On July 9, Hennepin County District Judge Peter Cahill issued an order prohibiting attorneys and others working on the matter from publicly talking about “any information, opinions, strategies, plans or potential evidence . . . either to the media or members of the general public. This includes, but is not limited to, any discovery provided to the parties, and any exhibits in the case.” However, “access to public records [in the cases] is not restricted by this order.”
The Order applies to “all parties, attorneys, their employees, agents, or independent contractors working on their behalf.”
The Order was prefaced by the following statement, “The court has been made aware that two or more attorneys representing parties in . . .[these] cases granted interviews or talked with the media yesterday, expounding on the merits of the case or commenting on other aspects of the case after a motion to dismiss was filed in [the Lane case]. The court find that continuing pretrial publicity in this case by the attorneys involved will increase the risk of tainting a potential jury pool and will impair all parties’ right to a fair trial.”
On July 7, the attorney for ex-officer Thomas Lane moved to dismiss the charges that he had illegally aided and abetted the May 25th alleged murder and manslaughter of George Floyd. The prosecution’s response is due on August 12 followed by a reply from Lane’s attorney with the hearing on the motion likely to be the one previously scheduled for September 11.
The brief in support of the motion made the following arguments:
“There is not substantial admissible evidence to survive a motion for a directed verdict that Thomas Lane aided and abetted second degree murder or manslaughter.”
“There is no evidence in the voluminous discovery that Officer Lane played an intentional role in aiding the commission of a crime. There is no circumstantial evidence Lane knew that Chauvin was committing a crime. Hence, the legal requirements showing he acted with intent cannot be met.”
“Lane did not intentionally aid, advise, hire, counsel, or conspire with Chauvin or otherwise procure Chauvin to commit second degree murder. Lane did not encourage any alleged criminal actions of Chauvin. He did not know and had no reason to believe that a third degree assault was being committed, nor did he intend for the restraints of his Floyd’s legs to help commit a crime.”
“Lane did not know what Chauvin was thinking while restraining Floyd. Chauvin did not verbally tell Lane anything about his intentions other than waiting for the ambulance to arrive. Lane knew Floyd needed to be restrained and he knew Chauvin was authorized to use reasonable force to restrain.”
Lane’s attorney also submitted transcripts of the body-cam footage for Lane and ex-cop and co-defendant J. Alexander Kueng. Here are extracts from these transcripts:
When Lane approached the vehicle containing Floyd and two other individuals, Lane drew his pistol when Floyd did not immediately show his hands. Floyd said, “”I’m sorry, I’m so sorry. God dang man. Man, I got shot. I got shot the same way, Mr. Officer, before.”
When Lane ordered him to get out of the car, Floyd said, “Please don‘t shoot me, Mr. Officer. Please, don’t shoot me man. Please. Can you not shoot me, man?”
Lane and Kueng then grabbed Floyd’s arms, prompting him to say, ““I’m not going to do nothing… I’m sorry Mr. Officer, I’ll get on my knees, whatever.”
Lane then pulled Floyd out of the vehicle and asked the woman in the car (Schwanda Renee Hill), “Why’s he getting all squirelly and not showing us his hands, just being all weird like that?”
Hill: “I have no clue, because he’s been shot before.”
Lane: “Well I get that, but still when officers say ‘Get out of the car.’ Is he drunk? Is he on something?”
Hill: “”No, he got a thing going on, I’m telling you about the police … He have problems all the time when they come, especially when that man put that gun like that.”
After Kueng escorted Floyd from his car to a nearby sidewalk and sat him down, Floyd said, ‘Thank you, man. Thank you, Mr. Officer,” as Floyd remained cooperative. He gave Kueng his name and date of birth, adding once again that ‘I got shot last time, same thing, man.’”
“Kueng then explained to Floyd that he was being detained for suspicion of passing a fake bill. Floyd said he understood.”
Kueng: “And do you know why we pulled you out of the car? Because you was not listening to anything we told you,”
Floyd: “Right, but I didn’t know what was going on,”
Kueng: “You listen to us, and we will tell you what’s going on, all right?”
Floyd: “Yes sir.”
“Lane then asked Floyd if he was on something, while Kueng asked about the foam around his mouth. Floyd said he was scared, and that he had been playing basketball earlier.”
“The two officers then attempted to place Floyd in the back of [their]squad [car], while he again pleaded with them not to, saying he was claustrophobic.”
Lane or Kueng: “You can’t win.”
Floyd: “I’m not trying to win . . . I’ll get on the ground, anything.”
“After more struggle, Floyd began to collapse on the ground, saying, ‘I’m going to lay on the ground, oh, I’m coming down.’”
As Lane and Kueng attempted to put Floyd into the back seat of their squad car, Floyd said, “‘Oh man, God don’t leave me man, please man, please man,’ he pleaded, telling them he was claustrophobic as the officers repeatedly ordered him into the back of the squad.”
Lane or Kueng: “Man, you going to die of a heart attack. Just get in the car.”
Lane then offered to sit in the squad car with Floyd and turn on the air conditioner. Floyd said, “”I’m not that kind of guy, man, I’m not that kind of guy … and I just had COVID, I don’t want to go back to that.”
After Officer Chauvin arrived, he asked Kueng if the suspect was going to jail, and Kueng explained the man was under arrest for forgery.
Chauvin asked the other two officers if they had a “restraint,” and the officers (who?) called for “Code 2” for medics after Lane said the man had banged his head against the partition glass in the squad car, resulting in a cut.”
Chauvin told Floyd , “You’re under arrest, guy.”
Floyd responded, “”All right, all right. Oh my god. I can’t believe this. I can’t believe this … After Chauvin said, “so you’re going to jail,” Floyd said, Mom, I love you … Tell my kids I love them. I’m dead.”
Floyd then was placed on the pavement with Lane holding one of his legs while Kueng was holding his back. Floyd kept saying, “Mama, mama, I can’t breathe. I’m through, I’m through. I’m claustrophobic. My stomach hurts. My neck hurts. Everything hurts. I need some water or something, please. Please? I can’t breathe officer.”
As Lane asked Chauvin whether Floyd should be rolled on his side, Chauvin and Kueng said not to do so, and one of the officers called to upgrade the medics to Code 3.
Floyd’s final words: ““Come on, man. Oh, oh. l cannot breathe. Cannot breathe. Ah! They’ll kill me. They‘ll kill me. I can’t breathe. Can‘t breathe. Oh!” and “Ah! Ah! Please. Please. Please.”
After the medics arrived, Lane did chest compressions on Floyd.
One of the medics asked the officers, “Was he [Floyd] fighting with you guys for a long time?”
Lane: “ I mean a little bit, but not a long time, maybe a minute or two. We were just trying to get him in the squad and he came out the other end, so we were like we’ll just wait.”
Medic: “I wonder what he was on.”
Lane: “Not sure but he seemed very agitated and paranoid.”
Medic: “That’s a shame.”
According to the New York Times’ summary of these transcripts, Floyd told the police officers more than 20 times that he could not breathe and several times said the officers were killing him.
In addition, Lane’s court filing included a 60-page transcript of his interview by the Minnesota Bureau of Criminal Apprehension and that this transcript had Lane responding to the question of whether at any time he felt Floyd was having a medical emergency, with the following: “Yeah, I felt maybe something was going on.” The Times also says Lane’s attorney claims a police photo of the interior of Floyd’s car showed “two crumpled counterfeit $20 bills that were found between the center console and the passenger’s seat.”
Another article in the Washington Post asserts that the “transcripts make clear that Floyd was trying to cooperate with police but was deathly afraid of them, at times telling them that he had had covid-19 and was worried that he was going to die because he couldn’t breathe.”
On July 4, Tou Thau, a former Minneapolis police officer charged with aiding and abetting the murder of George Floyd, posted bond of $750,000 and was released with conditions from the Hennepin County Jail. Earlier two other ex-officers charged with the same crime—Thomas Lane and J. Alexander Kueng—had posted the same amount of bond and had been released from jail.
The fourth defendant in the Floyd killing—Derek Chauvin—has not posted a higher bond–$1 million with conditions and $1,250,000 without conditions and thus remains in custody at the Oak Park Heights prison.
On June 29, Hennepin County District Judge Peter Cahill held a pretrial hearing in the George Floyd criminal cases against Derek Chauvin,Tou Thao,Thomas Lane and J. Alexander Kueng.
The judge scheduled another pretrial hearing for September 11 and for the trial tentatively to start on March 8. Although the prosecutors seem to be pushing for a consolidated trial, defense counsel are expected to request separate trials so that should be a future issue for the court to resolve.
None of the officers entered pleas at the hearing, but Lane’s attorney told the court he would be filing a motion to dismiss the case against his client for alleged insufficiency of evidence. Afterwards Kueng’s attorney filed a document with the court advising that his client intends to plead not guilty, claiming self-defense and use of reasonable and authorized force.
One of the major issues at the hearing was whether public officials’ statements about the cases might call for a change of venue from Minneapolis in Hennepin County to another county. Robert Paule, the attorney for Thao, said he was planning to make such a motion in light of public statements by Police Chief Arradondo and Department of Public Safety Commissioner Harrington, who have called Floyd’s death a “murder,” along with other statements by Gov. Tim Walz and Attorney General Keith Ellison.
Judge Cahill acknowledged these statements, and said people who are aligned with the state’s stance on the case are pushing it toward a change of venue. “It’s in everyone’s best interest” that no public statements about the case be made, the Judge said, noting that they’ve come from family, friends and law enforcement officials. “What they’re doing is endangering the right to a fair trial” for all the parties.
“They need to understand that; at this point they need to be aware of that,” Cahill said, and asked Assistant Attorney General Matthew Frank if prosecutors are addressing the matter with public officials. In response, Frank said, “We are just as interested in fair trial and are acutely aware of the issues you talk about. We have asked people not to talk about this case … we’ve done our best to make the court’s concerns known to them and will continue to do so.”
The Judge also admonished two members of Floyd’s family for visibly reacting to his statements at the hearing. Afterwards George Floyd’s uncle, Selwyn Jones, told journalists he was offended by the Judge’s comments.
The four defendants in the criminal cases over the death of George Floyd last week made an unusual request for pretrial and trial audiovisual coverage which the court denied, in part. The issues in the cases were analyzed by criminal law experts. And some personal background information of the four defendants have been publicly discussed. After examining these developments, we will await the results of the pretrial hearing in the four cases on June 29th.
Motion for Pretrial and Trial Audiovisual Recording 
On June 25 the attorneys for the four criminal defendants made a motion for audiovisual recording of pretrial and trial proceedings in the cases. Thomas Plunkett, the attorney for J. Alexander Kueng, on behalf of all defendants, asserted that such relief was “necessary to provide the Defendants with a fair trial in light of the State’s and other governmental actors multiple inappropriate comments and to assure an open hearing in light of the ongoing pandemic.” Those officials, said Plunkett, included “Public Safety Commissioner John Harrington, Minneapolis Mayor Jacob Frey and Minneapolis Police Chief Medaria Arradondo.”
More specifically, Plunkett said, “this relief is necessary to blunt the effects of the increasing and repeated media attacks from the various officials who have breached their duty to the community. These State comments have crescendoed to an extraordinary volume this week with the Chief pronouncing that ‘[w]hat happened to Mr. Floyd was murder.’ The State’s conduct has made a fair and unbiased trial extremely unlikely and the Defendants seek video and audio coverage to let a cleansing light shine on these proceedings. Doing otherwise allows these public officials to geld the Constitution.”
Attorney General Keith Ellison responded by saying that although he supports a public trial, “Cameras could alter the way the lawyers present evidence. Cameras in the courtroom could subject the participants in the trial to heightened media scrutiny and thereby be distracting to conducting the trial.” The chances of “creating more sensation than understanding” was “very high,” Ellison said.
The Hennepin County District Judge, Peter Cahill, immediately denied the motion for such pretrial coverage while reserving decision on the motion for such coverage of the trial. The Judge stated that Minnesota court rules require both the defense and prosecution to agree for such coverage for pretrial proceedings and that the prosecution did not so agree. In addition, said the Judge, such coverage “would risk tainting a potential Hennepin County jury pool.”
A journalist reports, “Veteran defense attorneys say the prosecution’s case against Chauvin is strong, while a series of unique circumstances pose challenges to both prosecutors and defense attorneys.”
Several facets of these cases seem to favor the prosecution. These cases do not involve “split-second” decisions on use of force which often lead a jury to avoid second guessing such decisions. Moreover, “Floyd warned the officers of his own impending death after repeatedly telling them he couldn’t breathe,” and bystanders were making the same warning. Finally the three officers charged with “aiding and abetting” could cause a crack in the alleged “blue wall of silence” protecting officers.
Indeed, at their initial appearances, the attorneys for Lane and Kueng argued that their clients were rookies who relied on Chauvin, a 19-year veteran and their training officer, for guidance at the scene.
A prominent local criminal defense attorney, Joe Friedberg, thought that Lane’s twice suggesting turning Floyd over and later performing CPR on him was strong evidence he had no intent for Floyd to die.
Another local criminal defense attorney, Robert Richman, had a different reaction. He thought that Chauvin “could direct the blame at Lane, who was holding down Floyd’s leg as Floyd lay stomach-down in the street, and Kueng, who was holding onto Floyd’s back. It seems that keeping someone … in a prone position on your stomach and having pressure placed on your back causes respiratory difficulties.” Perhaps “it was the other two officers holding him down that caused the breathing difficulties,” rather than Chauvin kneeling on the side of Floyd’s neck.
Another complication was the existence of two different autopsy reports. “The Hennepin County Medical Examiner’s Office found that Floyd died when his heart stopped while he was being restrained, noting that the presence of fentanyl intoxication and recent methamphetamine were “other significant conditions” while the autopsy commissioned by the attorneys for Floyd’s family said he died of asphyxia. These provide bases for defense arguments that Floy had started to die before Chauvin put his knee on the neck.
On June 27 Minneapolis Mayor Jacob Frey and Police Chief Medaria Arradondo announced a new rule for officers’ review of their body camera footage. Now the officer “as soon as practical” must write and submit his or her written report of the incident before looking at that footage and before talking with anyone other than the incident commander and the lead investigator. This new rule purportedly will provide a more accurate account of the officer’s recollection of the incident.
The police personnel files for the four officers and published articles reveal the following details:
Derek Chauvin. He attended Park High School in Cottage Grove, Minnesota, but did not graduate. After getting his GED he attended Dakota County Technical College, Inver Hills Community College and Metropolitan State University, all in Minnesota. Previous jobs include working security, and food service including at a McDonald’s. Chauvin also had two periods of active service in the U.S. Army. From September 1996 to February 1997 he was stationed in Rochester, Minnesota with a job in military police. He served again from September 1999 to May 2000 in military police, at Hohenfels, Germany where his job duties as including criminal investigations, traffic enforcement and proactive patrol.
During his 19-year career with the Minneapolis Police Department, Chauvin was involved with several police shootings, includes both commendations and more than 15 conduct complaints. Almost all the complaints were closed without discipline, records show, suggesting the allegations weren’t sustained. The nature of the complaints wasn’t made public. The file includes a 2008 letter of reprimand Chauvin received for the two violations involving “discretion” and a squad car camera. “This case will remain a B violation and can be used as progressive discipline for three years,” the letter notes. Chauvin received a Medal of Commendation in 2008 for disarming a man outside the El Nuevo Rodeo club on E. Lake Street while working security off-duty in his uniform. He was also recommended for a Medal of Valor in 2006 related to the shooting death of Wayne Reyes, a stabbing suspect who fled in his truck with officers in pursuit. When Reyes stopped and climbed out of the truck, police said he swung his sawed-off shotgun toward the six officers, all of whom fired their weapons.
Chauvin his married , but immediately after his arrest for the Floyd death, she filed for divorce with her attorney saying, “She is devastated by Mr. Floyd’s death and her utmost sympathy lies with his family, with his loved ones and with everyone who is grieving this tragedy.”
Tou Thao. The 11-year veteran and native Hmong speaker from Coon Rapids, Minnesota first applied to the department as a community service officer following stints in food service and as a security guard. He was among those laid off three days before Christmas in 2009 as the police department faced a $13 million budget shortfall. In a termination letter, a supervisor assured him the action was not related to his job performance. Officials called him back to work almost exactly two years later.
Thao and another officer were the subjects of a 2017 police brutality lawsuit. Lamar Ferguson, a black man, alleged that in 2014 the two officers told him they were serving a warrant for his arrest, then beat him, breaking his teeth, while he was handcuffed. The city of Minneapolis paid $25,000 to settle the civil rights case.
Thomas Lane. A University of Minnesota graduate in sociology of law, criminology and deviance. He worked with at-risk youth as a juvenile detention guard and probation officer in the Twin Cities before applying as a police recruit at age 35. He also had volunteer work mentoring Somali youth and school kids.
Alexander Koenig. At age 26, he is the youngest of the four officers and is of mixed-race and identifies as African-American. In 2010 he and two siblings made several trips to Haiti to help at an orphanage, once after its 2010 earthquake.He was captain of the varsity soccer team at Patrick Henry High School in Minneapolis, where he graduated in 2012. He also played for the Cruz Azul Minnesota soccer club. He attended Monroe College, Minneapolis Community & Technical College and the University of Minnesota, graduating from the last in 2018 with a major in sociology of law, criminology and deviance and becoming conversational in the Russian language. His work history includes a job as security monitor at the University of Minnesota and working in loss prevention at Macy’s. He also worked at Target, and he coached youth baseball and soccer at the Brooklyn Center Community Center.
Kueng had seen a sibling arrested and treated poorly by sheriff’s deputies and had told friends he was joining the police to help protect people close to him from police aggression as the best way to fix a broken system.
The criminal complaints against former Minneapolis police officers Derek Chauvin, Thomas Lane, J.A. Kueng and Tou Thao all state that “at 8:19:38 . . . Mr. Floyd went to the ground face down and still handcuffedd. Kueng held Mr. Floyd’s back and Lane held his legs. [Chauvin] placed his left knee in the area of Mr. Floyd’s head and neck.” Those same complaints also state, “At 8:27:24 [Chauvin] removed his knee from Mr. Floyd’s neck.” (Emphases added.) 
Those same complaints later state, “[Chauvin] had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total.” (Emphasis added.)
Chuck Laszewski, the Hennepin County Media Coordinator, on June 18, stated that the 8:19:38 and 8:27:24 times for the beginning and ending of the restraint were correct, but that the total time of restraint was 7 minutes and 46 seconds, not 8 minutes and 46 seconds. This is shown by the following table:
“These kinds of technical matters can be handled in future amendments to the criminal complaint if other reasons make it necessary to amend the complaint between now and any trials,” said Laszewski. He also said “the one-minute error made no difference to charge nor in the continuing legal hearings.”
Even this revised timing of the restraint on Floyd has been questioned. The New York Times reports that other videotapes of this horrible crime “show that . . . [Chaurvin] continued to hold his knee on Mr. Floyd’s neck for more than a minute after the ambulance arrrived” and that Chauvin’s knee was on Mr. Floyd’s neck “for at least eight minutes and 15 seconds.”
On June 12, Hennepin County District Judge Peter Cahill was appointed to handle the four criminal cases against Minneapolis police officers over the death of George Floyd.
Cahill was appointed to the bench in 2007 by Governor Tim Pawlenty (Rep.) and elected to continue in that position in 2008 and 2014. Known for being decisive and direct, Cahill has handled other significant criminal cases.
In 2019, he presided over the jury trial of Kenneth Lilly for shooting a school bus driver on a snowy winter day. After the jury’s guilty verdict, Cahill sentenced Lilly to seven years in prison, saying the judge accepted that the defendant was “not a monster,” but did not believe the defendant’s assertions that he feared for his life when his car was hit by the slow-moving bus and that he did not know a child was on the bus. Lilly was represented by Thomas Plunkett, who argued for a lower sentence because Lilly had Asperger’s syndrome and suffered from post-traumatic stress disorder from two attempted robberies. Plunkett now represents one of the four Minneapolis policemen (J. Alexander Kueng) in the Floyd case.
Last year Cahill also presided over the case of Thomas Incantalupo, a former ice skating coach with a local skating club. As the trial for nine counts of sexual assaults with a young girl skater was set to commence in June 2019, the defendant accepted a deal for pleading guilty to two counts in exchange for a prison sentence between 12 and 30 years. Thereafter Cahill sentenced him to 24 years in prison after saying that there was “overwhelming evidence” against the defendant, that the defendant’s apologies “ring hollow” and that the defendant’s actions were “not cheating on your wife. This is a crime against a child.” That defendant was represented by attorney Earl Gray, now the attorney for policeman Thomas Lane in the Floyd case.
Plunkett and Gray and the other two attorneys in the George Floyd case now have 10 days from June 12 to move to replace Cahill, but without having any say on who might be the replacement and without having the right to move to replace the successor judge.
Before becoming a judge, Cahill was an attorney in the Hennepin County Public Defenders Office, 1984-1987, an attorney in private practice in the Twin Cities, 1987-1997 and in the Hennepin County Attorney’s office, 1997-2007, when Amy Klobuchar was the County Attorney (1999-2007). His J.D. degree was awarded, magna cum laude, in 1984 by the University of Minnesota Law School.
Cahill will replace his fellow judges Jeannice Reding and Paul Scoggin, who presided respectively at the initial hearings in the Chauvin case and the other case involving the other three policemen. Cahill’s appointment was made by Hennepin County District Judge Toddrick Barnette, who will become the first African-American Chief Judge of the court on July 1, 2020.
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.
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.
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.
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.
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.”
[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.
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.”
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.”
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.”
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.
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?
There are now four criminal cases against former Minneapolis police officers for the killing of George Floyd, all pending in the Hennepin County District Court in Minneapolis, and all four have had their brief initial hearings.
On June 8 Chauvin made his initial appearance by a video feed from a room at the Minnesota State Prison in Oak Heights, Minnesota. The only issue was the amount of his bail, and the hearing lasted only 15 minutes without any comments by Chauvin or his attorney, Eric Nelson.
The prosecutor, Minnesota Assistant Attorney General Matthew Frank, said that the “severity of the charges” and the strong public opinion against Chauvin made him a more likely flight risk if he were released and, therefore, requested the bail be increased from $1 million to $1.25 million. The attorney for Chauvin, Eric Nelson, did not object, and Hennepin County District Judge Jeannice Reding, increased the bail to $1.25 million without conditions and to $1.0 million with conditions.
Chauvin’s next hearing, when he is expected to enter a plea to the charges, will be on June 29.
Judge Reding was appointed to the bench in January 2006, by Governor Tim Pawlenty (Rep.) and was elected to continue in that position in 2008 and 2014. After graduating cum laude from the University of Minnesota Law School in 1990, she was an attorney in a private Minneapolis law firm for seven years, a Minnesota Administrative Law Judge for two years and a Hennepin County District Magistrate and Referee for eight years. She is a founding member and past treasurer of the Minnesota American Indian Bar Association and served as a guardian ad Litem for children of tribal members in the tribal court of the Shakopee Mdewakanton Sioux Community.
J. Alexander Kueng, Thomas Lane & Tou Thao
Each of these three officers has been charged with aiding and abetting second-degree murder and second-degree manslaughter. At their initial hearing on June 4, Hennepin County District Court Judge Paul Scoggin set bail for each at $1 million without conditions or $750,000 with conditions. 
The prosecutor, Minnesota Assistant Attorney General, Matthew Frank, argued for high bail amounts because the charges were “very serious” and due to intense public interest each of these defendants was a flight risk. Each of the attorneys for the defendants objected to such amounts and instead argued for bail between $50,000 and $250,000.
Lane’s attorney, Earl Grey, disputing the complaint’s allegation that Chauvin had pulled Floyd out of one of the squad cars, claimed instead that Floyd had reisited arrest, “asserted himself” and “flew out” of the squad car. Gray also emphasized that on the day of the Floyd death Lane was only on his fourth day as a full-time officer. Therefore, Gray argued, ““What is my client supposed to do but follow what the [senior] officer says? What was [Lane] supposed to do … go up to Mr. Chauvin and grab him and throw him off?” Instead, Lane thought he was doing what was right because he twice asked Chauvin whether they should roll Floyd over. “The strength of this case,” said Gray, “is extremely weak.” As a result, Gray said he would move to dismiss the complaint for lack of evidence.
More generally, Grey said Lane previously had worked as a juvenile counselor at a few “juvenile places” in the Twin Cities and once received a community service award from Mayor Jacob Frey and Minneapolis Police Chief Arradondo for volunteering with children.
Keung’s attorney, Thomas Plunkett, made a similar argument. He said, “At all times Mr. Keung and Mr. Lane turned their attention to that 19-year veteran. [They] were trying to communicate that this situation needs to change direction.” In addition, Plunkett said that Keung is a black man who grew up in north Minneapolis with a single mom who adopted four at-risk children from the community and that Keung has always lived within 10 miles of his childhood home, was captain of the soccer team at Patrick Henry High School, where he graduated, coached youth soccer and baseball, and volunteered to build a school in Haiti. “He turned to law enforcement because he wanted to make that community a better place,” his lawyer said.
Thao’s attorney, Robert Paule, had a different tack. He said Thao had given a statement to investigators from the Minnesota Bureau of Criminal Apprehension (BCA) and that he is not a flight risk because he has deep roots in the community. He is a lifelong resident of the metro area, is married and has children.
Judge Scoggin was appointed to the bench in 2015 by Governor Mark Dayton (DFL) and elected to continue in that office in 2016. His J.D. was awarded cum laude in 1984 by the University of Minnesota Law School, after which he was an Assistant Hennepin County Attorney through 2014 with a stint in 2009-10 as an International Prosecutor with the European Union External Action.
Subsequent posts will examine the criminal complaints against the four officers and their second hearing scheduled for June 29.