Welcome to our LIVE coverage of day 5 of the trial of former police officer Derek Chauvin, over the in-custody death of George Floyd. I’ll be live blogging the court’s proceedings all day in real-time!
For those who may not know, I’m Attorney Andrew F. Branca, an internationally-recognized expert in use-of-force law, providing daily real-time legal analysis of the Chauvin trial’s proceedings as a guest commentator for Legal Insurrection, as well as over at my own blog, Law of Self Defense.
Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial, you can find that available at the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including Pandora, iHeart, Spotify, Apple Podcast, Google Podcast, simple RSS feed, and more.
We’re now entering the second full week of the state prosecution presenting it’s case-in-chief–where it is to meet it’s burden to provide Chauvin guilty of the crimes charged, and to do so beyond a reasonable doubt.
The first week consisted largely of the emotional–often, weeping and sobbing–testimony of bystander witnesses, who necessarily saw only a small portion of the officers’ interaction with Floyd, had only limited understanding of what was going on, and lacked vitally important facts about what the officers were doing to try to save Floyd’s life including having made a code 3 “lights & sirens” emergency call for paramedics, who were en route to the scene.
This was followed by the testimony of several Minneapolis Police Department officers who had negative things to say about Chauvin and his purported conduct, but whom similarly had knowledge of only a fraction of the relevant facts surrounding the officers’ interaction with Floyd, as well as of evidence-supported alternative explanations for Floyd’s death other than Chauvin’s knee.
Indeed, so far we’ve seen no testimony from state’s witnesses as to precisely how it is supposed to be that Chauvin caused Floyd’s death, or even contributed to that death in a wrongful manner.
So, this week I’m hoping the state will finally begin to share with us their evidence on the two core issues in this case, however rarely stated those issues may be.
First, what killed Floyd?
Was Floyd killed by mechanical asphyxia, by the officers compressing his chest and neck to such a degree that they effectively and intentionally murdered Floyd on a public street, in front of a crowd filming them? This seems to be unlikely to be the state’s theory of the case, as not even the state has charged Chauvin with a crime based on intentional killing.
Alternatively, did the officers kill Floyd by mechanical asphyxia but unintentionally, in a manner showing such indifference to a known risk of death or serious bodily injury that their conduct, even if unintentional, constitutes criminal recklessness, which could be the basis for the charges against Chauvin? If so, what’s that mean for the accessory charges against the other officers–were they accessories to an act of criminal recklessness? Is that even possible, legally speaking.
Again, whatever the state’s theory, they must prove it beyond a reasonable doubt, in the face of evidence-based alternative explanations for Floyd’s death, including his 3-fold fatal levels of fentanyl, presumably the result of his attempt to hide his illicit stash of fentanyl/methamphetamine pills via rapid ingestion when approached by police, his existing severe hypertensive and cardiovascular disease, his history of prior overdoses on similar drugs with similar physiological effects on his body, and his decision–despite his frail and overdosed condition–to fight lawful arrest against multiple officers for a full 10 minutes.
All of this in the context of the lack of any physiological evidence of mechanical asphyxiation, include a lack of any signs of trauma to Floyd’s neck.
Second, was Chauvin’s conduct, even if deadly, wrongful?
Even if we set aside the first question, and presume that it was Chauvin’s knee that was a causal factor in Floyd’s death, we also need to ask this second question, which is whether the use of that knee, in that manner, under those circumstances, was wrongful, or lawful. The Minneapolis Police Department use-of-force policies in effect at the time explicitly permitted a knee-on-neck restraint technique when dealing with non-compliant suspects–indeed, MPD training materials on restraint included illustrative photographs showing the precise technique used by Chauvin.
Further, officers are not only permitted but required to use force not only to protect themselves and the public, but to protect the in-custody suspect, even from himself. To the extent the officers believed Floyd was suffering from excited delirium–and we know they were, because they are heard discussing this concern on their body camera footage–the standard protocol is to completely restrain the suspect’s entire body to prevent the over-exertion believed to kill in cases of excited delirium.
Further, it is well recognized that overdose victims who regain consciousness often immediately respond with violence when they rouse, and thus steps to prevent this would be reasonable. This is all the more the case when the suspect is being restrained on the street in one of the busiest intersections of the city, with moving traffic mere feet away.
All of these are factors that could make Chauvin’s knee on neck restraint of Floyd entirely justified under the totality of the circumstances, and thus not the basis for criminal sanction even if it did contribute to Floyd’s death. After all, a patient who dies on a surgeon’s table dies at least in part because the surgery has opened them up–but we don’t put that surgeon in prison simply because his conduct contributed in some manner to the patient’s death, because the surgeon’s conduct itself was lawful.
Third, Was There A Criminal Delay in Providing Care?
A third potential theory of criminal liability on the part of the officers could be that there was a criminally reckless delay in providing apparent necessary care to Floyd. This was hinted at by some testimony last week–paramedic Smith, for example, expressed the opinion that the officers could have begun chest compressions before his ambulance arrived on scene.
I’ll note that delay of care was not the purported criminal misconduct laid out by Prosecutor Blackwell in his opening statement–rather, the claimed basis for criminal liability was mechanical asphyxiation, a completely different theory of the case. Is the state changing it’s theory mid-trial? If so, why? I mean, we may not know all the evidence the state will present in its case-in-chief, because that presentation is still occurring–but certainly the state knows what evidence it will be presenting. Should we not expect the state’s case in chief to be internally coherent?
Further, the question of delay in care is impossible to assess without taking into consideration all of the surrounding circumstances, including the officers’ awareness that they’d already made a code 3, emergency, lights & sirens, medical call, as well as the growing angry mob threatening imminent physical violence, to the point that Officer Thau was physically restraining the mob, that both Thau and Chauvin were reaching for their OC canisters, and now we’ve even heard testimony from the store clerk that he himself was obliged to physically restrain others in the mob.
Also a factor here is the danger that the 6′ 6″, 230 pound Floyd, if resuscitated, might be immediately physically violent. The soon-to-arrive EMS had the powerful sedative ketamine on board, a drug routinely used in such circumstances to protect not just the officers from the suspect, but also the suspect from the suspect. The officers had no such means at their disposal.
Even in the state’s opening statement by Prosecutor Blackwell, in which they are supposed to set out a broad view of their theory of Chauvin’s criminal liability, there was a great deal of emotive hand-waving, half-truths in the form of context-less citations of selected portions–but only selected portions–of the MPD policy manual, and a complete lack of any consideration of how the state intended to overcome Chauvin’s likely defenses–that is, that his conduct towards Floyd, first, wasn’t the cause of his death given the overdose and other facts, and second, even if a cause of death was nevertheless justified under the circumstances.
Again, the state will be obliged to make its case, and overcome the likely defenses, beyond a reasonable doubt.
So, here’s hoping that week we see the state either make progress in meeting this burden–or, alternatively, expose the central weaknesses in their case in chief.
Meanwhile, we’ll continue live blogging today’s proceedings in court, as we have been doing since the start of jury selection, and providing commentary and analysis of those proceedings in our separate “wrap-up” post after the court has adjourned for the day.
Enjoy the show!
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service. If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here: Law of Self Defense Membership Trial.
[Featured image is a screen capture from the body worn camera of former MPD Police Officer Thomas Lane.]