Tag: neck restraints

Federal Criminal Trial for Killing of George Floyd: Defendant Tou Thau’s  Testimony

At the end of the prosecution’s case on February 14, Attorneys for all three officers immediately moved to have charges dismissed, but Judge Magnuson denied their motions from the bench, though he said he would consider written briefs on the subject.

Then two of the three defendants —J. Alexander Kueng and Tou Thau–said they intend to testify in their defense. The other defendant—Thomas Lane—at the start of the trial through his attorney said he also so intended, but on February 14, his attorney said Lane wanted to think about it overnight.[1]

Here then is a summary of the testimony of the first defendant, Tou Thao.

Tou Thao[2]

Thao said he first encountered police when he was 7 or 8 years old and his father beat him and a younger brother with an extension cord to break up their fight and when their mother intervened, the father beat her with the cord and retrieved a gun and threatened to kill them all. The three of them then fled to an aunt’s nearby house and called 911. When the police arrived, he accompanied them to the family home and unlocked the door so the police could arrest his father.

Years later after he flunked out of Anoka-Ramsey Community College and was working at Cub Foods, he decided to pursue his childhood interest in becoming a police officer. He is married  with three young children.

Thao testified that in his 2009 police training, pinning a suspect on the ground with a knee was presented as an appropriate technique in certain situations. Thao provided these photos from his training: (a) two recruits using their knees  in a “two-person prone handcuffing drill” with a person face-down on the ground; (b) two officers holding two “proned-out” (on their stomachs) people, one is handcuffed while the other is being handcuffed; (c) Thao and another classmate with an actor-suspect prone, hands behind his back, and Thao said the two classmates both were using their knees to restrain the “suspect;” (d) recruits marching in formation with sticks for riot control; (e) cops practicing with gas masks while being sprayed with tear gas; (f) trainees in Phalanx formation (V-shape). They also had cadence running when instructor would say something and the recruits would respond in chorus. Thao says he was never told it was improper to use knees to restrain except wrapping their legs around a suspect’s neck was prohibited.

After this training he was laid off and was unemployed before he was hired as a security guard at Fairview Riverside Hospital in Minneapolis for almost a year before he was re-hired by MPD. There he saw notations in hospital records for excited delirium. Sometimes a doctor or nurse asked him to restrain a patient.

On May 25, 2020, while eating dinner with his partner Derek Chauvin they were called to respond to an out-of-sector forgery call. It was a “Priority 1 call—get there fast, suspect still on scene.” While going there in a squad car with Chauvin, they were told over the phone or radio that there was a struggle with the suspect (Floyd) so they activated their car’s lights and siren, but after being told the scene was OK, they turned them off. Dispatch called them off the call, but they continued to Cup Foods because it had a reputation of being hostile to police as a well-known Bloods gang hideout.

Thao  said when he and Chauvin arrived, the other officers were struggling with Floyd to put him in a squad car and for Thao it was obvious Floyd “was under the influence of some kind of drugs” and in a state of “excited delirium.” Although Thao heard Floyd saying, “I can’t breathe,” he could not see anything that would have interfered with his breathing.

While at the scene, Thao pulled out of his squad car a hobble device to help restrain Floyd, but the officers decided not to use it because it would have complicated the work of the ambulance crew on their way there. Thao also called Dispatch to speed up the EMS response because he knew it was a matter of “life or death.”

Thao said he had “no idea” something serious had happened to Floyd until Minneapolis firefighters arrived on the scene after Floyd had been taken away in an ambulance. Until then, he testified, he had no idea something serious had happened to Floyd. In all of this, Thao never touched Floyd.

Under cross examination, Thao admitted that Floyd appeared unconscious at the scene, that officers have a duty to intervene when colleagues break the law and delaying CPR for even a minute can greatly diminish a person’s chances of survival.  He also said “it was a possibility” that when he was looking down at Floyd on the pavement, he knew what was going on. Thao testified that he was taught that it sometimes was OK to use neck restraints to help handcuff someone. But Thao agreed that using a knee to get someone under control is different from using it to restrain someone who’s already handcuffed — and that the neck should be avoided once someone is under control. Asked if what Chauvin was doing was a trained neck restraint, Thao replied, “I don’t believe so.”

Thao said he took a position on the street to serve as a “human traffic cone” to keep human traffic away from the other officers. He heard onlookers becoming more anxious about Floyd’s condition and calling on them to check his pulse. He, however, did not see any of the other officers roll Floyd over and perform CPR and presumed that meant Floyd was breathing and not in cardiac arrest. Thao also explained his body cam video at the scene.

At four minutes into restraint, Thao admits Floyd’s pleas were getting weaker. But, he says, that is a sign that the restraint was working. If Floyd had excited delirium, he needs to be kept on the ground. During the fifth minute, he admits no bystanders have stepped off the curb or taken steps toward him, but we’re trained not to underestimate a crowd. He refuses to admit that he could check on Floyd’s status. He did not tell his partners what bystanders were saying. Nor did he tell them that Floyd had “stopped speaking, went unconscious and that [he] had gotten requests from the crowd to check his pulse.”

In his prior interview by the MBCA, Thao said, “I could tell the officers on the ground were getting tired. Everyone’s breathing hard.”

Seng Yang.

Thao’s wife, Seng Yang testified briefly that her husband was law-abiding.

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[1] Olson & Xiong, At least two ex-officers plan to testify in federal civil rights trial as defense prepares to present its case, StarTribune (Feb. 14, 2022); Forliti & Karnowski, Prosecution rests in 3 cops’ trial in George Floyd killing. AP News (Feb. 14, 2022); Bailey, Prosecution’s case against former officers charged in George Floyd’s death ends with teenage witness, Wash. Post (Feb. 14, 2022);

[2] Vera & Kirkos, First of the officers involved in George Floyd’s death testifies during federal civil rights trial, CNN.com (Feb. 15, 2022); Xiong & Olson, Ex-officer Tou Thao takes the stand in civil rights trial for Floyd death, StarTribune (Feb. 15, 2022); Karnowski & Webber, Officer in George Floyd’s killing testifies about training, AP News (Feb. 15, 2022); Karnowski & Webber, Officer says he assumed fellow cops were caring for Floyd, AP News (Feb. 15, 2022); Barrett, Former Minneapolis Police Officer Takes Stand in Federal Trial Over George Floyd’s Killing, W.S.J. (Feb. 15, 2022); Olson & Mannix, Thao testifies he didn’t convey crowd’s concerns about George Floyd to Chauvin, Kueng takes the stand, StarTribune (Feb. 16, 2022); Karnowski & Webber, 2 officers testify at federal trial in George Floyd killing, AP News (Feb. 16, 2022).

 

 

Results of 9/11/20 Hearing in George Floyd Criminal Cases

Information about what happened at the 9/11/20 hearing is provided by many media reports.[1] Here is a summary of those reports, again following the court’s Agenda for the hearing.

State’s Motions

Joint Trial. The State’s arguments were presented by Special Assistant Attorney General Neal Katyal, the famous attorney, law professor and commentator from Washington, D.C. He argued that the evidence against all four defendants is similar, that witnesses and family members are “likely to be traumatized by multiple trials” and that the interests of justice necessitate a single trial because separate trials would taint future juries. He also said, “The defendants watched the air go out of Mr. Floyd’s body together. And the defendants caused Mr. Floyd’s death together.”

Thao’s attorney responded to the last point by arguing that the jury pool already has been tainted by comments about the case by Attorney General Ellison and others.

A St. Paul attorney who is not involved in the case, Paul Applebaum, said, “it’s going to be tough for the defense attorneys to get the cases separated, partly because it would be difficult for Chauvin to blame the other officers for the charges of murder and manslaughter against him, but also because of the burden of holding four separate trials.”

Aggravating Factors for Upward Sentencing. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In  its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of  neck and upper body restraints.  In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.[2]

Defendant’s Motions

 Motions for Change of Venue. Judge Cahill said it was too early to decide on a change of venue for the trial. He noted that Hennepin County District Court has been sending questionnaires to potential jurors to complete at home because of COVID risks and for the sake of expediency and that the court could start polling potential jurors ahead of the scheduled March 8 trial.

But two of the defense attorneys argued that the questionnaires should be completed in person at the courthouse because it carries more weight and meaning. Assistant Attorney General Matthew Frank agreed.

In response to defense arguments about adverse public opinion in Hennepin County, the Judge asked one of them, “There really isn’t a country, would you agree, or a state in this country where there hasn’t been a lot of publicity about George Floyd’s death?”

Jury Sequestration. The Judge said “it would be almost cruel to keep them in on weeks at a time. Instead, he suggested they be “semi-sequestered:”  jurors drive to court each day for deputies to escort them from their vehicles to a secure elevator, have their lunches brought in to the jury room and then have them escorted back to their vehicles.

Motion to Disqualify HCAO [Hennepin County Attorney’s Office]. From the bench Judge Cahill said the HCAO’s work “sloppy” because they sent prosecutors to question the medical examiner, making them witnesses in the case. Therefore, he disqualified County Attorney Freeman and three assistants who questioned the Examiner because they are potential witnesses. However, others from the Office were not disqualified.

Afterwards Freeman and the Minnesota Attorney General requested reconsideration of this decision, which Judge Cahill granted. The request stated, “Any suggestion by Judge Cahill that the work of . . . [two Assistant County Attorneys] was sloppy was incorrect. The . . .[HCAO] fully stands by the work, dedication and commitment of two of the state’s best prosecutors. That third party mentioned by Judge Cahill does not need to be a non-attorney. [The two attorneys in question] asked to leave the case on June 3 and Frank [the other attorney in question] is the attorney of record, making . . .[the other two attorneys] valid third-parties and eligible to be called as witnesses by the defense. This HCAO decision is consistent with the relevant Minnesota Supreme Court case.

Rule 404 Evidence Motions. The Judge denied defense’s intent to offer evidence regarding Floyd’s arrest and conviction in Texas as it was irrelevant. He also denied the defense request for evidence regarding Floyd’s 05/06/19 medical incident at the Hennepin County Medical Center although he said it could come up at a later date.

Administrative Matters

Jury Selection. The Judge said that he anticipates jury selection will take two weeks with each prospective juror to take the witness stand for questioning by the attorneys.

COVID-19 Restrictions. The Judge said these restrictions would be in place with overflow rooms for family and press.

Trail Length. The Judge said he anticipates a four-week trial.

Conclusion

Although I was not in the courtroom to observe the Judge, the journalists’ reports suggest that the Judge is leaning towards a consolidated trial of all four defendants in Hennepin County under his supervision.

During the 3.5 hour hearing a highly organized, peaceful group of several hundred protesters gathered in front of the heavily fortified Family Justice Center. At first they laid silently on the ground for eight minutes and 46 seconds, which was the initially reported duration of the police pinning of Floyd on the pavement on May 25th (that figure was incorrect; the corrected number is seven minutes and 46 seconds).[3] When they rose, Marvin Gaye’s recorded voice sang, “Mother, mother, there’s too many of you crying” (the first verse from the late singer’s 1970 song “What’s going on”).

The protesters then repeatedly chanted, “Indict, Convict, Send These Killer Cops to Jail. The Whole Damn System Is Guilty As Hell!” Another call was “Say his name!” with the “George Floyd” response. Another: “Who killed him?” and “MPD.” The messages on their signs included the following: “No clemency for killer kkkops” and “Recall Freeman” and a reconfigured MPD badge to say “Murderous City of Lakes Police.”

When Lane and Kueng and their attorneys left the building, they were met by protestors yelling “Murderer!” The crowd then remained until Floyd’s family members left the building, and many of the protestors turned into a dance line, including the Electric Slide.

The protestors apparently are not aware that their protests are ammunition for the defendants’ arguments for transferring the cases to another county, where emotions are not so virulent. The protestors should adopt a different strategy.

After the hearing, Ben Crump, an attorney for the Floyd family, publicly expressed outrage over defense suggestions that Floyd’s use of drugs or earlier run-ins with the police were relevant to the killing of Floyd. “The only overdose was an overdose of excessive force and racism. It is a blatant attempt to kill George Floyd a second time.”

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[1]  Xiong & Olson, Judge disqualifies some in Mike Freeman’s office for ‘sloppy work’ in George Floyd case, StarTribune (Sept. 11, 2020); LIVE UPDATES: Tentative 2-week jury selection, 4-week trial format for George Floyd case, kstp.com (Sept. 11, 2020); Judge In Floyd Case Disqualifies Members of Hennepin co. Attorney’s Office, minnesota.cbslocal.com (Sept. 11, 2020); Olson, Protestors confront former Minneapolis police officers with shouts of ‘murderer,’ StarTribune (Sept. 11, 2020); Protestors Shout At Former MPD Officers As They Exit Pretrial Hearing in George Floyd Case, minnesota.cbslocal.com (Sept. 11, 2020); Collins & Williams, George Floyd killing: Judge disqualifies Freeman from cops’ trial, MPRNews (Sept. 11, 2020); Read Hennepin County Attorney Mike Freeman’s response to being disqualified from George Floyd case, StarTribune (Sept. 11, 2020); Furber, Arango & Eligon, Police Veteran Charged in George Floyd Killing Had Used Neck Restraints Before, N.Y. Times (Sept. 11, 2020); Bailey, Prosecutors allege former Minneapolis officer used neck restraint in several other cases before George Floyd’s death, Wash. Post (Sept. 11, 2020); George Floyd’s Family Lawyer Pushes Back on Police Claims (video), N.Y.Times (Sept. 11, 2020); Officers charged in George Floyd killing seek to place blame on one another, Guardian (Sept. 11, 2020).

[2] State’s Notice of Intent To Offer Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Court Sept. 10, 2020).

[3] Revised Length of Time for Minneapolis Police Restraint of George Floyd. dwkcommentaries.com (June 18, 2020).

 

George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count III       

As noted in a prior post, on July 15, the family of George Floyd filed a federal civil action with two claims (Counts II and III) for money damages against the City of Minneapolis and one claim (Count I) against the four ex-police officers who were involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng. This post will discuss Count III.[1] while Counts I and  II were discussed in prior posts.

Legal Basis

Count III is asserted against the City of Minneapolis under 42 U.S.C. section 1983, which states as follows:

  • “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

Count III also is based upon so-called “Canton Liability,” which refers to the U.S. Supreme Court case, Canton v. Harris, 489 U.S. 378 (1989), which held that a municipality may be held liable under section 1983 for constitutional violations resulting from its failure to train its employees where such failure to train in a relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the police come into contact.

Factual Allegations

The Parties

“6. Plaintiff Kaarin Nelson Schaffer (“Schaffer”) resides in Hennepin county, Minnesota, and is an attorney duly licensed to practice before the State and Federal; Courts of Minnesota. On July 6, 2020, Schaffer was appointed as trustee for George Floyd’s next of kin.”

“7. Mr. Floyd is survived by next of kin including his children and siblings.”

“8. Minneapolis is and was at all times material hereto a political subdivision of the State of Minnesota, organized and existing under and by virtue of the laws of Minnesota.”

“9. The Minneapolis Police Department (“MPD”) is and was at all times material hereto a Minneapolis agency, providing the vehicle through which the City fulfills its policing functions.”

“Count III – 42 U.S.C. §1983 – Canton Liability”

“247. Plaintiff hereby incorporates and re-alleges all preceding paragraphs as though fully pleaded herein.”

“248.Minneapolis failed to properly train or modify its training to Defendant Officers and its other officers, including but not limited to, matters related to the reasonable and appropriate use of force during such arrests, and intervention in the excessive use offorce by fellow officers.”

“249. Effectuating an arrest, using force to effectuate an arrest, and intervening in the use of force is a usual and recurring situation with which Minneapolis law enforcement officers and other agents encounter on a regular basis.”

“250. As such, Minneapolis was aware of a need for more and different training.Minneapolis specifically knew that its officers needed training regarding the use of prone restraint and was required to provide its officers with such training.”

“251. Minneapolis also specifically knew that its officers needed specific training on the use of neck restraints.”

“252. With deliberate indifference to the rights of citizens, Minneapolis failed to provide adequate training to its officers on the use of prone and neck restraint.”

“253.Minneapolis was aware that deprivation of the constitutional rights of citizens was likely to result from its lack of training and the failure to modify its training.”

“254. As such, Minneapolis was deliberately indifferent and exhibited reckless disregard with respect to the potential violation of constitutional rights.”

“255. The failure to train and/or to appropriately modify training constituted official Minneapolis policies, practices, or customs.”

“256. Minneapolis’s failure to train and/or to modify training was behind the acts and omissions the Defendant Officers made toward Mr. Floyd.”

“257. As a direct and proximate result of Minneapolis’s acts and omissions, Mr. Floyd suffered injuries, experienced pain and suffering, and ultimately died.”

“258. As a direct and proximate result of the acts and omissions described herein, Mr. Floyd suffered compensatory and special damages as defined under federal common law and in an amount to be determined by jury.”

“259. Plaintiff is entitled to recovery of costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988.”

“260. The conduct described in all of the preceding paragraphs amount to wrongful acts and omissions for purposes of Minnesota Statute Section 573.02, subdivision 1.”

“261. As a direct and proximate result of these wrongful acts and omissions, Mr. Floyd’s next of kin have suffered pecuniary loss, including medical and funeral expenses,loss of aid, counsel, guidance, advice, assistance, protection, and support in an amount to be determined by jury.“

Conclusion

All of the legal references and assertions by the parties, of course, are subject to legal research to determine their current validity in light of any subsequent federal statutes and decisions by the U.S. Supreme Court and lower federal courts, especially by the U.S. District Court for the District of Minnesota and its direct appellate court (the U.S. Court of Appeals for the Eighth Circuit).As previously noted, Count I of this Complaint against the four ex-officers and Count II against the City have been covered in prior posts.[2]

Now we await the defendants’ responses to this Complaint and other further developments in this civil case and in the criminal cases against the four ex-officers.

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[1] Read the lawsuit filed by family of George Floyd against Minneapolis, four ex-police officers, StarTribune (July 15, 2020).

[2] George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death, dwkcommentaries.com (July  17, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count II, dwkcommentaries.com (July 18, 2020).

 

Use of Chokeholds and Neck Restraints by Other Minnesota Police Departments   

MINNPOST (a nonprofit, nonpartisan online news service) recently contacted 21 Minnesota police departments, most outside the Twin Cities metro area, to find out whether they allowed chokeholds and neck restraints.[1]

Of these departments, 18 said their officers are not allowed to use neck restraints or chokeholds of any kind — except as deadly force if the officer fears for his own life. They included Anoka County, Austin, Brainerd, Brooklyn Park, Duluth, Fergus Falls, Mankato, Moorhead, Rochester, Sartell, Sherburne County, St. Louis County, St. Paul, Stearns County and the Minnesota State Patrol.

The bans in Rochester and Brooklyn Park were only imposed last week even though vascular neck restraints could help shorter officers, especially women, take someone bigger into custody.

Many said “the practices had been out of use for as long as they could remember, largely because they can be dangerous.” The New Ulm police chief Dave Borchert, said, “I was actually surprised when I learned that Minneapolis still had it to be honest with you. I would have thought that would have been gone for decades.”

Three (Winona, Willmar and Bloomington) said their officers currently are allowed to use the non-lethal form of neck restraint:

  • According to Winona’s Deputy Chief Tom Williams, its “police are trained to use a vascular restraint that cuts off blood flow to knock someone unconscious.’ For example, “it can be used when you’re ‘grappling with someone’ in close contact and can’t reach other weapons like a taser. Police are supposed to incapacitate a person, then give them aid and make sure blood is returning to their head. Winona police can also use a respiratory chokehold to cut off air flow, but it can only be used as deadly force.”
  • In Willmar, “police captain Mike Anderson said his department teaches a ‘shoulder pin restraint,’ where an officer applies pressure to one side of a person’s neck but doesn’t cut off air supply. They do not teach chokeholds.”
  • The deputy chief of the Bloomington Police Department, Mike Hartley, said his department authorizes a vascular neck hold, which can be used to knock someone temporarily unconscious. While he said the department is always evaluating the effectiveness and safety of its techniques, they’re not considering eliminating the hold right now.

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[1] Orenstein, How common is it for Minneapolis police departments to authorize chokeholds, ‘neck restraints,’ MINNPOST (June 15, 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?

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

 

[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).

 

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.

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

[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).