The Problems With the Prosecution of Derek Chauvin

On May 25, George Floyd tragically passed away while being taken into police custody. The previous post on this situation broke down the available video evidence surrounding his death. This post explores the legal difficulties regarding the prosecution or liability of the police officers involved in that situation.

As of this writing, Derek Chauvin has been taken into police custody. Minneapolis continues to see riots. It seems that to help quell the civil unrest, the officer supposedly responsible for George Floyd’s death has been arrested.

Unfortunately, as I have found by reading the documents available, there are serious problems with the case against Derek Chauvin.

Statement of the District Attorney

The first issue is the likely motivating factor of the quick arrest of Derek Chauvin. It appears that he has been arrested at this time precisely because of the riots. This can be seen by understanding what was said in the May 29, 2020 statement of the prosecuting attorney for Hennepin County. It is worryingly brief. Here are his prepared remarks in full:

Good afternoon. I am Hennepin County Attorney Mike Freeman. I am here to announce that former Minneapolis Police officer Derek Chauvin is in custody. Former Minneapolis Police officer Derek Chauvin has been charged by the Hennepin County’s Attorney’s office with murder and with manslaughter. Questions?

Yes. That is literally all he said in prepared remarks.

However, the following questions asked by reporters reveal how worrying this prosecution really is, including the motivation for the arrest. The number of questions are abridged, but the content of the answers is verbatim:

  • What Charge of Murder?
    • He has been charged with third degree murder. We are in the process of continuing to review the evidence. There may be subsequent charges later. I failed to share with you that a detailed complaint will be made available to you this afternoon. I didn’t want to wait any longer to share the news that he’s in custody and has been charged with murder.
  • What about the other three officers involved?
    • The investigation is ongoing. We felt it most appropriate to focus on the most dangerous perpetrator. I must say that this case has moved with extraordinary speed. This conduct — this criminal action — took place on Monday evening May 25, Memorial Day. I am speaking to you at one o’clock on Friday, May 29. That’s less than four days. That’s extraordinary. We have never charged a case in that kind of time frame, and we can only charge a case when we have sufficient admissible evidence to prove the case beyond a reasonable doubt. As of right now, we have that.
  • Many people, including the mayor have said that any other citizen with video evidence available would have been arrested an held while awaiting charges earlier. Why didn’t that happen in this case?
    • We have charged this case as quickly as sufficient admissible evidence has been investigated and presented to us.
  • Mike, you were saying yesterday that this investigation would take time. What has changed since yesterday and this morning or this afternoon that now we’re seeing murder charges against Chauvin.
    • Fair question. We have now been able to put together the evidence that we need. Even as late as yesterday afternoon, we didn’t have all that we needed. We have now found it, and we felt a responsibility to charge this as soon as possible.
  • Mike, what was the final piece?
    • I’m not going to talk specifically about this piece of evidence or that piece of evidence. You will see, and you all are veterans. I can only talk about what is in the complaint. You will see in the complaint the evidence and put it all together. We needed to have it all. Now, let me just quickly say we have evidence. We have the citizens’ cameras’ videos — the horrible horrific terrible thing we’ve all seen over and over again. We have the officer body worn camera. We have statements from some witnesses. We have a preliminary report from the medical examiner. We have discussions with an expert. All of that has come together. So we felt in our professional judgment it was time to charge, and we have so done.

. . .

  • I’ve seen you charge cases faster than four days. Are you saying this is the fastest you’ve ever charged a police officer?
    • This is by far the fastest we’ve ever charged a police officer. Okay? Normally, these cases can take nine months to a year. We have to charge these cases very carefully, because we have a very difficult burden to prove. And let me just say something about that. We entrust our police officers to use certain amounts of force to do their job, to protect us. They commit a criminal act if they use this force unreasonably. We have to prove that beyond a reasonable doubt. The Hennepin County Attorney’s office is one of the few prosecutor offices in this country in the last five years to successfully prosecute a police officer for murder, and we did that on behalf of Justine Damond. Okay. That’s unusual. We know how to do this. We have a very veteran prosecutor group aided by a very veteran investigator group at BCA. On top of that, we’ve had great cooperation form the FBI and from United States Attorney Erica McDonald, and she may have some things to share with you soon, but she does that on her own timetable.
  • That Noor investigation [involving Justine Damond], that took months, close to a year. This takes days. Did public outrage play a role in the speed of this investigation.
    • I am not insensitive to what’s happened in the streets. My own home has been picketed regularly. My job is to do it only when we have sufficient evidence. We have it today. Mohamed Noor was a very difficult case. We didn’t have the kind of video tape we need. And we didn’t . . . and. . . there was all sorts of other evidence. It took us a long time. We do our level best to charge each case when we have the evidence to do it. But we cannot and I will not allow us to charge a case until its ready. This case is now ready, and we have charged it.

At this point, a person off camera notes “Mike, we want to make clear that the complaint has not yet been signed. And when it’s done, when it’s ready, we’ll get it.

Good. Let me say so you have it. The complaint has been completed and it is being processed now. And the signed copy will be made available to you today.

And with that, the press conference ended.

What is shocking is how much he cites the speed. What is shocking is how little he goes into the evidence. What is shocking is that he announces “The case is now ready, and we have charged it” and immediately afterwards, another person clarifies that it is NOT yet charged.

As a lawyer, I can tell you that in my experience, speaking about the speed of bringing charges is NOT correlated with good prosecution, especially when the case is “complicated” as Attorney Freeman admitted. That fact is even worse when there is so little evidence as he has shared.

But it gets worse when you read the complaint that was given.

The Complaint

You can read the complaint that was filed using this link. It is quite short. However, there are some stunning facts in the complaint.

First, what is noteworthy is that the complaint explicitly states the following:

Mr. Floyd actively resisted being handcuffed.

That is extremely relevant to something that I will share at the end.

Second, after describing the uneventful escort to the vehicle where George Floyd died, we read:

“The officers made several attempts to get Mr. Floyd in the backseat of squad 320 from the driver’s side. Mr. Floyd did not voluntarily get in the car and struggled with the officers by intentionally falling down, saying he was not going in the car, and refusing to stand still. Mr. Floyd is over six feet tall and weighs more than 200 pounds.”

Next, we read these paragraphs:

The officers said, “you are talking fine” to Mr. Floyd as he continued to move back and forth. Lane asked, “should we roll him on his side?” and the defendant said, “No, staying put where we got him.” Officer Lane said, “I am worried about excited delirium or whatever.” The defendant said, “That’s why we have him on his stomach.” None of the three officers moved from their positions.

At 8:24:24 P.M., Mr. Floyd stopped moving. At 8:25:31 P.M., the video showed Mr. Floyd ceased to breathe or speak. Lane said, “want to roll him on his side.” Kueng checked Mr. Floyd’s right wrist for a pulse and said, “I couldn’t find one.” None of the officers moved from their positions.

Most shockingly is this following paragraph:

The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. The full report of the ME is pending but the ME has made the following preliminary findings. The autopsy revaled no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death.

The complaint ends by stating:

The defendant had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous.

This is an extraordinary troublesome complaint. It does not look good.

The Extraordinary Problem With This Complaint

This is supposed to be the strongest version of the prosecution’s case. This is supposed to be the prosecutor’s chance to present evidence without a single word from a defense attorney. This is supposed to be the prosecutor’s chance to get the strong first word without needing to worry about the defense’s attempts at reasonable doubt or contradictory evidence.

However, contrary to normal prosecutions, this complaint contains all the facts necessary to acquit Derek Chauvin in the text of the document itself.

We have all seen the video of George Floyd’s death. What we have not seen is the report of the Medical Examiner. However, the complaint states that the Medical Examiner’s preliminary findings state that George Floyd did NOT die of traumatic asphyxia or strangulation. This means that all possible causes of death that come from Derek Chauvin’s knee were NOT the cause of George Floyd’s death. Instead, it says that a combination of coronary artery disease, hypertension, and (this is where the case falls apart) potential intoxicants in his system. That means “drugs.”

Speaking of “intoxicants in his system,” we should remember the previous factual break down of the video, where several bystanders mention “crack” and “don’t do drugs, kids” and a female bystander continues to reference George Floyd’s bleeding nose.

Despite this detail of the bleeding nose, no blunt trauma to the face or nose is mentioned in the complaint at all.

Only Theory of the Case Left

Since the Medical Examiner has determined that Derek Chauvin’s knee did not cause the death of George Floyd, the only theories of the case that I can imagine is that Derek Chauvin’s decision to leave George Floyd on his chest instead of moving him to side caused George Floyd’s death by:

perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.

(That would be third degree murder.)

As for the other count, it would require the state to prove beyond a reasonable doubt that Derek Chauvin’s decision to leave George Floyd on his chest instead of moving him to side caused George Floyd’s death by:

by his culpable negligence, creating an unreasonable risk and taking a chance of causing death or great bodily harm to George Floyd.

I’m no Minnesota lawyer, but those are the only options that I see for Derek Chauvin being convicted of anything.

As a civil attorney, I would not be comfortable making this case, and I would only need to prove it “more likely than not.” Mike Freeman and his prosecuting department will have to prove that “beyond a reasonable doubt.”

The Issue of “Excited Delirium”

We can also note the issue of “Excited Delirium.” This was explicitly mentioned in the complaint. As for what it is, it is a very diffuse description of being dangerously under the influence of drugs or other similar situations.

Excited Delirium has been described in medical literature for more than 100 years, but saw “rising incidence in the 1980s linked to increased use of cocaine, amphetamines, and phencyclidine. Recently, synthetic cathinones and canabinoids have been implicated.” In other words, based on the words in the complaint, Derek Chauvin knew that a reaction to drugs was likely a factor which led him to take the actions he did.

While effective ways to respond to excited delirium are extremely difficult, this article notes the major causes of death of people with Excited Delirium. While it is obviously complicated, and should be reviewed an interpreted by a qualified medical professional, certain details about victims of Excited Delirium are as follows:

Approximately two thirds of EXD victims die at the scene or during transport by paramedics or police. Victims who do not immediately come to police attention are often found dead in the bathroom surrounded by wet towels and/or clothing and empty ice trays, apparently succumbing during failed attempts to rapidly cool down. It appears that in all cases, victims died of either respiratory arrest or fatal cardiac dysrrhythmia.

In addition to the lack of the Medical Examiner connecting the cause of death to the knee of Derek Chauvin, we do see that Excited Delirium causes death in two thirds of victims. As for those who do come to the police’s attention, the issue of wet towels and water is interesting, as it may explain George Floyd’s complaints of pain, a plea for “water or something” and other symptoms of intense pain during the tragic video.

While Excided Delirium is complex issue, this information is highly relevant context for why the decision was made to keep George Floyd restrained with three officers. Additionally, the article goes on to explain very complex medical disagreement about the cause of death and best practices for treating individuals with excited delirium.

This is extremely relevant context to the complaint’s reported statements from the officer worn body camera:

Officer Lane said, “I am worried about excited delirium or whatever.” The defendant said, “That’s why we have him on his stomach.” None of the three officers moved from their positions.

There is a good question as to whether this action was the most effective medical treatment of George Floyd considering the limitations at the time. What is unclear at this point is how the decisions that were made involve any sort of homicide, much less a murder.

The Completely Ignored Minneapolis Police Police On Use of Force

However, the most damning evidence in the case against Derek Chauvin is not against Derek Chauvin. Instead, it is against the Mayor of Minneapolis who tweeted:

For five minutes, we watched a white officer press his knee into a Black man’s neck. Five minutes. This officer failed in the most basic, human sense.

It is also against the Police Chief of Minneapolis who fired the four officers (including three who were not charged and one who did not touch George Floyd, as his job during the encounter seems to have been to keep the bystanders away from the incident.

The problem is is that the City of Minneapolis policies on the Use of Force explicitly authorize Derek Chauvin to do exactly what he did in precisely the way the video shows him doing it.

It may be true that George Floyd’s death was an injustice. However, if it was an injustice, it was one that was all-but explicitly authorized by the city’s police regulations. These regulations are approved and authorized by both the Mayor and Police Chief who fired Derek Chauvin. These regulations are well known by the office of the prosecutor Mike Freeman.

Click the link to read it yourself in full. The relevant portions I have found are below:

5-302 USE OF FORCE DEFINITIONS (10/16/02) (10/01/10)

. . .

Active Resistance: A response to police efforts to bring a person into custody or control for detainment or arrest. A subject engages in active resistance when engaging in physical actions (or verbal behavior reflecting an intention) to make it more difficult for officers to achieve actual physical control. (10/01/10) (04/16/12)

As for placing the knee on the neck of George Floyd, the following guideline is extremely relevant:

5-311 USE OF NECK RESTRAINTS AND CHOKE HOLDS (10/16/02) (08/17/07) (10/01/10) (04/16/12)

DEFINITIONS I.

Choke Hold: Deadly force option. Defined as applying direct pressure on a person’s trachea or airway (front of the neck), blocking or obstructing the airway (04/16/12)

Neck Restraint: Non-deadly force option. Defined as compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints. The MPD authorizes two types of neck restraints: Conscious Neck Restraint and Unconscious Neck Restraint. (04/16/12)

Conscious Neck Restraint: The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure. (04/16/12)

Unconscious Neck Restraint: The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure. (04/16/12)

PROCEDURES/REGULATIONS II.

A. The Conscious Neck Restraint may be used against a subject who is actively resisting. (04/16/12)

B. The Unconscious Neck Restraint shall only be applied in the following circumstances: (04/16/12)
1. On a subject who is exhibiting active aggression, or;
2. For life saving purposes, or;
3. On a subject who is exhibiting active resistance in order to gain control of the subject; and if lesser attempts at control have been or would likely be ineffective.

C. Neck restraints shall not be used against subjects who are passively resisting as defined by policy. (04/16/12)

D. After Care Guidelines (04/16/12)
1. After 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.
2. An officer who has used a neck restraint or choke hold shall inform individuals accepting custody of the subject, that the technique was used on the subject

The conscious neck restraint can be used against those who are “actively resisting.” The complaint states that George Floyd was actively resisting.

The unconscious neck restraing can be used for “life-saving purposes” or on a person who “is exhibiting active resistance in order to gain control of the subject.” While it is clear that Derek Chauvin was using a neck restraint, we do not know which one he was using (only by knowing the pressure of his knee on the neck is that decided). Additionally, whichever one he was using, he was potentially authorized to use either. The only reason he would not have been authorized to do this is if he did not received “MPD training,” whatever that is.

Assuming Derek Chauvin had his training and based on this policy, approved by Police Chief Medaria Arradondo, under the ultimate authority of Mayor Jacob Frey, and which should be well known by the prosecuting Attorney Mike Freeman, Derek Chauvin did exactly what the policy said.

Yet Derek Chauvin has been taken into custody in record time. His wife has filed for divorce because of the incident. The City of Minneapolis continues to see riots.

Let’s pray that this all settles down.

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