Derek Chauvin Trial: Court Finds Aggravating Factors for Sentencing

On May 11, Judge Peter Cahill issued an opinion finding that there are “beyond a reasonable doubt” four  aggravating factors in the killing of George Floyd last year that clear the way to sentence Derek Chauvin, the fired Minneapolis police officer,to a prison term above state guidelines. [1]

These factors are the following: (1) Chauvin “abused a position of trust and authority” as a police officer; (2) he “treated George Floyd with particular cruelty;” (3) children were present when Floyd was pinned to the pavement at 38th and Chicago for more than 9 minutes until he died; and (4) Chauvin committed the crime with “active participation” of others, namely three fellow officers.

Under Minnesota law, even though Chauvin was convicted on all three counts—second and third degree murder and second degree manslaughter—he may be sentenced only on the most serious charge (second-degree murder) because all charges stem from one act carried out against one person.  Although second-degree murder has a maximum of sentence of 40 years. the practical maximum, say legal experts, is 30 years even with the above aggravating factors.

These legal conclusions come from a 1981 Minnesota Supreme Court case (State v. Evans), which held that generally when an upward departure is justified “the upper limit will be double the presumptive sentence length,” which for someone like Chauvin with no criminal record would be 12 and ½ years.

Ted Sampsell-Jones, a professor at the Mitchell Hamline School of Law and an appellate criminal defense attorney, added that with such a maximum sentence, the  first 20 years would be served in prison and the balance on supervised release, if Chauvin qualifies.

The actual sentencing of Chauvin is scheduled for June 25.

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[1] Verdict and Findings of Fact Regarding Aggravated Sentencing Factors, State V. Chauvin, Court fFle No. 27-CR-20-12646, Hennepin County District Court, May 11, 2021), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/Order05112021.pdf; Walsh, Judge backs most aggravating factors in Chauvin trial, clearing way for longer prison term, StarTribune (May 12, 2021); Ferliti (AP), EXPLAINER: How will judge’s ruling affect Chauvin sentence?, Wash. Post (May 12, 2021); Eligon, Chauvin May Face Longer Sentence Over ‘Cruel’ Actions and Abuse of Power, N.Y. Times (May 12, 2021).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court Sustains Most Charges in George Floyd Criminal Cases  

On October 21, Hennepin County District Court Judge Peter Cahill, with one exception, denied the four defendants’ motions to dismiss all criminal charges for alleged lack of probable cause in the George Floyd criminal cases. The exception was the charge of third-degree murder against Derek Chauvin, which was dismissed. These orders and the reasons for same are contained in the Court’s 107-page Order and Opinion on the four defendants’’ motions to dismiss for lack of probable cause.[1]

In so doing, the Court properly stressed that under Minnesota law its evaluation of  these dismissal motions is “to assess whether the State has come forward with sufficient admissible evidence on each element of the charges . . .to warrant binding each of the Defendants over for trial . . . to accept as true all the allegations made by the State in its Statements of Probable Cause . . . [and to] draw in the State’s favor all inferences that may reasonably be drawn from those facts.” (Pp. 7-8.)

Here, we will review the main points in the court’s sustaining the charges of second-degree unintentional murder and second-degree manslaughter against Derek Chauvin and the charges against the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thau) for aiding and abetting these charges. Discussion of the dismissal of the third-degree murder charge against Chauvin will be left to the newspaper articles that are cited below.

Finding Probable Cause for Charge of Second-Degree Murder Against Chauvin

 Under the above standard for evaluating such dismissal motions, the court concluded that there was probable cause that the prosecution had established probable cause for the following requirements for this crime: (i) Floyd died; (ii) “Chauvin’s conduct was a substantial causal factor in Floyd’s death;” (iii) “Chauvin intentionally inflicted or attempted to inflict bodily harm on Floyd or intended to cause Floyd to fear immediate bodily harm or death;: and (iv) “Chauvin inflicted substantial bodily harm on Floyd.” (Pp. 35-53.)

In the process of reaching these conclusions, the Court said: (i) “Chauvin never relented and never lessened the pressure of his knee against Floyd’s neck even when Floyd pleaded: ‘I can’t breathe. Please, your knew in my neck’’” (p. 39); and (ii) “Notwithstanding Floyd having gone silent and motionless, the mounting evidence of his lost consciousness, the plaintiff cries and demands from the bystanders, and the obvious reality that Floyd was no longer resisting or non-compliant, Chauvin’s demeanor never changed, and he continued kneeling on Floyd’s neck applying constant pressure to pin Floyd’s face to the pavement for an additional two and a half minutes” (p. 41).

These statements followed  the Court’s “Factual Background,” which stated, in part, the following:

  • “The Critical Nine Plus Minutes between 8:19:18 and 8:28:42 P.M.: Floyd Is Subdued and Restrained Prone in the Street, with Chauvin Kneeling on the Back of Floyd’s Neck, Pinning His Face to the Street, Kueng and Lane Restraining and Pinning Floyd’s Back and Legs to the Street, and Thao Maintaining Bystander Watch.” (p. 22).
  • “Floyd uttered his final words ‘Please,’ at 8:23:55 p.m., and ‘I can’t breathe,’at 8:23:59 p.m.. . . Floyd then fell silent.”  (p. 25.)
  • “Even after Floyd ceased talking and moving and went limp, Defendants maintained their positions.” (p. 25)
  • “As Floyd lost consciousness and shortly before uttering his final words, Lane asked Chauvin and Kueng: ‘Should we roll him on his side?’ Citing concern ‘about the exited delirium or whatever . . .[and] Chauvin rejected Lane’s suggestion, stating that the ambulance was en route.” (p. 25)
  • “Neither Lane nor Kueng did anything to challenge Chauvin’s answer. Instead, they remained in the same position and continued to hold down Floyd’s back and legs.” (p. 25)
  • “After hearing the bystanders’ pleas to check Floyd for a pulse [8:25:40-8-8:26:05 p.m.], Lane asked Kueng if he could detect a pulse. After checking Floyd’s wrist for about ten seconds, Kueng reported: ‘I can’t find one [a pulse].[8:25:45-8:26:00].” (p. 27.)
  • “Kueng continued to check Floyd for a pulse. About ten seconds later, Kueng sighed, leaned back slightly, and repeated: ‘I can’t find one.” [8:26:07-12.] (p. 27.)
  • “[8:26:12-18] Upon learning that Keung could not find a pulse, Chauvin squeezed Floyd’s fingers. Floyd did not respond.” (p. 27/)
  • “Even though Floyd remained unresponsive, the Defendants did not move from their positions. They continued to restrain Floyd—Chauvin with his left knee pressed firmly into Floyd’s neck, Kueng kneeling on Floyd’s back, and Lane holding Floyd’s legs—while Thao kept bystanders back on the sidewalk. They also ignored the off-duty firefighter’s urgent demands that they check Floyd for a pulse and begin chest compressions if he had no pulse. . . None of the Defendants ever attempted PR while Floyd was on the ground.” (pp. 27-28)
  • “At 8:27 p.m., an ambulance arrived on the scene. . . . Still, Chauvin, Kueng, Lane, and Thao did not move from their positions. . . . Indeed, even as Lane explained to emergency personnel that Floyd was ‘not responsive right now,’ Chauvin kept his knee on Floyd’s neck (8:27:36-38).” (p. 28)
  • “[F]or more than a minute after the emergency personnel arrived, Chauvin continued to press Floyd face-down into the pavement, Lane knelt over Floyd’s legs, and Thao continued to push back the crowd.” (p. 28)
  • At 8:28:42 p.m., when the stretcher was ready, Chauvin finally stood up, removing his knee from Floyd’s neck. . . .Floyd remained unresponsive.” (p. 28)
  • “In total, Floyd was subdued, pinned face-down in the street—with Chauvin’s knee pressing into his neck and Kueng and Lane restraining his back and legs—for more than nine minutes and twenty seconds.(8:19:18-8:28:42 p.m.) For over four minutes and forty seconds, Floyd did not speak. (8:24:00-8:28:42) For almost three and a half minutes, Floyd appeared not to be breathing. (8:25:15-8:28:42 p.m.) And for more than two and a half minutes, the Defendants were unable to locate a pulse. (8:25:10-8:28:42). Yet over that entire time period, Defendants remained in the same positions: Chauvin continued to kneel with his left knee pressed firmly down on Floyd’s neck pinning Floyd’s face into the street, Kueng and Lane remained atop Floyd’s back and legs, and Thao continued to prevent the crowd of concerned citizens from interceding.” (p. 29)

Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Murder Against Other Defendants

 Under the previously cited standard for evaluating such dismissal motions, the court concluded “the evidence the State relies upon is sufficient for probable cause purposes for the State’s charges that Thao, Lane and Kueng each independently aided and abetted Floyd’s second-degree unintentional murder by Chauvin.” (p. 79.)

The previously discussed evidence supports a potential jury conclusion “that Lane knew Chauvin was intentionally committing an assault that inflicted substantial bodily harm on Floyd”  and that “Lane  intended to aid Chauvin in the assault on Floyd.” (Pp. 79-91.) The same was true for Kueng (pp 91-94) and Thao (pp. 94-99).

Additional comments on Thao were required because “at no point was he involved in the efforts to physically restrain Floyd. Rather, his role was primarily to maintain watch over the growing crowd of bystanders.”  (Pp. 94-99.) But “a jury could conclude, on the basis of the evidence, that Thao knew that Chauvin was intentionally inflicting substantial bodily harm on Floyd” and that Chauvin’s continuing to kneel on Floyd’s neck for minutes after he had ceased talking, moving, or breathing and knowing that Kueng had not been able to detect a pulse was contrary to MPD policy and could not be a considered a justifiable use of reasonable force.” Moreover, under Minnesota cases, “Active participation in the overt act that constitutes the substantive offense—here, the assault—is not a requirement for aiding and abetting liability” and that “’the lookout’ . . ‘is a classic example’ of an ‘aider and abetter.’”

Finding Probable Cause for Charge of Second-Degree Manslaughter Against Chauvin

 Under the previously cited standard for evaluating such dismissal motions, the court concluded there was sufficient evidence for a jury to conclude that Floyd died and that Chauvin caused that death “by culpable negligence, whereby Chauvin created an unreasonable risk and consciously took a chance of causing death or great bodily harm.” (Pp. 67- 75.)

Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Manslaughter Against Other Defendants

Under the previously cited standard for evaluating such dismissal motions, the court concluded that there was probable cause for the charge of aiding and abetting second-degree manslaughter because there was sufficient evidence for (i) Chauvin’s causing Floyd’s death by culpable negligence, whereby he created and unreasonable risk and consciously took a chance of causing death or great bodily harm; (ii) the other three defendants “knew Chauvin by his culpable negligence, created an unreasonable risk and consciously took a chance of causing death or great bodily harm; “ and (iii) the other three defendants “intended that . . .[their] presence or actions aided Chauvin’s commission of that crime.” (Pp.  99-107)

Conclusion

To this retired lawyer bystander, this Order and Memorandum is exceptionally well reasoned, documented and written. Moreover, I think it implicitly signals that the Judge will deny the defense motions to change venue (unless the demonstrations and protests get further out-of-line) and grant the prosecution’s motion for a joint trial of the four cases. An implicit or explicit consideration for Judge Cahill’s deciding the change of venue motions by the four defendants would have to be not wanting to impose the immense burden that would be placed on another district court in the state in taking on this complex case in which so much already has happened.

If I were representing one of these defendants, I would be very worried about my chances for success at trial.

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[1] Order and Memorandum Opinion on Defense Motions To Dismiss for Lack of Probable Cause, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court (Oct. 21, 2020); Xiong, Ex-Minneapolis police charged in George Floyd’s killing will go to trial; one count against Derek Chauvin dropped, judge rules, StarTribune (Oct. 22, 2020); Assoc. Press, Judge Dismisses a Third-Degree Murder Charge in George Floyd’s Death, W.S.J. (Oct. 22, 2020); Ismay, Judge Dismisses Third-Degree Murder Charge in George Floyd Case, N.Y. Times (Oct. 22, 2020);  Bailey, Judge dismisses third-degree murder charge against officer in George Floyd’s death: upholds more serious charge, Wash. Post (Oct. 22, 2020).

 

 

 

 

 

 

 

 

 

 

The Criminal Complaint Against Derek Chauvin Over the Death of George Floyd

On May 29, Minneapolis’ Hennepin County Attorney, Mike Freeman, issued the first criminal Complaint over the May 25th death of George  Floyd. It stated there was probable cause that former Minneapolis Policeman Derek Michael Chauvin had caused the death of George Floyd in a manner that constituted Third Degree Murder and Second Degree Manslaughter under Minnesota law.[1]

On June 3 the above complaint was superseded by a second criminal Complaint against Chauvin that was issued by Minnesota Attorney General Keith Ellison, who had been appointed only two days earlier by Minnesota Governor Tim Walz to assume overall responsibility for the case. This pleading added the charge of second degree murder.[2]

As noted in a prior post, on June 8 Chauvin had his initial hearing in this case and his bail was increased to $1,250,000 without conditions and $1 million with conditions; his next hearing is scheduled for June 29, when he is expected to enter his plea to the charges.

The Second Criminal Complaint Against Chauvin[3]

COUNT I: Second Degree Murder (Unintentional While Committing a Felony).

The Complaint alleges In violation of Minnesota Statute 609.19.2(1), “on or about May 25, 2020, in Hennepin County, Minnesota, . . . Chauvin, caused the death of a human being, George Floyd, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force of violence or a drive-by shooting, namely assault in the third degree.”

Section 609.19.2(1) od Minnesota Statutes states, “Whoever does . . . the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years: causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.”

“Assault” is defined in Minnesota Statutes section 609.02.10 as(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.” And “assault in the third degree” is defined in section 609.223.1 as “Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.”

‘Bodily harm” is defined in Minnesota Statutes 609.02.7 as “physical pain or injury, illness, or any impairment of physical condition,” while ”substantial bodily harm” in section 609.02.8 is defined as “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.”

Thus, the key factual issues for this Count are (1) whether Chauvin’s placing of his knee on Floyd’s neck and not removing that hold was done with intent to cause Floyd to fear immediate bodily harm or death or with intent to inflict or attempt to inflict bodily harm on Floyd; (2) whether Chauvin’s placing of his knee on Floyd’s neck and not removing that hold caused Floyd substantial bodily harm; and (3) whether Chauin’s placing his knee on Floyd’s neck and not removing that hold caused Floyd’s death.

COUNT II: Third Degree Murder (Perpetrating Eminently Dangerous Act and Evincing Depraved Mind)

The Complaint alleges,“In violation of Minnesota Statute 609.195(a),on or about May 25, 2020, in Hennepin County, . . . Chauvin caused the death of another, George Floyd,  by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”

That statute states, “Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.”

Thus, the key factual issues for this Count are (1) was Chauvin’s placing his knee on Floyd’s neck and not removing that hold an eminently dangerous act; (2) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold evince a depraved mind; and (3) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold cause Floyd’s death.

COUNT III: Second Degree Manslaughter (Culpable Negligence Creating Unreasonable Risk)

The Complaint alleges, In violation of Minnesota Statute 609.205(1), “on or about May 25, 2020, in Hennepin County, Minnesota,  . . . [Chauvin] caused the death of another, George Floyd,  by his culpable negligence, creating an unreasonable risk and consciously took the chances of causing death or great bodiliy harm  to another, George Floyd.”

That statute states, “A person who causes the death of another by . . . [the person’s] culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to [another] is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.” “Great bodily harm’ is defined as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” (Minn. Stat. sec. 609.02.8.)

Thus, the key fact issues on this Count are (1) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold create an unreasonable risk of causing death or great bodily harm to Floyd; (2) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold consciously take the chances of causing death or great bodily harm to Floyd; and (3) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold cause Floyd’s death.

Statement of  Probable Cause

“On May 25, 2020, someone called 911 and reported that a man bought merchandise from  a Cup Foods at 3759 Chicago Avenue in Minneapolis, Hennepin County, Minnesota with counterfeit $20 bill. At 8:08 p.m., Minneapolis Police Department (MPD) Officers Thomas Lane and J.A. Kueng arrived with their bodyworn cameras (BWCs) activated and running. The officers learned from store personnel that the man who passed the counterfeit $20 was parked in a car around the corner from the store on 38th Street.”

“BWC video obtained by the Minnesota Bureau of Criminal Apprehension shows that the Officers approached the car, Lane on the driver’s side and Kueng on the passenger  side. Three people were in the car; George Floyd was in the driver’s seat, a known adult male was in the passenger seat and a known adult female in the backseat. As Officer Lane began speaking with Mr. Floyd, he pulled his gun out and pointed it at Mr. Floyd’s open window and directed Mr. Floyd to show his hands. When Mr. Floyd put his hands on the steering wheel, Lane put his gun back in its holster.”

“While Officer Kueng was speaking with the front seat passenger, Officer Lane ordered Mr.  Floyd out of the car, put his hands on Mr. Floyd and pulled him out of the car. Officer Lane handcuffed Mr. Floyd.”

“Once handcuffed, Mr. Floyd  walked with Officer Lane to the sidewalk and sat on the ground at Officer Lane’s direction. When Mr. Floyd sat down he said, “thank you man” and was calm. In a conversation that lasted just under two minutes, Officer Lane asked Mr. Floyd for his name and identification. Officer Lane asked Mr. Floyd if he was “on anything”and noted there was foam at the edges of his mouth. Officer Lane explained that he was arresting Mr. Floyd for  passing counterfeit currency.”

“At 8:14 p.m., MPD Officers Kueng and Lane stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”

“MPD Officers Derek Chauvin (the defendant) and Tou Thao then arrived in a separate squad car.”

“The officers made several attempts to get Mr. Floyd in the backseat of their squad car by pushing him from the driver’s side. As the officers were trying to force Mr. Floyd in the backseat, Mr. Floyd repeatedly said that he could not breathe. Mr. Floyd did not voluntarily sit in the backseat and the officers physically struggled to try to get him in the backseat.”

“[Chauvin] went to the passenger side and tried to get  Mr. Floyd into the car from that side and Lane and Kueng assisted.”“[Chauvin] pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed. Kueng held Mr. Floyd’s back and Lane held hie legs . [Chauvin] placed his left knee in the area of Mr. Floyd’s head and neck. Mr. Floyd said, ‘I can’t breathe’ multiple times and repeatedly said ‘Mama’ and ‘please,’ as well. At one point, Mr. Floyd said ‘I’m about to die.’ [Chauvin] and the other two officers stayed in their positions.”

“One of the officers said, ‘You are talking fine’ to Mr. Floyd as he contintued to move back and forth. Lane asked, ‘should we roll him on his side?’ and [Chauvin] said, ‘ No, staying put where we got him.’ Officer Lane said, ‘I am worried about delirium or whatever.’ [Chauvin] said, ‘That’s why we have him on his stomach.’ [Chauvin] and Kueng held Mr. Floyd’s right hand up. None of the three officers changed their positions.”

“While Mr. Floyd showed slight movements, his movements and sounds decreased until at 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, ‘want to roll him on his side.’ Kueng checked Mr.Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”

“At 8:27:24, [Chauvin] removed his knee from Mr. Floyd’s neck. An  ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”

“The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26,     2020. While the ME did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease, and toxicology testing revealed the presence of fentanyl and evidence pf recent methamphetamine use. The ME opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions, and the presence of the drugs contributed to his death. The ME listed the cause of death as ‘ [c]ardiopulmonary arrest complicating law enforcement subdural, restraint, and neck compression,’ and concluded the manner of death was homicide.”[4]

[Chauvin] and Officers [Lane] and Kueng subdued Mr. Floyd prone to the ground in this manner for nearly 9 minutes. During this time, Mr. Floyd repeatedly stated he could not breathe and his physical condition continued to deteriorate such that force was no longer necessary to control him. [Chauvin] had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous. Officer Chauvin’s restraint of Mr. Floyd in this manner for a prolonged period was a substantial causal factor in Mr. Floyd’s losing consciousness, constituting substantial bodily harm, and Mr. Floyd’s death as well.”

“[Chauvin] is in custody.”

Analysis of Second Complaint Against Chauvin

In addition to the previously stated factual issues under the Minnesota criminal statutes xfor the three counts of the Complaint, others are raised by  the Minneapolis Police Department Policy and Procedures Manual, which at the time recognized both a “choke hold” and “neck restraint” as permissible under certain circumstances.[5]

The Manual stated that a “Choke Hold’ is a “deadly force option” by “applying direct pressure on a person’s trachea or airway (front of the neck), blocking or obstructing the airway.” (Manual sec. 5-311(I).)

“Deadly force” is defined in the Manual, quoting Minn. Stat. sec. 609.066, subd. 2, as “Force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing death or great bodily harm.” (Manual sec. 5-302.)

“Neck restraint,” on the other hand, is stated in the Manual as a “non-deadly force option” and is defined as “compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints.” In addition, the Manual  “authorizes two types of neck restraints: Conscious Neck Restraint and Unconscious Neck Restraint.”

  • “The “Conscious Neck Restraint:The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure.” It “may be used against a subject who is actively resisting.”
  • The “Unconscious Neck Restraint:The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure.” It “shall only be applied in the following circumstances:
    • 1. On a subject who is exhibiting active aggression, or;
    • 2. For life saving purposes, or;
    • 3. On a subject who is exhibiting active resistance in order to gain control of the subject; and if lesser attempts at control have been or would likely be ineffective.”

These provisions raise the factual issues of whether or not Chauvin was applying “direct pressure” on Mr. Floyd’s “trachea or airway” and thus using a “chokehold.” The other requirement for chokehold seems established: he at least reasonably should have known that this procedure  created a “substantial risk of causing death or great bodily harm,” especially after the warnings by bystanders and by Lane and Kueng.

If, however, Chauvin was not applying direct pressure on Mr. Floyd’s trachea or airway and was not applying a “chokehold,” he was applying a “neck restraint.” But the Complaint definitely suggests that Mr. Floyd was not “actively resisting” and thus it was not a”conscious neck restraint.” In addition, the facts alleged in the Complaint strongly suggest that Mr. Floyd was not “exhibiting active aggression . . . [or] resistance. . . and that it was not used for “life saving purposes.” And thus it was not a valid “unconscious neck restraint.” Moreover, had Chauvin received “training from the MPD Training about neck restraints”? If not, then his use of a neck restraint was not authorized.

Criminologists who have seen the videotape of Chauvin’s treatment of Floyd say that Chauvin’s  “knee restraint not only puts dangerous pressure on the back of the neck, but that Mr. Floyd was kept lying on his stomach for too long. Both positions. . .run the risk of cutting off someone’s oxygen supply.”[6]

A professor at the University of South Carolina School of Law who studies policing. Seth W. Stoughton, said. “Keeping Mr. Floyd in the facedown position with his hands cuffed behind his back is probably what killed him.” About 20 years ago police training started emphasizing avoiding that prone position. Moreover, Stoughton offered, applying the knee to the back of the neck rather than to the sides risks killing or seriously injuring someone by cutting off the air supply or damaging the cervical spine and other delicate bones in the neck. No department permits such a technique in ordinary circumstances.

Mylan Masson, who directed a law enforcement training course at Hennepin Technical College in Minnesota, said she stopped teaching the knee restraint technique to new police officers after the Eric Garner case in 2014.

These criminologist also said that the fact that Mr. Chauvin kept applying pressure when Mr. Floyd was no longer struggling made it appear to be a case of an officer trying to punish a suspect for doing something the police did not like. Philip M. Stinson, a former police officer and now a criminal justice professor at Bowling State University, said it was “a form of ‘street justice,’ . . . bullying [to teach] someone a lesson—next time you will think twice about what you do.”

As a New York Times journalist observed, “For police trainers and criminologists, the episode appears to be a textbook case of why many police departments around the country have sought to ban outright or at least limit the use of chokeholds or other neck restraints in recent years: The practices have led too often to high-profile deaths.”

Conclusion

 An immense debt of gratitude is owed by everyone to the 17-year-old woman who was at the scene and pulled out her cell phone to video record this police encounter.The next day she said, “I started recording as soon as I heard him trying to fight for his life. The world needed to see what I was seeing.” She added, “Stuff like this happens in silence too many times. She hopes her video can in some way bring about “peace and equality. We are tired of police killing us.”  Later her attorney said, “She had no idea she would witness and document one of the most important and high-profile police murders in American history. If it wasn’t for her bravery, presence of mind, and steady hand, and her willingness to post the video on Facebook and share her trauma with the world, all four of those police officers would still be on the streets, possibly terrorizing other members of the community.”[7]

Her example should be remembered by everyone should we ever be in a similar situation. Get out your cell phone and video the encounter. Indeed, Minneapolis Police Chief Medaria Arradondo encouraged others to do the same when confronted with such a scene involving officers’ actions. “Record. Record, absolutely. Record, call. Call a friend. Yell out. Call 911. We need a supervisor to the scene. Absolutely. I need to know that. We need to know that. So the community plays a vital role and did two weeks ago.”

Without that video in the George Floyd case, just imagine how difficult it would be to mount such a prosecution.

However, there still will be challenges for the prosecution in this case.[8]

Former Ramsey County Attorney Susan Gaertner said the prosecution needed to be “painstakingly thorough” with this case and that such cases “are way more complicated and the burden on the prosecution is higher than I think the public understands.”  Of the same opinion was Thomas Heffelfinger, former U.S. Attorney for Minnesota, who said, “It’s not a slam dunk and these cases never are. These cases are hard to prove and we have to make sure we do it correctly.”

Those comments are perfectly understandable in cases where the policeman has to make split-second decisions when his or her life is at stake. But that is not this case here. So I wonder about these assessments by Gaertner and Heffelfinger even though they are both capable attorneys whom I know and who have significant criminal law experience that I do not share.

Another Minnesota attorney, Stephen Grego, saw the following challenges. First, inflammatory statements from elected officials in Minneapolis may have created substantial pretrial prejudice, leading to a change of venue from Hennepin County, which in turn could decrease minority juror representation. Second, causation will be a contested issue with the defense emphasizing the medical examiner’s findings of “fentanyl intoxication” and “recent methamphetamine use” to argue that Chauvin did not cause the death. Third, Minnesota law gives police officers broad discretion to use force when making an arrest. Fourth, can a person with a “depraved mind” direct his or her actions against a specific individual?

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[1] Read the complaint charging ex-Minneapolis officer Derek Chauvin in the death of George Floyd, StarTribune (May 30, 2020); Xiong & Walsh, Ex-police officer Derek Chauvin charged with murder, manslaughter in George Floyd death, StarTribune (May 29, 2020); Hennepin County attorney announces charges against Derek Chauvin (Video). StarTribune (May 29, 2020); Assoc. Press, Ex-Minneapolis officer faces 12-plus years on murder count, StarTribune (May 29, 2020); Bjorhus, Derek Chauvin in custody,; other officers lay low, StarTribune (May 30, 2020); Walsh, Hennepin County Attorney Mike Freeman faces new challenge in case against former Minneapolis police officer, StarTribune (May 31, 2020); Hill, Tiefenthaler, Triebert, Jordan, Willis & Stein, 8 Minutes and 46 Seconds: How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020).

[2] Montemayor, Minnesota AG Keith Ellison to take over case in Floyd killing, StarTribune (June 1, 2020); Montemayor, Ellison center stage in case of officer charged with murder, StarTribune (June 1, 2020); Four fired Minneapolis police officers charged, booked in killing of George Floyd, StarTribune (June 4, 2020); Jany & Xiong, BCA investigators in George Floyd killing sought access to police training and medical records, surveillance footage, StarTribune (June 1, 2020); Editorial, Ellison can help build trust that justice will be served in Floyd case, StarTribune (June 2, 2020).

[3] Hennepin County Medical Examiner, Press Release Report (Case No. 2020-3700  (June 1, 2020);Click to access 2020-3700%20Floyd,%20George%20Perry%20Update%206.1.2020.pdf

Click to access 2020-3700%20Floyd,%20George%20Perry%20Update%206.1.2020.pdf

 

Hennepin County Medical examiner declares George Floyd death homicide, Fox9 News (June 1, 2020); Forliti & Karnowski, Hennepin County autopsy concludes Floyd died of homicide caused by restraint, neck compression, Pioneer Press (June 1, 2020); Navratil & Walsh, Hennepin Medical Examiner classifies George floyd’s death as ‘homicide,’ StarTribune (June 2, 2020). The Floyd attorney and family commissioned another autopsy that might become an issue in the criminal cases. (See Xiong, George Floyd’s family blasts county autopsy, calls for peaceful protests, StarTribune (June 2, 2020); Autopsy report shows Floyd tested positive for coronavirus, Assoc. Press (June 4, 2020); Walsh, George Floyd autopsy report released; he tested positive for COVID-19 in April, StarTribune (June 4, 2020).

[4]  Complaint, State v. Chauvin, #  27-CR-20-12646 (Henn. Cty. Dist. Ct. (June 3, 2020).

[5] On June 8, the Hennepin County District Court approved a Stipulation and Order compelling the City of Minneapolis to amend the Police Policy and Procedure Manual to prohibit the use of all neck restraints and choke holds for any reason. (Court Approves Agreement on Police conduct Between City of Minneapolis and Minnesota Department of Human Rights, dwkcommentaries.com (June 9, 2020).

[6] Winston, Medical examiner Testifies Eric Garner Died of Asthma Caused by Officer’s Chokehold, N.Y. Times (May 15, 2019)

[7] Walsh, ‘World needed to see,’ says woman who took video of man dying under officer’s knee, StarTribune (May 26, 2020);

Walsh, Teen who recorded George Floyd video wasn’t looking to be a hero, her lawyer says, StarTribune (June 11, 2020).

[8] Grego, Prosecution of the four officers won’t be easy, StarTribune (June 8, 2020); MacFarquar, In George Floyd’s Death, a Police Technique Results in a Too-Familiar Tragedy, N.Y.Times (May 29, 2020); Dewan & Kovaleski, Thousands  of Complaints Do Little to Change Police Ways, N.Y. Times (May 30 & 31, 2020)(review of Minneapolis Police Department); Miller, Former prosecutors weigh case against Minneapolis officers, MPR (June 1, 2020) (interview of Susan Gaertner & Tom Heffelfinger); Hennessy & LeBlanc, 8:46: A number becomes a potent symbol of police brutality, StarTribune (June 4, 2020);Xiong, A timeline of events leading to George Floyd’s death as outlined in charging documents, StarTribune (June 4, 2020).