U.S. Supreme Court – dwkcommentaries

U.S. Supreme Court Cancels Argument Over Title 42 Immigration Case

On February 7, the Biden Administration advised the Supreme Court, “The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render . . . moot” the case before the Court over Title 42.[1]

Soon thereafter the Supreme Court cancelled the arguments in the case scheduled for March 1. As a result, the Court is expected to dismiss the case and cancel the order staying the rescission of Title 42 after the administration canels Title 42. [2]

[1] Liptak, Biden Officials Tell Supreme Court That Title 42 Case Will Soon Be Moot, N.Y. Times (Feb. 7, 2023).

[2] Liptak, Supreme Court Cancels Arguments in Title 42 Immigration Case, N.Y. Times (Feb. 16, 2022). This litigation over Title 42 was discussed in a prior post. (Congress Fails to Adopt Important Immigration Legislation, dwkcommentaries.com (Dec. 28, 2022);immigration Comment: Speculative Interpretation of Supreme Court Decision on Title 42 Case, dwkcommentaries.com (Dec. 29, 2022)..)

The Need To End Minority Rule in U.S.

Harvard professors of government, Steven Levitsky and Daniel Ziblatt, make a convincing case that the structure of the U.S. government has permitted minority rule in the U.S. and they propose ways to change that structure to reduce the enabling of such minority rule.[1] We will examine their arguments about structure and reform. Then a couple of other ways to change one part of that structure—the Electoral College–will be proposed by this blog followed by looking at another critique of the current U.S. government structure provided by Larry Diamond of the Hoover Institute at Stanford University.

Existing Structure Enabling Minority Rule

“Democracy is supposed to be a game of numbers: The party with the most votes wins. In our political system, however, the majority does not govern. Constitutional design and recent political geographic trends — where Democrats and Republicans live — have unintentionally conspired to produce what is effectively becoming minority rule.”

“Our Constitution was designed to favor small (or low-population) states. Small states were given representation equal to that of big states in the Senate and an advantage in the Electoral College, as we are seeing in this year’s presidential election. What began as a minor small-state advantage evolved, over time, into a vast overrepresentation of rural states. For most of our history, this rural bias did not tilt the partisan playing field much because both major parties maintained huge urban and rural wings.”

“Today, however, American parties are starkly divided along urban-rural lines: Democrats are concentrated in big metropolitan centers, whereas Republicans are increasingly based in sparsely populated territories. This gives the Republicans an advantage in the Electoral College, the Senate and — because the president selects Supreme Court nominees and the Senate approves them — the Supreme Court.”

Moreover, “recent U.S. election results fly in the face of majority rule. Republicans have won the popular vote for president only once in the last 20 years and yet have controlled the presidency for 12 of those 20 years. Democrats easily won more overall votes for the U.S. Senate in 2016 and 2018, and yet the Republicans hold 53 of 100 seats. The 45 Democratic and two independent senators who caucus with them represent more people than the 53 Republicans.”

“This is minority rule.”

“The problem is exacerbated by Republican efforts to dampen turnout among younger, lower-income and minority voters. Republican state governments have purged voter rolls and closed polling places on college campuses and in predominantly African-American neighborhoods, and since 2010, a dozen Republican-led states have passed laws making it more difficult to register or vote.”

Levitsky & Ziblatt’s Proposed Reforms

Eliminate the electoral college by constitutional amendment. This is not easy. Under Article V of the Constitution, the Congress shall propose amendments “whenever two-thirds of both Houses shall deem it necessary [Senate (2/3 x 50 = 33.3) and House (2/3 x 435 = 290). Or under Article V, the Congress shall call a Convention for proposing amendments “whenever . . . two-thirds of the Legislatures of the . . .States [currently 2/3 x 50 = 33.3] apply for such a convention). I agree.

Eliminate the filibuster, which has meant that “meaningful legislation now effectively requires 60 votes, which amounts to a permanent minority veto.”[2 ] This would require a Senate vote to change its rules. Under the current Senate Rules, I believe that would require a vote of at least 60 senators, but whenever a new congress convenes as it will do in January 2021, I believe it may do so by majority vote. (Please advise by comments to this post if these beliefs about Senate Rules are wrong.).) I agree.

Offer statehood to Puerto Rico and the District of Colombia, “which would provide full and equal representation to nearly four million Americans who are currently disenfranchised.” I agree.

Defend and expand “the right to vote. “HR-1 and HR-4, a package of reforms approved by the House of Representatives in 2019 but blocked by the Senate, is a good start. HR-1 would establish nationwide automatic and same-day registration, expand early and absentee voting, prohibit flawed purges that remove eligible voters from the rolls, require independent redistricting commissions to draw congressional maps, and restore voting rights to convicted felons who have served their time. HR-4 would fully restore the 1965 Voting Rights Act, which was gutted by the Supreme Court’s Shelby County vs. Holder ruling in 2013.” I agree.

Other Suggestions Regarding the Electoral College

There are at least two other methods of changing the anti-democratic nature of the current Electoral College that, at least in part, would not require constitutional amendment.

First. Peter Diamond, professor emeritus at M.I.T. and a 2010 Nobel laureate in economics, has suggested a constitutional amendment that would require each state to divide its electoral vote between the two leading candidates within the state in accordance with the popular vote. For example, a state with an even split in the popular vote and 10 electoral votes would allocate 5 such votes to each candidate.[3] Yes, such a change would require such an amendment since it would require all states to do it this way.

Or each state independently could decide to do just that, without a constitutional amendment, since Article II, Section 1 of the Constitution provides, “Each State shall appoint, in such Manner as the Legislature thereof may direct,” the Electors to which it is entitled. (Emphasis added.) It, however, seems unlikely that all 50 states independently would decide to do this as a matter of each state’s laws.

Another way of changing the anti-democratic nature of the Electoral College is approval by additional states of the existing National Popular Vote Interstate Compact, which requires signatory states to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia once the Compact is signed by states with at least 270 electoral college votes. As of October 2020 this compact had been adopted by 15 states and the District of Columbia, which have a total of 196 electoral college votes although one of the states (Colorado) has suspended its approval of the Compact.[4]

This proposal raises a number of legal issues. Some legal observers believe states have plenary power to appoint electors as prescribed by the Compact; others believe that the Compact will require congressional consent under the Constitution’s Compact Clause or that the presidential election process cannot be altered except by a constitutional amendment.

Another Challenging Critique of U.S. Government

Another challenging and surprising critique of the current governmental problems in the U.S. has been provided by Larry Diamond, a senior fellow at the Hoover Institution and at Stanford University’s Freeman Spogli Institute for International Studies.[5]

According to Mr. Diamond, “Today, we are far closer to a breakdown than most democracy experts, myself included, would have dared anticipate just a few years ago. Even if we are spared the worst, it is long past time to renew the mechanisms of our democracy, learn from other democracies around the world and again make our republic a shining city on a hill.”

Moreover, “The very age of American democracy is part of the problem. The United States was the first country to become a democracy, emerging over a vast, dispersed and diverse set of colonies that feared the prospect of the ‘tyranny of the majority.’ Hence, our constitutional system lacks some immunities against an electoral debacle that are common in newer democracies.”

Today, he asserts, “The American [election] system is a mishmash of state and local authorities. Most are staffed by dedicated professionals, but state legislatures and elected secretaries of state can introduce partisanship, casting doubt on its impartiality. No other advanced democracy falls so short of contemporary democratic standards of fairness, neutrality and rationality in its system of administering national elections.”

In contrast, “even though Mexico is a federal system like the United States, it has a strong, politically independent National Electoral Institute that administers its federal elections. The Election Commission of India has even more far-reaching and constitutionally protected authority to administer elections across that enormous country. Elections thus remain a crucial pillar of Indian democracy, even as the country’s populist prime minister, Narendra Modi, assaults press freedom, civil society and the rule of law. Other newer democracies, from South Africa to Taiwan, have strong national systems of election administration staffed and led by nonpartisan professionals.”

In addition, “more recent democratic countries have adopted constitutional provisions to strengthen checks and balances. Like many newer democracies, Latvia has established a strong independent anti-corruption bureau, which has investigative, preventive and educational functions and a substantial budget and staff. It even oversees political and campaign finance. South Africa has the independent Office of the Public Protector to perform a similar role.”

In contrast, the U.S. “has no comparable standing authority to investigate national-level corruption, and Congress largely investigates and punishes itself.”

On another issue, newer democracies have taken “measures to depoliticize the constitutional court. No other democracy gives life tenure to such a powerful position as constitutional court justice. They either face term limits (12 years in Germany and South Africa; eight in Taiwan) or age limits (70 years in Australia, Israel and South Korea; 75 in Canada), or both. Germany depoliticizes nominations to its constitutional court by requiring broad parliamentary consensus. In other democracies, a broader committee nominates Supreme Court justices. In Israel this involves not just the executive branch but the parliament, some of the existing justices and the bar association.”

In contrast, the U.S. “lacks national checks on executive corruption and national guarantees of electoral integrity that have become routine in other democracies around the world. And nominations to our Supreme Court have become far more politicized than in many peer democracies.”

Conclusion

A proposal for changing the undemocratic structure of the U.S. Senate will be discussed in a future post.

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[1] Levitsky & Ziblatt, End Minority Rule, N.Y. Times (Oct. 23, 2020). Levitsky and Ziblatt also are co-authors of How Democracies Die, which was reviewed in the New York Times: Szalai, Will Democracy Survive Trump? Two New Books Aren’t So Sure, N.Y. Times Book Review (Jan 10, 2018).

[2] This blog has published posts that discuss the history of the filibuster rule, including modest reforms of the rule in 2013, and recent unsuccessful litigation challenging the constitutionality of the filibuster.

[3] Diamond, Letter to the Editor: Let States Split the Electoral College Votes, N.Y. Times (Oct. 29, 2020).

[4] National Popular Vote, Inc., National Popular Vote!; National Popular Vote Interstate Compact, Wikipedia.

[5] Diamond, I’m a Democracy Expert. I Never Thought We’d Be So Close to a Breakdown, N.Y. Times (Nov. 1, 2020). Diamond is the author, most recently, of “Ill Winds: Saving Democracy From Russian Rage, Chinese Ambition, and American Complacency,“ Penguin Random House, 2019, 2020).

Election Message from James H. Lowry

James H. Lowry, a Grinnell College classmate (1961), friend, and accomplished social activist and business executive, has written the following inspiring election message which he asked me to share. (Here is his biography in The History Makers (the nation’s largest African-American video oral history collection).

“As we near Election Day 2020, I’ve been reflecting on my own relationship with politics and the importance of exercising perhaps our most sacred civic duty, voting. In my new book, Change Agent: A Life Dedicated to Creating Wealth for Minorities, I recount how early on in my life and career I was inspired by politics. From kitchen table talks with my mother, Camille, and big brother Bill about who she wanted to vote for, witnessing the passing of Civil Rights legislation and policy under the Kennedy Administration, and working closely with Senator Robert Kennedy to implement the Bedford-Stuyvesant Restoration Corporation in 1967, I saw the benefits and possibilities of politics from the very beginning. But even then, I knew the fight was just beginning.”

“Under the Obama administration, I felt immense pride in the Claims Resolution Act, granting payouts to BIPOC farmers, and the Fair Sentencing Act that served to reduce incarceration disparities. But still I knew, the fight was just beginning.”

“In 2012 the U.S. Supreme Court overturned part of the Voting Rights Act of 1965 that mandated states to secure federal permission before changing voting laws or practices. Now, in 2020, as our country continues to grapples with a global pandemic thats requiring most Americans to vote from home, we’ve seen states refuse mail in ballots to their electorates, our national postal service gutted under political motivations, false ballot dropboxes in California, and a president that uses every platform he has to sow division while simultaneously undermining our democracy by questioning the legitimacy of our electoral process.”

“As we draw nearer to potentially the most consequential election of our lifetimes, I implore you to make a plan! Whether it be taking your mail-in ballot to a ballot drop box today, going in person early between now and Nov 2nd, or taking the necessary precautions to keep you and your family safe on Election Day, make sure you use your ballot and voice are heard! The fight isn’t over, it is just beginning!”

“If you’re unsure what steps you need to make your voting plan, go to www.vote.org and begin the process of making your voice heard! We’re all counting on us to win this fight!”

Questioning Originalists and Textualists’ Interpretations of the U.S. Constitution

According to the Associated Press, “Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers’ intentions in resolving legal disputes.” [1]

This was a subject of the testimony of Judge Amy Coney Barrett at her recent Senate hearing about the confirmation of her appointment to the U.S. Supreme Court. She “expounded at length on the tenets of textualism and originalism, approaches made popular by Justice Scalia that privilege plain reading of legal texts and seek to minimize a judge’s own interpretations of statute or the Constitution.” Originalism, she said, “means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it [in 1787-88]. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my policy views into it.”[2]

Although I did not follow that hearing in detail and although I am not a scholar of that philosophy, several commentaries have suggested important qualifications to such a philosophy. Here is a summary of two of those commentaries.

Professor Jack Rakove[3]

One of those commentaries was by Jack Rakove, the William Robertson Coe professor of history and American studies and a professor of political science emeritus at Stanford University and the author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” which received the 1997 Pulitzer Prize in history.

Rakove starts his recent commentary by noting, “debates about originalism and how to perform it have been roiling the legal academy for several decades. Scores and scores of scholarly articles on the subject pour in annually from university law reviews; another baker’s dozen books also address it. And there is no simple way to say how we know what the phrases of the Constitution originally meant.” (Emphasis added.)

Moreover, Rakove says, “The framers never worried about its future judicial interpretation, nor would they have thought of themselves as ‘originalists.’”

For historians, “How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its ‘original meaning.’” (Emphasis added.)

Lawyers and presumably judges, on the other hand, “assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.”

The above approach by lawyers and judges, however, ignores the fact “that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.”

“Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. [For example, there “is no adequate dictionary definition of ‘the executive power’ that Article II vests in the president. [For another example, understanding] what the ‘establishment of religion’ invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his ‘Notes on the State of Virginia,’ the very word ‘constitution’ had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.”

Rakove says the “best-known example of ‘public meaning’ originalism, Justice Antonin Scalia’s opinion in the major Second Amendment case D.C. v. Heller, is . . . a travesty of historical unreason. Here, the court narrowly held that an individual right of self-defense within one’s domicile was constitutionally protected. Far from being a decision logically derived from the original intentions behind the Second Amendment, Scalia’s opinion in Heller is, ironically, a great tribute to the idea of a ‘living Constitution,’ one whose meaning evolves over time — in this case, recognizing how attached Americans had become to the use of firearms.”

Indeed, although there were “a handful of references [alluding to] an individual right to arms” in the debates surrounding the Second Amendment, “that was manifestly not the issue in dispute. The debate was about the militia, a state-governed institution whose future status was problematic because the Constitution gave Congress broad authority to oversee its ‘organizing, arming, and disciplining.’ No one then would have read the amendment to constrain the ‘internal police’ powers of the states, meaning their broad authority to secure public health and safety.”

As a result, “the practice [of originalism] does not provide the constraints on judicial rulings that its advocates claim.”

Rakove’s earlier and somewhat longer article on this same subject in the Fordham Law Review concludes with the following comment: In “the realm of politics and constitutionalism more generally, events continued to prove disruptive of linguistic stability. Critical terms, like constitution or executive power or establishment of religion or sovereignty, came under sustained pressure, not least because of the inventiveness of American revolutionary politics [in the late 18^th century]. Anyone who thinks he [or she] can establish conditions of linguistic fixation without taking that turbulent set of events into account is pursuing a fool’s errand.” (Emphasis added.) [4]

Jamelle Bouie[5]

The other recent commentary came from Jamelle Bouie, a New York Times columnist and a political analyst for CBS News, who cites the above criticism of originalism by Rakove and by “Jonathan Gienapp, a historian of the early American republic at Stanford, [who] charges originalists with building a framework ‘such that no amount of historical empiricism can ever challenge it,’ in which neither ‘the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century’ have any bearing on the so-called original public meaning of the Constitution.”

More importantly, Bouie contends that the Civil War “shattered the constitutional order” and that the “Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country.” As historian Eric Foner contends, these amendments were a “second founding” establishing a “biracial democracy” as opposed to the “white republic” established by the original Constitution.[6] Indeed, Bouie says, the 13^th amendment in addition to banning slavery provided, “Congress shall have the power to enforce this article by appropriate legislation” or [in the words of the Chicago Tribune at the time] seemingly limitless authority to “prevent actions by states, localities, businesses, and private individuals that sought to maintain or restore slavery.” Similarly, the 14^th and 15^th amendments expanded federal power to defend individual and voting rights.

“To take the Second Founding seriously is to reject a vision that binds us to the Constitution as it was in 1787. It is also to embrace a broader vision of the ‘framing’ of American democracy, one that looks to the reconstruction of the country after its near-destruction [in the Civil War] as much as to its birth and founding.”

Conclusion

I solicit comments identifying any questening of Judge Barrett on these issues and her responses.

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[1] Assoc. Press, A.P. Explains: Originalism: Barrett’s legal philosophy, Wash. Post (Oct. 13, 2020)

[2] Fandos, Barrett, Declining to Detail Legal Views, Says She will Not Be ‘a Pawn’ of Trump, N.Y. Times (Oct. 13, 2020).

[3] Rakove. The framers of the Constitution didn’t worry about ‘originalism,’ Wash. Post (Oct. 16, 2020).

[4] Rakove, Tone Deaf to the Past: More Qualms About Public Meaning Originalism, 84 Fordham L. Rev. 969 (2015). Presumably even more grounds for skepticism about originalism can be found in Rakove’s book on the subject: Original Meanings: Politics and Ideas in the Making of the Constitution,”

[5] Bouie, Which Constitution Is Amy Coney Barrett Talking About?, N.Y. Times (Oct. 16, 2020)

[6] Foner, The Second Founding: How the Civil War and Reconstructrion Remade the Constitution (W.W. Norton & Co. 2019); Caplan: What Reconstruction-Era Laws Can Teach Our Democracy, N.Y. Times Book Review (Sept. 18, 2019)(review of Roner book).

Pandemic Journal (# 29): Current Reflections on COVID-19 Pandemic

As of 8:48 CST on September 20, more than 6,790,500 people in the U.S. had been infected with the coronavirus (the most of any country in the world) and at least 199,500 have died. In Minnesota, there have been 88,773 cases and 5,133 deaths. For the world as a whole the numbers are 30,675,000 cases and 954,427 deaths.[1] These statistics cause one to have sympathy for all those who have or had the disease and all those who have died from it and for all their family members and friends.

I only know two people who have had the coronavirus. One is a nephew who is recovering at his home in another state. The other is Nachito Herrera, a friend and a famous Cuban-American jazz pianist in Minnesota, whose ICU care with a ventilator was covered by Minnesota media and who recently played several pieces, including his arrangement of “America the Beautiful,” on a public television program. And on September 25 he is scheduled at the Minneapolis’ jazz club, the dakota, for a concert. [2]

On March 19, 2020, our condo building management instituted new regulations in response to the coronavirus: residents were required to report to the office coronavirus symptoms; all common areas in the building were closed; new practices of cleaning and disinfecting the common areas were adopted; and residents were requested to minimize the number of contractors and visitors entering the building. Since then other measures have been adopted and some of the common areas were reopened with usage restrictions.

Thus, for roughly six months my wife and I have been spending most of our time in our own condo, walking and biking outside on nice days and going to grocery stores for our food supplies. More recently we have been going to doctors and dentists for necessary care, a barber and hair stylist for necessary services and restaurants for occasional meals outside on patios. For example, on an afternoon last week we walked on Nicollet Mall to Barrio Restaurant for delicious tacos at a table on the sidewalk. The Mall, which is Minneapolis’ main street (in normal times) for restaurants, bars, stores and office buildings, now has covered all ground-level windows and glass doors with plywood, most businesses are closed and most of the time very few people are walking around.

For these six months we have not traveled anywhere outside Minneapolis and nearby western suburbs except for two trips to a nearby town: one for our granddaughter’s high school graduation party and the other for a walk with our son and his family. Thus, we have a great desire to see other places, and this week we plan to drive to the North Shore of Minnesota for two nights to see the beautiful fall colors of the trees.

We are grateful that we and our family have not caught the virus and are healthy and hope that that will continue. We worry about our sons and their families here and in Ecuador and relatives in Nebraska and elsewhere and pray that they stay healthy.

Last Friday Ruth Bader Ginsburg, a U.S. Supreme Court Justice, died. For many years she has been an inspiring voice against gender and other discrimination. Last night I watched “RBG,” a moving documentary film about her by CNN Films. The film reminded me of what a wonderful human being she was and how we all will miss her.

Then we have to return to reading about the horrible words and actions of President Donald Trump, who immediately said that this week he will nominate a woman to replace Ginsburg on the Supreme Court, and U.S. Senator Mitch McConnell, the Majority Leader of that body, who has said he will lead the effort to have the Senate confirm the nomination as soon as possible and maybe even before the November 3rd presidential election. Many people, including me, fear that the nominee will be very conservative and a threat to undo many of the principles that Ruth Bader Ginsburg struggled for. I, therefore, sent some money to a group supporting Amy McGrath, who is McConnell’s opponent in this year’s election.

Another example of Trump’s insensitive and harmful remarks happened on his visit to Minnesota last Friday when he “extolled at length the battle prowess of” Confederate General Robert E. Lee to audiences that contained descendants of Minnesota men who were members of the Minnesota Volunteer Infantry Regiment that played a vital role for the Union, many of whom were killed in the Civil War.[3]

This morning I attended a very moving virtual worship service at Minneapolis’ Westminster Presbyterian Church. The Scripture for the day was Samuel 3: 1-10 and Luke 2: 41-52 as the foundation for the sermon “Learning to Listen/Listening to Learn” by Senior Pastor, Rev. Tim Hart-Andersen. [4]

A new moving voice in the service was Joe Davis, a poet and Artist in Residence at the church, who previously said, “ I am a poet because I struggle desperately to express my soul’s deepest longings each and everyday—yet I never shy away from the fight.” He “grew up in a non-denominational Pentecostal church in North Dakota, where his parents were active members. In college at Minot State, Joe began to go on spring break service trips with the campus ministry. The campus pastor, who happened to be Lutheran, encouraged Joe to become a peer minister. Her mentoring helped him grow in faith and as a leader, and the ELCA [Evangelical Lutheran Church in America] became an important part of his life.” Now he “feels ‘a little bit of both ‘Lutheran and Pentecostal’ while also being “a strong believer in ecumenicalism—the unity of Christians across denominational lines.”[5]

This worship service was previewed early last week at a ZOOM conversation about aging in the Covid pandemic. Rev. Hart-Andersen said that spirituality should be addressed holistically and intentionally by focusing on your heart (writing hand-written letters or emails to your family and friends); your soul (developing and following a discipline for praying); your mind (reading); your body (exercising); and your love (serving, praying, advocating, writing and volunteering). Afterwards I told Tim that the activities for the “mind” should be reading, reflecting, studying or researching, writing about these activities and then sharing the writing with others. This is what I strive to do on most subjects of posts to this blog.

On today’s beautiful sunny 70-degree afternoon in Minneapolis my wife and I went for an enjoyable walk up Kenwood Parkway from the Walker Art Center Garden to the north end of Kenwood Park and returning on Mt. Curve Avenue to the western side of the Walker to Kenwood Parkway.

Tomorrow morning I will be having coffee with three friends from our condo building in our entertainment center, a practice I started several weeks ago. We have enjoyable conversations and, I think, all of us welcome this opportunity to have social interaction in this age of social distancing.

Another item on my ongoing agenda is preparing for the October 12^th meeting of my men’s book group from Westminster Church. I will be leading the upcoming meeting to discuss the novel, “The Last Trial,” by Scott Turow. Most of our meetings this year have been by ZOOM although last month five of us met in the outdoor patio of one of our members; the other five members could not make the meeting. Reading and discussing books with other men is another important way to have needed social interaction.

These are the thoughts of one day of a human being’s living through the pandemic in Minneapolis, Minnesota, USA. I am managing to stay healthy in mind and body despite worries about the coronavirus and the headaches caused by Trump and fears over his supporters somehow damaging or disrupting the November 3rd election.

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[1] Covid in the U.S.: Latest Map and Case Count, N.Y.Times (Sept. 20, 2020); World Health Organization, WHO Coronavirus Disease (COVID-19) Dashboard.

[2] Bream, Minnesota pianist Nachito Herrera on surviving COVID-19: ‘This it the worst thing I’ve had in 54 years of my life, StarTribune (Sept.5, 2020); Nachito Herrera Concert at Minneapolis’ Westminster Presbyterian Church, dwkcommentaries.com (Jan. 7, 2015); Minneapolis’ Westminster Presbyterian Church’s Connections with Cuba, dwkcommentaries.com (∆an. 13, 2015)

[3] Van Ooy & Smith, Trump’s praise of Robert E. Lee gets pushback from Minnesotans proud of state’s role at Gettysburg, StarTribune (Sept. 19, 2020).

[4] The video of this service is available in the church’s Archive of services, and a future blog post will examine details of the service.

[5] Joe Davis Poet, joedavispoetry.com; Parent, Poet in Residence at Redeemer Lutheran Church, zionbuffalo.org (March 2014).

Preview of the 9/11/20 Hearing in George Floyd Criminal Cases

This preview will follow the Agenda for the 9/11/20 hearing in the four George Floyd criminal cases that has been set by the Hennepin County District Court Judge Peter Cahill.[1]

State’s Motions

Motion for Joint Trial[2]

On August 12, the State asked the court to consolidate all four of the cases for one trial on the grounds that the charges and evidence in all four cases are similar; that there would be less negative impact on witnesses and family members; the defenses of the four ex-officers were not antagonistic; and the interests of justice would be advanced.

Unsurprisingly all of the four defendants are opposing this motion. Here is a summary of their arguments: Chauvin: other defendants likely to blame Chauvin, whose defenses are likely to blame the others and thus they are mutually antagonistic; trying Chauvin first is the sensible approach which would dictate the need for, and scope of, any other trials. Kueng: different evidence on whether and how the defendants worked in close concert; no particularly vulnerable witnesses; antagonistic defenses; interests of justice do not favor joinder. Lane: likely antagonistic defenses with each defendant having different version of what happened and who is to blame, forcing jury to choose between defendants’ testimonies. Thao: Minnesota has favored separate trials; unknown if “overwhelming majority” of evidence will be same in all the cases; Thao did not work in close concert with the others; impact on Floyd family is not a factor; nature of Floyd’s death does not favor joinder; antagonistic defenses are highly likely; COVID-19 favors separate trials with smaller gatherings at each.

Motion to Submit Aggravating Factors to Jury (Blakely)[3]

Under Blakely v. Washington, 542 U.S. 2996 (2004), the U.S. Supreme Court held that the defendant’s Sixth Amendment right to a jury trial can be violated any time the court imposes a sentence greater than that called for in the guidelines, even when the sentence imposed is below the maximum punishment permitted by the legislature.

On August 28, the State gave notice of its intent to seek an upward sentencing departure for Chauvin on the grounds that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children.

Motion for Expert Witness Disclosure[4]

On August 28, the State moved for establishing deadlines of disclosure of expert witnesses with the following suggestions: Initial Expert Disclosures (12/08/20) and full Expert Disclosures (01/08/21).

Defendants’ Motions

Motions for Change of Venue[5]

All four defendants have moved for change of venue with the following arguments: Chauvin (excessive pretrial publicity in Twin Cities); Lane (transfer to Washington or Dakota County because fair trial impossible in Hennepin County); Thao (fair trial impossible In Hennepin County; change to St. Louis, Clay or Crow Wing County); Kueng (prejudicial publicly in Hennepin County; change to another county “outside the seven-county metro area, such as Stearns County or another county with appropriate facilities and demographics”).

Jury Sequestration and Anonymity Motion[6]

On August 28, Thao moved for jury sequestration and juror anonymity due to “the notoriety of the case.”

Motion to Disqualify HCAO [Hennepin County Attorney’s Office][7]

The only apparent motion to disqualify the HCAO was filed on August 6 by the attorney for Kueng on the ground that the County Attorney had made prejudicial comments about the defendants, and the very next day (August 7) Judge Cahill denied the motion.

Thus, this must be an erroneous agenda item.

Rule 404 Evidence Motions[8]

On August 27, Kueng gave notice that he may offer at trial evidence regarding (1) the circumstances of (a) Floyd’s 05/06/19 arrest by MPD; (b) Floyd’s 05/06/19 medical intervention at Hennepin County Medical Center; and (c) Floyd’s 08/09/07 arrest and subsequent conviction in Texas for Aggravated Robbery with a Deadly Weapon.

Discovery Motions[9] On August 24, Thao filed a motion to compel discovery of the following regarding the investigation and death of Floyd; (1) complete Hennepin County Medical Examiner’s Office file; (2) any and all reports and autopsies performed by Dr. Michael Baden; (3) any and all reports and autopsies performed by Dr. Allecia Wilson; and (4) entire Office of the Armed Forces Medical examiner file.

On August 28, Chauvin filed a motion for the State’s disclosure of (1) body worn camera/audio from MPD CN-201 9-127538 from Floyd’s arrest; (2) files pertaining to Floyd’s cooperation as an informant for the MPD, FBI or any other state or federal law enforcement agency; (3) files documenting Floyd’s activity as a gang member or affiliate within the past five years; (4) information regarding Floyd’s 05/06/19 drug possession/sale investigation; (5) training materials with active imbedded links to video portions; and (6) index to State’s document disclosures.

Administrative Matters

Jury Selection

Method
Preemptory Challenges

In-Court Presence/COVID-19 Restrictions
Overflow rooms/Audio-Visual Coverage
Overnight/Special Transcript Requests
Trial Length/Daily Schedule

Substantive Matters

The Judge already has announced that the only substantive matters—the four defendants’ motions to dismiss for alleged lack of probable cause for the criminal charges—will be decided on the briefs and factual record without argument at the hearing.[10] The only new details on these motions is the State’s recent opposition to Defendant Kueng’s dismissal motion and its future opposition to the recent Chauvin motion. [11]

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[1] Agenda for Court’s 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept, 2, 2000); Comment: More Informed Reaction to Agenda, dwkcommentaries.com (Sept. 7, 2020).

[2] Prosecution Requests One Trial for the Four Former Policemen Charged with Floyd Killing, dwkcommentaries.com (Aug. 13, 2020); Chauvin’s Memorandum of Law Opposing the State’s Joinder Motion, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Sept. 8, 2020); Lane’s Defense Objection to State’s Motion for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020); Kueng’s Objection to the State’s Motion for Joinder, State v. Kueng Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Thao’s Memorandum in Opposition to State’s Motion for Joinder, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct. Sept. 8, 2020); Xiong, Attorneys for former officers in George Floyd murder case want separate trials, StarTribune (Sept. 8, 2020).

[3] State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, et al.,Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[4] State’s Notice of Motion and Motion for Expert Disclosure Deadlines, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[5] Chauvin’s Notice of Motions and Motions To Change Venue and Reserve Ruling, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020); Lane’s Notice of Motion and Motion To Change Venue, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County Dist. Ct. Sept. 8, 2020); Thao’s Notice of Motion and Motion for Change of Venue, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case, dwkcommentaries.com (Aug. 28, 2020).

[6] Thao’s Notice of Motion and Motion To Sequester Jurors, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 28, 2020).

[7] Court Denies Ex-Officer Kueng Motion To Remove County Attorney from George Floyd Criminal Case, dwkcommentaries.com (Aug. 7, 2020).

[8] Kueng’s Notice of Additional Evidence, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Aug. 27, 2020).

[9] Thao’s Motion to Compel Disclosure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County Dist. Ct.Aug. 24, 2020); Chauvin’s Notice of Motion and Motion for Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County Dist. Ct. Aug. 28, 2020).

[10] See these posts to dwkcommentaries.com: Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing (July 9, 2020); Comment: Prosecutors Oppose Ex-Cop Thomas Lane’s Dismissal Motion (Aug. 12, 2020); Prosecution Opposes Lane’s Dismissal Motion (Aug. 21, 2020); Lane’s Reply to Prosecution’s Opposition to Dismissal of Complaint (Aug. 22, 2020); Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing (July 30, 2020); Defendant Thao’s Dismissal Motion (Aug. 25, 2020); Prosecution Opposes Defendant Thao’s Dismissal Motion for George Floyd Killing (Aug. 27, 2020); Defendant Kueng Moves for Dismissal and Change of Venue in George Floyd Case (Aug. 28, 2020); Chauvin Motion To Dismiss Criminal Complaint (Sept. 9, 2020).

[11] State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020); Exhibits to State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County Dist. Ct. Sept. 8, 2020). See generally List of Posts to dwkcommentaries–Topical: George Floyd Killing.

Lane’s Reply to Prosecution’s Opposition to Dismissal of Criminal Complaint

On July 7, the attorney for defendant Thomas Lane filed a motion to dismiss the criminal complaint against him.[1] On August 10 the prosecution filed its papers opposing that motion.[2] On August 17, Lane’s attorney submitted his reply to the State’s Response.[3]

As noted ,the first two sets of papers have been covered in prior posts. This post will review Mr. Lane’s reply papers.

Legal Standard for Aiding and Abetting Criminal Liability

Both sides necessarily are agreed that the standard for aiding and abetting criminal liability starts with the Minnesota statute on the subject—Minn. Stat. sec. 609.05 (Liability for Crimes of Another), which is derived from legislation adopted in 1963, 1986 and 1991. Its Subdivision 1 states as follows:

“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.”

According to Mr. Lane’s attorney, the “seminal” Minnesota Supreme Court case on this provision is State v. Ulvinen, 313 N.W.2d 425 (1981)(en banc), which reversed a conviction of a mother for aiding and abetting her son’s first degree murder of his wife.

According to the Supreme Court, the son told the police that on the morning of the murder he told his mother, “I’m going to have to choke. . . [his wife] tonight and I’ll have to dispose of her body so that it will never be found.” In response his mother weeped and said, “it will be for the best.” Later that same day, the son told his mother, “Mom, tonight’s got to be the night.” She replied, as she had on other similar occasions, “Oh, you’re just kidding me. I’m not certain, that it would be the best for the kids.”

The mother was asleep when the son committed the murder and she did not participate in his dismemberment of the body. Afterwards that same night she “came upstairs to intercept the children, should they awake, and prevent them from going into the bathroom. She cooperated with her son by cleaning some items from the bathroom and corroborating David’s story to prevent anyone from finding out about the murder.”

Said the en banc Supreme Court, “ these subsequent actions do not succeed in transforming her behavior prior to the crime to active instigation and encouragement. Minn.Stat. § 609.05, subd. 1 (1980) implies a high level of activity on the part of an aider and abettor in the form of conduct that encourages another to act. Use of terms such as ‘aids,’ ‘advises,’ and ‘conspires’ requires something more of a person than mere inaction to impose liability as a principal.” (Lane’s Reply at 13; emphasis added.)

In addition, said the Court, the above statute “imposes liability for actions which affect the principal, encouraging him to take a course of action which he might not otherwise have taken. The state has not proved beyond a reasonable doubt that appellant was guilty of anything but passive approval. However morally reprehensible it may be to fail to warn someone of their impending death, our statutes do not make such an omission a criminal offense.” In so concluding, the Court said the mother “did not offer advice on how to kill his wife, nor offer to help him. She did not plan when to accomplish the act or tell her son what to do to avoid being caught. She was told by her son that he intended to kill his wife that night and responded in a way which, while not discouraging him, did not aid, advise, or counsel him to act as he did.”

Lane’s attorney also asserted that the above holding of Ulvinin was followed by at least the following subsequent Minnesota Supreme Court cases: (1) State v, Mahkuk, 367 N.W.2d 675, 683 (Minn. Sup. Ct. 2007)(reversal of conviction for aiding and abetting two murder counts because trial court’s jury instruction did not require the jury to find, beyond a reasonable doubt, that the defendant knew that a crime was going to be committed and intended his presence to encourage or further the crimes); (2) State v. Milton, 821 N.W.2d 789, 804 (Minn. Sup Ct. 2012) (affirmance of conviction of first-degree felony murder and attempted first degree felony murder; defendant failed to show that his substantial rights were affected by the trial court’s plain error in failing to instruct the jury that “intentionally aiding” was required for accomplice liability); (3) State v. Bahtuoh, 840 N.W.2d 804, 812-13 (Minn. Sup Ct. 2013) (affirmance of conviction for accomplice liability for first degree felony murder; the “intentionally aids” requirement has ‘two and necessary principles: . . .that the defendant knew that his alleged accomplices are going to commit a crime’ and . . . that the defendant ‘intended his presence or actions to further the commission of that crime;’”[4] State v. McCallister, 862 N.W.2d 49 (Minn. Sup. Ct. 2015)(affirmance of conviction for aiding and abetting first degree murder and first degree felony murder); (5) State v. Huber, 877 N.W.2d 519, 524 (Minn. Sup. Ct. 2016))(reversal and remand of conviction for intentionally aiding another in committing second degree murder and second degree felony murder on the ground that the instructions on accomplice liability were plainly erroneous; such an instruction “must explain that to be criminally liable for the crimes of another, the State must prove that the defendant ‘knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime.’”

Lane’s reply also cites a number of decisions of the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit, which includes Minnesota., but since it is unlikely that any of them concern the Minnesota statute for accessory liability, it should not be necessary to analyze these cases.

Additional Factual Allegations about George Floyd

Lane’s reply contains nine-plus pages reciting additional “facts” about Mr. Floyd that his attorney recently has discovered. Since these “facts” were not known at the police’s May 25^th fatal encounter with Mr. Floyd, it is difficult to see how they relate to the complaint for alleged aiding and abetting and if admissible at trial would go to the jury’s weighing all of the evidence.

Conclusion

The Prosecution’s papers opposing the dismissal motion, for this retired attorney without criminal law experience, seem weak on this key requirement for the aiding and abetting charges against Lane.

This blogger invites anyone who has a more thorough analysis of the issues on Lane’s dismissal motion to add them in comments to this post.

Now we await the September 11 hearing on this motion and other matters in the four criminal cases over the killing of George Floyd.

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[1] Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentareis.com July 9, 2020); Notice of Motion and Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court July 7, 2020); Memorandum Supporting Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court July 7, 2020).

[2] State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020); Affidavit of Matthew Frank, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020).

[3] Defendant’s Reply to the State’s Response to His Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 17, 2020); Browning & Xiong, Lawyer for former officer charged as accomplice in killing of George Floyd says he ‘did nothing wrong,’ StarTribune (Aug. 18, 2020); Xiong, Audio of investigators questioning officer [Lane] in George Floyd killing released, StarTribune (Aug. 18, 2020); Read, Attorney for Minneapolis police officer says he’ll argue George Floyd died of an overdose and a heart condition, Los Angeles Times (Aug. 20, 2020).

[4] The Prosecution says that Bahtuoh suggests that Ulvinen’s requirement for a “high level of activity” by an alleged accomplice” is no longer the law. In the opinion of this blogger, however, this is a misreading of Bahtuoh, which merely states,”A jury may infer the requisite state of mind [of an accessory] from a variety of facts, including presence at the scene of the crime, a close association with the principal offender before and after the crime, a lack of objection or surprise under the circumstances, and flight from the scene of the crime with the principal offender.” (Prosecution’s Opposition at n.16, p. 25; emphasis added.)

Judge Cahill’s Memorandum Opinion Explaining His Order for Release of BodyCam Videos

On August 11, Hennepin County District Court Judge Peter Cahill issued a Memorandum Opinion providing the factual findings and legal conclusions [1] for his August 7^th Order granting the motion of the Media Coalition for copies of two of the BWC (body-worn camera) videos of George Floyd’s arrest and killing.[2]

Preliminarily the Judge said, with citations of decisions by the U.S. and Minnesota Supreme Courts, “Cases that generate intense public interest and media scrutiny highlight the tension between two fundamental rights: the right guaranteed under the federal and state constitutions to criminal defendants to receive a fair trial before an impartial jury, on the one hand, and the right of the public and press to attend public trials, on the other hand.” Moreover, “The open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion,” as was true in this very case. (P. 4.)

“The Court is committed to the management of pretrial proceedings and the eventual trial(s) not only to vindicate the public’s and press’ right of access guaranteed by the First Amendment, the common law, and court rules but also Lane and his fellow co-defendants’ Sixth Amendment rights to a fair trial, and this Court’s and the parties’ interests in seeing that justice be done by a fair and objective jury determining the facts based solely on evidence that will be admitted at trial.” (P.8.)

In so doing, the court has conducted “all hearings in these cases in public . . . [with] overflow courtrooms to facilitate the presence of interested members of the public and press.” The court “has also created special websites for each of these cases in which all publicly-available documents that have been filed . . are made available to the public and press by remote access.” (P. 9.)

The court had issued a Gag Order on July 9^th in an attempt “to mitigate what some colloquially characterize as efforts ‘to try the case in the press, to seek to avoid or at least to ameliorate the prospects of unduly tainting the prospective jury pool engendered by the intense media interest and reporting on these cases, and to seek to vindicate the Defendants’ rights and the State’s interest in ensuring justice is done in these cases by a fair and impartial jury deciding whether the Defendants or guilty or not guilty on the State’s charges based solely upon the evidence produced during trial, not based upon media reporting, public speculation, and extraneous information, inadmissible at trial, circulating during the months of pretrial preparation.” (Pp. 10-11.) [3]

The Memorandum Opinion then set forth its legal reasoning for its conclusions: (1) the Media Coalition has standing to intervene (pp. 11-13); (2) the media and the public have a right under the common law and court rules to obtain copies of the BWC videos, under cited U.S. and Minnesota Supreme Court decisions and Minnesota Rules of Criminal Procedure and Rules of Public Access to Records of the Judicial Branch. (Pp. 13-19.)

Important for the court, “based on the representations [of all counsel] were the following ” all council expect the [two BWC videos in question] . . . will be admitted into evidence at the trial, that allowing members of the public and the press to obtain copies of those BWC videos does not, at this stage of the proceedings, present a substantial likelihood of interfering with the fair and impartial administration of justice and the defendants; rights to a fair trial.”

The court did not find it necessary to decide whether the media had a first amendment right to obtain copies of the videos. (Pp. 19-22.)

In a footnote, the court noted that “the fractious, highly partisan, and segmented niches served by the modern-day media and journalists . . . should resoundingly dispel the notion that journalists, as a profession, can be depended on ‘to produce complete, accurate accounts of what transpires.” (Fn. 8 at 7-8.)

Conclusion

This was a well-reasoned and written opinion.

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

[1] State v. Lane, Opinion on Order Granting Motion of Media Coalition To Obtain Copies of Publicly-Filed Body-Worn Camera Video Evidence, (Court File No. 27-CR-20-12951, Hennepin County District Court, Aug. 11, 2020); Xiong, Judge says he withheld broad distribution of bodycam videos in George Floyd killing to preserve fair trial, StarTribune (Aug. 12, 2020).

[2] State v. Lane, Order Granting Motion of Media Coalition To Obtain Copies of Publicly-Filed, Body-Worn Camera Video Evidence, (Court File No. 27-CR-20-1295, Hennepin County District Court, Aug. 7, 2020); Court Orders Public Release of Bodycam Footage of George Floyd Arrest and Killing, dwkcommentaries.net (dwkcommentaries.net (Aug. 8. 2020).

[3] See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020).

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

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

Legal Basis

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

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

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

Factual Allegations

The Parties

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

Legal Basis [1]

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

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

Count II also is based on so-called “Monell Liability,” which refers to the U.S. Supreme Court decision in Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978), that held, “Local governing bodies (and local officials sued in their official capacities) can . . .be sued directly under § 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other § 1983 “person,” may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such custom has not received formal approval through the government’s official decision-making channels.”

Factual Allegations [2]

The Parties

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

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

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

MPD Trains its Officers to Use Deadly force in Non-Deadly Circumstances

“86. MPD trained its officers that a ‘neck restraint’ was an authorized form of non-deadly force, and that a ‘chokehold’ was a form of deadly force capable of causing serious bodily injury and/or death.” [3]

“87. At all times material hereto, MPD defined a ‘neck restraint’ as ‘[c]ompressing 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).’ MPD defined a ‘chokehold’ as ‘applying direct pressure on a person’s trachea or airway (front of the neck).’”

“88. At all times material hereto, MPD trained its officers that a proper ‘neck Restraint’ required the officer to ‘[c]ompress veins. arteries, nerves & muscles of the neck.'”

“89. Serious bodily injury and/or death is reasonably likely to result from an officer ‘compress[ing] a person’s veins, arteries, nerves & muscles of the neck,’ regardless of whether direct pressure is applied to the front or back of the neck.”

“90. The use of a ‘neck restraint’ as defined by MPD constitutes deadly force.”

“91. The Fourth Amendment prohibits the use of deadly force in non-deadly circumstances which do not pose an immediate threat of serious bodily injury and/or death.”

“92. At all times material hereto, MPD’s written policies authorized the use of a deadly ‘neck restraint’ in non-deadly circumstances posing no immediate threat of serious bodily injury or death.”

“93. At all times material hereto, MPD trained its officers that use of a ‘neck restraint’ was authorized non-deadly force which officers could use in non-deadly situations.”

“94. It has long been known by the law enforcement community that the use of neck restraints on subjects can lead to death.”

“95. However, from at least April 15, 2012 until June 8, 2020, Minneapolis Police Department Policy 5-311 defined a neck restraint as ‘non-deadly force’ and did not warn it can cause death.”

“96. By policy, the MPD permitted and condoned the use of both conscious and unconscious neck restraints by its officers from at least April 15, 2012 until June 8, 2020.”

“97. At all times material hereto, MPD’s written policies authorized the use of a ‘neck restraint’ in non-deadly circumstances posing no immediate threat of serious bodily injury or death.”

“98. The City of Minneapolis possessed data indicating that since 2012, neck restraints/holds were used by its police officers on 428 people at an average rate of about one a week.”

“99. Of those 428 people, 14% who were subjected to a neck restraint/hold lost consciousness.”

“100. Upon information and belief, MPD officers regularly used neck restraints on passively resisting arrestees despite not being permitted to do so under policy.”

“101. Training offered by the City of Minneapolis in 2014 and received by Chauvin and Thao authorized and instructed on the use of neck restraints by officers, presented it to officers as a ‘non-deadly force’ option, and included instruction on how to employ neck restraints in order to most efficiently render subjects unconscious.”

“102. Upon information and belief, all training offered by the City of Minneapolis on the use of neck restraints, including that provided to the Defendant Officers, presented neck restraints to officers as a ‘non-deadly force’ option, and included instruction on how-to employ neck restraints in order to most efficiently render subjects unconscious.”

“103.Training offered by the City of Minneapolis to MPD officers, including the Defendant Officers, encouraged officers to “compress veins, arteries, nerves, and muscles of the neck” of arrestees.”

“104.Training materials offered to officers in 2014, including Defendants Chauvin and Thao, depict an officer placing a knee on the neck of an arrestee who is handcuffed in a prone position.”

“105. Since at least April 16, 2012, MPD policy has required that ‘[a]fter a neck restraint or choke hold has been used on a subject, sworn MPD employees shall keep them under close observation until they are released to medical or other law enforcement personnel.”

“106. Since at least April 16, 2012, the MPD failed to provide its officers with proper policy guidance and training on how to properly observe and attend to the medical needs of arrestees subjected to neck restraints.”

“107. At all times material hereto, MPD trained its officers that a ‘neck restraint’ could be used in non-deadly situations despite the fact that it constituted deadly force as utilized by MPD.”

Prone Restraint Training by the MPD and the Death of David Smith

“108. It is well known throughout the law enforcement and medical communities that holding a subject in a position of prone restraint for prolonged periods of time can be deadly.”

“109. Compressing an arrestee in a prone position with weight on their back and/or abdomen restricts their ability to breathe and can result in asphyxiation.”

“110. Deaths caused by this form of asphyxiation are often interchangeably referred to as deaths from positional, mechanical, or compression asphyxia, even if technical distinctions exist.“

“111. The United States Department of Justice has warned law enforcement for decades about the dangers of prone restraint and as early as 1995: ‘The risk of positional asphyxia is compounded when an individual with predisposing factors becomes involved in a violent struggle with an officer or officers, particularly when physical restraint includes behind-the-back handcuffing combined with placing the subject in a stomach-down position. National Law Enforcement Technology Center, Positional Asphyxia—Sudden Death at *2 (June 1995).”

“112. These dangers were acknowledged in an October 18, 2012 deposition by then-MPD Chief Timothy Dolan in addition to many other high-ranking officers in the matter of Smith v. Gorman, Case No. 11-cv-3071 (SRN/JJK).”

“113. Due to the well-known risks associated with prone restraint, it has long been national best practice that once a subject is controlled, it is imperative that they be moved from the prone position, and that their breathing be assessed.”

“114. Minneapolis has had a policy in place addressing this issue since at least May 29, 2002: ‘When ANY restraint technique is used on a subject, the subject shall not be left in a prone position and shall be placed on their side as soon as they are secured. Once the subject is secured, an officer shall watch for any of the following signs:

Significant change in behavior or level consciousness;
Shortness of breath or irregular breathing;
Seizures or convulsions;
Complaints of serious pain or injury; and/or
Any other serious medical problem.’

MPD Policy & Procedure Manual § 9-111.01 (emphasis in original).”

“115. Despite this knowledge, as of 2012, officers were not provided official training on the dangers of positional or mechanical asphyxia associated with prone restraint.”

“116. As of 2012, officers were trained that if a subject in a prone restraint is speaking, that they need not be concerned that the subject may be having difficulty breathing.”

“117. Despite the well-known risk of death associated with placing a subject in prolonged prone restraint, particularly without properly monitoring their medical condition, Mr. Floyd was not the first black man to be killed by MPD officers under such circumstances.”

“118. On September 9, 2010, veteran MPD Officers Timothy Gorman (“Gorman”)and Timothy Callahan (“Callahan”) responded to the Minneapolis YMCA, where David Smith (“Mr. Smith”) was experiencing the effects of mental illness.”

“119. Rather than use de-escalation techniques, Gorman and Callahan immediately went hands on with Mr. Smith and subjected him to five Taser deployments in addition to other force.”

“120. Gorman and Callahan placed Mr. Smith a prone restraint position with his hands handcuffed behind his back.”

“121. Despite Smith being handcuffed and adequately controlled, Mr. Smith was restrained in a prone position by Callahan and Gorman for at least 4 ½ minutes, with Gorman kneeling on Mr. Smith’s back and Callahan straddling Mr. Smith’s upper thigh/buttocks region.”

“122. Despite the fact that Callahan and Gorman had Smith adequately controlled, they failed to monitor Mr. Smith’s breathing or medical condition throughout their restraint of Mr. Smith.”

“123. Rather than assist Mr. Smith, Callahan berated him, calling him a ‘mother fucker.’”

“124. It was 6 and ½ minutes before either Callahan or Gorman made any effort to check on Mr. Smith’s medical condition.”

“125. Mr. Smith was pulseless, breathless, and lifeless by the time Callahan and Gorman finally made the effort to observe Mr. Smith’s medical condition.”

“126. Paramedics were able to resuscitate Mr. Smith’s heart, but he never regained consciousness and was removed from life support and officially died on September 17,2010.”

“127. Hennepin County Chief Medical Examiner Andrew Baker determined that the manner of death was homicide, and that the cause of death was anoxic encephalopathy due to or as a consequence of cardiopulmonary arrest due to or as a consequence of mechanical asphyxia.”

“128. Callahan filmed the mechanical asphyxiation of Mr. Smith on a personal and non-departmentally issued ‘pen camera’ that Callahan wore in his short pocket.”

“129. Callahan and Gorman were both aware of the fact that Callahan filmed Mr. Smith’s asphyxiation on the pen camera, yet the pen camera was intentionally concealed from MPD investigators on September 9, 2010.”

“130. Callahan did not disclose the existence of the pen camera video of Mr. Smith’s asphyxiation until nearly a week later on September 15, 2010, but was not disciplined for concealing evidence of a homicide.”

“131. MPD pretended to conduct a homicide investigation into the acts of Callahan and Gorman but made no legitimate effort to investigate the actions of the officers.”

“132. The Grand Jury no-billed Gorman and Callahan due to the complete and utter lack of investigation conducted by the MPD as to Gorman and Callahan’s conduct.”

“133. The MPD Internal Affairs Unit then conducted no legitimate investigation into Gorman and Callahan’s conduct, also concluding that the officers did nothing actionably wrong—including the hiding of evidence (i.e., the pen camera) from investigators.”

“134. The MPD failed to take any disciplinary or other remedial action towards Callahan and Gorman despite the fact that multiple high-ranking officials within the MPD observed obvious constitutional or policy violations by officers Gorman and Callahan.”

“135. The City of Minneapolis ultimately approved a substantial settlement to the family of David Smith to resolve that litigation, one of the highest amounts it had ever paid.”

“136. As part of that settlement, the City of Minneapolis “agreed to require its sworn police officers to undergo training on positional asphyxia in the 2014 training cycle of the Minneapolis Police Department…”

“137.Despite publicly stating an intent to properly instruct its officers on the risks of asphyxiation during arrest, internally the MPD continued to minimize that risk and promote a false narrative that deaths like David Smith were the result of ‘excited delirium’ instead of asphyxiation.”

“138. Upon information and belief, the City of Minneapolis did not comply with the terms and/or the spirit of its 2013 Settlement Agreement with the family of Mr. Smith with respect to training on positional asphyxia.”

“139. Upon information and belief, the City of Minneapolis routinely trains officers to place handcuffed arrestees in a prone position without proper training on putting arrestees in a recovery position and monitoring their breathing and consciousness.”

“140. The impact of the excited delirium false narrative and the MPD’s failure to properly train on asphyxiation risks is highlighted here by Lane’s statement: ‘I am worried about excited delirium, or whatever.’”

“141. When holding a subject in a prone position, well-trained officers in Minneapolis should not be concerned about ‘excited delirium, or whatever.’ Officers in Minneapolis should know the risks of asphyxiation associated with prone restraint.”

“142. High-ranking MPD personnel have continued to publicly maintain other deadly false narratives.”

“143. MPD Lieutenant and agent of the City of Minneapolis Bob Kroll- who has served as the president of the Police Officers Federation of Minneapolis since 2015 and has sat on its board since 1996-has publicly expressed the opinion that Eric Garner, a Black man asphyxiated by the New York Police Department in 2014- could breathe at the time of his death because he was able to state ‘I can’t breathe’ several times as he was dying.”

“144. It is an accepted scientific fact that the ability to speak does not imply that someone is getting sufficient air to survive.”

“The MPD’s History Providing and Permitting Killology Training”

“145. Up and until 2019, the City of Minneapolis permitted officers to receive ‘Killology’ or ‘warrior style’ training, which teaches officers to consider every person and every situation as a potential deadly threat and to kill ‘less hesitantly.’”

“146.The City of Minneapolis was aware prior to the death of George Floyd that the officer who shot and killed Philando Castile in the nearby suburb of Falcon Heights had received Killology training.”

“147. Upon information and belief, a significant proportion of police officers employed by the MPD in May of 2020 had received Killology training during their employment.”

“148.High-ranking officers and agents of the MPD, including Kroll, encouraged all officers to receive warrior-style police training.”

“149. High-ranking officers and agents of the MPD, including Kroll, offered this training free of charge to all officers of the MPD who wanted to receive it.”

“150. The City of Minneapolis was aware that its officers had received and continued to receive Killology training before and through May of 2020, but did nothing to prevent officers from receiving it or re-training officers who had received it.”

“151. Kroll has further encouraged officers to behave aggressively, stating that MPD officers who do not receive citizen complaints are ‘low-level slugs’ who ‘[don’t] get out and investigate anything. And that’s not what we’re paying our officers to do.’”

“152. Kroll has stated that policing should be viewed like ‘a basketball game, in that if you’re not getting any fouls, you aren’t playing hard enough.’”

“153.The City of Minneapolis and high-ranking members of the MPD are aware that Kroll is an influencer for rank-and-file officers, and that its officers follow his lead with regard to law enforcement beliefs and behaviors.”

“154. Upon information and belief, Defendant City of Minneapolis has control over the amount of influence the Minneapolis Police Federation has over the officers, discipline, training, decision-making, and policy decisions of the Minneapolis Police Department.”

“155. The Minneapolis Mayor and City Council are responsible for negotiations with the Minneapolis Police Federation, including matters of officer discipline and retention. The Minneapolis Police Department Chief of Police is responsible for all decisions of hiring.””

“156.The Minneapolis Police Federation membership is made up of employees, agents, and officers of the Minneapolis Police Department.”

“157.The Police Officers within the Minneapolis Police Federation continue to be employees of the Minneapolis Police Department subject to the policies, training and orders.”

“158. The Minneapolis Police Department is responsible for maintaining training and discipline to ensure its officers follow its policies, orders, and training regardless of the opinions and actions of the Minneapolis Police Federation.”

“The City of Minneapolis and the MPD’s Failure to Terminate Dangerous Officers”

“159. The City of Minneapolis frequently fails to terminate or discipline officers who demonstrate patterns of misconduct.”

“160. Upon information and belief, Chauvin was the subject of 17 citizen complaints from 2006 to 2015, only one of which resulted in discipline, in the form of a letter of reprimand.”

“161. Upon information and belief, Chauvin has participated in the shooting and killing of at least three different individuals, including Wayne Reyes, Ira Latrell Toles, and Leroy Martinez.”

“162. In 2005, Defendant Chauvin engaged in a reckless police chase resulting in the deaths of three individuals but was not discharged from the Minneapolis Police Department.”

“163. Upon information and belief, the MPD has observed unlawful or otherwise improper conduct by Chauvin throughout his career but has tolerated it and refused to remedy or mitigate it.”

“164. Chauvin was precisely the type of reckless and dangerous officer that Kroll and other leaders of the Minneapolis Police Department encouraged him to be.”

“165. Upon information and belief, Thao was the subject of six citizen complaints from 2013 to 2017, none of which have resulted in discipline.”

“166. In 2017, Thao was the subject of a lawsuit for his use of excessive force, which the City of Minneapolis paid money to settle on his behalf.”

“167. Upon information and belief, the MPD has observed unlawful or otherwise improper conduct by Thao throughout his career but has tolerated it and refused to remedy or mitigate it.”

“168. The MPD has engaged for years in contract negotiations with the Minneapolis Federation of Police which make it more difficult for the MPD to terminate officers who have demonstrated repeated misconduct.

“The MPD’s History of Overlooking Racially Biased Policing”

“169. Upon information and belief, Black community members make up 19% of the population of Minneapolis and 58% of the subjects of police force.”

“170. The Minneapolis Police Department is currently being investigated for unlawful race-based policing, which deprives people of color, particularly Black community members, of their civil rights under the Minnesota Human Rights Act.”

“171. Prior to 2007, African American members of the MPD, including now-Chief Arradondo, received hate letters signed from the Ku Klux Klan in their interoffice mail, accessible only to MPD agents and employees.”

“172. Kroll has been accused by fellow officers, including now-Chief Arradondo,of publicly wearing a jacket with a patch depicting a racist ‘white power’ logo.”

“173. In recent years, Kroll, as president of the Minneapolis Police Federation, has publicly referred to the Black Lives Matter movement as a ‘terrorist organization.’”

“174. The Minneapolis Police Department ratified the culture of systemic racism and disparate treatment of the Black Community, by failing to remove or otherwise discipline Lt. Bob Kroll.”

“175. By 2018, as the result of a settlement, the Minneapolis Police Department was required to conduct racial sensitivity training which, upon information and belief, has not yet been completed.”

“The City of Minneapolis’s Notice of Prior Incidents of Excessive Force”

“176. The City had notice of a 2009 incident wherein MPD officers used excessive force against Ira Alexander Stafford for which Mr. Stafford filed suit against the City in 2010, alleging that while he was lying on the ground, face down with his arms around him, ‘at least one officer had a knee in Stafford’s back, making him effectively helpless.’ (Compl.) Stafford v. City of Minneapolis, et al, Civil Action No. 0:10-cv-03149-MJD-TNL (D. Minn. 2010).”

“177. According to media sources, the City entered into a monetary settlement with Zach King for a 2012 incident wherein MPD officers violated the Fourth Amendment and used excessive force against Mr. King by beating him and pressing a knee on Mr. King such that he could not breathe “almost like George Floyd.” Mr. King was hospitalized with a concussion and multiple visible physical injuries as a result of the police beating. The City took no disciplinary action against the officers for their use of excessive force against Mr. King.https://www.cbsnews.com/news/minneapolis-officers-cited-in-misconduct-lawsuits-face-little-discipline/.”

“178. The City had notice of a 2014 incident wherein MPD officers used excessive force against Alfred Flowers after he had been fully secured in handcuffs and not physically resisting. Mr. Flowers filed suit against the City and alleged that an officer suddenly grabbed him by his throat, choked him, and threw him to the ground and handcuffed him. After handcuffing Mr. Flowers, an MPD officer punched him in the head, following which several other officers entered the room and proceeded to kick and stomp on Mr. Flowers while he was handcuffed and laying on the ground. Flowers v. City of Minneapolis, et al, Civil Action No. 0:15-cv-03015-RHK-HB.”

“179. The City had notice of a 2014 incident wherein MPD officers used excessive force against Lamar Allen Ferguson after he had been fully secured in handcuffs and not physically resisting. Mr. Ferguson filed suit against the City in April 2017 and alleges that two MPD Officers threw him to the ground after he had been handcuffed and began punching him, following which MPD Officer Thao, a defendant in this action, lifted Mr. Ferguson’s head off of the ground and kicked him directly in his mouth. Ferguson v. City of Minneapolis, et al, Civil Action No. 0:17-cv-01110-PJS-TNL (D. Minn. 2017).”

“180. The City had notice of a 2016 incident wherein MPD officers used excessive and unjustified force against Abdi Hussen Hagad, a black male. MPD officers approached Mr. Hagad and violently threw him against a brick wall and dislocated his shoulder despite the absence of physical resistance from Mr. Hagad. Wagad v. City of Minneapolis, et al, Civil Action No. 0:17-cv-05239-MJD-TNL (D. Minn. 2017).”

“181. The City had notice of a 2016 incident wherein MPD officers used excessive force against Tomas Garcia-Orihuela during the course of an arrest. Mr. Garcia-Orihuel filed suit against the City and alleged that after he was handcuffed on the ground, ‘several police officers began to kick and hit him’ and continued to do so for several minutes while he was handcuffed and laying on the ground. Garcia-Orihuela v. City of Minneapolis, et al, Civil Action No. 0:17-cv-00292-RHK-KMM (D. Minn. 2017).”

“182. The City had notice of a 2018 incident wherein multiple MPD officers used excessive and entirely unjustified force against Jeremiah Jermaine Thomas when an officer drop-kicked Mr. Thomas in the chest area following which three other MPD officers joined in and immediately started punching, kneeing, and kicking. Mr. Thomas suffered a punctured lung, internal bleeding, fractured ribs, and various scratches and bruises as a result of MPD’s use of excessive force, and the City thereafter entered into a monetary settlement to resolve his claims. Jeremiah Jermaine Thomas v. City of Minneapolis, et al., 0:19-cv-00954-WMW-DTS (D. Minn 2019).”

“183. The City had notice of a 2013 incident wherein MPD officers used excessive and unjustified force against Catrina Johnson, a disabled woman who used a cane, by throwing her against her living room wall and onto the floor while using racial slurs. While MS. Johnson was pinned to the ground face down, an MPD officer put his knee on the back of her head and applied direct pressure thereby causing injury. The City entered into a monetary settlement with Ms. Johnson to settle her claims. Catrina Johnson v. City of Minneapolis, et al., 0:15-cv-02861-JRT-SER (D. Minn 2015).”

“184. The City had notice of a 2018 incident wherein multiple MPD officers used excessive and entirely unjustified force against Rico McKinnies during the course of a traffic stop, after he was handcuffed and not resisting arrest. The City entered into a monetary settlement with Mr. McKinnies for the injuries he sustained therein. Rico McKinnies v. City of Minneapolis, et al., 0:18-cv-02738-NEB-BRT (D. Minn 2018).”

“185. Each of the above-referenced incidents involved more than one officer at the scene and in each of those incidents, the non-participating MPD officers failed to intervene in the unconstitutional use of force against handcuffed, non-resisting citizens.”

“186. In addition to a substantial settlement with the family of David Smith, the City of Minneapolis has been forced to pay significant sums of money for the unlawful deaths caused by its officers.”

“187. In 2019, the City of Minneapolis approved a significant settlement with the family of Justine Ruszczyk, who was shot and killed by a Minneapolis Police Officer.”

“188. In 2019, the City of Minneapolis approved a significant settlement [with] the family of Jamar Clark, who was shot and killed by a Minneapolis Police Officer.”

“189. In 2020, the City of Minneapolis approved a significant settlement with the family of Terrance Franklin, who was shot and killed by a Minneapolis Police Officer.”

“190. While the settlement of the Justine Ruszczyk [claim] was locally billed as transformational, it had no meaningful impact on how the MPD conducts its business.”

“191. The Mayor and City Council receive notice of each lawsuit filed against the City.”

“192. All monetary settlements made by the City must be approved by the Mayor and City Council.”

“193. MPD’s Policy Manual requires that the Chief of Police report to the Mayor each instance of officer misconduct and in accordance with the same, the Chief of Police reported to the Mayor each instance of officer misconduct.”

“Count II—42 U.S.C. sec. 1983-Monell Liability”

“222. MPD’s Policy Manual provides that the Mayor is ‘vested with all the powers of said city connected with and incident to the establishment, maintenance, appointment, removal, discipline, control, and supervision of its police force, subject to the limitations herein contained and the provisions of the Civil Service chapter of this Charter, and may make all needful rules and regulations for the efficiency and discipline, and promulgate and enforce general and special orders for the government of the same, and have the care and custody of all public property connected with the Police Department of the city.’ (MPD Policy Manual Sec. 1-301 (citing City Charter reference-Chapter 6, Section 1)).”

“223. The Mayor, the City Council, and the Police Chief had final policymaking authority with regard to establishing written policies and training programs governing the conduct of MPD officers performing policing functions on behalf of the City.”

“224. The Mayor, the City Council, and the Police Chief established and/or approved of MPD’s written policies and training governing the conduct of MPD officers performing policing functions.”

“225. The written policies and training established and/or approved by The Mayor, the City Council, and the Police Chief constitute the official policy of the City and were the moving force behind and caused Plaintiff’s injuries.”

“226. The City, acting by and through its Mayor and/or other policymakers, had knowledge of MPD’s unconstitutional patterns and practices and knowledge that the same gave rise to a risk of violations of citizens’ federal rights. ”

“227. The City, acting by and through its Mayor and/or other policymakers, made a deliberate and/or conscious decision to disregard the known risk of harm that would result from MPD’s unconstitutional patterns and practices and was deliberately indifferent to and/or tacitly authorized the same.”

“228. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, or ratified a number of customs, patterns, or practices that failed to provide for the safety of arrestees, detainees, and the like during arrest, including but not limited to the handcuffing and restraint process.”

“229. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, or ratified a number of customs, patterns, or practices that condoned and required officers to turn a blind eye to and not intervene with the use of excessive force by MPD officers.”

“230. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, fostered or ratified a number of customs, patterns, or practices that condoned and required officers to treat the members of the Black Community of Minneapolis differently, including but not limited to implementing deadly force at a higher rate against Black men who did not pose a threat to officers.”

“231. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, or ratified a number of customs, patterns, or practices that shall be further identified in discovery.”

“232. Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, continued to employee Chauvin and Thao despite knowledge of their repeated unconstitutional, unlawful, or other improper conduct.”

“233. Minneapolis had to the power to terminate or appropriately discipline Chauvin and Thao for their misconduct prior to May 25, 2020, but failed to do so despite the City’s knowledge of a pattern of complaints regarding excessive force.”

“234. By refusing to terminate Chauvin or Thao, Minneapolis caused Chauvin and Thao to act with impunity and without fear of retribution.”

“235. Minneapolis’ failure to terminate or properly discipline Chauvin or Thao is part of its larger custom, police, or practice of failing to supervise, terminate, or properly discipline its officers for unconstitutional, unlawful, or otherwise improper conduct, and thereby encouraged Chauvin, Thao, and the other Defendant Officers to continue engaging in unlawful acts towards arrestees, including George.”

“236. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, tolerated, permitted, failed to correct, promoted, or ratified its agents, including Lt. Bob Kroll, providing improper and harmful training to officers.”

“237. Minneapolis had to the power to terminate or appropriately discipline Kroll prior to May 25, 2020, but failed to do so despite the City’s knowledge of Kroll’s perpetuation of dangerous ideology to officers.”

“238. By refusing to terminate or discipline Kroll or denounce his ideology, Minneapolis caused officers act with impunity and without fear of retribution.”

“239. On or prior to May 25, 2020, Minneapolis, with deliberate indifference to the rights of arrestees, detainees, and the like, participated in contract negotiations with the Police Officers Federation of Minneapolis that granted officers powers that allowed them to avoid discipline for misconduct, including but not limited to:

a. A grievance process that resulted in a nearly 50% rate of overturns of terminations of officers;

b. The ability to review evidence and video footage prior to giving statements in use of force and misconduct matters.”

“240. This participation by the City of Minneapolis caused officers to act with impunity and without fear of retribution.”

“241. The unconstitutional policies, practices, and customs defined herein were the moving force behind George’s death.”

“242. George died as a direct and proximate result of the acts and omissions by Minneapolis.”

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

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

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

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

Conclusion

As previously noted, Count I of this Complaint against the four ex-officers has been covered in a prior post while Count III against the City will be the subject of a future post.

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

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

[1] Complaint, Kaarin Nelson Schaffer, as Trustee for the next of kin of GEORGE P. FLOYD, Jr., Deceased v. Derek Chauvin, in his capacity as a Minneapolis police officer; Tou Thao, in his capacity as a Minneapolis police officer; Thomas Lane, in his capacity as a Minneapolis police officer; J. Alexander Kueng, in his capacity as a Minneapolis police officer; and the City of Minneapolis, Case 0:20-cv-01577-SRN-TNL (July 15, 2020).

[2] Count II also includes by reference all of the allegations regarding the four ex-policemen defendants (Complaint, para. 247) that were recited in the post about Count I of the Complaint.

[3] On June 5, 2020, the City of Minneapolis and the Minnesota Department of Human Rights agreed to ban the Minneapolis police from using chokeholds and neck restraints, and on June that was so ordered by the Hennepin County District Court. (Ban on Police Choke Holds and Neck Restraints in Agreement Between City of Minneapolis and Minnesota Human rights Department, dwkcommentaries.com (June 6, 2020); Court Approves Agreement on Police Conduct Between City of Minneapolis and Minnesota Department of Human Rights (June 9, 2020).)