Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case

On August 27, J. Alexander Kueng, a former Minneapolis police officer, submitted a motion to dismiss the criminal complaint against him and to change the venue of the case from Hennepin County to a county with “appropriate facilities and demographics,” such as Stearns County. [1]

Motion To Dismiss [2]

Most of the eight-page dismissal motion was a legal memorandum in support of the motion to dismiss for alleged lack of probable cause for the charges of aiding and abetting second degree murder and second-degree manslaughter. Its statement of facts purports to be taken from the criminal complaint.

No Aiding and Abetting Second-Degree Murder. “The restraint used on Floyd by Chauvin was reasonable. As the complaint notes, officers are trained on how to use the neck restraint involved here. Moreover, the restraint has been found to be reasonable when the subject “actively resists,” citing Lombardo v. City of St. Louis, 956 F.2d 1009, 1013 (8th Cir. 2020).

Although the complaint does not say Floyd resisted, its description of his actions “show he resisted. He resisted and fell to the ground when Lane and Kueng tried to pick him up off the sidewalk. . . . Floyd would not voluntarily get into the squad [car]. Multiple officers tried to get him into the squad , and when Floyd continued to resist, Chauvin pulled Floyd onto the ground. Floyd continued to resist by calling out while he was on the ground. Given Floyd’s resistance, the use of neck restraint was reasonable.”

“[T]here is no evidence that Kueng knew Chauvin was going to commit a crime at the time and during the time Chauvin utilized the neck restraint. [Twice Chauvin rejected Lane’s suggestion of rolling Floyd onto his stomach, showing Chauvin did not consider his use of force to be unreasonable.] There is no evidence that Kueng knew Chauvin was going to commit or was committing a third-degree assault” or that “Kueng intended his presence to further a crime.”

No Aiding and Abetting Second-Degree Manslaughter. “Chauvin’s actions were not objective gross negligence. He used a technique that he was trained to use and that the Eighth circuit has found to be reasonable.” Nor was Chauvin’s conduct subjectively reckless. Moreover, the “complaint does not establish that Kueng knew Chauvin was going to negligently commit a crime or that he did so or that “Kueng intended his presence to further the commission of a negligent act.”

Motion To Change Venue [i3]

Kueng also moved for a change of venue from Hennepin County to another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics.”

This motion was based upon “’potentially’ prejudicial material that has been disseminated publicly by the prosecution, creating a reasonable likelihood that a fair trial in the metro area cannot be had.” It also asserts that there have been over 1,700 local articles about these criminal cases.

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[1] Xiong, Former officer in George Floyd case seeks change of venue, dismissal of charges, StarTribune (Aug. 27, 2020).

[2] Notice of Motion and Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020). Kueng also submitted a Notice of Additional Evidence regarding (a) Floyd’s May 6, 2019, Minneapolis arrest for sale and possession of large quantities of controlled substances and  his immediate medical intervention at Hennepin County Medical Center; and (b) his August 9, 2007, Texas arrest and subsequent conviction for Aggravated Robbery with a Deadly Weapon. (Notice of Additional Evidence,, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020).

[3] Notice of Motion and Motion To Change Venue, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020).

Pandemic Journal (# 4): “Life” Poem

Important reminders of more important issues for us all as we live through this stressful period of the coronavirus (COVID-19) pandemic are found in different places. [1] For example, in organizing some personal papers I came across the following poem by Kristi Brown, the daughter of my cousin, Lloyd William Brown, Jr., and his wife, Karen Brown.

Life

 Life is not long enough to accomplish all your goals.

Life is too short to waste a minute of .

Life always has to end sometime or another.

It ends when you least expect it.

 

Life ends instantaneously for some,

Life’s end is long and painful for others.

Life’s end is known by some, but for others,

It ends when you least expect it.

 

Life is good to most people for a long time,

Life takes some people very early on.

Life fights with death for the cream of the crop.

It ends when you least expect it.

 

Life is taken advantage of by some, others live

Life one day at a time, and cross bridges when they come to them.

Life usually ends for the careful ones, not careless.

It ends when you least expect it.

 

Life’s end is welcomed by those who are suffering.

Life’s end is not welcomed for those who are not.

Life is hard after a loved one dies, but

It ends when you least expect it.

 

Life is a terrible thing to waste.

This poem in her handwritten spiral notebook was discovered in her nightstand drawer in the summer of 1987 by Kristi’s parents. This discovery was necessitated by Kristi’s having been killed, at age 19, on June 24, 1987, in a terrible multiple-vehicle crash on the Capitol Beltway outside Washington, D.C. on her way home from a summer job following her first year at the University of Virginia. Pursuant to her written instructions, Kristi’s heart, cornea and kidneys were donated to the Washington Regional Transplant Community.

Thereafter her parents organized an annual event they called “Kristi’s Christmas” when students from her high school in Springfield Virginia joined her parents and siblings to provide breakfast to a group of underprivileged grade-school kids and then escorted and provided money for them to go Christmas shopping followed by a special visit with Santa Claus. After her mother’s death, the West Springfield Rotary Club has taken over the organization of this annual event.[2]

Thank you, Kristi, for reminding all of us that life “ends when you least expect it” and that “life is a terrible thing to waste.” I am truly sorry that I never had the privilege of meeting you and learning about your inspirations for these amazing deeds.

This profound and beautiful poem helps me cope with the morning news on March 28th that  the world in at least 171 countries has seen 585,500 coronavirus (COVID-19) cases with at least 27,164 deaths while the U.S. has become the epicenter of the world with 102,838 cases and 1,646 deaths. My state of Minnesota has had 398 cases and 4 deaths, including 1 death in Hennepin County, where I live.[3]

My wife and I continue to be in good health while sheltering in our downtown Minneapolis condo with occasional outdoor walks on nice days and trips by car to buy groceries and once-a-week take-out dinners at restaurants, gas for the car and necessities at drug stores.

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[1]This blogger has decided to periodically post his reactions to living through this pandemic. Here are the earlier such posts to dwkcommentareis.com: Pandemic Journal (# 1): Kristof and Osterholm Analyses (Mar. 23, 2020); Pandemic Journal (# 2): Westminster Presbyterian Church Service (o3/22/20) (Mar. 24, 2020); Pandemic Journal (#3): 1918 Flu (Mar. 27, 2020).

[2] Korff, ‘Kristi’s Christmas’ honors the late Kristi Brown with day of giving for Fairfax kids, WJLA (Dec. 11, 2014); Ours, Kristi’s Christmas makes the holidays merry and bright, The Oracle (Dec. 15, 2016).

3] Coronavirus Map: Tracking the Global Outbreak, N.Y. Times (Mar. 28, 2020; Coronavirus in the U.S.: Latest Map and Case Count, N.Y.Times (Mar. 28, 2020); Olson & Snowbeck, Stay-at-home order now in effect to fight virus that has killed four Minnesotans, StarTribune (Mar.28, 2020).