Ex-Officer Thomas Lane Pleads Guilty to State Charge of Aiding and Abetting Manslaughter of George Floyd   

On May 18, 2022, former Minneapolis Police Officer Thomas Lane in state court pleaded guilty to the charge of aiding and abetting manslaughter of George Floyd on May 25, 2020. [1]

Before Hennepin County District Court Judge Peter Cahill, this guilty plea was part of a plea agreement which dismissed the separate charge of aiding and abetting second-degree murder and for a sentence of three years imprisonment in federal prison to be served concurrently with his upcoming sentence for his February 2022 conviction in federal court for violating Floyd’s civil rights. The state court sentencing is scheduled for September 21.[2]

Minnesota Attorney General Keith Ellison issued a statement saying, “Today my thoughts are once again with the victims, George Floyd and his family. Nothing will bring Floyd back. He should still be with us today.” Ellison then said, “I am pleased Thomas Lane has accepted responsibility for his role in Floyd’s death. His acknowledgment he did something wrong is an important step toward healing the wounds of the Floyd family, our community, and the nation. While accountability is not justice, this is a significant moment in this case and a necessary resolution on our continued journey to justice.”  Lane’s attorney, Earl Gray, however, declined to comment on this development.

Two other ex-MPD officers, Tou Thao and J. Alexander Kueng still face state charges of aiding and abetting second-degree murder and manslaughter in Floyd’s death. That trial is scheduled to commence on June 13. [3]

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[1] Olson, Ex-MPD officer Thomas Lane pleads guilty to manslaughter charge for role in George Floyd’s murder, StarTribune (May 18, 2022); Forlitti & Karnowski (AP), Ex-cop pleads guilty to manslaughter in George Floyd killing, Wash. Post (May 18, 2022); Ex-Minneapolis police officer pleads guilty to manslaughter in George Floyd’s death, NBC News (May 18, 2022); Minnesota Attorney General, ‘Pleased Thomas Lane has accepted responsibility ‘: Attorney general Ellison statement on guilty plea in death of George Floyd (May 18, 2022). Apparently in April, Lane, Kueng and Thao rejected a plea deal (details not publicly available) offered by the Minnesota Attorney General’s Office. (Jimenez, 3 former police officers charged in George Floyd’s death reject plea deal, CNN.com (April 13, 2022).

[2] Federal Criminal trial for Killing George Floyd: Jury Deliberations and Verdict, dwkcommentareis.com (Feb. 25, 2022).

[3] Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd, dwkcommentaries.com (April 30, 2022).

Chauvin Appellate Brief Regarding State Court Conviction for Murder of George Floyd

On April 25, 2022, attorneys for Derek Chauvin submitted a brief in support of his appeal to the Minnesota Court of Appeals from his conviction and sentencing by the state District Court for his involvement in the death of George Floyd.

Chauvin’s Brief for the Appeal[1]

Here are the principal points of Chauvin’s brief:

  • The pervasive prejudicial publicity, jurors’ concerns for their safety if they did not convict Chauvin and physical threats to the courthouse required the court to change venue, continue the trial, or fully sequester the jury and its failure to do so violated Minnesota Rule of Criminal Procedure 25.02 and the U.S. Constitution’s 6th and 14th
  • More specifically, the pretrial publicity surrounding the case, which was pervasive and overwhelmingly hostile to Chauvin and law enforcement in general, combined with the riots, the threat of violence from a possible acquittal, the City of Minneapolis’ announcement of its $27 million settlement of claims by the Floyd family in the middle of jury voir dire, jurors’ express concerns for their own personal safety and at least two jurors expressing negative views of the Minneapolis Police Department, the media’s spying on the attorneys and disclosing courthouse security measures required the court to change venue, continue the trial or fully sequester the jury, and its failure to do so violated Minnesota Rule of Criminal Procedure 25.02 and the U.S. Constitution’s 6th and 14th Amendments.
  • The third-degree murder charge against Chauvin, for which he was convicted, must be dismissed because his actions were directed only against one person—George Floyd—and because the Minnesota Supreme Court has decided that such a charge requires actions against more than one person.
  • The second-degree felony-murder charge against Chauvin was invalid because as a police officer he was authorized to “touch” or “assault” Floyd as he resisted arrest and because the court did not instruct the jury that the reasonable use of force by a police officer must be judged from the perspective of a reasonable officer on the scene.
  • The trial court also erred by allowing cumulative evidence by seven expert witnesses on their opinions on the reasonable use of force by Chauvin.
  • The court improperly excluded evidence of MPD training materials showing a police officer placing his or her knees on a suspect’s back.
  • The court erroneously excluded testimony by Morries Hall, a passenger in Floyd’s car, on Floyd’s ingestion of fentanyl and being in a state of excited delirium.
  • The court erroneously failed to take actions to correct prosecutorial misconduct regarding failure to timely disclose certain evidence.
  • The court erroneously failed to make a record of defense counsel’s “sidebar” arguments.
  • The court erroneously used Chauvin’s alleged abuse of a position of authority as an aggravating sentencing factor to justify an upward departure from the presumptive sentencing range.

We now await the prosecution’s responses to these arguments.

Chauvin’s Guilty Plea to Federal Criminal Charges Over Floyd’s Death[2]

Presumably the prosecution will find counter arguments in Chauvin’s December 15, 2001, guilty plea in federal court to two counts of depriving Mr. Floyd of his federally-protected civil rights by pinning his knee against Mr. Floyd’s neck  and by failing to provide medical care for him on May 25, 2020, ultimately causing his death.

In the Plea Agreement and Sentencing Stipulations in that federal case, which Chauvin signed and stipulated that he “fully understands the nature and elements of the crimes with which he has been charged  [in that federal case]” and “admits that the following facts are true, and that those facts establish his guilt beyond a reasonable doubt [to those charges].”

  • Chauvin “held his left knee across Mr. Floyd’s neck, back, and shoulder, and his right knee on Mr. Floyd’s back and arm. As Mr. Floyd lay on the ground, handcuffed and unresisting, [Chauvin] kept his knees on Floyd’s neck and body, even after Mr. Floyd became unresponsive. This offense resulted in bodily injury to, and the death of, George Floyd.”
  • “On May 25, 2020, [Chauvin] was on duty and acting under color of law as a patrol officer for the [MPD]. Through his experience as an MPD patrol officer, [Chauvin] was familiar with MPD policies and training regarding the authorized use of force, including the requirement that an officer use force only in proportion to a subject’s resistance and the requirement that an officer stop using force when a subject is not resisting. . . . [Chauvin] was also aware of MPD policy and training that once an arrestee is in custody, the arrestee is the officer’s responsibility to protect, and accordingly, officers are required to provide emergency medical aid to an arrestee who needs it, including CPR immediately if there is not pulse and other basic first aid, even while awaiting Emergency Medical Services (EMSA). Finally, [Chauvin] was trained that if an arrestee is in the prone position, that position may make it more difficult to breathe, and thus, officers should move that arrestee to a side recovery or seated position.”
  • “After an attempt to seat Mr. Floyd in a squad car, [Chauvin] and Officers Kueng and Lane maneuvered Mr. Floyd, who was handcuffed and requesting to be placed on the ground, out of the vehicle and face-down on the street. Mr. Floyd remained restrained, prone and handcuffed on the ground for approximately ten minutes. During this entire period, [Chauvin] held his left knee on Mr. Floyd’s neck, back, and shoulder area and his right knee on Mr. Floyd’s left arm and upper back.”
  • “After the initial restraint, Mr. Floyd stopped resisting officers. [Chauvin] admits that no later than the time the officers decided not to apply the hobble to Mr. Floyd, [Chauvin’s] continued use of force became objectively unreasonable and excessive based on a totality of the circumstances. After that point, [Chauvin] continued his unreasonable restraint of Mr. Floyd until after the paramedics arrived.”
  • “[Chauvin] admits that in using this unreasonable and excessive force, he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] knew that what he was doing was wrong, in part, because it was contrary to his training as an MPD officer. [Chauvin] chose to continue his use of force even though he knew from MPD policy and training that once Mr. Floyd was compliant, [Chauvin] should have gotten off of him and moved him into a side recovery or seated position.”
  • “[Chauvin] also knew there was no legal justification to continue his use of force because he was aware that Mr. Floyd not only stopped resisting, but also stopped talking, stopped moving, stopped breathing, and lost consciousness and a pulse. [Chauvin] chose to continue applying force even though he knew Mr. Floyd’s condition progressively worsened. [Chauvin] also heard Mr. Floyd repeatedly explain that he could not breathe, was in pain, and wanted help.”
  • “[Chauvin] knew that what he was doing was wrong-that continued force was no longer appropriate and that it posed significant risks to Mr. Floyd’s life based on what he observed and heard about Mr. Floyd.”
  • “[Chauvin] also willfully violated Mr. Floyd’s constitutional right not to be deprived of liberty without due process of law, which includes an arrestee’s right to be free from a police officer’s deliberate indifference to his serious medical needs. [Chauvin] admits that he failed to render medical aid to Mr. Floyd, as he was capable of doing, and trained and required to do.”
  • “At the time [Chauvin] failed to render medical aid to Mr. Floyd, [he] saw Mr. Floyd lying on the ground, in serious medical need, and eventually unconscious and pulseless, and recognized Mr. Floyd was in clear need of medical aid. At no point during the entire period that Mr. Floyd was on the ground did [Chauvin] or anyone else move Floyd onto his side, start CPR, or provide medical aid of any kind to Mr. Floyd. [Chauvin’s] failure to render medical aid resulted in Mr. Floyd’s bodily injury and death.”
  • “[Chauvin] agrees that the appropriate base offense level is second-degree murder because he used unreasonable and excessive force that resulted in Mr. Floyd’s death, and he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] admits that his willful use of unreasonable force resulted in Mr. Floyd’s bodily injury and death because his actions impaired Mr. Floyd’s ability to obtain and maintain sufficient oxygen to sustain Mr. Floyd’s life.”

Conclusion

Given these express written admissions by Chauvin, why is it necessary for the Minnesota Court of Appeals, the Minnesota Attorney General’s Office and Chauvin’s attorneys to go through the intensive and costly process of examining the various issues in Chauvin’s appeal of his state court conviction and sentencing?

This blog welcomes comments expressing why such efforts are necessary.

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[1] Appellant’s Brief, State v. Chauvin, Minn. Ct. Appeals, No. A21-1228 (April 25, 2022); Assoc. Press, Chauvin appeals murder conviction for killing George Floyd, StarTribune (April 28, 2022); Chappell, Derek Chauvin appeals his conviction for George Floyd’s murder, MPRNews (April 27, 2022); Scully, Derek Chauvin asks court to  overturn conviction in George Floyd killing, The Hill (April 27, 2022); Wolfe & Rose, Derek Chauvin appeals his murder conviction in death of George Floyd, CNN.con (April 27, 2022).

[2] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing George Floyd, dwkcommentaries.com (Dec. 16, 2021); Plea Agreement and Sentencing Guidelines (pp. 2-6), U.S. v. Chauvin, U.S. Dist. Ct., D. MN (Case No. 21-CR-108 (PAM-TNL) (Dec. 15, 2021). The federal court’s Docket Sheet for this case has the following entries, but the referenced documents are currently not available to the public: (a) 4/1/22 entry for erroneous filing of transcript of 12/15/21 Change of Plea Hearing; (b)  4/5/22 entry for filing of corrected version of that transcript; and (c) 4/27/22 entry for Preliminary Presentence Report on Chauvin.

 

 

Hennepin County District Court Enters Order Regarding Trial of Three Former Minneapolis Policemen Over Killing of George Floyd 

On April 25, 2022, Hennepin County District Court Judge Peter A. Cahill issued the Trial Scheduling and Management Order and Memorandum Opinion regarding the June 13, 2022, commencement of the trial of three former Minneapolis policemen (Tou Thao, Thomas Kiernan Lane and J. Alexander Kueng) over the killing of George Floyd on May–, 2020.[1]

Trial Management Order

  1. Specified information about any expert witnesses not previously disclosed shall be submitted by May 1, 2022.
  2. Motions in limine shall be submitted by May 13, 2022, with supporting memoranda by May 20 and responsive memoranda by June 3.
  3. Trial witness lists shall be submitted by May 13, 2022.
  4. Trial exhibit lists and proposed jury instructions shall be submitted by June 10, 2022.
  5. Trial will commence at 9:00 a.m. on June 13, 2022, in Hennepin County Courtroom C-1856.
  6. Limits at trial on the number and conduct of the parties’ attorneys or support staff were specified.
  7. Limits at trial on the number and conduct of spectators at trial for the Media Coalition and the George Floyd and defendants’ families were specified.
  8. Hearing on motions in limine or administrative matters will be heard on June 13, 2022, and, if necessary, on subsequent days.
  9. Jury selection will begin on June 14, 2022.
  10. Jurors and potential jurors shall be partially sequestered.
  11. Opening statements and presentation of evidence will begin on July 5, 2022.
  12. Witnesses, prior to testifying, shall be sequestered.
  13. Audio and video recording and livestreaming of the trial will not be allowed except as expressly permitted by Minn. R. Gen. P. 4.02(d).
  14. At least three overflow courtrooms with audio and video feed from the trial courtroom will be provided for family members of George Floyd and the defendants, the media and the public.

The Court’s Memorandum Opinion

The last 27 pages of this Court document set forth the legal bases for the following conclusions:

  • The Minnesota Rules of Practice Do Not Currently Authorize Livestreaming of Trials Over the Objection of a Party;
  • The Unusual and Compelling Circumstances of the Covid-19 Pandemic at the Time of the Chauvin Trial Have Substantially Abated and the Supreme Court Rules in Force in the First Half of 2021 Mandating Social Distancing, Mask Wearing, and Other Precautionary Measures Due to the Covid-19 Pandemic Are No Longer in Force, Obviating Resort to Rule 1.02;
  • This Court Now Is Precluded by Rule 4.02(d) from Ordering Livestreaming of the Trial Over Objections of the Defendants; and
  • Partial Jury Sequestration Is Appropriate.

Reactions [2] 

An attorney for the Media Coalition, which wanted livestreaming of the trial, said that this order was “deeply disappointing [because] thousands of people interested in this important trial won’t be able to watch it. The court’s decision is based on its view that, with the world returning to normal after the pandemic, it must revert to Supreme Court rules that require everyone involved to consent to cameras before they are allowed. The defendants don’t consent. Our Supreme Court needs to change the rule. They are working on it. I wish they could have worked faster.”

Minnesota Assistant Attorney General, Matthew Frank, in a motion before the issuance of this order, said that prohibiting a livestream after allowing one during Chauvin’s trial could harm public confidence in the process. “In the public’s mind, this trial and Chauvin are linked. If this court eliminates audio-visual coverage at this late hour, the broader public may receive the unintended message that they no longer have the right to observe proceedings.”

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[1] Trial Scheduling and Management Order and Memorandum Opinion, State v. Thao, Lane & Kueng, Hennepin County District Court files 27-CR-20-12949, 27-CR-20-12951, 27-CR-20-12953 (April 25, 2022).

[2] Mannix, Judge: Trial of 3 ex-Minneapolis police officers in George Floyd death won’t be livestreamed, StarTribune (April 26, 2022); Karnowski (AP), Trial of 3 ex-officers in Floyd death won’t be livestreamed, StarTribune (April 26, 2022).

Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict

On February 23, U.S. District Court Judge Paul Magnuson gave the Court’s instructions to the jury, and the jury engaged in their deliberations for the rest of the day and most of the next day. On the afternoon of February 24, the jury rendered its verdict. [1]

                                                     Jury Instructions

The Judge told the jurors they must view the evidence in light of what a “reasonable officer at the scene” would have done “without the benefit of 20-20 hindsight” and then “determine whether the decision to use force on Floyd was reasonable under the circumstances that were tense and rapidly evolving.” 

Moreover, “it violates the Constitution for a police officer to fail to intervene if he had knowledge of the force and an ability to do so.” 

On each count, if the jurors find an officer guilty, they must determine whether the officer’s actions caused Floyd’s death. (If the jury so finds, longer sentences would be permissible.)

                                                        Jury Verdict [2]

On the afternoon of February 24, after total deliberations of 13 hours over two days, the jury rendered its verdict that all three defendants were guilty of all charges.

                                            Reactions to the Verdict [3]

Afterwards, Assistant U.S. Attorney LeeAnn Bell said, “[A]s one of the brave bystanders said, ‘George Floyd was a human being.’ He deserved to be treated as such.”

George Floyd’s brother, Philonise Floyd, said, “This is something we want everybody to remember: If you kill somebody, you’re going to get time.”

Minnesota Attorney General Keith Ellison stated, “Once again, the principle that no one is above the law and no one is beneath it has been upheld. The verdicts vindicate the principle that officers have a duty  and a responsibility to intervene and recognize when a fellow officer is using excessive force.”

Christy E. Lopez, a professor at Georgetown University Law Center and an expert on police training, commented that this verdict “could significantly change law enforcement culture, compelling agencies to make sure that officers are properly trained and are upholding their duties. It shifts the entire narrative from misconduct being about just acts of commission to misconduct also being about acts of omission.” [4]

Other experts noted that “this case focused on a more widespread problem than a single officer’s act of violence: the tendency of officers to stand by when they witness a fellow officer committing a crime.”

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[1] Olson & Mannix, Jury wraps first day of deliberating federal civil rights case against 3 ex-Minneapolis officers in George Floyd death, StarTribune (Feb. 23, 2022); Bogel-Burroughs, Jurors to Weigh Fate of Officers Who Restrained George Floyd as He Died, N.Y. Times (Feb. 22, 2022).

[2]Olson & Mannix, Ex-Minneapolis officers guilty on all civil rights charges related to George Floyd’s death, StarTribune (Feb. 24, 2022); Former Minneapolis Police Officers Found Guilty of Violating George Floyd’s Civil Rights, W.S.J. (Feb. 24, 2022); Former Minneapolis officers found guilty of violating George Floyd’s civil rights, Wash. Post (Feb. 24, 2022).

[3] Walsh, Reaction to guilty verdicts ranges from proper police accountability to worries of chilling effect on cops, StarTribune (Feb. 24, 2022); Arango, Bogel-Burroughs & Senter, 3 Former Officers Are Convicted of Violating George Floyd’s Civil Rights, N.Y. Times (Feb. 24, 2022).

[4] See Importance of Pending Federal Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Jan. 24, 2022)(discussion of Professor Lopez’ work on police training), https://dwkcommentaries.com/2022/01/24/importance-of-pending-federal-criminal-case-over-killing-of-george-floyd/

 

Federal Criminal Trial for Killing George Floyd: Closing Arguments

On February 22, 2022, the United States for the prosecution and the attorneys for the defendants Tou Thao, J. Alexander Kueng and Thomas Lane presented their closing arguments to the jury. [1]

The Charges Against the Defendants

Thao and Kueng are charged with failing to intervene on Floyd’s behalf while the two of them and Lane are charged with with failing to provide medical aid to Floyd while Derek Chauvin was using unreasonable force.

Prosecution’s Closing Argument

Assistant U.S. Attorney Manda Sertich emphasized the length of time that Mr. Floyd had suffered while the officers did not provide aid. They watched and listened, but did not help as Chauvin killed a man “in broad daylight on a public street.” They knew Floyd needed aid. They had been trained that every second counted to start life-saving procedures for an unresponsive man. They had the ability to help, but they didn’t.

Thao had “done nothing” for 4 minutes and 40 seconds as Floyd called out for help. Instead he “mocked” Floyd by telling bystanders that this is “why you don’t do drugs, kids.” During that same time, Kueng ignored Floyd’s pleas as he crouched “shoulder to shoulder” with Chauvin, never urging him to let up. Kueng also laughed when Chauvin said the dying man talked a lot for someone who said he couldn’t breathe. Lane, who was holding Floyd’s legs, had chosen “not to stop the horror unfolding under his nose, only suggesting that Chauvin roll Floyd onto his side, but  “doing nothing to give Floyd the medical aid he knew he so desperately needed.”

Even as Floyd said he could not breathe for a 27th time, the officers “were only halfway through their crime.”

The falsity of the defense is proved by ordinary citizen bystanders, including a nine-year old, who cried out for the officers to intervene. “These civilians didn’t have a badge. They didn’t have other officers who could back them up. They knew these officers had more power than they did, more authority than they did and could cause trouble for them. And they still insisted.”

“These defendants knew what was happening, and contrary to their training, contrary to common sense, contrary to basic human decency,” they “chose not to aid George Floyd, as the window into which Mr. Floyd’s life could have been saved slammed shut. This is a crime. The defendants are guilty as charged.”

Defendants’ Closing Arguments

The three defense counsel collectively argued that their clients had deferred to the judgment of Chauvin, the senior officer on the scene; that their attention had at times been diverted from Floyd’s deteriorating condition; and that restraining Floyd was necessary because he had taken fentanyl and earlier had refused to get into the back of a squad car after being accused of using a counterfeit $20 bill to buy a package of cigarette.

Defense counsel also argued that the prosecution had made misleading arguments and that this case had been brought because of political pressure.

Lane’s attorney noted that he had asked Chauvin if they should roll Floyd onto his side and thus had not been charged with failure to intervene. In addition, when paramedics had arrived, Lane told them that Floyd was unresponsive and then Lane rode with Floyd in the ambulance and applied chest compressions.

Kueng’s attorney said the crowd of bystanders had created an unusual and hostile situation.

Prosecution Rebuttal

Another Assistant U.S. Attorney, LeeAnn Bell, emphasized that the key to the case was a police officer’s duty: “In your custody, in your care.”

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[1] Mannix & Olson, In closing arguments at trial of three former Minneapolis officers, attorneys spar over ‘willful intent,’ StarTribune  (Feb. 22, 2022); Mannix, Defense of former officers puts Minneapolis ‘paramilitary’ training on trial, StarTribjne (Feb. 22, 2022); Barrett, Prosecutor Says Ex-Officers ‘Chose to Do Nothing’ in Floyd arrest, W.S.J. (Feb. 22, 2022);

Federal Criminal Trial for Killing of George Floyd: Other Witnesses for Defendant J. Alexander Kueng

Federal Criminal Trial for Killing of George Floyd: Other Witnesses for Defendant J. Alexander Kueng  

A prior post reviewed the testimony of Defendant J. Alexander Kueng. Here are summaries of the other witnesses he put forward.1

Joni Kueng. The first witness for Kueng was his mother, Joni Kueng, who testified briefly that he had played the peacemaker among the family siblings.

Steve Ijames, a use-of-force instructor and a retired assistant police chief in Springfield, Missouri, as a defense expert, testified that MPD’s training on an officer’s duty to intervene to stop other officers from using excessive force was ineffective because it relied too heavily on lectures instead of hands-on training and testing to ensure that  trainees learned the right lessons. Indeed, such training must emphasize demonstrations and testing to ensure that the attendees absorbed the subject matter. “Just because you sat through a class doesn’t mean you learned anything.”

Ijames, however, testified that Chauvin’s continued force after Floyd stopped fighting was unreasonable “beyond question.” But according to Ijames, Kueng lacked the training and experience to recognize that inappropriate use of force and thus it made sense for Chauvin to defer to Chauvin. However, Ijames admitted that it was conceivable that Kueng could have walked around and checked Floyd’s neck without moving or disturbing Chauvin.

Gary Nelson, a retired MPD lieutenant and field training officer, testified that it made sense for the other officers to let Chauvin take charge of the scene, especially since Kuenig and Thomas Lane were rookies. “Somebody needs to be in charge” and there isn’t always time to deliberate.

However, under cross examination, Nelson agreed that officers are not obligated to follow clearly unlawful orders and that they are accountable for their actions and inactions.

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  1. Mannix & Olson, Kueng testifies of attempting to place Floyd in squad: “I felt like I had no control,’ StarTribune (Feb. 16, 2022); Karnowski & Webber, Prosecutors question officer in Floyd killing about training, AP News (Feb. 17, 2022); Mannix & Olson, 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 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.

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[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.

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[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).

 

 

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.

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[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.

Comment

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.

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[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).