often shows as agitation with psychosis. Floyd did not exhibit delirium.

McKenzie Anderson

A scientist with the Minnesota Bureau of Criminal Apprehension, Anderson was in charge of processing Floyd’s car and one of the squad cars on May 25, 2020. She testified that pills found in his car tested positive for methamphetamine.

Under cross-examination by Gray, Anderson says on 5/27/20 she seized from Floyd’s car: shoes, strap and blood stains. She did not see or seize any pills. This search was looking for blood evidence, counterfeit money and a cell phone.

She also said that a lab determined that a pill from the squad backseat contained methamphetamine and Floyd’s saliva and thus probably came from his mouth. From Floyd’s car she seized $20 bills that turned out to be counterfeit, which are illegal to possess.

In a December 2020 search of Floyd’s car, she collected two pills that later were identified as a “mixture of fentanyl and methamphetamine.”

Richard Zimmerman

A MPD Lt. and its most senior officer, Zimmerman sais if an officer (from lowest in rank to chief) sees another officer using too much force or doing something illegal, you need to intervene and stop it.

On 5/25/20 at home, he received call to go to 28th & Chicago because an arrestee had to go to hospital. There he met officers outside Cup Foods about 90 minutes after Floyd died. He asked Lane and Kueng what’s going on.

Thomas Lane’s body cam video showed him telling Zimmerman that they did not know Floyd’s condition and that Floyd seemed like he was on something, “just kind of paranoid.” Nor did Lane say that Floyd had been pinned under Chauvin’s knee for more than nine minutes or that the officers could not detect Floyd’s pulse or that he had appeared to stop breathing.

Zimmerman testified, “The knee on the neck—the officers should have intervened at that point and stopped it. . . . It can be deadly.”  And “rank and seniority don’t change the duty to intervene.” Moreover, Zimmerman admitted he had thought poorly of Chauvin and “I think it’s pretty much known throughout the department that he’s a jerk.”

Kelly McCarthy

McCarthy, the Mendota Heights Police Chief, testified in his role as Chair of the Minnesota Board of Peace Officer Standards and Training, which licenses all officers in Minnesota. He said, Once someone is in your custody [as an officer], they are essentially your baby. You have restricted their freedom of movement. . . so there are things they can no longer do for themselves, so because you’re the one who took them into custody, you are now responsible for those things.” These officers’ training includes learning about “positional asphyxia” and the risk of handcuffing someone, use-of-force and civilians’’ constitutional rights. Training on use-of-force and firearms is annually required.

Alyssa Funari

On May 25, 2020, Ms. Funari, then 17 years old, was at Cupp Foods and observed the police restraining George Floyd on the pavement. His distress, she testified, was obvious to several bystanders, as they observed the policemen ignore pleas to relent and render aid. She said she “instantly knew Floyd was in distress. . . He was moving, making facial expressions that  he was in pain. He was telling us he was in pain.” She warned the officers that Floyd was near unconsciousness. At one point, she “observed that over time he was slowly becoming less vocal and he was closing his eyes. He wasn’t able to tell us he was in pain anymore and he was just accepting it.” She said, “Is he talking now? He’s about ready to knock out.” Yet she did not see any of the officers provide aid to Floyd.

Under cross examination by Thao’s attorney, Robert Paule, Funari said, I “believe he [Thao] did look” at the other officers restraining Floyd. “He might not have been watching the whole time, but he knew what was going on.” He turned around “a few times” to observe the other officers and Floyd .

Matthew Vogel

A FBI special agent, Vogel presented snippets of bystander and police video with timelines and transcripts to help the jurors sort out sometimes confusing videos. It included video of Kueng and Lane talking to Sergeant David Pleoger about what had happened, but saying incorrectly that Floyd was still breathing when paramedics arrived and not saying anything about their inability to find Floyd’s pulse.


[1] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part I), dwkcommentaries.com (Feb. 2, 2022).

[2] Olson, Pulmonologist says officers could have saved George Floyd’s life, StarTribune (Feb. 7, 2022); Karnowski & Webber (AP), Lung expert: Officers could have saved George Floyd’s life, AP News (Feb. 7, 2022); Mannix & Olson, Officers ‘inconsistent’ with medical training when they detained George Floyd, says police trainer, StarTribune (Feb. 8, 2022); Karnowski (AP), Police trainer testifies: Officers failed to aid Floyd, Twin Cities Pioneer Press (Feb. 9, 2022); Olson, Second physician testifies George Floyd died of asphyxia, not drugs or heart attack, StarTribune (Feb. 9, 2022); Karnowski (AP), Toxicologist: Drugs, ‘excited delirium’ didn’t kill Floyd, Assoc. Press (Feb. 10, 2022); Xiong & Olson, New footage played in federal trial shows officers did not tell superior that Floyd had no pulse, appeared to stop breathing, StarTribune (Feb. 10, 2022); Karnowski (AP), Lieutenant: Officers should have intervened in Floyd killing, AP (Feb. 10, 2022); Bailey, Officers charged in George Floyd’s killing omitted key details from the scene, Minneapolis officer testifies, Wash. Post (Feb. 10, 2022); Olson & Xiong, New body camera video: Officers didn’t tell second supervisor about restraint of Floyd, StarTribune (Feb. 11, 2022); Forliti & Karnowski, Teen bystander: Knew instantly Floyd was ‘in distress,’ Asoc. Press (Feb. 11, 2022); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune.







Federal Criminal Trial for George Floyd Killing: Prosecution Witnesses (Part I)

Here is a summary of the testimony of prosecution witnesses on January 24-28, 31 and February 1-2. On February 2 at 10:00 a.m. the trial was recessed until Monday, February 7, 9:30 a.m. because Defendant Thomas Lane has COVID.[1]

Kimberly Meline.

As the first trial witness, Meline established foundation for various videos of the police encounter with George Floyd on May 25, 2020, near Cup Foods in south Minneapolis. This included synchronizing some videos to play side by side.

A 34-minute video showed officers Kueng and Lane walking into Cup Foods and then walking to the car outside where Floyd is at the steering wheel. Lane points his gun at him and asks him to put his hands on the steering wheel. He does not comply and one of the officers says, “When you’re moving around like that, that makes us think way more is going on than we even know.”

This video then shows Lane and Kueng cuff Floyd and take him to a squad car and try to put him inside. Floyd objects, “I’m not that kind of guy. I’m claustrophobic.” He also says “I can’t breathe.” After Floyd is placed on the pavement near a police vehicle, the video captures him saying, “I can’t breathe. Mama, I love you.”

Another video, this from Kueng’ body-worn camera, was fixed on the passenger-side rear tire of a squad car, as bystanders can be heard shouting from the sidewalk and Floyd is unresponsive. A bystander, Donald Williams, says, “You think that’s cool, bro? You’re a bum for that.” This video also shows Thao holding back a group of bystanders on the sidewalk.

Charles McMillian

McMillian, a 71-year -old neighbor, was the first witness on the scene on May 25, 2020, and told Floyd to get in the back of the squad car and make it easy on himself because “You can’t win.” With tears, McMillian said, “I knew something bad was going to happen to Mr. Floyd . . . that he was going to die.”

Jena Scurry

A 911 dispatcher, Scurry testified that the officers asked for a “Code 2” ambulance without lights and sirens for a “mouth injury.” They did not report that Floyd was having trouble breathing. If they had, she could have sent “rescue” medical help from the fire department which could get to the scene faster than from Hennepin County EMS. A few minutes later she “grew concerned” that the officers appeared so long on a city surveillance camera that she called and reported this to a Third Precinct sergeant

Christopher Martin

At 19 years of age, Martin was working the evening shift at Cup Foods in May 2020 and accepted a blue-hued, obviously counterfeit $20 bill from Floyd to pay for a pack of cigarettes. At the instruction of the store manager, Martin went outside to bring Floyd back inside. Floyd, he testified, looked high and did not want to return to the store so the manager had another employee call 911.

A few moments later Martin saw a crowd outside the store and went outside to see a police officer with his knee or his body weight on Floyd’s neck, who appeared “dead . . . not moving.”

Derek Smith

A paramedic for Hennepin Healthcare, Smith testified that he and his partner arrived at the scene on a Code 2 non-emergency call. He immediately noted that Floyd had large pupils, no pulse and a chest not rising and falling and then told his partner “I think he’s dead. I’d like to provide patient care away from the scene” because “I knew I would have to work cardiac arrest, probably taking off his clothes.” They removed the body to the ambulance and started to set up lifesaving equipment while officer Lane attempted CPR. Yes, Lane was helpful to the paramedics.

Genevieve Hansen

An off-duty Minneapolis firefighter, while on a walk, Hansen came upon the scene near Cup Foods on May 25, 2020, and observed the lights of a squad-car,  “a woman was yelling that they were killing him” and “the amount of people that were on top of one person.” She also noticed “there were no medics or fire [department personnel] there, so there was no medical attention available.” The man on the ground wasn’t moving, his face was really swollen and smashed to the ground. She saw fluid coming from his general body and thought he could have emptied his bladder, which” is a sign of death or near death.” (Later, she says she learned the fluid was runoff from vehicle exhaust.) She was “concerned that he needed help.”

Hansen offered to help and urged one of them (Thao) to check the man’s pulse only to be rebuffed and told to get back on the sidewalk. This officer said something like, “If you’re really a Minneapolis firefighter then you should know better than to get involved.” This prompted Hansen to yell and swear at the officers because the man on the ground needed help immediately and he wasn’t not getting it, so I was just trying everything.”

Jeremy Norton

Norton, a Minneapolis fire captain, arrived at the scene to provide EMS and heard someone yell, “You all killed that man,” to the officers. In the Cup Foods store Norton met and talked with Hansen, who said she thought the officers had killed Floyd. Yet Norton said the officers did not seem concerned. In response to a question by Robert Paule, Thao’s attorney, about “excited delirium,” Norton said it was part of firefighters training, but the American Medical Association had concluded that it lacked scientific evidence as a legitimate diagnosis.

At the end of the day on the 26th, Plunkett for the third time called for a mistrial, but the Judge denied the motion while telling the prosecution to be careful with leading questions.

Katie Blackwell

As a Police Department Inspector, Blackwell oversees training, which includes a medical component and scenarios officers may face in the field. MPD core values: trust, accountability and professional service. The Field Training Handbook asserts these values: (1) public safety and justice, not just absence of crime; (2) being truthful; (3) holding each other accountable; and (4) not committing public or private conduct that would sully the department.” Phases of training: (1) being in the field with a field training officer, getting comfortable with the public and computer system; and (2) being in a different precinct with a different field training officer.

MPD Code of Conduct: all employees to obey the code of conduct, rules, ordinances, laws. “The integrity of police service is based on truthfulness.” Other sections talk about being fair, unbiased and professional. “Required to immediately report any violation of rules, including but not limited to unreasonable use of force—regardless of rank.” Use of force starts with police presence and escalates to use of force. Use the lowest level of force necessary to detain someone. Once there is compliance, force stops. “Sanctity of life and protection of the public should be the cornerstones of MPD’s use of force policy.” If a person has stopped resisting, the person is complying. This includes protecting persons suspected of violating the law from police use of unnecessary force. Officers have a duty “to stop or attempt to stop another officer when force is being inappropriately applied or is no longer required.”

The Department’s officers have “a duty to intervene because there is an obligation for sanctity of life to protect the public and fellow employees.” This includes a “duty to “stop or attempt to stop” another officer ”when force is being inappropriately applied or is no longer required.” It also includes “rendering medical aid consistent with training, including CPR, chest seal/tourniquet, administering Narcan, checking breathing. These requirements take into consideration an individual’s medical conditions, mental impairment, developmental disability, physical limitations, language barriers, drug or alcohol use and behavioral crisis.

MPD policy defines neck restraint as “restricting the blood flow” and “chokehold” can be used before shooting someone. Although policy says “neck restraint” can be used with a leg, officers are not trained to do so. “Conscious neck restraint” can be used when someone is actively resisting arrest and usually takes 15 seconds. Hobble is used to prevent someone from kicking and being combative. Prone position sometimes is used to get someone handcuffed, but then turn the person on his or her side so they can breathe easier.

“Sanctity of life and protection of public shall be the cornerstones of the MPD’s use of force policy. No matter what kind of force we’re using, we have to protect people.” “MPD employees shall only use the amount of force ‘objectively reasonable’ in light of circumstances: the amount and type of force that would be considered rational and logical to an objective officer on the scene, supported by facts and circumstances known to an officer at the time the force was used.”  Force can be used for “lawful arrest, execution of legal process, enforcing order of court, legal duties.”

MPD crisis intervention policy requires police to treat vulnerable people with compassion. Must call EMS and “render first aid until EMS gets there.” MPD policy for police to not stop people from videotaping police events.

Blackwell worked with Chauvin at third precinct for many years.

Blackwell reviewed Thao’s 2018 training–“Defensive Tactics In-Service.” It said, “Sanctity of life and protection of public. Based on 4th amendment reasonableness standard. Restraint is a form of force. Proportional force based on what the subject is doing. Need to use lowest level of force and justify any use of higher level.” Use of force: active aggression (being combative or trying to assault), active resistance, passive resistance and flight.

MPD academy tries to get officers comfortable correcting one another. “You will be held responsible for your actions and inactions.”

Blackwell also testified that the first officers on the scene, Lane and Kueng, under MPD policy, were in charge of the scene and should not have deferred to Chauvin, especially when Chauvin violated policy by putting his knee on Floyd’s neck and not removing it as Floyd was gasping for air and ultimately dying.

Initially Floyd showed active resistance and aggression when officers were trying to put him in back seat of squad car, which would have justified the officers using a taser on him.

Chauvin’s actions were inconsistent with policy when he had his knee on Floyd’s neck and pulled on his hand for “pain compliance.”

Three of the four officers who arrested and restrained Floyd did not act in accordance with use-of-force policy. Officers were not really communicating with each other. When Floyd went unconscious they were supposed to move him, but did not do so. Lane held Floyd’s legs. They did not move Floyd on his side as they were supposed to. Lane suggested doing so, but no one did so. When Floyd went unconscious, officers were supposed to render aid, but they did not do so. When Floyd had no pulse, they were supposed to perform medical aid, but they did not do so. MPD policy requires an officer to intervene to stop use of inappropriate force. The three officers failed in their duty to intervene.

There was a crowd of bystanders, but they were on sidewalk following orders and were not posing any threat to the officers.

Plunkett cross-examination: Blackwell disagrees with assertion that senior leadership establishes culture of organization and training. Instead recruits should mirror in field what they learned in training. Policy manual has 537 pages, and officers are supposed to know it. There are annual tests of some parts. DOJ is investigating pattern and practice of MPD, including alleged deficiency in officer training.

Paule cross-examination. The attorney for ex-officer Thao, Robert Paule, got Blackwell to agree that a MPD training slideshow cited a draft report by the city’s civil rights division that found a sharp rise in ketamine injections of detainees and examples of police asking emergency medical services for the sedative by name and joking about its powerful effects along with a footnote dismissing the report as a “reckless use of anecdote” that will “prevent the saving of lives.” Blackwell also testified, “If you’re dealing with somebody who is displaying signs of excited delirium, it can be very dangerous.”

Paule also identified other slides from the MPD course on its “excited delirium” training that had officers pinning down suspects with their knees, similar to the way Chauvin pinned down Floyd.

Dr. Bradford Wankhede Langenfeld

Langenfeld went into stabilization room for most critical patients to await Floyd’s arrival as a cardiac arrest patient. Floyd arrived at 8:55 p.m. Upon arrival, paramedics said no one at scene had started CPR before they arrived, and a minute’s delay in CPR reduces chances of success from cardiac arrest by 10-15%. But paramedics in ambulance tried resuscitation for about 30 minutes before arrival at hospital, but never found a pulse.

At hospital they continued compressions with Lucas device and gained additional IV access for more medications. Replaced windpipe tube with a more secure tube for better venting and arterial line. Dr. Langenfeld believes most likely cause of this cardiac arrest was “mechanical asphyxia” (inability to expand chest wall) and “excited delirium” or “severe agitated state.” There was a mouth injury which made him think the patient had been pinned down in prone position. Fentanyl by itself is a depressant, shows down breathing, but would not lead to severe agitated state.

After Dr. Langenfeld had worked on Floyd for about 30 minutes, cardiac arrest had come to near standstill; no clinical improvement; so doctor declared Floyd dead. When the heart stops, tissues and brain start to die, and irreversible brain damage occurs within 4-6 minutes of cardiac arrest.

Cross-examination by Paule (Thau’s attorney). Dr. Langenfeld says excited delirium is controversial because it is used almost exclusively when law enforcement is restraining an individual and predominantly people of color, thus raising concerns about bias and most often it is a pre-hospital diagnosis, which is condemned by  AMA and which typically is used for someone who is delirious, erratic, unable to be verbally de-escalated, sweaty.

If Floyd had been using illegal drugs and sweating profusely, this possibly could have been cause of cardiac arrest.

Cross examination by Plunkett (Kueng’s attorney). If someone had consumed methamphetamine and fentanyl and then was struggling hard, that possibly could kill someone.

Redirect by prosecution. Cardiac arrest from acidosis can be reversed by prompt chest compressions and CPR ventilation. After reviewing video of Floyd’s arrest, Dr. Langenfeld believes Floyd was not subject to severe agitation that would lead to cardiac arrest.

Andrew Baker

A medical examiner, Baker examined Floyd at HCMC and testified that his heart and lungs stopped due to restraint by law enforcement. “ I view his death as being multifactorial” due to the duration of his “interaction with law enforcement” for 9.5 minutes along with his already enlarged heart and hardened arteries. However, he denied that the fentanyl and methamphetamine found in Floyd’s body and carbon monoxide poisoning were contributory factors.

Under cross examination by attorney Paule, Baker testified that he and his office were targets of protests after Hennepin County Attorney Mike Freeman had published Baker’s preliminary autopsy findings that highlighted Floyd’s cardiovascular disease and “potential intoxicants” in his body. These protests included threatening phone calls, some of which targeted specific employees in his office and their families and included their home addresses. But Baker said the final conclusions on Floyd’s death were neither partisan nor driven by outside pressure. Baker also testified that excited delirium was not a cause of death.

Kueng’s attorney, Thomas Plunkett, showed Baker a photo of Kueng restraining Floyd, and Baker said that that position “wouldn’t impair his ability to breathe.” Baker gave the same answer to a question by Lane’s attorney (Earl Gray) about Lane’s position on Floyd.

Christopher Douglas

Attorney Gray objected to having Douglas testify because he trained Lane as a corrections officer in 2017 and, therefore, is not relevant. The objection, however, was overruled.

Douglas works for the Hennepin County Department of Community Corrections as the lead safety trainer for the County’s Juvenile Detention Center, where Lane worked before joining MPD. Douglas testified regarding the training about positional asphyxia that Lane would have received at that Center in 2017 and 2018. It emphasized getting “control of the subject quickly,” using arms instead of body weight while avoiding putting pressure on the torso and neck and monitoring the subject for medical issues and claiming inability to breathe. The trainees also learn de-escalation and physical restraint techniques, which aim to keep someone vertical and on their feet making it easier to transport someone and less likely to cause injury.


According to Holly Bailey, a Washington Post reporter, defense cross examination of Katie Blackwell suggests that a major defense argument will be that “Minneapolis officers are not given adequate scenario training on intervention policies and they operate in a militarized environment where younger officers are strongly discouraged from disagreeing with senior officers.” Thomas Plunkett, Kueng’s attorney, has argued that Kueng had received “inadequate training” and that the U.S. Justice Department currently is investigating the MPD, including its training programs.


[1]  The above summary of witness testimony is based upon the following newspaper articles: Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune; Mannix & Olson, Cup Foods clerk who interacted with George Floyd tells jurors of events leading to killing, StarTribune (01/25/22);  Olson & Mannix, Day 3 of testimony underway as paramedic describes how George Floyd was likely dead at scene, StarTribune (1/26/22); Mannix & Olson, ‘I think they killed him:’ Off-duty firefighter testifies of futile attempts to help unresponsive George Floyd, StarTribune (1/26/22); Mannix & Olson, Minneapolis police inspector testifies of training protocol in civil rights trial, StarTribune (1/27/22); Mannix & Olson, Kueng and Lane should have been in charge at George Floyd arrest, protocol not followed, StarTribune (1/28/22);  Mannix & Olson, Defense says poor training, paramilitary culture, stopped officer from intervening in George Floyd’s death, StarTribune (1/28/22); Bailey, Officers charged in George Floyd’s killing had been taught to intervene, police trainer testifies, Wash. Post (1/28/22); Jany & Furst, Minneapolis police training, policies under microscope in trial of 3 ex-cops in George Floyd’s death, StarTribune (1/30/22); Mannix & Olson, Testimony: Minneapolis police trained to ignore city’s civil rights report on ketamine, excited delirium, StarTribune (1/31/22); Olson & Mannix, Defense asks medical examiner about outside pressures during George Floyd death investigation, StarTribune (2/1/22); Olson & Mannix, Trial of ex-Minneapolis cops postponed by COVID diagnosis, StarTribune (2/2/22).

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.”


[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).)


Concept of “Excited Delirium” Is Junk Science

During the May 25th physical restraint and subsequent killing of George Floyd, by three Minneapolis police officers, one of the officers said, ““I am concerned about excited delirium or whatever.”[1]

This statement is not unusual for U.S. police officers. “Across the United States, police officers are routinely taught that excited delirium is a condition characterized by the abrupt onset of aggression and distress, typically accompanying drug abuse, often resulting in sudden death. One 2014 article from the FBI’s Law Enforcement Bulletin describes ‘excited delirium syndrome’ as ‘a serious and potentially deadly medical condition involving psychotic behavior, elevated temperature, and an extreme fight-or-flight response by the nervous system.’”[2]

This concept, however, is pseudoscience according to three distinguished medical scientists.[3] The following is their explanation for that conclusion.

“It’s not a concept recognized by the American Medical Association or the American Psychiatric Association. It isn’t a valid diagnosis; it’s a misappropriation of medical terminology, and it doesn’t justify police violence.”

“While delirium is a well-recognized diagnosis frequently seen and treated by neurologists and psychiatrists, excited delirium is not. Delirium is defined in the Diagnostic and Statistical Manual of Mental Disorders as an acute, fluctuating disturbance in attention and cognition, typically provoked by an underlying medical condition such as infection, drug intoxication, a medication’s adverse effects or organ failure. It can have “hyperactive” or “hypoactive” features, meaning that patients may be agitated or drowsy, or may move between these states. A typical case might be seen in an elderly man admitted to a hospital with a urinary tract infection, who over the course of a day or two becomes confused (e.g. unable to understand where he is or recognize family members) and starts sleeping throughout the day and getting agitated overnight. Delirium is not associated with sudden unexpected death.”

“Excited delirium, on the other hand, stems from an 1849 description by Luther V. Bell in the American Journal of Insanity. Bell looked at 40 patients admitted with “fever and delirium” to the psychiatric facility at McLean Hospital in Boston. Proponents of the excited delirium diagnosis refer back to Bell’s description as historical data, but the cases he studied did not involve deaths occurring in the span of minutes to hours, but rather two or three weeks after admission. While it is not possible to retrospectively diagnose these patients, it’s likely that many of them suffered from forms of infectious or autoimmune encephalitis.”

“Charles V. Wetli, a forensic pathologist, first used the phrase ‘excited delirium’ in 1985 to explain a series of sudden deaths in cocaine users, occurring primarily in police custody. Wetli also used the term to describe the deaths of 32 black women in Miami during the 1980s, proposing that a combination of cocaine use and sexual intercourse had led to their demise. He posited that, with chronic cocaine use, ‘the male of the species becomes psychotic and the female of the species dies in relation to sex,’ stating, ‘My gut feeling is that this is a terminal event that follows chronic use of crack cocaine affecting the nerve receptors in the brain.’ Later, however, police attributed the deaths to a serial killer, and evidence of asphyxia was found upon reexamination of the corpses.”

“Despite these shaky origins and the lack of grounding in medical science, this concept — of a febrile, agitated state often culminating in death — has persisted, advanced by law enforcement. The features of this purported condition, as listed by the American College of Emergency Physicians, betray its entanglement with law enforcement, including ‘bizarre behavior generating phone calls to police,’ ‘failure to respond to police presence’ and ‘continued struggle despite restraint.’ Several analyses have found that the majority of deaths attributed to ‘excited delirium’ are associated with the use of physical restraint. Some emergency-medicine doctors who are proponents of the diagnosis have been criticized for having conflicts of interest with the stun gun industry. And the manufacturer of Tasers has helped popularize this diagnosis to help attribute Taser-associated deaths to other possible causes.”

“The syndrome is disproportionately diagnosed among young black men, highlighting the racist undertones of the reported clinical symptoms: having ‘superhuman strength’ and being ‘impervious to pain.’ It winds up being a convenient scapegoat cause of death after a violent confrontation. Or it becomes a justification for police aggression that may be unwarranted. There is reason to believe that it increases the risk of police encounters turning fatal. When officers are taught that traditional tactics such as ‘pepper spray, impact batons, joint lock maneuvers, punches and kicks’ are ‘likely to be less effective’ against suspects with excited delirium, as the American College of Emergency Physicians paper suggests, they may resort to more aggressive maneuvers, such as knee-to-neck chokeholds or hogtie restraints. According to a 2012 article published by the Force Science Institute, at one police training seminar in Illinois, a police veteran described excited delirium suspects’ ‘imperviousness to pain’ and recommended responding with force that is ‘fast and overwhelming, with a vascular neck restraint possibly considered as part of the package.’ The result can be a tragic paradox: an apparently terminal ‘condition’ that can be treated only with the escalation of force, inevitably increasing the chances that it will be fatal.”

“The other justifications for this ‘diagnosis’ also fail to pass scientific muster. Some proponents of excited delirium point to the accumulation of ‘heat shock protein 70’ in the brains of affected individuals. But this is also seen in deaths associated with cocaine use and is not evidence of a unique diagnosis. Others cite cases of extreme responses to stimulant use and emotional duress, such as heart failure and cardiac arrest, but these cases are not associated with agitation or altered consciousness. At any rate, cardiac stress responses are much more common in older, postmenopausal women, not in younger black men, who aren’t a particular risk for this kind of stress response but are disproportionately likely to be killed in police encounters.”

“Excited delirium implies that there is a medical condition that predisposes certain individuals, often black men, to die in police custody. It draws upon aspects of real medical conditions such as delirium, psychosis, drug intoxication and sudden cardiac death. But it manipulates them to form a broadly applicable blanket diagnosis that serves the interests of law enforcement and absolves officers of accountability.”


[1] See George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death [para. 54], dwkcommentaries.com (July 17, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count II [paras. 137, 140, 141], dwkcommentaries.com (July 18, 2020).

[2] O’Hare, Budhu & Saadi, Police keep using ‘excited delirium’ to justify brutality. It’s junk science, Wash. Post (July 17, 2020).

[3] Méabh O’Hare is a neuromuscular fellow at Massachusetts General Hospital and Brigham and Women’s Hospital. Joshua Budhu is a neuro-oncology fellow at Massachusetts General Hospital, the Dana Farber Cancer Institute and Brigham and Women’s Hospital. Altaf Saadi is a general academic neurologist at Massachusetts General Hospital and an instructor of neurology at Harvard Medical School.






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

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

Legal Basis [1]

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

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

Count II also is based on so-called “Monell Liability,” which refers to the U.S. Supreme Court decision in Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978), that held, “Local governing bodies (and local officials sued in their official capacities) can . . .be sued directly under § 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other § 1983 “person,” may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such custom has not received formal approval through the government’s official decision-making channels.”

Factual Allegations [2]

The Parties

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

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

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

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

MPD Trains its Officers to Use Deadly force in Non-Deadly Circumstances

“86. MPD trained its officers that a ‘neck restraint’ was an authorized form of non-deadly force, and that a ‘chokehold’ was a form of deadly force capable of causing serious bodily injury and/or death.” [3]

“87. At all times material hereto, MPD defined a ‘neck restraint’ as ‘[c]ompressing 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).’ MPD defined a ‘chokehold’ as ‘applying direct pressure on a person’s trachea or airway (front of the neck).’”

“88. At all times material hereto, MPD trained its officers that a proper ‘neck Restraint’ required the officer to ‘[c]ompress veins. arteries, nerves & muscles of the neck.'”

“89. Serious bodily injury and/or death is reasonably likely to result from an officer ‘compress[ing] a person’s veins, arteries, nerves & muscles of the neck,’ regardless of whether direct pressure is applied to the front or back of the neck.”

“90. The use of a ‘neck restraint’ as defined by MPD constitutes deadly force.”

“91. The Fourth Amendment prohibits the use of deadly force in non-deadly circumstances which do not pose an immediate threat of serious bodily injury and/or death.”

“92. At all times material hereto, MPD’s written policies authorized the use of a deadly ‘neck restraint’ in non-deadly circumstances posing no immediate threat of serious bodily injury or death.”

“93. At all times material hereto, MPD trained its officers that use of a ‘neck restraint’ was authorized non-deadly force which officers could use in non-deadly situations.”

“94. It has long been known by the law enforcement community that the use of neck restraints on subjects can lead to death.”

“95. However, from at least April 15, 2012 until June 8, 2020, Minneapolis Police Department Policy 5-311 defined a neck restraint as ‘non-deadly force’ and did not warn it can cause death.”

“96. By policy, the MPD permitted and condoned the use of both conscious and unconscious neck restraints by its officers from at least April 15, 2012 until June 8, 2020.”

“97. At all times material hereto, MPD’s written policies authorized the use of a ‘neck restraint’ in non-deadly circumstances posing no immediate threat of serious bodily injury or death.”

“98. The City of Minneapolis possessed data indicating that since 2012, neck restraints/holds were used by its police officers on 428 people at an average rate of about one a week.”

“99. Of those 428 people, 14% who were subjected to a neck restraint/hold lost consciousness.”

“100. Upon information and belief, MPD officers regularly used neck restraints on passively resisting arrestees despite not being permitted to do so under policy.”

“101. Training offered by the City of Minneapolis in 2014 and received by Chauvin and Thao authorized and instructed on the use of neck restraints by officers, presented it to officers as a ‘non-deadly force’ option, and included instruction on how to employ neck restraints in order to most efficiently render subjects unconscious.”

“102. Upon information and belief, all training offered by the City of Minneapolis on the use of neck restraints, including that provided to the Defendant Officers, presented neck restraints to officers as a ‘non-deadly force’ option, and included instruction on how-to employ neck restraints in order to most efficiently render subjects unconscious.”

“103.Training offered by the City of Minneapolis to MPD officers, including the Defendant Officers, encouraged officers to “compress veins, arteries, nerves, and muscles of the neck” of arrestees.”

“104.Training materials offered to officers in 2014, including Defendants Chauvin and Thao, depict an officer placing a knee on the neck of an arrestee who is handcuffed in a prone position.”

“105. Since at least April 16, 2012, MPD policy has required that ‘[a]fter a neck restraint or choke hold has been used on a subject, sworn MPD employees shall keep them under close observation until they are released to medical or other law enforcement personnel.”

“106. Since at least April 16, 2012, the MPD failed to provide its officers with proper policy guidance and training on how to properly observe and attend to the medical needs of arrestees subjected to neck restraints.”

“107. At all times material hereto, MPD trained its officers that a ‘neck restraint’ could be used in non-deadly situations despite the fact that it constituted deadly force as utilized by MPD.”

Prone Restraint Training by the MPD and the Death of David Smith

“108. It is well known throughout the law enforcement and medical communities that holding a subject in a position of prone restraint for prolonged periods of time can be deadly.”

“109. Compressing an arrestee in a prone position with weight on their back and/or abdomen restricts their ability to breathe and can result in asphyxiation.”

“110. Deaths caused by this form of asphyxiation are often interchangeably referred to as deaths from positional, mechanical, or compression asphyxia, even if technical distinctions exist.“

“111. The United States Department of Justice has warned law enforcement for decades about the dangers of prone restraint and as early as 1995: ‘The risk of positional asphyxia is compounded when an individual with predisposing factors becomes involved in a violent struggle with an officer or officers, particularly when physical restraint includes behind-the-back handcuffing combined with placing the subject in a stomach-down position. National Law Enforcement Technology Center, Positional Asphyxia—Sudden Death at *2 (June 1995).”

“112. These dangers were acknowledged in an October 18, 2012 deposition by then-MPD Chief Timothy Dolan in addition to many other high-ranking officers in the matter of Smith v. Gorman, Case No. 11-cv-3071 (SRN/JJK).”

“113. Due to the well-known risks associated with prone restraint, it has long been national best practice that once a subject is controlled, it is imperative that they be moved from the prone position, and that their breathing be assessed.”

“114. Minneapolis has had a policy in place addressing this issue since at least May 29, 2002: ‘When ANY restraint technique is used on a subject, the subject shall not be left in a prone position and shall be placed on their side as soon as they are secured. Once the subject is secured, an officer shall watch for any of the following signs:

  • Significant change in behavior or level consciousness;
  • Shortness of breath or irregular breathing;
  • Seizures or convulsions;
  • Complaints of serious pain or injury; and/or
  • Any other serious medical problem.’

MPD Policy & Procedure Manual § 9-111.01 (emphasis in original).”

“115. Despite this knowledge, as of 2012, officers were not provided official training on the dangers of positional or mechanical asphyxia associated with prone restraint.”

“116. As of 2012, officers were trained that if a subject in a prone restraint is speaking, that they need not be concerned that the subject may be having difficulty breathing.”

“117. Despite the well-known risk of death associated with placing a subject in prolonged prone restraint, particularly without properly monitoring their medical condition, Mr. Floyd was not the first black man to be killed by MPD officers under such circumstances.”

“118. On September 9, 2010, veteran MPD Officers Timothy Gorman (“Gorman”)and Timothy Callahan (“Callahan”) responded to the Minneapolis YMCA, where David Smith (“Mr. Smith”) was experiencing the effects of mental illness.”

“119. Rather than use de-escalation techniques, Gorman and Callahan immediately went hands on with Mr. Smith and subjected him to five Taser deployments in addition to other force.”

“120. Gorman and Callahan placed Mr. Smith a prone restraint position with his hands handcuffed behind his back.”

“121. Despite Smith being handcuffed and adequately controlled, Mr. Smith was restrained in a prone position by Callahan and Gorman for at least 4 ½ minutes, with Gorman kneeling on Mr. Smith’s back and Callahan straddling Mr. Smith’s upper thigh/buttocks region.”

“122. Despite the fact that Callahan and Gorman had Smith adequately controlled, they failed to monitor Mr. Smith’s breathing or medical condition throughout their restraint of Mr. Smith.”

“123. Rather than assist Mr. Smith, Callahan berated him, calling him a ‘mother fucker.’”

“124. It was 6 and ½ minutes before either Callahan or Gorman made any effort to check on Mr. Smith’s medical condition.”

“125. Mr. Smith was pulseless, breathless, and lifeless by the time Callahan and Gorman finally made the effort to observe Mr. Smith’s medical condition.”

“126. Paramedics were able to resuscitate Mr. Smith’s heart, but he never regained consciousness and was removed from life support and officially died on September 17,2010.”

“127. Hennepin County Chief Medical Examiner Andrew Baker determined that the manner of death was homicide, and that the cause of death was anoxic encephalopathy due to or as a consequence of cardiopulmonary arrest due to or as a consequence of mechanical asphyxia.”

“128. Callahan filmed the mechanical asphyxiation of Mr. Smith on a personal and non-departmentally issued ‘pen camera’ that Callahan wore in his short pocket.”

“129. Callahan and Gorman were both aware of the fact that Callahan filmed Mr. Smith’s asphyxiation on the pen camera, yet the pen camera was intentionally concealed from MPD investigators on September 9, 2010.”

“130. Callahan did not disclose the existence of the pen camera video of Mr. Smith’s asphyxiation until nearly a week later on September 15, 2010, but was not disciplined for concealing evidence of a homicide.”

“131. MPD pretended to conduct a homicide investigation into the acts of Callahan and Gorman but made no legitimate effort to investigate the actions of the officers.”

“132. The Grand Jury no-billed Gorman and Callahan due to the complete and utter lack of investigation conducted by the MPD as to Gorman and Callahan’s conduct.”

“133. The MPD Internal Affairs Unit then conducted no legitimate investigation into Gorman and Callahan’s conduct, also concluding that the officers did nothing actionably wrong—including the hiding of evidence (i.e., the pen camera) from investigators.”

“134. The MPD failed to take any disciplinary or other remedial action towards Callahan and Gorman despite the fact that multiple high-ranking officials within the MPD observed obvious constitutional or policy violations by officers Gorman and Callahan.”

“135. The City of Minneapolis ultimately approved a substantial settlement to the family of David Smith to resolve that litigation, one of the highest amounts it had ever paid.”

“136. As part of that settlement, the City of Minneapolis “agreed to require its sworn police officers to undergo training on positional asphyxia in the 2014 training cycle of the Minneapolis Police Department…”

“137.Despite publicly stating an intent to properly instruct its officers on the risks of asphyxiation during arrest, internally the MPD continued to minimize that risk and promote a false narrative that deaths like David Smith were the result of ‘excited delirium’ instead of asphyxiation.”

“138. Upon information and belief, the City of Minneapolis did not comply with the terms and/or the spirit of its 2013 Settlement Agreement with the family of Mr. Smith with respect to training on positional asphyxia.”

“139. Upon information and belief, the City of Minneapolis routinely trains officers to place handcuffed arrestees in a prone position without proper training on putting arrestees in a recovery position and monitoring their breathing and consciousness.”

“140. The impact of the excited delirium false narrative and the MPD’s failure to properly train on asphyxiation risks is highlighted here by Lane’s statement: ‘I am worried about excited delirium, or whatever.’”

“141. When holding a subject in a prone position, well-trained officers in Minneapolis should not be concerned about ‘excited delirium, or whatever.’ Officers in Minneapolis should know the risks of asphyxiation associated with prone restraint.”

“142. High-ranking MPD personnel have continued to publicly maintain other deadly false narratives.”

“143. MPD Lieutenant and agent of the City of Minneapolis Bob Kroll- who has served as the president of the Police Officers Federation of Minneapolis since 2015 and has sat on its board since 1996-has publicly expressed the opinion that Eric Garner, a Black man asphyxiated by the New York Police Department in 2014- could breathe at the time of his death because he was able to state ‘I can’t breathe’ several times as he was dying.”

“144. It is an accepted scientific fact that the ability to speak does not imply that someone is getting sufficient air to survive.”

“The MPD’s History Providing and Permitting Killology Training”

“145. Up and until 2019, the City of Minneapolis permitted officers to receive ‘Killology’ or ‘warrior style’ training, which teaches officers to consider every person and every situation as a potential deadly threat and to kill ‘less hesitantly.’”

“146.The City of Minneapolis was aware prior to the death of George Floyd that the officer who shot and killed Philando Castile in the nearby suburb of Falcon Heights had received Killology training.”

“147. Upon information and belief, a significant proportion of police officers employed by the MPD in May of 2020 had received Killology training during their employment.”

“148.High-ranking officers and agents of the MPD, including Kroll, encouraged all officers to receive warrior-style police training.”

“149. High-ranking officers and agents of the MPD, including Kroll, offered this training free of charge to all officers of the MPD who wanted to receive it.”

“150. The City of Minneapolis was aware that its officers had received and continued to receive Killology training before and through May of 2020, but did nothing to prevent officers from receiving it or re-training officers who had received it.”

“151. Kroll has further encouraged officers to behave aggressively, stating that MPD officers who do not receive citizen complaints are ‘low-level slugs’ who ‘[don’t] get out and investigate anything. And that’s not what we’re paying our officers to do.’”

“152. Kroll has stated that policing should be viewed like ‘a basketball game, in that if you’re not getting any fouls, you aren’t playing hard enough.’”

“153.The City of Minneapolis and high-ranking members of the MPD are aware that Kroll is an influencer for rank-and-file officers, and that its officers follow his lead with regard to law enforcement beliefs and behaviors.”

“154. Upon information and belief, Defendant City of Minneapolis has control over the amount of influence the Minneapolis Police Federation has over the officers, discipline, training, decision-making, and policy decisions of the Minneapolis Police Department.”

“155. The Minneapolis Mayor and City Council are responsible for negotiations with the Minneapolis Police Federation, including matters of officer discipline and retention. The Minneapolis Police Department Chief of Police is responsible for all decisions of hiring.””

“156.The Minneapolis Police Federation membership is made up of employees, agents, and officers of the Minneapolis Police Department.”

“157.The Police Officers within the Minneapolis Police Federation continue to be employees of the Minneapolis Police Department subject to the policies, training and orders.”

“158. The Minneapolis Police Department is responsible for maintaining training and discipline to ensure its officers follow its policies, orders, and training regardless of the opinions and actions of the Minneapolis Police Federation.”

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

“159. The City of Minneapolis frequently fails to terminate or discipline officers who demonstrate patterns of misconduct.”

“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.”

“168. The MPD has engaged for years in contract negotiations with the Minneapolis Federation of Police which make it more difficult for the MPD to terminate officers who have demonstrated repeated misconduct.

“The MPD’s History of Overlooking Racially Biased Policing”

“169. Upon information and belief, Black community members make up 19% of the population of Minneapolis and 58% of the subjects of police force.”

“170. The Minneapolis Police Department is currently being investigated for unlawful race-based policing, which deprives people of color, particularly Black community members, of their civil rights under the Minnesota Human Rights Act.”

“171. Prior to 2007, African American members of the MPD, including now-Chief Arradondo, received hate letters signed from the Ku Klux Klan in their interoffice mail, accessible only to MPD agents and employees.”

“172. Kroll has been accused by fellow officers, including now-Chief Arradondo,of publicly wearing a jacket with a patch depicting a racist ‘white power’ logo.”

“173. In recent years, Kroll, as president of the Minneapolis Police Federation, has publicly referred to the Black Lives Matter movement as a ‘terrorist organization.’”

“174. The Minneapolis Police Department ratified the culture of systemic racism and disparate treatment of the Black Community, by failing to remove or otherwise discipline Lt. Bob Kroll.”

“175. By 2018, as the result of a settlement, the Minneapolis Police Department was required to conduct racial sensitivity training which, upon information and belief, has not yet been completed.”

“The City of Minneapolis’s Notice of Prior Incidents of Excessive Force”

“176. The City had notice of a 2009 incident wherein MPD officers used excessive force against Ira Alexander Stafford for which Mr. Stafford filed suit against the City in 2010, alleging that while he was lying on the ground, face down with his arms around him, ‘at least one officer had a knee in Stafford’s back, making him effectively helpless.’ (Compl.) Stafford v. City of Minneapolis, et al, Civil Action No. 0:10-cv-03149-MJD-TNL (D. Minn. 2010).”

“177. According to media sources, the City entered into a monetary settlement with Zach King for a 2012 incident wherein MPD officers violated the Fourth Amendment and used excessive force against Mr. King by beating him and pressing a knee on Mr. King such that he could not breathe “almost like George Floyd.” Mr. King was hospitalized with a concussion and multiple visible physical injuries as a result of the police beating. The City took no disciplinary action against the officers for their use of excessive force against Mr. King.https://www.cbsnews.com/news/minneapolis-officers-cited-in-misconduct-lawsuits-face-little-discipline/.”

“178. The City had notice of a 2014 incident wherein MPD officers used excessive force against Alfred Flowers after he had been fully secured in handcuffs and not physically resisting. Mr. Flowers filed suit against the City and alleged that an officer suddenly grabbed him by his throat, choked him, and threw him to the ground and handcuffed him. After handcuffing Mr. Flowers, an MPD officer punched him in the head, following which several other officers entered the room and proceeded to kick and stomp on Mr. Flowers while he was handcuffed and laying on the ground. Flowers v. City of Minneapolis, et al, Civil Action No. 0:15-cv-03015-RHK-HB.”

“179. The City had notice of a 2014 incident wherein MPD officers used excessive force against Lamar Allen Ferguson after he had been fully secured in handcuffs and not physically resisting. Mr. Ferguson filed suit against the City in April 2017 and alleges that two MPD Officers threw him to the ground after he had been handcuffed and began punching him, following which MPD Officer Thao, a defendant in this action, lifted Mr. Ferguson’s head off of the ground and kicked him directly in his mouth. Ferguson v. City of Minneapolis, et al, Civil Action No. 0:17-cv-01110-PJS-TNL (D. Minn. 2017).”

“180. The City had notice of a 2016 incident wherein MPD officers used excessive and unjustified force against Abdi Hussen Hagad, a black male. MPD officers approached Mr. Hagad and violently threw him against a brick wall and dislocated his shoulder despite the absence of physical resistance from Mr. Hagad. Wagad v. City of Minneapolis, et al, Civil Action No. 0:17-cv-05239-MJD-TNL (D. Minn. 2017).”

“181. The City had notice of a 2016 incident wherein MPD officers used excessive force against Tomas Garcia-Orihuela during the course of an arrest. Mr. Garcia-Orihuel filed suit against the City and alleged that after he was handcuffed on the ground, ‘several police officers began to kick and hit him’ and continued to do so for several minutes while he was handcuffed and laying on the ground. Garcia-Orihuela v. City of Minneapolis, et al, Civil Action No. 0:17-cv-00292-RHK-KMM (D. Minn. 2017).”

“182. The City had notice of a 2018 incident wherein multiple MPD officers used excessive and entirely unjustified force against Jeremiah Jermaine Thomas when an officer drop-kicked Mr. Thomas in the chest area following which three other MPD officers joined in and immediately started punching, kneeing, and kicking. Mr. Thomas suffered a punctured lung, internal bleeding, fractured ribs, and various scratches and bruises as a result of MPD’s use of excessive force, and the City thereafter entered into a monetary settlement to resolve his claims. Jeremiah Jermaine Thomas v. City of Minneapolis, et al., 0:19-cv-00954-WMW-DTS (D. Minn 2019).”

“183. The City had notice of a 2013 incident wherein MPD officers used excessive and unjustified force against Catrina Johnson, a disabled woman who used a cane, by throwing her against her living room wall and onto the floor while using racial slurs. While MS. Johnson was pinned to the ground face down, an MPD officer put his knee on the back of her head and applied direct pressure thereby causing injury. The City entered into a monetary settlement with Ms. Johnson to settle her claims. Catrina Johnson v. City of Minneapolis, et al., 0:15-cv-02861-JRT-SER (D. Minn 2015).”

“184. The City had notice of a 2018 incident wherein multiple MPD officers used excessive and entirely unjustified force against Rico McKinnies during the course of a traffic stop, after he was handcuffed and not resisting arrest. The City entered into a monetary settlement with Mr. McKinnies for the injuries he sustained therein. Rico McKinnies v. City of Minneapolis, et al., 0:18-cv-02738-NEB-BRT (D. Minn 2018).”

“185. Each of the above-referenced incidents involved more than one officer at the scene and in each of those incidents, the non-participating MPD officers failed to intervene in the unconstitutional use of force against handcuffed, non-resisting citizens.”

“186. In addition to a substantial settlement with the family of David Smith, the City of Minneapolis has been forced to pay significant sums of money for the unlawful deaths caused by its officers.”

“187. In 2019, the City of Minneapolis approved a significant settlement with the family of Justine Ruszczyk, who was shot and killed by a Minneapolis Police Officer.”

“188. In 2019, the City of Minneapolis approved a significant settlement [with] the family of Jamar Clark, who was shot and killed by a Minneapolis Police Officer.”

“189. In 2020, the City of Minneapolis approved a significant settlement with the family of Terrance Franklin, who was shot and killed by a Minneapolis Police Officer.”

“190. While the settlement of the Justine Ruszczyk [claim] was locally billed as transformational, it had no meaningful impact on how the MPD conducts its business.”

“191. The Mayor and City Council receive notice of each lawsuit filed against the City.”

“192. All monetary settlements made by the City must be approved by the Mayor and City Council.”

“193. MPD’s Policy Manual requires that the Chief of Police report to the Mayor each instance of officer misconduct and in accordance with the same, the Chief of Police reported to the Mayor each instance of officer misconduct.”

“Count II—42 U.S.C. sec. 1983-Monell Liability”

“222. MPD’s Policy Manual provides that the Mayor is ‘vested with all the powers of said city connected with and incident to the establishment, maintenance, appointment, removal, discipline, control, and supervision of its police force, subject to the limitations herein contained and the provisions of the Civil Service chapter of this Charter, and may make all needful rules and regulations for the efficiency and discipline, and promulgate and enforce general and special orders for the government of the same, and have the care and custody of all public property connected with the Police Department of the city.’ (MPD Policy Manual Sec. 1-301 (citing City Charter reference-Chapter 6, Section 1)).”

“223. The Mayor, the City Council, and the Police Chief had final policymaking authority with regard to establishing written policies and training programs governing the conduct of MPD officers performing policing functions on behalf of the City.”

“224. The Mayor, the City Council, and the Police Chief established and/or approved of MPD’s written policies and training governing the conduct of MPD officers performing policing functions.”

“225. The written policies and training established and/or approved by The Mayor, the City Council, and the Police Chief constitute the official policy of the City and were the moving force behind and caused Plaintiff’s injuries.”

“226. The City, acting by and through its Mayor and/or other policymakers, had knowledge of MPD’s unconstitutional patterns and practices and knowledge that the same gave rise to a risk of violations of citizens’ federal rights. ”

“227. The City, acting by and through its Mayor and/or other policymakers, made a deliberate and/or conscious decision to disregard the known risk of harm that would result from MPD’s unconstitutional patterns and practices and was deliberately indifferent to and/or tacitly authorized the same.”

“228. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, or ratified a number of customs, patterns, or practices that failed to provide for the safety of arrestees, detainees, and the like during arrest, including but not limited to the handcuffing and restraint process.”

“229. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, or ratified a number of customs, patterns, or practices that condoned and required officers to turn a blind eye to and not intervene with the use of excessive force by MPD officers.”

“230. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, fostered or ratified a number of customs, patterns, or practices that condoned and required officers to treat the members of the Black Community of Minneapolis differently, including but not limited to implementing deadly force at a higher rate against Black men who did not pose a threat to officers.”

“231. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, or ratified a number of customs, patterns, or practices that shall be further identified in discovery.”

“232. Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, continued to employee Chauvin and Thao despite knowledge of their repeated unconstitutional, unlawful, or other improper conduct.”

“233. Minneapolis had to the power to terminate or appropriately discipline Chauvin and Thao for their misconduct prior to May 25, 2020, but failed to do so despite the City’s knowledge of a pattern of complaints regarding excessive force.”

“234. By refusing to terminate Chauvin or Thao, Minneapolis caused Chauvin and Thao to act with impunity and without fear of retribution.”

“235. Minneapolis’ failure to terminate or properly discipline Chauvin or Thao is part of its larger custom, police, or practice of failing to supervise, terminate, or properly discipline its officers for unconstitutional, unlawful, or otherwise improper conduct, and thereby encouraged Chauvin, Thao, and the other Defendant Officers to continue engaging in unlawful acts towards arrestees, including George.”

“236. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, or ratified its agents, including Lt. Bob Kroll, providing improper and harmful training to officers.”

“237. Minneapolis had to the power to terminate or appropriately discipline Kroll prior to May 25, 2020, but failed to do so despite the City’s knowledge of Kroll’s perpetuation of dangerous ideology to officers.”

“238. By refusing to terminate or discipline Kroll or denounce his ideology, Minneapolis caused officers act with impunity and without fear of retribution.”

“239. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, participated in contract negotiations with the Police Officers Federation of Minneapolis that granted officers powers that allowed them to avoid discipline for misconduct, including but not limited to:

a. A grievance process that resulted in a nearly 50% rate of overturns of terminations of officers;

b. The ability to review evidence and video footage prior to giving statements in use of force and misconduct matters.”

“240. This participation by the City of Minneapolis caused officers to act with impunity and without fear of retribution.”

“241. The unconstitutional policies, practices, and customs defined herein were the moving force behind George’s death.”

“242. George died as a direct and proximate result of the acts and omissions by Minneapolis.”

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

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

“245. 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.”

“246. 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.”


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

As previously noted, Count I of this Complaint against the four ex-officers has been covered in a prior post while Count III against the City will be the subject of a future post.

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


[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] Count II also includes by reference all of the allegations regarding the four ex-policemen defendants (Complaint, para. 247) that were recited in the post about Count I of the Complaint.

[3] On June 5, 2020, the City of Minneapolis and the Minnesota Department of Human Rights agreed to ban the Minneapolis police from using chokeholds and neck restraints, and on June  that was so ordered by the Hennepin County District Court. (Ban on Police Choke Holds and Neck Restraints in Agreement Between City of Minneapolis and Minnesota Human rights Department, dwkcommentaries.com (June 6, 2020); Court Approves Agreement on Police Conduct Between City of Minneapolis and Minnesota Department of Human Rights (June 9, 2020).)