George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers Involved in His Death      

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.[1]

Here we will review the public announcement of the case by the lead plaintiff’s lawyer, Ben Crump, the names of the other 11 plaintiff’s attorneys and the background of U.S. District Judge Susan Richard Nelson, who will preside over this case.

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.” A subsequent post will dive into the details of these counts.[2]

Attorney Crump’s Statement

“This is a crisis in Black America — a public health crisis. While all of America is dealing with the public health crisis of the coronavirus pandemic, Black America has to deal with another public health pandemic of police brutality. This is a teachable moment for America.”

In addition to the misconduct for the four ex-policmen, the lawsuit alleges that local officials “with deliberate indifference” have failed to correct the police department’s dangerous arrest practices and train officers properly in the use of force.

“This complaint shows what we have said all along, that it was not just the knee of officer Derek Chauvin on George Floyd’s neck. But it was the knee of the entire Minneapolis Police Department on the neck of George Floyd that killed him. The City of Minneapolis has a history of policies, procedures and deliberate indifference that violates the rights of arrestees, particularly Black men, and highlights the need for officer training and discipline.”

While not specifying how much the family will seek in compensation, Crump said, “This is an unprecedented case, and with this lawsuit we seek to set a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people — especially Black people — in the future.” In short, the case is “the tipping point for policing in America.”

Crump said that how the city leaders react to the demands put forth by the Floyd family lawyers will have consequences. “Their political legacy will be defined by how they respond,” he said.

Other attorneys for the Floyd family, Antonio M. Romanaucci and L. Chris Stewart, also spoke . Ms. Stewart said,  “The Floyd family deserves justice for the inhumane way in which officers with the Minneapolis Police Department killed Mr. Floyd. The city has a responsibility to acknowledge the history and practices of excessive force and impunity with its police force, as well as shortfalls in officer training and discipline.”

Plaintiffs’ Lawyers[3]

The following two Minnesota attorneys are on the Complaint for the plaintiff: Jeffrey S. Storms of the law firm of Newmark Storms Dworak LLC and Michelle R. Gilboe of the law firm of Lewis Brisbois Bisgaard & Smith LLP. In addition, there are the following ten other attorneys for the plaintiff who are not Minnesota attorneys and, therefore, will have to be permitted to participate in this case (pro hac vice) by the Court:

  • Ben Crump of the Ben Crump Law firm of Washington, D.C.
  • Antonio M. Romanaucci, Bhavani Raveendran and Nicolette A. Ward of the Chicago law firm of Romanucci & Blandin, LLC.
  • William Pintas and Laura Mullins of the Chicago firm of Pintas and Mullins Law Firm;
  • Devon M. Jacob of the Jacob Litigation, Inc. firm of Mechanicsburg, PA;
  • Chris Stewart and Justin Miller of the Stewart Trial Attorneys firm of Atlanta, GA; and
  • Scott Masterson of the Minneapolis firm of Lewis Brisbois Bisgaard & Smith, LLP.

Judge Susan Richard Nelson[4]

The case was randomly assigned by the Clerk of Court to the 68 year-old District Judge Susan Richard Nelson, who served as U.S. Magistrate Judge for the District of Minnesota, by appointment of the Court’s judges, June 12, 2000, until she was confirmed as a U.S. District Judge of that court on December 22, 2010, upon recommendation of U.S. Senator Amy Klobuchar, nomination by President Barack Obama and unanimous confirmation by the U.S. Senate. She obtained her B.A. degree with high honors from Oberlin College and her J.D. degree from the University of Pittsburgh Law School. Her initial professional employment was with a Pittsburgh law firm (1977-80) and a New Haven, Connecticut law firm (1980-1983). In 1984 she moved to Minnesota and joined the Minneapolis law firm of Robins, Kaplan, Miller & Ciresi as an associate (1984-88) and then was promoted to partner (1988), where she served until she became a U.S. Magistrate Judge. At the Robins firm, her practice focused on civil trial practice involving complex product liability and mass tort lawsuits.

Conclusion

 After subsequent posts that will examine the details of the three counts of the Complaint, we will await to see what attorneys will be representing the defendants, any potential motions attacking the complaint and the rigors of pretrial discovery (requests for production of documents and responses, written interrogatories and responses, requests for admissions and responses and oral depositions) followed by any possible motions for summary judgment and decisions thereon. Then the case would move to trial. Of course, settlements are always a possibility at any point during this complex (and expensive) process.

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[1] Reuters, George Floyd’s Family Sues Minneapolis and Four Officers Over His Death, N.Y. Times (July 15, 2020); Assoc. Press, Floyd Family Sues Minneapolis Officers Charged in His Death, N.Y. Times (July 15, 2020); Bailey, George Floyd’s family files wrongful-death lawsuit against City of Minneapolis and former officers, Wash. Post (July 15, 2020); Furst & Walsh, George Floyd family sues city of Minneapolis, officers involved citing ‘reckless disregard’ of civil rights, StarTribune (July 15, 2020); Treisman, George Floyd’s Family Files Civil Lawsuit Against Minneapolis And Police, Lawyers Say, MPR News (July 15, 2020); Attorney Ben Crump To File Civil Rights Lawsuit For Floyd’s Family, CBS Minnesota (July 15, 2020) (video of much of Crump’s statement).

[2] Complaint, Schaffer v. Chauvin, Case No, 0.20-cv-01577-SRN-TNL (D. Minn. July 15, 2020). Read the lawsuit filed by family of George Floyd against Minneapolis, four ex-police officers, StarTribune (July 15, 2020).

[3] Complaint at 38-40.

[4] Susan Richard Nelson, Wikipedia; Off the Cuff with Judge Susan Richard Nelson, The Oberlin Review (July 15, 2020).

Pandemic Journal (# 26): Reflections on Life During the Pandemic  

Here are my latest reflections on living through this pandemic.

The morning news on July 1 reported that there have been 10,483,100 people in the world who have been sickened with the coronavirus with 511,540 deaths, all occurring in nearly every country in the world. For the U.S. the numbers are 2,653,200 cases and 127,461 deaths. The recent hotspots are Arizona, Florida, California, Texas, Georgia, North Carolina, South Carolina, Alabama, Tennessee, Washington and Mississippi.[1] My state of Minnesota has had 36,338 cases and 1,476 deaths.[2]

On June 30 in testimony to a U.S. Senate committee, Dr. Anthony S. Fauci, the director of the National Institute of Allergy and Infectious Diseases, said  the rate of new coronavirus infections could more than double to 100,000 a day if current outbreaks were not contained, warning that the virus’s march across the South and the West “puts the entire country at risk.” He added, ““I can’t make an accurate prediction, but it is going to be very disturbing, I will guarantee you that [3]because when you have an outbreak in one part of the country, even though in other parts of the country they are doing well, they are vulnerable.”

These are grim statistics and predictions that are endlessly noted in newspapers and television and radio news programs. As an 81-year-old who has been isolated in his downtown Minneapolis condo building since March 19, all I can do is continue to spend time in my condo with my wife, wear a face mask and “physical distance” at least six feet from other people when I leave the condo to buy groceries, walk in nearby parks and go biking.

While in the condo most of my time is spent reading multiple newspapers on my computer and writing blog posts, usually watching MSNBC at night and occasionally other programs. I have to make time to read books for my men’s book group. Within the last week our building’s swimming pool, hot tub and exercise facilities have re-opened to one or two persons at a time, and I have started to use them again.

I have noted the reports that on June 28, Gilead Sciences announced the pricing for the drug remdesivir, the first drug authorized by the U.S. for treatment of COVID-19. The prices were $3,120 for commercially insured U.S. patients (for the shorter treatment course at $520 per dose) and $5,720 for the longer treatment course. For certain U.S. government programs (but not Medicare or Medicaid) and the rest of the world, the price will be $2,340 (for the shorter course at $390 per dose) and $4,290 (for the longer treatment course).These prices were deemed reasonable by the supposedly independent Institute for Clinical and Economic Review on the basis that use of the drug was expected to enable earlier discharge from the hospital and thereby “save” additional hospital expenses. Gilead’s shares suffered a small decline after the announcement based on certain analysts’ belief that the prices for the drug would be higher.[4]

In my opinion, this is a strange way to assess whether a price is reasonable. The proper method, I thought, was to calculate the cost of producing the drug or other product, after subtracting any costs that had been paid for by the government (or by converting that financial contribution into common or preferred stock and paying dividends to the government), and then adding a percentage of the cost as profit, whose reasonableness could then be assessed.

On May 25th I was shocked to hear the news that George Floyd, an African-American man, had been killed by Minneapolis police in south Minneapolis about 3.5 miles from our condo building. To see the teenage bystander’s video of the last minutes of this human being’s life was excruciating. I did not attend any of the immediate protests at this site, but a couple of weeks ago on a pleasant weekday morning, my wife and I visited the site, which felt like visiting the memorial to a martyred saint. As a result, most of my blog posts since then have been about this killing and the related issues of reforming the Minneapolis and other police departments.

Although I believe that the Minneapolis Police Department needs various reforms, I do not support the City Council’s proposed amendment to the City Charter, which will be discussed in a future post.

I also worry about the U.S. and world economy and the financial struggles of so many people, small businesses, political campaigns and our many worthy nonprofit organizations. This concern was voiced in the June 30th testimony of  Federal Reserve Chairman Jerome H. Powell before the House Financial Services Committee. He stated that although May employment and sales numbers were better than expected, the path forward would depend on both how the virus evolved and a willingness at all levels of government to provide policy support as long as necessary.[5]

I continue to be grateful that I am retired and not worried about keeping or finding a job. Instead I sort through the many requests for contributions and notices of webinars and other ZOOM meetings. I try to respond as I am able.

My church, Westminster Presbyterian in downtown Minneapolis, is shut down because of the pandemic. But every Sunday morning at 10:30 a.m.it has a worship service on ZOOM that is broadcast in the afternoon on local TV station KSTP. Also available on ZOOM are other services on Sundays at 5:00 p.m. and on Wednesdays at 6:00 p.m. Adult education is available on Sundays at 9:15—10:15 a.m. on Zoom. Check the church’s Livestream button for details.

Especially enriching have been Westminster’s conversations with other pastors and theologians about important issues. A future post will discuss the June 21st “Conversation on Big Questions for a Changing Church” between Westminster’s Scholar for Adult Education, Rev. Dr. Matt Skinner, who is a Professor at Luther Seminary, with Rev. Dr. Margaret Aymer of Austin Presbyterian Theological Seminary.

I also continue to be shocked by the incompetence and outrageous comments from the mouth of President Trump and have to restrain myself from letting them distract me.

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[1] Coronavirus Map: Tracking the Global Outbreak, N.Y. Times (July 1, 2020, 9:32 am (EDT)); Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (July 1, 2020, 9:32 am (EDT).

[2] Minnesota Coronavirus Map and Case Count, N.Y. Times (July 1, 2020, 9:32 am (EDT)); Carlson, Minnesota deaths up 6, to 1,441, in COVID-19 pandemic, StarTribune (June 30, 2020).

[3] Stelberg & Weiland, Fauci Says U.S. Could Reach 100,000 Virus cases a Day as Warnings Grow Darker, N.Y. Times (June 30 & July 1, 2020)/

[4] Walker, Covid-19 Drug Remdesivir to Cost $3,120 for Typical Patient, W.S.J. (June 29, 2020); Grant, Gilead Is Wise to Leave Remdesivir Money on the Table, W.S.J. (June 29, 2020); Carlson, COVID-19 drug price deemed ‘reasonable,’ StarTribune (June 29, 2020).

[5] Rappeport & Smialek, Mnuchin and Powell Offer Mixed Views of Economic Recovery, N.Y. Times (June 30, 2020).

 

 

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

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

DerikPolice Chief’s Statement[1]

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

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

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

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

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

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

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

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

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

Kroll’s Statement[3]

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

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

Police Union Officials’ Statements[4]

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

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

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

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

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

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

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

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

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

 

Training New Minneapolis Police Recruits     

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

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

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

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

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

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

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

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

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

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

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

May 25th Calls for Help at George Floyd Scene 

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

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

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

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

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

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

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

 

Court Approves Agreement for Police Conduct Between City of Minneapolis and Minnesota Human Rights Department     

On June 5 The City of Minneapolis and the Minnesota Department of Human Rights signed a Stipulation and Order mandating certain changes for conduct of the City’s police. Most prominent were a ban on the use of choke holds and neck restraints and requiring officers to intervene when inappropriate force is used. The agreement was in the form of a Stipulation and Order for approval of the Hennepin County District Court.[1]

On June 8 that approval was granted by Hennepin County District Judge Karen Janisch.[2] That approval was in the form of a court order for the Minneapolis Police Department immediately to implement  the following measures[3]

  • Ban the use of all neck restraints and chokeholds.
  • Any police officer, regardless of tenure or rank, must report while still on scene if they observe another police officer use any unauthorized use of force, including any chokehold or neck restraint.
  • Any police officer, regardless of tenure or rank, must intervene by verbal and physical means if they observe another police officer use any unauthorized use of force, including any choke hold or neck restraint.
  • Only the Police Chief or the Chief’s designee at the rank of Deputy Chief may approve the use of crowd control weapons, including chemical agents, rubber bullets, flash-bangs, batons, and marking rounds, during protests and demonstrations.
  • The Police Chief must make timely and transparent discipline decisions for police officers as outlined in the order.
  • Civilian body worn camera footage analysts and investigators in the City’s Office of Police Conduct Review have the authority to proactively audit body worn camera footage and file or amend complaints on behalf of the Minneapolis Civil Rights Department.

As a result, the court has the power to enforce compliance with these measures and failure to do so could lead to court-imposed sanctions.

According to Minnesota Commissioner of Human Rights Rebecca Lucero, “Today’s court order will create immediate change for communities of color and Indigenous communities who have suffered generational pain and trauma as a result of systemic and institutional racism and long-standing problems in policing.”

Judge Janisch was appointed to the bench in 2009 by Governor Tim Pawlenty (Rep). and was elected to that position in 2010 and 2016. She obtained her J.D. magna cum laude from the University of Minnesota Law School in 1992 and was a Minnesota Supreme Court law clerk, 1992-93, an associate and partner in a Minneapolis law firm, 1993-2003 and General Counsel to Governor Pawlenty, 2003-2009.

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

[1]  Ban on Police Choke Holds and Neck Restraints in Agreement Between City of Minneapolis and Minnesota Human Rights Department, dwkcomentaries.com (June 6, 2020.)

[2] Press release, Court Orders Minneapolis Police Department to Make Immediate Changes, Minn. Dep’t Human Rts. (June 8, 2020); Griswold, Court orders Minneapolis Police Department to implement immediate changes,  KARE11 News (June 8, 2020).

[3] Stipulation and Order, State of Minnesota v. City of Minneapolis Police Department, City of Minneapolis, Ct. file # 27-CV-20-8182 (Henn. Cty. Dist. Ct. June 8, 2020).

 

Ban on  Police Choke Holds and Neck Restraints in Agreement Between City of Minneapolis and Minnesota Human Rights Department

On June 5, the City of Minneapolis and the Minnesota Department of Human Rights announced an agreement to ban Minneapolis police from using choke holds and neck restraints and to require officers to intervene when inappropriate force is used. The agreement was approved that same day by the Minneapolis City Council and signed by Mayor Jacob Frey, who said, “George Floyd’s service yesterday underscored that justice for George requires more than accountability for the man who killed him – it requires accountability from elected leadership to deep, structural reforms. Today’s agreement with the state will help bring those layers of accountability. This unprecedented energy and momentum for police reform has left Minneapolis poised not just to address our shortcomings, but to become a model for shifting police culture and uprooting systemic racism.” [1]

The agreement is in the form of a Stipulation and Order to be signed by a Hennepin County District Judge after the Department files a lawsuit against the City, which a StarTribune article says happened in the afternoon of June 5, but which was not yet publicly available..[2] This is a result of the Department’s  June 2nd filing a civil rights charge against the City related to the George Floyd death and launching a general investigation of whether and how the Minneapolis Police Department has for the past 10 years engaged in discretionary practices toward people of color.[3]

This Stipulation, if and when it is approved by a district judge, would order the City of Minneapolis as follows:

  1. BAN CHOKEHOLDS: “Within 10 days of the Effective Date, the City will amend Police Department Policy and Procedure Manual §§ 5-100 (Code of Conduct), 5-300 (Use of Force), and 5-311 (Use of Neck Restraints and Choke Holds) to prohibit the use of all neck restraints or choke holds for any reason.”
  2. DUTY TO REPORT: Regardless of tenure or rank, any member of the City’s Police Department who observes another member of the City’s Police Department use any unauthorized use of force, including any choke hold or neck restraint, in violation of this Stipulation and Order, has an affirmative duty to immediately report the incident while still on scene by phone or radio to their Commander or their Commander’s superiors.”
  3. DUTY TO INTERVENE: Regardless of tenure or rank, any member of the City’s Police Department who observes another member of the City’s Police Department use any unauthorized use of force, including any choke hold or neck restraint in violation of this Stipulation and Order, must attempt to safely intervene by verbal and physical means, and if they do not do so shall be subject to discipline to the same severity as if they themselves engaged in the prohibited use of force.”
  4. CROWD CONTROL AUTHORIZATION: During protests and demonstrations, use of all crowd control weapons must be authorized only by the Chief of Police, or if the Chief is unavailable, the Chief’s designee at the rank of Deputy Chief or above. Crowd control weapons include, but are not limited to, chemical agents, rubber bullets, flash-bangs, batons, and marking rounds. The Police Department shall contemporaneously document the person who authorized the use of crowd control weapons and retain such documentation for a period of not less than seven years. Accordingly, within 10 days of the Effective Date, the City will amend Police Department Policy and Procedure Manual § 5-313 to reflect that chemical agents, regardless of canister size, may be used during crowd control situations if authorized only by the Chief of Police, or if the Chief is unavailable, the Chief’s designee at the rank of Deputy Chief or above. Any other provisions of the Police Department Policy and Procedure Manual that identify the authorized use of other crowd control weapons must also be amended within 10 days of the Effective Date to reflect that use of such weapons must be authorized only by the Chief of Police.”
  5. TIMELY DISCIPLINE DECISIONS: For all recommendations that are pending as of the Effective Date of this Stipulation and Order, the Police Chief must issue a decision on any recommendation from the City’s Office of Police Conduct Review (OPCR) within 45 calendar days of the Effective Date. For all recommendations of merit provided by the OPCR after the Effective Date of this Stipulation and Order, and for the duration of this Stipulation and Order, the Police Chief must issue a written memorandum explaining the basis their decision, including the relevant facts, policies and law supporting the decision, within 30 calendar days. If and when permitted by Minn. Stat. § 13.43, the decision and written memorandum will be immediately made available to the public via the City’s website and must also be available for physical inspection. Within 90 calendar days of the Effective Date of this Stipulation and Order, the City shall amend any city ordinances to conform to the requirements of this paragraph. The City shall also amend any city ordinances to fashion an appropriate remedy for the person filing the complaint if a determination on the OPCR’s recommendation of merit is not made within the 30 calendar day time period.”
  6. BODY WORN CAMERA FOOTAGE REVIEW: Civilian body worn camera footage analysts and investigators in the OPCR will have the authority to proactively and strategically audit body worn camera (BWC) footage and file or amend complaints on behalf of the Minneapolis Civil Rights Department. Within 90 calendar days of the Effective Date, the City of Minneapolis will submit to the Department of Human Rights a plan for detailing how it intends to strategically utilize this audit function to identify discriminatory practices in policing, including officer misconduct.”

In addition, the Stipulation, if and when it is approved by a district judge, would order the City of Minneapolis to do certain things to aid the Department’s current investigation as well as the following for “Building Toward Systemic Change:”

  1. “On or before July 30, 2020, the City Attorney shall prepare a report listing the State of Minnesota Laws that impede public transparency of police data and/or prevent the Mayor and Chief of Police and/or impede civilian oversight from disciplining and terminating police officers who do not adhere to Minneapolis Police Department policies and standards. “
  2. “The City shall prohibit all forms of retaliation, intimidation, coercion, or adverse action against any person, including any City employee, who reports misconduct or cooperates with MDHR’s Commissioner’s charge investigation. Any violation of this provision shall be considered a material breach of the Order and may result in further enforcement action by MDHR.“

12.“All forms of retaliation, interference, intimidation, and coercion against a City employee or any member of the public who reports misconduct or cooperates with MDHR’s Commissioner’s charge investigation, are strictly prohibited. This prohibited conduct includes anyone employed by the City’s Police Department, or a representative of such employee, who intentionally aids, abets, incites, compels, or coerces a person to engage in any of the practices forbidden by this Stipulation and Order.”

  1. “The City shall notify all employees that it is unlawful to intentionally obstruct or prevent any person from complying with the MHRA, MDHR’s Commissioner’s Charge investigation, or any order issued thereunder, or to resist, prevent, impede, or interfere with the Commissioner or any of the Commissioner’s employees or representatives in the performance of their duties.”

Minneapolis Mayor Jacob Frey said, ““George Floyd’s service yesterday underscored that justice for George requires more than accountability for the man who killed him — it requires accountability from elected leadership to deep, structural reforms.”

Presumably the Minneapolis Police Union has a right to intervene in this lawsuit and to oppose the proposed Stipulation and Order that would have to be ruled on by the district court.

We will wait to see whether they do so and what happens.

Reactions

These proposed revisions of the MPD Manual, in this blogger’s opinion, should be approved by the court after a hearing.

If and when approved by the court, however, they would only go into effect for subsequent actions by the police. Therefore, they are not relevant to the pending criminal cases about the killing of George Floyd. However, provisions of the existing MPD Manual will be relevant to these cases as discussed below.

Case Against Derek Chauvin[4]

That  Manual states that a “Choke Hold’s 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.” (Manual sec. 5-311.)

  • 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.”
  • 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.”

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.”

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.”

Case Against Other Officers

The existing MPD Manual, under the heading “Duty To Intervene” states: “ Sworn employees have an obligation to protect the public and other employees.” (Manual sec. 5-303.01(A).) And “It shall be the duty of every sworn employee present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.” (Manual sec. 5-303.01(B).)

Conclusion

 Subsequent posts will cover the future court hearing and decision on the proposed changes to the MPD Manual while other posts will analyze the pending criminal cases and developments.

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[1] Navratil,Tentative agreement would ban chokeholds, neck restraints by Minneapolis police, StarTribune (June 5, 2020); Minneapolis to ban the use of chokeholds in response to George Floyd’s death, N.Y. Times (June 5, 2020); Governor Walz, Walz-Flanagan Administration, City of Minneapolis Agree on Immediate Changes to Minneapolis Police Department Policies (June 5, 2020); Chavez, Sanchez & Alonso, Minneapolis City council votes to ban chokeholds one day after George Floyd memorial, cnn.com (June 5, 2020); Collins, Chapman, Martinez & Li, Weekend George Floyd Protests Planned, Seeking Reforms, W.S.J. (June 5, 2020); ‘Layers of accountability’: Mayor Jacob Frey Signs Restraining Order Forcing Immediate Reforms in Mpls. Police Dept., CBS Minnesota (June 5, 2020).

[2] Stipulation and Order [unsigned], State of Minnesota v. City of Minneapolis Police Department, City of Minneapolis (undated2020) (unsigned).

[3] Berkl & Navratil, Minnesota Human Rights Department launches probe into Minneapolis police, StarTribune (June 3, 2020);

Minn. Dep’t Human Rts., Civil Rights Investigation into Minneapolis Police Department (June 3, 3030); Governor Walz, Walz Administration’s Department of Human Rights Files Civil Rights Charge Against Minneapolis Police Department (June 2, 2020).

[4] MacFarquar, In George Floyd’s Death, a Police Technique Results in a Too-Familiar Tragedy, N.Y.Times (May 29, 2020).

 

What Happened to George Floyd in Minneapolis on May 25, 2020

By now, everyone in the U.S. and the rest of the world knows or could know that on the evening of May 25 in Minneapolis, Minnesota (at 38th Street and Chicago Avenue) George Floyd, a 46-year-old African American man, was killed by a Minneapolis policeman (Derek Chauvin) in the presence of three other Minneapolis policemen (Alexander Keung, J. Alexander Lane and Tou Thao).[1] Here is what is believed to be a fair summary of those horrendous 17 minutes of police encounters with Floyd and certain preceding events that evening:

  • That evening Floyd buys a package of cigarettes at a convenience store (Cup Foods) and pays for it with a $20 bill.
  • After Floyd left the store, a store employee inspects the $20 bill and believes it is forged. Two store employees then go outside and see Floyd in the driver’s seat of a dark blue Mercedes SUV across 38th Street .     
  • The two store employees go to the SUV and one of them from the driver’s side and the other from the passenger’s side of the SUV ask for the return of the package of cigarettes of a man in the passenger seat and Floyd in the driver’s seat. The request is denied.
  • The two employees return to the store and presumably one of them or another employee dials 911 to report a customer who had paid for cigarettes with an alleged forged $20 bill. They apparently also said that the African-American man appeared to be drunk and was now in a SUV across the street from the store.
  • At 8:08 p.m. two MPD officers (Lane and Keung) arrive at the scene and a store employee directs them to an African-American man (Floyd) in the driver’s seat of the Mercedes SUV across 38th Street.  This starts the approximate 17 minutes of police encounters with Floyd before he is removed on a gurney by medics in an ambulance.
  • Lane arrives at the driver’s side of this SUV and with his revolver drawn tells the African-American man (Floyd) to put his hands on the steering wheel. Floyd immediately does so without resistance and Lane puts the revolver back in his holster.
  • Lane then pulls Floyd out of the car, and he and Keung handcuff  Floyd’s hands behind his back and take him across the sidewalk and seat him on the sidewalk with his back to the brick wall, all without any resistance by Floyd.
  • At 8:14 p.m. Lane and Keurig had Floyd get up from the sidewalk and walk across 38th Street to their squad car and tried to get him into the back seat. Floyd said he was not resisting, but could not get into back seat because he is claustrophobic. But officers get him into the back seat.
  • At 8:19 p.m. Officers Chauvin and Thao arrive at the scene in a different squad car. Chauvin pulled Floyd out of the back seat of the first squad car with Floyd, still handcuffed, who falls to the pavement. Clausen then puts his left knee on the neck of the fallen Floyd while Kueng held Floyd’s back and Lane one of his legs.
  • At some time Lane asked Chauvin if they should roll Floyd on his side, but Chauvin says “no” and the officers do not change what they are doing.
  • At 8:24 p.m. Floyd stopped moving.
  • At 8:25 p.m. Floyd appeared to stop breathing and Lane asked again if they should move Floyd onto his side, but Chauvin again refused to do so.
  • At 8:27 p.m. Chauvin moved his leg off Floyd’s neck or 8 minutes and 46 seconds after he had placed his knee on the neck and 2 minutes and 53 seconds after Floyd had become non-responsive. The latter happened when an ambulance and emergency medics arrived and placed Floyd on a gurney to go the Hennepin County Medical Center..
  • At 9:25 p.m. Floyd was pronounced dead at the Medical Center after an hour of unsuccessful attempts to revive him.

Subsequent posts will examine the criminal charges brought against Chauvin and then against the other three policemen, their initial court appearances, initial comments by Hennepin County Attorney Mike Freenman, subsequent comments by Minnesota Attorney General Keith Ellison and the commencement of efforts to change and reform various aspects of Minnesota and federal criminal law and procedure.

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[1] E.g., 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);  Hennesy & LeBlanc, 8:46: A number becomes a potent symbol of police brutality, Star Tribune (June 4, 2020); Xiong, A timeline of events leading to George Floyd’s death as outlined in charging documents, StarTribune (June 4, 2020).