Tag: Minneapolis Police Chief Medaria Arradondo

Witnessing

Witnessing is an important human activity and responsibility.

Sometimes witnessing is a planned activity, like attending or watching and listening to a concert, play, movie, sporting event or a church worship service and then reporting (orally or in writing) what happened to others. Witnessing sometimes, however, is not planned beforehand when you observe something happening in your presence and subsequently tell others what you had observed.

Witnessing by Darnella Frazier [1]

An important example of the latter type of witnessing was provided by Darnella Frazier, a 17-year-old high school student, in Minneapolis at the corner of Chicago Avenue and 38th Street on May 25, 2020.

By happenstance she and her nine-year-old cousin walked from their home to the nearby Cup Foods store on that corner to buy some snacks. When they arrived at the store they noticed in the street a Minneapolis police car where a black man (George Floyd) was pinned in pain on the pavement by three Minneapolis policemen. Frazier immediately got out her cell phone and started a video recording of this event and then held her camera steady for over the next ten minutes until the Black man apparently died. She then  posted this video recording on her FACEBOOK page, which immediately was seen by many people around the world.

The next day in an interview by the StarTribune Frazier said she started the video recording ”as soon as I heard  . .  [the Black man] trying to fight for his life. It was like a natural instinct, honestly. The world needed to see what I was seeing. Stuff like this happens in silence too many times.” She hoped that the video can in some way bring about “peace and equality. We are tired of [police] killing us.” It was obvious to her that the officer had “seen how weak [Floyd] was, and he still proceeded. . . . My video proves what really happened.”

Frazier amplified her remarks in March 2021 FACEBOOK postings. “George Floyd was already cuffed on the ground, a knee to the neck when [the] restraint already is absolutely unnecessary. The man was begging for his life and Chauvin did not care. He deserves to go down.” Moreover, I can’t go to sleep in silence, my mind will eat me alive.” Frazier also criticized the falsity of the Minneapolis Police Department’s initial public report of this incident that stated the following:

  • “On Monday evening, shortly after 8:00 pm, officers from the Minneapolis Police Department responded to the 3700 block of Chicago Avenue South on a report of a forgery in progress.  Officers were advised that the suspect was sitting on top of a blue car and appeared to be under the influence.”
  • “Two officers arrived and located the suspect, a male believed to be in his 40s, in his car.  He was ordered to step from his car.  After he got out, he physically resisted officers.”
  • Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress.”
  • “Officers called for an ambulance.  He was transported to Hennepin County Medical Center by ambulance where he died a short time later.”
  • “At no time were weapons of any type used by anyone involved in this incident.”
  • “The Minnesota Bureau of Criminal Apprehension has been called in to investigate this incident at the request of the Minneapolis Police Department.”
  • “No officers were injured in the incident.”
  • “Body worn cameras were on and activated during this incident.”

At Chauvin’s recently concluded criminal trial, Frazier was the fourth witness called by the prosecution and provided moving and emotional testimony about what she observed and did that day. “When I look at George Floyd I look at my dad, I look at my brothers, I look at my cousins, my uncles, because they are all Black. I have a Black father, I have Black brothers, I have Black friends. I look at that and how it could have been one of them. It’s been nights I’ve stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life. It’s not what I should have done. It’s what he [Chauvin] should have done.” She also testified that Chauvin had a “cold look—heartless. It didn’t seem like he cared.”

In cross examination, defense counsel Erik Nelson was trying to fabricate a scene with bystanders becoming increasingly hostile to the point of creating a potential threat to the officers. Frazier agreed that bystanders were getting louder and angrier, but she added that she didn’t think anyone was ever threatening Chauvin.

After the jury on April 20th rendered its verdict that Chauvin was guilty on all three counts, Frazier said on FACEBOOK, “I just cried so hard. This last hour my heart was beating so fast, I was so anxious, anxiety [busting] through the roof. But to know GUILTY ON ALL 3 CHARGES !!! THANK YOU GOD THANK YOU … George Floyd we did it!! Justice has been served.”

Courage Award for Darnella Frazier [2]

Praise for Frazier’s actions at the scene of the Floyd killing actually started in October 2020, when PEN America, which works to defend and celebrate free expression in the United States and worldwide through the advancement of literature and human rights, announced that it was granting its annual Benenson Courage Award to Frazier. The announcement stated the following:

  • “In May 2020, Frazier documented the death of George Floyd at the hands of Minneapolis police officers, one of whom—Derek Chauvin—pressed his knee against Floyd’s neck, well after Floyd lost consciousness. Frazier’s video quickly spread across social media and led to a wave of community outrage, a major investigation, and Chauvin’s arrest, as well as the dismissal of [him and] the three other officers. Floyd’s killing, along with the deaths of Breonna Taylor, Ahmaud Arbery, Tony McDade, Dion Johnson, and others, drove a wave of activism across the country crying out for racial and economic justice.”

This award was presented at a virtual ceremony on December 8, 2020, by Spike Lee, the famous Oscar-winning film director. He said, “I’m so proud of my sister. She documented the murder of George Floyd, our brother, King Floyd. And that footage reverberated around this God’s earth, and people took to the streets all over this earth. Not just the United States of America, and it wasn’t just Black people either. Everybody took to the streets. My sister, I commend you, and you deserve  . . . the PEN/Benenson Courage Award. The [important] word is courage!”

Ms. Frazier accepted the Award with these comments: “ I would like to say thank you for honoring me with this PEN/Benenson Courage Award. I never would imagine out of my whole 17 years of living that this will be me. It’s just a lot to take in, but I couldn’t say thank you enough for everything that’s been coming towards me. Thanks to Mr. Lee for presenting this, and I appreciate that. Thank you for the PEN/Benenson Courage Award.”

Then followed thank you’s for her courage from attendees, including Meryl Streep, Anita Hill and U.S. Senator Cory Booker.

Other Praises for Frazier [3]

Many others have praised Frazier for her courage and quick-thinking on May 25th.

Her recording this video was praised at a June 11, 2020, press conference by Minneapolis Police chief Medaria Arradondo, “I am thankful, absolutely, that this [police encounter] was captured in the manner it was. [In similar situations, he encouraged others,]“Record, Record, absolutely. Record, call . . . a friend. Yell out. Call 911. We need a supervisor on the scene. Absolutely, we need to know that. So the community [should[ play a vital role and did two weeks ago.”

Chauvin’s conviction brought immediate praise for Frazier. Minnesota Governor Tim Walz said, Frazier’s taking “that video, I think many folks know, is maybe the only reason that Derek Chauvin will go to prison.” The NAACP in North Carolina, the state where Floyd was born. stated “The video shot by a high school student will go down in history. Not even many of Chauvin’s police colleagues, could argue against Ms. Frazier’s film.” Oprah Winfrey tweeted, “I’m grateful to the witnesses and their testimonies. Grateful to Darnella Frazier. Grateful to every juror for seeing and acknowledging what the world saw on that tape. Thank you God for real!”

Michelle Norris, a Washington Post columnist and a Minnesota native and graduate of the University of Minnesota, states Frazier “was the witness George Floyd needed on May 25, 2020. She was the witness we all needed—the public, the police, a country still grappling with racial codes that are stitched into the fabric of our governing institutions. She is the hero of this story.”

Norris continued, “Her bravery is a reminder that we too must not look away, and not just in the most wicked moments of bias but also in the small things that grease the runway toward larger prejudice. We must not look away when we see the softer kind of oppression that masks itself in offhand comments, and jokes, and the denigration and dismissal of ‘those people.’”

“And when I say ‘we,’ I am also talking about our public servants and especially our law enforcement officers who know too well that there are those in their ranks who ‘police’ from a dark and dangerous perspective. They know that some officers are guided by prejudice and proceed from warped beliefs. Those officers debase the entire profession.”

Conclusion

 Seven other bystanders to the killing of George Floyd testified in the Chauvin trial, including Judeah Reynolds, who is Frazier’s nine-year-old cousin. As Prosecutor Jerry Blackwell said in his closing argument, all of these bystander witnesses “were a bouquet  of humanity.”[4]

All of the bystanders testimony was  applauded by two prominent journalists. For Frank Bruni, the New York times columnist, these witnesses are “tormented by their memories of Floyd’s last minutes” and Floyd’s and their sense of “helplessness” of not being able to stop what was being done to Floyd. The Chicago Tribune’s columnist, Heidi Stevens, called these bystanders “stone catchers” or people who stand up and intervene when someone’s been wrongly accused and condemned. (This phrase is based upon Jesus rebuking men who were ready to stone to death a woman caught in adultery by asking them who is without sin to cast the first stone, which prompted all the men to drop their stones and walk away and upon Bryan Stevenson of the Equal Justice Initiative coining  the phrase “stone catchers.” [4]

This reference to the Bible should remind those of religious faith of our calling to be witnesses and give testimony. This is not easy. You have to give your account of what happened and your belief as to what it means. The person has to stand and say what he or she believes about God.

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[1] Walsh, For first time, Minneapolis teen opens up about her viral George Floyd arrest video, StarTribune (Mar. 12, 2021); Minneapolis Police Department, Man Dies After Medical Incident During Police Interaction (May 25, 2020); Paybarah, How a teenager’s video upended the police department’s initial tale, N.Y. Times (April 20, 2021); Bogel-Burroughs & Arango, Darnella Frazier, the teenager who filmed George Floyd’s arrest, testifies at the trial, N.Y. Times (Mar. 30, 2021);  Assoc. Press, [Video] ‘He Was Suffering’: Teenager Who Filmed Floyd’s Arrest Testifies at Trial, N.Y. Times (Mar. 30, 2021); Watch the replays” Day 2 testimony of witnesses Donald Williams and Darnella Frazier, StarTribune (Mar. 30, 2021); Xiong, Walsh & Olson, Teen who recorded George Floyd’s death reveals trauma, pain in testimony, StarTribune (Mar. 31, 2021); Jackson, Derek Chauvin trial shows people who film police violence later struggle with trauma, StarTribune (April 2, 2021); Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 4, 2021); Knowles & Belia, Darnella Frazier, teen who filmed Floyd’s arrest, celebrates Chauvin’s guilty verdict: ‘Justice has been served,’ Wash. Post (April 21, 2021); Yan, A teen with ‘a cell phone and sheer guts’ is credited for Derek Chauvin’s murder conviction, cnn.comm (April 21, 2021); Fowler, You have the right to film police. Here’s how to do it effectively—and safely, Wash. Post (April 22, 2021).

[2] See note 1 supra. See also Walsh, Minneapolis teen ‘humbled’ to receive national Courage Award for filming George Floyd’s killing by police, StarTribune (Oct. 29, 2020); PEN America, Darnella Frazier, Dec. 8, 2020); Walsh, Minneapolis teen receives prestigious award for recording George Floyd video, StarTribune (Dec. 10, 2020).

[3] Norris, Opinion: Darnella Frazier is the hero of this story, Wash. Post (April 21, 2021). This blog has frequently commented about Bryan Stevenson’s amazing legal representation of death-row inmates and others. See also Sullivan, By bearing witness—and hitting ‘record’—17-year-old Darnella Frazier may have changed the world, Wash. Post (April 20, 2021.).

[4] The other bystander witnesses were Alyssa Funaru (17 years old), Kaylynn Gilbert (17 years old), Genevieve Hansen, Donald Williams II, Christopher Belfrey and Charles McMillian. (Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 4, 2021). Bruni, Listening to Those Who Saw George Floyd Die, N.Y. Times (April 24, 2021); Stevens, ‘The world needed to see what I was seeing,’ StarTribune (April 23, 2021)..

Status of Civil Litigation Over George Floyd Killing

On July 15, attorneys for the family of George Floyd (by their trustee Kaarin Nelson Schaffer, a Minnesota attorney and resident of Hennepin County) sued the City of Minneapolis and the four ex-police officers involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng. The 40-page Complaint has three counts. “Count I—42 U.S.C. §1983—Fourth Amendment Violations” is asserted against the four ex-policemen while counts II and III are against the City of Minneapolis: “Count II– 42 U.S.C. §1983—Monell Liability” and “Count III–42 U.S.C. §1983—Canton Liability.” [1]

The only development so far in the case is the August 18 filing of a Stipulation for 60-Day Stay of Litigation between the plaintiff and the City of Minneapolis. Such a stay until October 17 was requested “so that the parties may continue to discuss the possibility of a longer stay which would continue until the criminal proceedings against the individual Defendants are completed.”[2]

The next day, two Minneapolis attorneys—Gregory M. Erickson and Erick G. Kaardal–entered their appearances for defendant Derek Chauvin.

Background of U.S. District Judge Susan Richard Nelson[3]

Judge Susan Richard Nelson, who is presiding over this civil case, had 23  years of experience as an attorney in Pennsylvania, Connecticut and Minnesota, the last 16 as a skillful attorney in high stakes civil litigation for an eminent Minneapolis law firm. Then in 2000 the judges of the U.S. District Court for the District of Minnesota appointed her to the position of U.S. Magistrate Judge, who handles various pretrial matters and settlement conferences.

Most relevant for the current civil case over George Floyd from Nelson’s experience as a Magistrate Judge was her supervising settlement discussions over a racial discrimination suit by five high-ranking Black Minneapolis police officers—including current Chief Medaria Arrandondo. In July 2008, “the parties were on the of a $2 million settlement that also included the addition of a new deputy police chief position focused on documenting and responding to reports of discrimination both within the department and in the community. The tentative agreement included data collection about racially based policing and publication of that data; the Police Department’s adherence to terms of a previously proposed federal consent decree; and ongoing court oversight to ensure the settlement agreement’s terms were implemented and followed.”

One of the attorneys for the plaintiffs, Robert Muller, recently said Nelson “artfully encouraged the parties to work towards a potential resolution that included provisions beyond simply monetary relief. Her encouragement prompted the parties to be creative, dig in, and come up with what could have been very meaningful [police] reform.”

However, the Minneapolis City Council failed to approve this settlement. A year later the case was settled, but without the previously agreed upon policy changes.

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[1] See these posts to dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death (July 16, 2020); George Floyd’s Family’s Complaint Against the Four Ex-Police Officers Over His Death (July 17, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count II (July 18, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count III (July 19, 2020).

[2] Stipulation for 60-Day Stay of Litigation, Schaeffer v. Chauvin, Civil No. 20-1577 (Aug. 18, 2020, U.S. Dist. Ct., D. Minn.).

[3] Montemayor, Judge overseeing Floyd family’s federal suit no stranger to high stakes litigation, StarTribune (Sept. 6, 2020); Susan Richard Nelson, Wikipedia.

Developments in Criminal Cases Over Death of George Floyd

The four defendants in the criminal cases over the death of George Floyd last week made an unusual request for pretrial and trial audiovisual coverage which the court denied, in part. The issues in the cases were analyzed by criminal law experts. And some personal background information of the four defendants have been publicly discussed. After examining these developments, we will  await the results of the pretrial hearing in the four cases on June 29th.[1]

 Motion for Pretrial and Trial Audiovisual Recording [2]

On June 25 the attorneys for the four criminal defendants made a motion for audiovisual recording of pretrial and trial proceedings in the cases. Thomas Plunkett, the attorney for J. Alexander Kueng, on behalf of all defendants, asserted that such relief was “necessary to provide the Defendants with a fair trial in light of the State’s and other governmental actors multiple inappropriate comments and to assure an open hearing in light of the ongoing pandemic.” Those officials, said Plunkett, included “Public Safety Commissioner John Harrington, Minneapolis Mayor Jacob Frey and Minneapolis Police Chief Medaria Arradondo.”

More specifically, Plunkett said, “this relief is necessary to blunt the effects of the increasing and repeated media attacks from the various officials who have breached their duty to the community. These State comments have crescendoed to an extraordinary volume this week with the Chief pronouncing that ‘[w]hat happened to Mr. Floyd was murder.’ The State’s conduct has made a fair and unbiased trial extremely unlikely and the Defendants seek video and audio coverage to let a cleansing light shine on these proceedings. Doing otherwise allows these public officials to geld the Constitution.”

Attorney General Keith Ellison responded by saying that although he supports a public trial, “Cameras could alter the way the lawyers present evidence. Cameras in the courtroom could subject the participants in the trial to heightened media scrutiny and thereby be distracting to conducting the trial.” The chances of  “creating more sensation than understanding” was “very high,” Ellison said.

The Hennepin County District Judge, Peter Cahill, immediately denied the motion for such pretrial coverage while reserving decision on the motion for such coverage of the trial. The Judge stated that Minnesota court rules require both the defense and prosecution to agree for such coverage for pretrial proceedings and that the prosecution did not so agree. In addition, said the Judge, such coverage “would risk tainting a potential Hennepin County jury pool.”

Analysis of Issues in These Criminal Cases[3]

A journalist reports, “Veteran defense attorneys say the prosecution’s case against Chauvin is strong, while a series of unique circumstances pose challenges to both prosecutors and defense attorneys.”

Several facets of these cases seem to favor the prosecution. These cases do not involve “split-second” decisions on use of force which often lead a jury to avoid second guessing such decisions. Moreover, “Floyd warned the officers of his own impending death after repeatedly telling them he couldn’t breathe,” and bystanders were making the same warning. Finally the three officers charged with “aiding and abetting” could cause a crack in the alleged “blue wall of silence” protecting officers.

Indeed, at their initial appearances, the attorneys for Lane and Kueng argued that their clients were rookies who relied on Chauvin, a 19-year veteran and their training officer, for guidance at the scene.

A prominent local criminal defense attorney, Joe Friedberg, thought that Lane’s twice suggesting turning Floyd over and later performing CPR on him was strong evidence he had no intent for Floyd to die.

Another local criminal defense attorney, Robert Richman, had a different reaction. He thought that Chauvin “could direct the blame at Lane, who was holding down Floyd’s leg as Floyd lay stomach-down in the street, and Kueng, who was holding onto Floyd’s back. It seems that keeping someone … in a prone position on your stomach and having pressure placed on your back causes respiratory difficulties.” Perhaps “it was the other two officers holding him down that caused the breathing difficulties,” rather than Chauvin kneeling on the side of Floyd’s neck.

Another complication was the existence of two different autopsy reports. “The Hennepin County Medical Examiner’s Office found that Floyd died when his heart stopped  while he was being restrained, noting that the presence of fentanyl intoxication and recent methamphetamine were “other significant conditions” while the autopsy commissioned by the attorneys for Floyd’s family said he died of asphyxia. These provide bases for defense arguments that Floy had started to die before Chauvin put his knee on the neck.

New Rule for Use of Bodycam Footage[4]

On June 27 Minneapolis Mayor Jacob Frey and Police Chief Medaria Arradondo announced a new rule for officers’ review of their body camera footage. Now the officer “as soon as practical” must write and submit his or her written report of the incident before looking at that footage and before talking with anyone other than the incident commander and the lead investigator. This new rule purportedly will provide a more accurate account of the officer’s recollection of the incident.

The Police Officers’ Backgrounds[5]

The police personnel files for the four officers and published articles reveal the following  details:

  • Derek Chauvin. He attended Park High School in Cottage Grove, Minnesota, but did not graduate. After getting his GED he attended Dakota County Technical College, Inver Hills Community College and Metropolitan State University, all in Minnesota. Previous jobs include working security, and food service including at a McDonald’s. Chauvin also had two periods of active service in the U.S. Army. From September 1996 to February 1997 he was stationed in Rochester, Minnesota with a job in military police. He served again from September 1999 to May 2000 in military police, at Hohenfels, Germany where his job duties as including criminal investigations, traffic enforcement and proactive patrol.

During his 19-year career with the Minneapolis Police Department, Chauvin was involved with several police shootings, includes both commendations and more than 15 conduct complaints. Almost all the complaints were closed without discipline, records show, suggesting the allegations weren’t sustained. The nature of the complaints wasn’t made public. The file includes a 2008 letter of reprimand Chauvin received for the two violations involving “discretion” and a squad car camera. “This case will remain a B violation and can be used as progressive discipline for three years,” the letter notes. Chauvin received a Medal of Commendation in 2008 for disarming a man outside the El Nuevo Rodeo club on E. Lake Street while working security off-duty in his uniform. He was also recommended for a Medal of Valor in 2006 related to the shooting death of Wayne Reyes, a stabbing suspect who fled in his truck with officers in pursuit. When Reyes stopped and climbed out of the truck, police said he swung his sawed-off shotgun toward the six officers, all of whom fired their weapons.

Chauvin his married , but immediately after his arrest for the Floyd death, she filed for divorce with her attorney saying, “She is devastated by Mr. Floyd’s death and her utmost sympathy lies with his family, with his loved ones and with everyone who is grieving this tragedy.”

  • Tou Thao. The 11-year veteran and native Hmong speaker from Coon Rapids, Minnesota first applied to the department as a community service officer following stints in food service and as a security guard. He was among those laid off three days before Christmas in 2009 as the police department faced a $13 million budget shortfall. In a termination letter, a supervisor assured him the action was not related to his job performance. Officials called him back to work almost exactly two years later.

Thao and another officer were the subjects of a 2017 police brutality lawsuit. Lamar Ferguson, a black man, alleged that in 2014 the two officers told him they were serving a warrant for his arrest, then beat him, breaking his teeth, while he was handcuffed. The city of Minneapolis paid $25,000 to settle the civil rights case.

  • Thomas Lane. A University of Minnesota graduate in sociology of law, criminology and deviance. He worked with at-risk youth as a juvenile detention guard and probation officer in the Twin Cities before applying as a police recruit at age 35. He also had volunteer work mentoring Somali youth and school kids.
  • Alexander Koenig. At age 26, he is the youngest of the four officers and is of mixed-race and identifies as African-American. In 2010 he and two siblings made several trips to Haiti to help at an orphanage, once after its 2010 earthquake.He was captain of the varsity soccer team at Patrick Henry High School in Minneapolis, where he graduated in 2012. He also played for the Cruz Azul Minnesota soccer club. He attended Monroe College, Minneapolis Community & Technical College and the University of Minnesota, graduating from the last in 2018 with a major in sociology of law, criminology and deviance and becoming conversational in the Russian language. His work history includes a job as security monitor at the University of Minnesota and working in loss prevention at Macy’s. He also worked at Target, and he coached youth baseball and soccer at the Brooklyn Center Community Center.

Kueng had seen a sibling arrested and treated poorly by sheriff’s deputies and had told friends he was joining the police to help protect people close to him from police aggression as the best way to fix a broken system.

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[1] This blog has published posts about the Floyd death and related issues of police reform. See List of Posts to dwkcommentaries—Topical: George Floyd Killing; List of Posts to dwkcommentaries—Topical: Police Reform.

[2]  Xiong & Montemayor, Judge denies audiovisual coverage of hearings for former officers charged in George Floyd killing, StarTribune (June 26, 2020).

[3] Xiong, In trial over George Floyd’s killing, both defense, prosecution face unique challenges, StarTribune (June 27, 2020).

[4]] Klecker, Minneapolis mayor, police chief announce tighter body-camera rules, StarTribune (June 29, 2020).

[5] Bjorhus & Sawyer, Personnel records shed light on four Minneapolis police officers charged in George Floyd’s death, StarTribune (June 4, 2020); Bjorhus, A deeper look at the four officers fired after George Floyd death, StarTribune (June 1, 2020); Barker, Eligon & Furber, Officers Charged in George Floyd’s Death Not Likely to Present United Front, N.Y.Times (June 4, 2020); Barker, The Black Officer Who Detained George Floyd Had Pledged to Fix the Police, N.Y. Times (June 27, 2020); Wernau, The Other Police Officers Charged in George Floyd Killing, W.S.J. (June 29, 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).