Tag: George Floyd

Minneapolis Police Chief and Union President Agree: Chauvin Rightfully Fired for Killing George Floyd 

On June 22 and 23, the Minneapolis Police Chief Medaria Arradondo and the President of the Police union, Bob Kroll, agreed that the firing of Police Officer Derek Chauvin over the killing of George Floyd was justified.

DerikPolice Chief’s Statement[1]

“In Spring of 2013, the City settled the David Smith lawsuit, agreeing to pay the estate of David Smith $1.1 million and his attorneys $1.975 million. In addition to this payment, the City agreed “to provide additional training to its sworn police officers regarding positional asphyxia in the Minneapolis Police Department’s 2014 training cycle.”

“Today, in response to data requests, the City is releasing data on the training after the Smith settlement.”[2]

“I can confirm that MPD fulfilled the training requirement. 2014 in-service training, which was given to all officers, covered getting an arrestee from a prone position into a recovery position (seated or on the arrestee’s side) where the maximal restraint technique or a neck restraint has been used. The reason for getting an arrestee into a recovery position is to prevent positional asphyxiation, and the training covered situations where positional asphyxiation is of primKARE-11ary concern. This training therefore met the settlement agreement’s requirement of “additional training . . . regarding positional asphyxiation.” I can confirm that Chauvin and Thoa had this training.” (Emphasis added.)

“Additionally, MPD went beyond the requirements of the settlement and enacted policy changes in June 2014. The policy changes explicitly require moving an arrestee from a prone position to a recovery position when the maximal restraint technique is used and require continuous monitoring of an arrestee’s condition.”

“It is important to note that getting an arrestee into a position where he or she can breathe is something that is hammered into all of our officers, and this began even before the Smith settlement’s required 2014 training. Even though the Smith settlement did not require training until 2014, we provided training in 2012 and 2013, and continuing thereafter.”

“In 2012, the department issued an announcement to all sworn officers and posted a video on positional asphyxiation. The announcement stated that the video ‘serves as a reminder that whenever a subject is restrained, there is a direct correlation between their ability to breathe and the position their body is in.’ The announcement required that the video be shown at all roll calls.”

“Additionally, in 2013 in-service MPD trained on the dangers of in-custody deaths. This training covered ‘compressional asphyxia’ as a cause of in-custody deaths.”

“MPD continues to stress training on the risks of in-custody deaths and the importance of putting restrained arrestees into the recovery position as soon as possible. There is simply no way that any competent officer in MPD would be unaware of the need to get an arrestee into a recovery position so that he or she can breathe freely.”

“Mr. George Floyd’s tragic death was not due to a lack of training—the training was there. Chauvin knew what he was doing. I agree with Attorney General Ellison: what happened to Mr. Floyd was murder. Chauvin had his knee on Mr. Floyd’s neck for over seven minutes, and for those last minutes he knew that Floyd was non-responsive. Mr. Floyd shouted out that he couldn’t breathe; bystanders shouted out that Mr. Floyd had stopped talking; then they shouted out that Mr. Floyd had become nonresponsive; and finally they shouted out that Mr. Floyd was dying. Further, one of the officers on the scene told Chauvin that Mr. Floyd should be put into a recovery position and he eventually told Chauvin that he could not find Mr. Floyd’s pulse. The officers knew what was happening—one intentionally caused it and the others failed to prevent it. This was murder—it wasn’t a lack of training. This is why I took swift action regarding the involved officers’ employment with MPD.” (Emphasis added.)

Kroll’s Statement[3]

In a June 23 interview on a  local television station, KARE-11, Kroll said Minneapolis police officer Derek Chauvin’s placing his knee near Floyd’s neck for nearly eight minutes “was sickening. It’s something that should never have occurred. No officer can condone that. Ourselves included.” The reporter then asked, “And is what Officer Chauvin did right?” Kroll responded, “Again, no. In my mind, no. I don’t think any officer would say that it’s right. Absolutely not.” Moreover, “We’ve got a pretty good picture of what Chauvin did. It’s easy to form judgment there and terminate, which we were able to make a quick decision that yes, we’re not going to represent [him with respect to the termination of] his employment.”

Kroll also said he would not be resigning as president of the union after consulting with union members and Chief Arradondo, all of whom suggested that Kroll stay in his position. Kroll added, “The chief and I have always had a very good working relationship. Better than any of his (predecessors). He’s an honest, truly nice man. I consider him a friend… I’ve socialized with him more than any other chief.”

Police Union Officials’ Statements[4]

Earlier that same day (June 23)  Kroll was interviewed by Gayle King on “CBS This Morning.” He said the lengthy “social-media” video of the Floyd killing that was taken by a 17-year-old bystander “does look and sound horrible,” but that he needs to see the officers’ body-worn camera footage, which the union is entitled to under its contract with the Department, before making a judgment on the criminal charges against the four officers. “We will be on the right side of history.”

Kroll also said that members of his union are being unfairly “scapegoated by political leaders in our city and our state, and they have shifted their incompetent leadership, failed leadership onto us and our membership, and it is simply unjust.”

Also interviewed by Gayle King were three other union officers. Its Vice President Sherral Schmidt, who is Kroll’s designated successor, said, “I’m not one that likes to Monday morning quarterback things. If I was there, I probably would have put him on his side in a recovery position once he went unconscious.”

Rich Walker, an African-American member of the union board, added, “”The narrative that is being pushed in the media is that white police officers are out on these streets just to kill black men, and this is absolutely farthest from the truth. Police officers are not out here just randomly hunting black people to kill them. That’s just terrible.”

In another segment on “CBS This Morning,” Brian Peters, the Executive Director of the Minnesota Police and Peace Officers Association (MPPOA), which is paying for the legal defense of the four officers in the Floyd case, said Chauvin’s action during the Floyd arrest “betrayed the badge. And there’s no excuse for it.”

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[1] Minneapolis Police Dep’t, Statement of Chief Medaria Arradondo (June 22, 2020); Bjorhus, Police chief: George Floyd’s death was a ‘murder,’ not about lack of training, StarTribune (June 23, 2020).

[2] On September 9,  2010, David Smith, who was mentally ill, was acting bizarrely at the downtown Minneapolis YMCA. Two Minneapolis policeman, responding to a 911 call, approached Smith and after he “grew fierce” stunned him with a Taser and forced him to the floor. The officers then held him face down while one placed a knee in his back and held him down for about four minutes, which made it impossible for Smith to breathe. After he had stopped breathing, one of the officers tried CPR before the paramedics arrived. Smith died in hospital about a week later. The Smith family subsequently filed a lawsuit for damages that resulted in a $3.075 million settlement. After the recent killing of George Floyd, the Smith family submitted a data practices act request to the Police Department for information on whether it had fulfilled its commitment to require all officers to obtain the previously mentioned training. (Furst, May 25: Minneapolis pays $3 million in police misconduct case, StarTribune (June 1, 2013); Bjorhus & Sawyer, Family of man who suffocated in police custody in 2010 asks whether police received training promised in settlement, StarTribune (June 10, 2020)..)

[3] Walsh, Minneapolis police union head says Chauvin firing is justified but rank and file officers being scapegoated, StarTribune (June 24, 2020); Thiede & Raguse, Police union president Bob Kroll says he will not resign, kare-11.com (June 23, 2020) (includes video of interview).

[4] Walsh, Kroll: Floyd video did ‘look and sound horrible,’ but says union being scapegoated by ‘failed’ leaders, StarTribune (June 23, 2020) (includes the video of the CBS interview).

 

Former Minneapolis Mayor Discusses Police Reform Problems

R.T. Rybak, former Mayor of Minneapolis (2002-2013) believes that police unions and their leaders are major reasons why past efforts at reforming policing in Minneapolis and elsewhere in this country have had problems and why current reform efforts are facing difficulties.[1]

He says this as he struggles with competing police images. On the one hand, Rybak has seen “police officers perform extraordinary acts of courage at explosive crime scenes, protect women from domestic abuse, build trusted relationships with immigrants who are terrified the government will take their children, and so much more.” On the other hand, he also has seen “toxic us-versus-them police cultures—in which an officer who might individually make the right call becomes silently complicit when a fellow officer goes rogue.This culture enabled three officers in my city to stand by while [George] Floyd was killed.” [2]

The latter culture is understandable when “officers see the worst things happening in their city on any given shift. After being in danger every night, officers gradually stop seeing the humanity in the people and neighborhoods they patrol. Instead, they go back to the precinct with the only people who can really understand what they are going through. People with exceptionally tough jobs serving complex humans naturally vent when they are together.”

“But the tribalism that can build up within police departments is far more consequential. Us versus them—meaning police versus criminals—slowly curdles into police versus the people: Who would live in these crime-infested neighborhoods where we risk our lives? Waiting to stoke that resentment are police-union leaders such as [Bob] Kroll [the President of the Police Officers Federation of Minneapolis], who defend even the more aggressive acts of officers and, even in a case as extreme as [George] Floyd’s death, prevent any self-examination by blaming the victim.”

“As matters stand, the public—through its elected representatives—has also ceded far too much power to the police unions that enable bad behavior. Floyd’s death underscores that police work should be subject to oversight, and officers who violate policy and misuse their power should be subject to discipline. But the unions’ power is most notable in contracts that limit the accountability that, as the community can now see, is so desperately needed. The lack of accountability seems incongruous because the mayors and city councils that negotiate with police unions include some of the country’s most progressive elected officials and represent some of the country’s most progressive constituencies.”

“Yet when duly elected officials propose reforms, police unions do not merely oppose them; they actively work to thwart them. Last year, Minneapolis Mayor Jacob Frey banned so-called warrior-style training, which emphasizes physical threats to police officers rather than the benefits of de-escalating confrontations. . . . Kroll and the police federation defied Frey’s move by offering warrior-style training of their own.”[3]

“Some local officials have also hesitated to demand tougher reforms in contracts because police unions often spend heavily in local elections to oppose any politician who challenges them. I know what that’s like. The union supported me near the end of my first race for mayor. But after I took office, we disagreed over the police budget and my choice of police chief. When I ran for reelection, the police union went all out to defeat me: It helped pay for polling to identify the strongest candidate to run against me and pounded voters relentlessly with literature and broadcast ads that portrayed me as soft on crime. [Nevertheless,] I got more than 60 percent of the vote. The police federation also made a massive investment to defeat an incoming council member, Betsy Hodges, who still won overwhelmingly. Eight years later, again, despite massive police opposition, she was elected mayor.”

“Electing mayors and city-council members who support such reforms is not enough. Police-union leaders use back channels to go around local officials and get more conservative state legislators to block meaningful changes. That dynamic holds true in Minnesota, where a Republican state representative, who was also a Minneapolis [police] officer, helped overturn a residency requirement for police. Today more than 90 percent of Minneapolis officers live outside the city. The legislature also has stonewalled attempts by the city to get supervisory positions removed from police-federation ranks. As a result, some of the people directing and disciplining officers, and developing the union contract, are actually negotiating with the union of which they are a member.”

“In return, police unions have helped their enablers on the state and national levels. Police-federation leaders endorse Republicans in most gubernatorial races. Last fall, Kroll appeared with President Donald Trump at a rally in Minneapolis and was interviewed wearing a ‘cops for trump’ T-shirt on Fox News.”

“If progressive local officials want wholesale reform of police tactics and culture, they will have to do something that runs counter to their own culture: take on union leaders. [After all,] Minnesota’s chapter of the American Federation of Labor and Congress of Industrial Organizations—an umbrella group that does not include the police federation—recognizes that Kroll isn’t merely taking his members’ side in a labor-management dispute. In a recent statement calling for Kroll’s resignation, the Minnesota AFL-CIO president, Bill McCarthy, faulted him for trying to justify Floyd’s killing rather than participate in a dialogue about reform. McCarthy also accused Kroll of failing the labor movement. ‘Unions exist to protect workers who have been wronged,” McCarthy declared, “not to keep violent people in police ranks.’”

“I used to say that the majority of officers are good but silently let a minority set the dominant culture. But now I believe that no one can be called a ‘good officer’ if they are not working actively and openly to change the culture and unseat their toxic union leaders. The silence of the ‘good officers’ so far is deafening, but a glimmer of hope came recently when more than a dozen brave Minneapolis officers bucked their union, condemned the officer who murdered George Floyd, and vowed to regain the community’s trust.”[4]

“In general, intimidated local officials overestimate the political muscle of police unions. Their credibility with the public is even more diminished in the aftermath of [George] Floyd’s death. So now is the time to push for reforms that hold police departments more accountable to the public.”

“I am not suggesting that cities should try to bust police unions. Far from it. Working people need and deserve the protections that collective bargaining provides. In a better world, a police-union leader could help the public understand how hard the job can be—but could also set the moral and professional standards for officers, rather than defend them no matter what they do.”

“While the breakdown between the police union and the public’s elected representatives has been especially acute in Minneapolis, I know from my discussions with other mayors that many other communities experience similar tensions. These relationships must be fundamentally reshaped. When cities lack the power to provide basic oversight of their officers and cannot break down an us-versus-them culture, they cannot prevent future deaths like that of George Floyd.”

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[1] Rybak, I Was Mayor of Minneapolis. I Know Why Police Reforms Fail, Atlantic (June 10, 2020). See also Mannix, Killing of George Floyd shows that years of police reform fall far short, StarTribune (June 20, 2020).

[2]  It must not be forgotten that the Minneapolis Chief of Police immediately fired the four officers involved in the killing of George Floyd, that soon thereafter serious criminal charges were filed against all four and the City banned chokeholds and neck restraints under an agreement with the Minnesota Department of Human Rights that was incorporated in a court injunction. See List of Posts to dwkcommentaries—Topical: GEORGE FLOYD CASE.

[3] Jany, Minneapolis police union offers free ‘warrior’ training, in defiance of mayor’s ban, StarTribune (April 24, 2019).

[4] Olson, Minneapolis police officers issue open letter condemning colleague in George Floyd’s death, pledging to work toward trust, StarTribune (June 12, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

 

 

Another Minneapolis Policeman in George Floyd Cases Makes Bail

On June 19, Police Officer J. Alexander Kueng posted bail of $750,000 (with conditions) and was released from jail.[1]

He has been charged with aiding and abetting second degree murder and second degree manslaughter. The next hearing for him and the other three officers is on June 29.[2]

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[1] Faircloth, Second fired Minneapolis police officer charged in Floyd’s death is released from jail, StarTribune (June 20, 2020).

[2] The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

 

Training New Minneapolis Police Recruits     

The City of Minneapolis requires more than a year of training before swearing in a new police officer.[1]

This training includes 14-16 weeks at the Minneapolis Police Academy, whose website says it is “structured as a paramilitary program” (emphasis added) with written and practical testing covering the following topics:

  • Defensive Tactics
  • Community Orientated Policing
  • Firearms
  • Defensive Driving
  • Report Writing
  • Ethics
  • Traffic Enforcement
  • Crime Scene Investigation
  • Physical Training.

After graduation from the Academy, they are promoted to Officer rank for an additional six months of Field Training with an experienced officer.

Minneapolis Commander Charles Adams, a 34-year veteran in charge of recruitment and training new recruits on community engagement, said the video of the physical restraint of George Floyd made him think “murder,” a widespread sentiment within the Department even among officers who usually urge a wait-and-see approach when colleagues are accused of wrongdoing. This incident also damaged improvements in teaching new recruits to be more accountable to communities like the predominantly black North Side where Adams grew up.

This effort includes implicit bias training, discussions of the aggressive policing tactics of the 1960s that damaged public trust in law enforcement and a simulated video of an officer talking disrespectfully to a black motorist only to learn later that she was the wife of a high-ranking police officer.

Nevertheless, “many of the nation’s police academies and 18,000 departments have long emphasized a warrior mentality, with officers trained for battle and equipped with the gear and weapons of modern warfare. This helps to create a warrior culture with training on firearms, self-defense and use of force.” It also “reinforces a ‘thin blue line’ police culture perpetuated in many departments by higher-ups and unions. “There’s just this constant reiteration that cops are in constant danger,” said  Randy Shrewsberry, Executive Director of the Institute for Criminal Justice Training Reform.

The Minneapolis Department last year banned warrior-style training, but its police union offers to pay for officers to receive it from outside vendors.

Andrew Arashiba, an American-Japanese citizen and a former Minneapolis police officer, is suing the City for racial and age discrimination. He has said a training officer told him not to activate his body camera at times when it was required unless he had notified other officers first and also scolded him for not using force against a drunken older man, “You missed a free slap.”

A former Minneapolis police inspector, Michael Friestleben, said the “emphasis on officer safety in training can make officers feel as though they will constantly be under attack in the streets, and that can be a barrier to developing meaningful relationships with the communities they serve.”

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[1] Minneapolis Police Department, Minneapolis Police Academy; Eligon & Levin, In Minneapolis, Looking for Police Recruits Who Can Resist Warrior Culture, N.Y. Times (June 19, 2020).

Revised Length of Time for Minneapolis Police Restraint of George Floyd

The criminal complaints against former Minneapolis police officers Derek Chauvin, Thomas Lane, J.A. Kueng and Tou Thao all state that “at 8:19:38 . . . Mr. Floyd went to the ground face down and still handcuffedd. Kueng held Mr. Floyd’s back and Lane held his legs. [Chauvin] placed his left knee in the area of Mr. Floyd’s head and neck.” Those same complaints also state, “At 8:27:24 [Chauvin] removed his knee from Mr. Floyd’s neck.” (Emphases added.) [1]

Those same complaints later state, “[Chauvin] had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total.” (Emphasis added.)

Chuck Laszewski, the Hennepin County Media Coordinator, on June 18, stated that the 8:19:38 and 8:27:24 times for the beginning and ending of the restraint were correct, but that the total time of restraint was 7 minutes and 46 seconds, not 8 minutes and 46 seconds.[2] This is shown by the following table:

Clock Minutes Seconds
08:19:38—08:19:60     0     22
08:20:00—08:20:60     1       0
08:21:00—08:21:60     1       0
08:22:00—08:22:60     1       0
08:23:00—08:23:60     1       0
08:24:00—08:24:60     1       0
08:25:00—08:25:60     1       0
08:26:00—08:26:60     1       0
08:27:00—08:27:24     0     24
TOTAL     7     46

“These kinds of technical matters can be handled in future amendments to the criminal complaint if other reasons make it necessary to amend the complaint between now and any trials,” said Laszewski. He also said “the one-minute error made no difference to charge nor in the continuing legal hearings.”

Even this revised timing of the restraint on Floyd has been questioned. The New York Times reports that other videotapes of this horrible crime “show that . . . [Chaurvin] continued to hold his knee on Mr. Floyd’s neck for more than a minute after the ambulance arrrived” and that Chauvin’s knee was on Mr. Floyd’s neck “for at least eight minutes and 15 seconds.”[3]

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[1] What Happened to George Floyd in Minneapolis on May 25, 2020, dwkcommentareis.com (June 5, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

[2] Walsh, 7 minutes, 46 seconds: Error in George Floyd killing timeline won’t affect charges, county says, StarTribune (June 18, 2020).

[3] Bogel-Burroughs, 8 Minutes, 46  Seconds Became a Symbol in George Floyd’s Death, The Exact Time Is Less Clear, N.Y. times (June 18, 2020).

 

May 25th Calls for Help at George Floyd Scene 

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

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

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

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

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

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

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

 

Five St. Paul Police Officers Fired for Failing To Intervene in Assault by Ex-Cop     

On June 11, St. Paul Police Chief Todd Axtell fired five police officers for failing to intervene to stop an ex-cop from beating another man with a baton at a bar last summer.[1]

On Sunday, June 14, Chief Axtel held a press conference to announce these firings over what was an “ugly day in our department’s history.”  He added that this was “a violation of trust, deceit and significant policy violation. . . .Our officers have the duty and obligation at the very least to adhere to our professional standards, and officers are expected to intervene when violent criminal acts occur in their presence. Officers are expected to protect the vulnerable. And officers are expected — I demand that officers tell the truth. When officers fail to live up to these standards it affects everyone who wears a badge and has earned the privilege and the honor to wear this uniform, and that’s why I’ve taken this action. This community deserves to know that its St. Paul police officers will always do the right thing and will always tell the truth.”

The decision to fire the officers was made after an investigation by the department’s internal affairs unit, and after recommendations by the Police Civilian Internal Affairs Review Commission.

The St. Paul police union, the St. Paul Police Federation, according to its attorney, Chris Wachtler, will challenge the firings. “We don’t believe the facts of the case warrant any termination of the five officers, and we will fully exercise our rights under the collective bargaining agreement.” Wachtler also said he believed that Chief Axtell violated the Minnesota Data Practices Act by revealing details of the case during the news conference.

Conclusion

This action in St. Paul underscores the importance of the pending “aiding and abetting” criminal case against three Minneapolis policemen for failure to intervene to stop Officer Derek Chauvin’s using his knee to pin George Floyd to the pavement and allegedly causing Floyd’s death.[2]

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[1] Nelson & Furst, Five St. Paul police officers fired for failing to intervene in assault by ex-cop, StarTribune (June 14, 2020).

[2] The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

 

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

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

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

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

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

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

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

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

Criminal Charges Against the Other Officers

All three face the same two Counts:

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

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

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

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

 Analysis of the Complaints Against the Other Three Officers

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

This conflict has emerged in other ways.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[10] Jany & Evans, After George Floyd’s death, Minneapolis police chief is caught in force’s racial legacy, StarTribune (June 8, 2020); Olson, Minneapolis police officers issue open letter condemning colleague in George Floyd’s death, pledging to work toward trust, StarTribune (June 12, 2020).

 

 

 

Judge Peter Cahill Appointed To Handle Criminal Cases Over Death of George Floyd     

On June 12, Hennepin County District Judge Peter Cahill was appointed to handle the four criminal cases against Minneapolis police officers over the death of George Floyd.[1]

Cahill was appointed to the bench in 2007 by Governor Tim Pawlenty (Rep.) and elected to continue in that position in 2008 and 2014. Known for being decisive and direct, Cahill has handled other significant criminal cases.

In 2019, he presided over the jury trial of Kenneth Lilly for shooting a school bus driver on a snowy winter day. After the jury’s guilty verdict, Cahill sentenced Lilly to seven years in prison, saying the judge accepted that the defendant was “not a monster,” but did not believe the defendant’s assertions that he feared for his life when his car was hit by the slow-moving bus and that he did not know a child was on the bus. Lilly was represented by Thomas Plunkett, who argued for a lower sentence because Lilly had Asperger’s syndrome and suffered from post-traumatic stress disorder from two attempted robberies. Plunkett now represents one of the four Minneapolis policemen (J. Alexander Kueng) in the Floyd case.[2]

Last year Cahill also presided over the case of Thomas Incantalupo, a former ice skating coach with a local skating club. As the trial for nine counts of sexual assaults with a young girl skater was set to commence in June 2019, the defendant accepted a deal for pleading guilty to two counts in exchange for a prison sentence between 12 and 30 years. Thereafter Cahill sentenced him to 24 years in prison after saying that there was “overwhelming evidence” against the defendant, that the defendant’s apologies “ring hollow” and that the defendant’s actions were “not cheating on your wife. This is a crime against a child.” That defendant was represented by attorney Earl Gray, now the attorney for policeman Thomas Lane in the Floyd case.[3]

Plunkett and Gray and the other two attorneys in the George Floyd case now have 10 days from June 12 to move to replace Cahill, but without having any say on who might be the                replacement and without having the right to move to replace the successor judge.

Before becoming a judge, Cahill was an attorney in the Hennepin County Public Defenders Office, 1984-1987, an attorney in private practice in the Twin Cities, 1987-1997 and in the Hennepin County Attorney’s office, 1997-2007, when Amy Klobuchar was the County Attorney (1999-2007).  His J.D. degree was awarded, magna cum laude, in 1984 by the University of Minnesota Law School.

Cahill will replace his fellow judges Jeannice Reding and Paul Scoggin, who presided respectively at the initial hearings in the Chauvin case and the other case involving the other three policemen.[4] Cahill’s appointment was made by Hennepin County District Judge Toddrick Barnette, who will become the first African-American Chief Judge of the court on July 1, 2020.[5]

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

[1] Olson, Judge Peter Cahill to oversee cases of four officers charged in Floyd killing. StarTribune (June 12, 2020); The judge assigned in Floyd’s murder trial is a former assistant to Amy Klobuchar, N.Y. Times (June 12, 2020).

[2] Walsh & Jany, Suspected gunman arrested after school bus driver shot in apparent road-rage incident near downtown Minneapolis, StarTribune (Feb. 7, 2019); Charges filed against man who shot bus driver, (Video), StarTribune (Feb. 7, 2019); Walsh, Charges: Man claims self-defense for shooting Minneapolis school bus driver with girl aboard, StarTribune (Feb. 8, 2019); Xiong, Shooter who wounded school bus driver sentenced to 7 years in prison, StarTribune (Sept. 15, 2019).

[3]  Stahl, Ice-skating coach charged with sexually assaulting 14-year-old student, StarTribune (Jan. 11, 2018); Walsh, Twin Cities skating coach admits sexually abusing girl he instructed, StarTribune (June 19, 2019); Xiong, Minneapolis-area figure skating coach gets decades in prison for girl’s sex abuse, StarTribune (Sept. 27, 2019).

[4] Initial Hearings in Criminal Cases for Killing George Floyd, dwkcommentaries.com (June 10, 2020).

[5] Xiong. First chief judge of color elected in Hennepin County, StarTribune (May 5, 2020).

The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd

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

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

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

The Second Criminal Complaint Against Chauvin[3]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Statement of  Probable Cause

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

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

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

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

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

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

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

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

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

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

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

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

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

“[Chauvin] is in custody.”

Analysis of Second Complaint Against Chauvin

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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