Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case

On August 27, J. Alexander Kueng, a former Minneapolis police officer, submitted a motion to dismiss the criminal complaint against him and to change the venue of the case from Hennepin County to a county with “appropriate facilities and demographics,” such as Stearns County. [1]

Motion To Dismiss [2]

Most of the eight-page dismissal motion was a legal memorandum in support of the motion to dismiss for alleged lack of probable cause for the charges of aiding and abetting second degree murder and second-degree manslaughter. Its statement of facts purports to be taken from the criminal complaint.

No Aiding and Abetting Second-Degree Murder. “The restraint used on Floyd by Chauvin was reasonable. As the complaint notes, officers are trained on how to use the neck restraint involved here. Moreover, the restraint has been found to be reasonable when the subject “actively resists,” citing Lombardo v. City of St. Louis, 956 F.2d 1009, 1013 (8th Cir. 2020).

Although the complaint does not say Floyd resisted, its description of his actions “show he resisted. He resisted and fell to the ground when Lane and Kueng tried to pick him up off the sidewalk. . . . Floyd would not voluntarily get into the squad [car]. Multiple officers tried to get him into the squad , and when Floyd continued to resist, Chauvin pulled Floyd onto the ground. Floyd continued to resist by calling out while he was on the ground. Given Floyd’s resistance, the use of neck restraint was reasonable.”

“[T]here is no evidence that Kueng knew Chauvin was going to commit a crime at the time and during the time Chauvin utilized the neck restraint. [Twice Chauvin rejected Lane’s suggestion of rolling Floyd onto his stomach, showing Chauvin did not consider his use of force to be unreasonable.] There is no evidence that Kueng knew Chauvin was going to commit or was committing a third-degree assault” or that “Kueng intended his presence to further a crime.”

No Aiding and Abetting Second-Degree Manslaughter. “Chauvin’s actions were not objective gross negligence. He used a technique that he was trained to use and that the Eighth circuit has found to be reasonable.” Nor was Chauvin’s conduct subjectively reckless. Moreover, the “complaint does not establish that Kueng knew Chauvin was going to negligently commit a crime or that he did so or that “Kueng intended his presence to further the commission of a negligent act.”

Motion To Change Venue [i3]

Kueng also moved for a change of venue from Hennepin County to another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics.”

This motion was based upon “’potentially’ prejudicial material that has been disseminated publicly by the prosecution, creating a reasonable likelihood that a fair trial in the metro area cannot be had.” It also asserts that there have been over 1,700 local articles about these criminal cases.

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[1] Xiong, Former officer in George Floyd case seeks change of venue, dismissal of charges, StarTribune (Aug. 27, 2020).

[2] Notice of Motion and Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020). Kueng also submitted a Notice of Additional Evidence regarding (a) Floyd’s May 6, 2019, Minneapolis arrest for sale and possession of large quantities of controlled substances and  his immediate medical intervention at Hennepin County Medical Center; and (b) his August 9, 2007, Texas arrest and subsequent conviction for Aggravated Robbery with a Deadly Weapon. (Notice of Additional Evidence,, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 2020).

[3] Notice of Motion and Motion To Change Venue, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court August 27, 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). /