Pretrial Hearing in Criminal Cases Over George Floyd Killing

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.[1]

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.

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[1] Xiong, Former officers to appear in court Monday in George Floyd killing, StarTribune (June 29, 2020); Xiong, In George Floyd case,  judge warns that public officials speaking out could force venue change, StarTribune (June 30, 2020); Neuman, Tentative Trial Date Set For Ex-Minneapolis Officers Accused in George Floyd Death, MPR News (June 29, 2020); Chakraborty, Four ex-cops Linked to George Floyd’s death appear in court, judge sets 2021 trial date, Fox News (June 29, 2020); Bailey & Berman, Ex-Minneapolis officers charged in George Floyd’s killing get tentative trial date in March, Wash. Post (June 29, 2020); Arango, In Court, Derek Chauvin’s Lawyers Say Officials Have Biased the Case, N.Y. Times (June 29, 2020); Wernau & Barrett, Officers charged in George Floyd’s Killing Appear Before Judge, W.S.J. (June 30, 2020); George Floyd judge warns he may move trials if officials keep talking about the case, Guardian (June 29, 2020).

 

 

 

Developments in Criminal Cases Over Death of George Floyd

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.[1]

 Motion for Pretrial and Trial Audiovisual Recording [2]

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.”

Analysis of Issues in These Criminal Cases[3]

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.

New Rule for Use of Bodycam Footage[4]

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 Officers’ Backgrounds[5]

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.

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[1] This blog has published posts about the Floyd death and related issues of police reform. See List of Posts to dwkcommentaries—Topical: George Floyd Killing; List of Posts to dwkcommentaries—Topical: Police Reform.

[2]  Xiong & Montemayor, Judge denies audiovisual coverage of hearings for former officers charged in George Floyd killing, StarTribune (June 26, 2020).

[3] Xiong, In trial over George Floyd’s killing, both defense, prosecution face unique challenges, StarTribune (June 27, 2020).

[4]] Klecker, Minneapolis mayor, police chief announce tighter body-camera rules, StarTribune (June 29, 2020).

[5] Bjorhus & Sawyer, Personnel records shed light on four Minneapolis police officers charged in George Floyd’s death, StarTribune (June 4, 2020); Bjorhus, A deeper look at the four officers fired after George Floyd death, StarTribune (June 1, 2020); Barker, Eligon & Furber, Officers Charged in George Floyd’s Death Not Likely to Present United Front, N.Y.Times (June 4, 2020); Barker, The Black Officer Who Detained George Floyd Had Pledged to Fix the Police, N.Y. Times (June 27, 2020); Wernau, The Other Police Officers Charged in George Floyd Killing, W.S.J. (June 29, 2020).

 

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

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

DerikPolice Chief’s Statement[1]

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

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

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

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

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

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

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

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

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

Kroll’s Statement[3]

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

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

Police Union Officials’ Statements[4]

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

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

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

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

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

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

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

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

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

 

Revised Length of Time for Minneapolis Police Restraint of George Floyd

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.) [1]

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.[2] This is shown by the following table:

Clock Minutes Seconds
08:19:38—08:19:60     0     22
08:20:00—08:20:60     1       0
08:21:00—08:21:60     1       0
08:22:00—08:22:60     1       0
08:23:00—08:23:60     1       0
08:24:00—08:24:60     1       0
08:25:00—08:25:60     1       0
08:26:00—08:26:60     1       0
08:27:00—08:27:24     0     24
TOTAL     7     46

“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.”[3]

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[1] What Happened to George Floyd in Minneapolis on May 25, 2020, dwkcommentareis.com (June 5, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).

[2] Walsh, 7 minutes, 46 seconds: Error in George Floyd killing timeline won’t affect charges, county says, StarTribune (June 18, 2020).

[3] Bogel-Burroughs, 8 Minutes, 46  Seconds Became a Symbol in George Floyd’s Death, The Exact Time Is Less Clear, N.Y. times (June 18, 2020).

 

May 25th Calls for Help at George Floyd Scene 

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

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

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

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

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

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

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

 

The Criminal Complaints Against the Other Three Policeman Involved in George Floyd’s Death 

As is now well known, four Minneapolis policemen were involved in the May 25th death of George Floyd.

On May 29th and June 3rd criminal charges were filed against Derek Chauvin, the one who placed his knee against Floyd’s neck; the later superseding pleading set forth charges of second and third degree murder and second degree manslaughter, all as discussed in a prior post.

Also on June 3rd Minnesota Attorney General Keith Ellison filed criminal charges against the other three policemen who were involved—Thomas K. Lane, J.A. Kueng and Tou Thao: aiding and abetting second degree murder and second degree manslaughter.[1]

In announcing these new charges and the additional charge against Chauvin, Ellison said the cases were still under investigation and encouraged anyone with additional evidence to come forward and cooperate. “We are following the path of all evidence, wherever it leads. We are investigating as quickly as we can, because speed is important. We are also investigating as thoroughly as we can, because thoroughness is also important — and thoroughness takes time.”

“[Such] thoroughness is important because every link in the prosecutorial chain needs to be strong. It needs to be strong because trying this case will be hard. Winning a conviction will be hard. I say that not because I doubt our resources or abilities or resolve, but because history shows that trying and winning a case like this one is hard.“[2]

At their initial hearing in June bail for each of the three officers was set at $1 million (without conditions) and $750,000 (with conditions), and on June 10 Lane posted bail of $750,000 and was released from jail.[3]

Here we will examine and analyze the specific allegations of these charges against the other three policemen.

Criminal Charges Against the Other Officers

All three face the same two Counts:

Count I. Aiding and Abetting Second Degree Murder (Unintentional While Committing a Felony)(Minn. Stat. 609.19.2(1) with reference to 609.05.1. “That on or about May 25, 2020, in Hennepin County, Minnesota, [Lane/Kueng/Thao]  intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other to commit the crime, namely causing 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 or violence or a drive-by shooting, namely assault in the third degree.”

Count II. Aiding and Abetting Second Degree Manslaughter (Culpable Negligence Creating Unreasonable Risk) (Minn. Stata. 609.205(1) with reference to 609.05.01. “That on or about May 25, 2020, in Hennepin County, [Lane/Kueng/Thao] intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other to commit the crime, namely 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 bodily harm to another, George Floyd.”

The three complaints also contained the following essentially identical Statement of Probable Cause (except where indicated, Lane, Kueng and Thao had unique passages). These three Statements of Probable Cause also are the same, in many respects, as the Statement of Probable Cause in the Chauvin complaints):

  • “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 [Lane] began speaking with Mr. Floyd, [Lane] 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 [Kueng] was speaking with the front seat passenger, [Lane] ordered Mr. Floyd out of the car, put his hands on Mr. Floyd and pulled him out of the car. [Lane] handcuffed Mr. Floyd.”
  • “Once handcuffed, Mr. Floyd  walked with [Lane] to the sidewalk and sat on the ground at [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, [Lane] asked Mr. Floyd for his name and identification. [Lane] asked Mr. Floyd if he was “on anything” and noted there was foam at the edges of his mouth. [Lane] explained that he was arresting Mr. Floyd for passing counterfeit currency.”
  • “At 8:14 p.m., . . . [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 and Tou Thao then arrived in a separate squad car.”
  • “[Lane] together with the other 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.”
  • “Officer Chauvin went to the passenger side and tried to get  Mr. Floyd into the car from that side and [Lane] and [Kueng] assisted.”
  • “Officer 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 his legs. Officer 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.’ Officer Chauvin and the other two officers stayed in their positions.”
  • [Only in Thao Complaint: “[Thao] initially obtained a hobble restraint from the squad car to restrain Mr. Floyd in that manner, but the officers chose not to use it and maintained their positions. During this time [Thao] looked directly at how Chauvin was restraining Mr. Floyd with Chauvin’s knee on Mr. Floyd’s neck area, and observed that the three officers had Mr. Floyd subdued in this manner. [Thao] then became concerned about a number of citizens who had gathered and were watching the officers subdue Mr. Floyd, and potential traffic concerns, and so {Thao] stood between those citizens and the three officers restraining Mr. Floyd. When one citizen stepped off the curb, imploring Chauvin to get off of Mr. Floyd, [Thao] put his hands on the citizen to keep him back.”
  • “One of the officers said, ‘You are talking fine’ to Mr. Floyd as he continued to move back and forth. [Lane] asked, ‘should we roll him on his side?’ and Officer Chauvin said, ‘No, staying put where we got him.’ [Lane] said, ‘I am worried about excited delirium or whatever.’ Officer Chauvin said, ‘That’s why we have him on his stomach.’ Officer Chauvin and Kueng held Mr. Floyd’s right hand up.”[Only in Lane Complaint: “Despite his comments, [Lane] took no actions to assist Mr. Floyd, to change his position, or to reduce the force the officers were using against Mr. Floyd.”] [Only in Kueng Complaint: “[Kueng] was in between Chauvin and Lane and in a position to hear their comments.”] Officer Chauvin and [Keung] held Mr. Floyd’s right hand up. None of the three officers moved from 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.’ [Keung] 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, Officer 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 of 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]
  • Officer Chauvin, [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. Officer 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.”

 Analysis of the Complaints Against the Other Three Officers

 The predicate for all counts against the other three officers is a finding of Chauvin’s being guilty of second degree murder and/or second degree manslaughter that were analyzed in a prior post.

Under that scenario, the most direct statutory provision for the other policemen is the following: “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” (Minn. Stat. section 609.05, subd. 1.)(emphasis added).)

Here, there can be no claim that any of these three officers advised, hired, counseled or conspired with or otherwise procured Chauvin to use his knee to restrain Mr. Floyd on the ground for such a long period of time. Thus, the issue for these three officers is whether each of them aided Chauvin in some way to do so.

Since Lane and Kueng physically helped Chauvin in pinning Mr. Floyd to the pavement, they were clearly ‘intentionally aiding” Chauvin in pinning Mr. Floyd.

In addition, the two of them along with Thao failed to intervene to stop Chauvin from his pinning of Mr. Floyd. This raises the issue of  whether the word “aids” includes failure to intervene to stop the commission of the crime of second degree murder or second degree manslaughter. Legal research should examine that issue under cases in Minnesota and other states.

This statutory provision about aiding and abetting is buttressed by the Minneapolis Police Department’s Manual, which under the heading “Duty To Intervene” states: “ Sworn employees have an obligation to protect the public and other employees.” (Manual sec. 5-303.01(A).) And “It shall be the duty of every sworn employee present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.” (Manual sec. 5-303.01(B).)

The Statement of Probable Cause clearly states that these three officers were in close proximity to Chauvin’s pressing his knee against Floyd’s neck, observed that action and Floyd’s reactions, heard Floyd’s saying he could not breathe and had the opportunity to intervene and stop the pressing of Floyd’s neck, but failed to do so.. Indeed, after Floyd stopped moving, they had three more minutes to intervene and stop the pressing of the neck before Chauvin did so himself, but none of the three intervened to stop that action. And after Floyd stopped breathing, they all had nearly two minutes (113 seconds) to intervene, but again did not do so. Lane came closest to doing so when he twice suggested that Floyd be turned over, but then he and the others did nothing further after Chauvin rejected the suggestion. And Officer Kueng could not find a pulse, but then he and the others did not intervene to stop Chauvin’s action in the following near two minutes (113 seconds) of that conduct.

Conclusion

These criminal charges against the other three policemen, according to Christy E. Lopez,  a professor at Georgetown Law School and a former attorney in the U.S. Justice Department’s Civil Rights Division, are “appropriate, but difficult.”  It would be good for the public . . . [and] in the best interest of police.” However, “Social science tells us that intervening to prevent wrongdoing in the middle of a tense incident is far more difficult than we recognize. Notwithstanding the legal duty, there are inhibitors to intervention that most officers will be unable to overcome in the moment unless they have been prepared in advance.”[5]

Lopez adds, “Progressive police agencies and reform advocates have long recognized the importance of officer intervention. Indeed, police have a legal “duty to intervene,” and the Minneapolis Police Department changed its force policy in 2016 to require officers to intervene if they witness another officer using excessive force. The Minnesota attorney general’s Working Group Report on Police-Involved Deadly Force Encounters, released this year, similarly recommended that all law enforcement officers in Minnesota be required to intervene to prevent unreasonable force.”

Such a change, she says, requires training of the police. But “creating a police culture of peer intervention requires more than training. It requires agency reinforcement at every level, and accountability for officers who fail to intervene when they clearly should have — as, again, the video of Floyd’s death depicts.”

The difficulties of one policeman’s intervening to stop another’s abuse are illustrated by a Buffalo New York female officer’s 2016 intervention to stop a white officer’s choking a handcuffed black  protester. The white officer then accused her of jimping on him as he struggled for control and prevailed in an arbitration that led to her being fired. Since then she has been pursuing a lawsuit for reinstatement and passage of a new state law for protection of those who intervene.[6]

At the initial hearing for these three officers, the attorneys for Lane and Keung argued how could new cops like their clients tell or order Chauvin, a policeman with at least 19 years of experience, to stop pressing his knee against Floyd’s neck. Moreover, their lawyers did not mention what may well be true, that there is a culture of policemen backing up each other, and if you intervene and develop a reputation within the police force of being someone who cannot be trusted, then you will not be able to get timely backup when you need it.[7]

This conflict has emerged in other ways.

Immediately after the killing and before the firing of the four police officers involved in this case, Minneapolis Police Federation President Lt. Bob Kroll  stated, ““Now is not the time to rush to judgment and immediately condemn our officers. We ask that the community remain calm and the investigation be completed in full.” And on June 1, Kroll said he was working with the union’s attorneys to help the four fired officers get their jobs back because they were “terminated without due process” while devoting most of his comments to criticizing the city’s handling of resulting riots and making policemen “scapegoats” for the violence.[8]

In addition, the bringing of these criminal charges and the associated protests against the Minneapolis police have caused seven of those officers to resign while another half dozen are in the process of leaving. “Morale has sunk to new lows in recent weeks, say department insiders, as officers reported feeling misunderstood and squeezed by all sides: by the state probe; by protesters, who hurled bricks and epithets their way; by city leaders, who surrendered a police station that later burned on national television, and by the media. Numerous officers and protesters were injured the rioting.”9]

Others at the Police Department have responded differently.[10]

The Minneapolis Police Chief, Medaria Arrandondo, immediately “condemned and fired the four officers involved. He visited the location where Floyd was killed. He spoke directly to Floyd’s family members on national television. He pledged to cooperate with the state’s probe into his department’s practices and make ‘substantive policy changes.’”

On June 11, 14 Minneapolis police officers wrote an open letter to Minneapolis citizens and everyone else. Claiming to speak on behalf of “the vast majority” of their colleagues, the letter’s signatories– Cmdr. Charlie Adams, who now runs its community engagement efforts; Lt. Mark Klukow, who now works in the First Precinct in downtown Minneapolis; Lt. Rick Zimmerman, who runs the homicide unit; Sgt. Darcy Klund, who commands the First Precinct community response team; John Delmonico, the former head of the police union; and others–  said the following:

  • “We wholeheartedly condemn Derek Chauvin. We Are With You in the denouncement of Derek Chauvin’s actions on Memorial Day, 2020. Like us, Derek Chauvin took an oath to hold the sanctity of life most precious. Derek Chauvin failed as a human and stripped George Floyd of his dignity and life. This is not who we are.”
  • “We Are With You and want to communicate a sentiment that is broad within our ranks. We ask that our voices be heard. We are leaders, formal and informal, and from all ranks within the Minneapolis Police Department. We’re not the union or the administration. We are officers who represent the voices of hundreds of other Minneapolis Police Officers. Hundreds. We acknowledge that Chief Arradondo needs each of us to dutifully follow him while he shows us the way. We stand ready to listen and embrace the calls for change, reform and rebuilding.”
  • “We Are With You moving forward. We want to work with you and for you to regain your trust.”

The next event in this important legal proceeding will be hearing in all four criminal cases in Hennepin County District Court on June 29.

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

[1] Press Release, Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floy, three former officers with aiding and abetting 2nd degree murder. (June 3, 2020); Complaint, State v.Tou Thao, Prosecutor File No. 33.EC55.0227, Court File No. 27-CR-20-12949 (Dist. Ct., 4th Judicial Dist. June 3, 2020); Complaint, State v. Thomas Kiernan Lane, Prosecutor File No. 33.EC56.0227, Court File No. 27-CR-20-12951 (Dist. Ct., 4th Judicial Dist. June 3, 2020); Complaint, State v. J. Alexander Kueng, Prosecutor File No. 33.EC57.0227, Court File No. 27-CR-20-???? (Dist. Ct., 4th Judicial Dist. June 3, 2020); Shammas, Beilware & Dennis, Murder charges filed against all four officers in George Floyd’s death as protests against biased policing continue, Wash. Post (June 3, 2020); Kornfield, Guarino, Beachum, Thebault, Mettier, Knowles, Chiu, Shepard & Armus, 3 more officers charged in Floyd’s death as protesters gather for 9th night, Wash. Post (June 4, 2020); Montemayor & Xiong, Four fired Minneapolis officers charged, booked in killing of George Floyd, StarTribune (June 4, 2020).

[2] Press Release, Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floyd, three former officers with aiding and abetting 2nd degree murder. (June 3, 2020).

[3]  Initial Hearings in Criminal Cases for Killing of George Floyd, dwkcommentaries.com (June 10, 2020); Karnowski, Judge: $750K bail for 3 ex-officers accused in Floyd death, StarTribune (June 4, 2020); Xiong, Bail set at $1 million for three ex-Minneapolis police officers charged in Floyd case, StarTribune (June 4, 2020); Walsh, Fired Minneapolis police officer Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 11, 2020).

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

[5]  Lopez, George Floyd’s death could have been prevented if we had a police culture of intervention, Wash. Post (May 29, 2020).

[6] Sondel & Knowles, George Floyd died after officers didn’t step in. These police say they did—and paid a price, Wash. Post (June 12, 2020).

[7] Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).

[8] Navratil & Jany, As Mayor Frey calls for officer’s arrest, violence intensifies in Minneapolis, StarTribune (May 28, 2020); Jany & Navratil, Kroll, Minneapolis union head, blasts city’s riot response in letter to officers, StarTribune (June 1, 2020).

[9] Jany & Sawyer, Seven Minneapolis police officers resign after George Floyd protests, citing lack of support from city leaders, StarTribune (June 13, 2020).

[10] Jany & Evans, After George Floyd’s death, Minneapolis police chief is caught in force’s racial legacy, StarTribune (June 8, 2020); Olson, Minneapolis police officers issue open letter condemning colleague in George Floyd’s death, pledging to work toward trust, StarTribune (June 12, 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).

 

Initial Hearings in Criminal Cases for Killing George Floyd

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.

Derek Chauvin [1]

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. [3]

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.

Conclusion

Subsequent posts will examine the  criminal complaints against the four officers and their second hearing scheduled for June 29.

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[1] Stanley & Xiong, $1.25M bail set for Derek Chauvin at his initial appearance Monday in George Floyd’s death, StarTribune (June 8, 2020); Karnowski, Officer charged in Floyd’s death held on $1 million bail, StarTribune (June 8, 2020); Bail Set for Up to $1.25 Million for Officer Charged With Murder in George Floyd Case, N.Y. Times (June 8, 2020).

[2] Xiong, Two ex-Minneapolis police officers charged in George Floyd’s death cast blame on more senior colleague, StarTribune (June 5, 2020); Gordon & Richmond, Duty to intervene: Floyd cops spoke but didn’t step in, StarTribune (June 7, 2020); Karnowski, Officer charged in Floyd death held on $1 million bail, StarTribune (June 8, 2020); Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).

[3] On June 10, Lane posted cash bail of $750,000 with conditions (surrendering firearms, remaining law-abiding and making all future court appearances) and was released from jail. (Walsh, Fired Minneapolis police officer, Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 10, 2020).)

 

 

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

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

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

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

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[1] E.g., Hill, Tiefenthaler, Triebert, Jordan, Willis & Stein, 8 Minutes and 46 Seconds: How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020);  Hennesy & LeBlanc, 8:46: A number becomes a potent symbol of police brutality, Star Tribune (June 4, 2020); Xiong, A timeline of events leading to George Floyd’s death as outlined in charging documents, StarTribune (June 4, 2020).