Welcome to today’s Law of Self Defense Members-only content! I am, of course, Attorney Andrew Branca, for Law of Self Defense.
Today I’d like to share with you a news story from the Wall Street Journal headlined “George Floyd Trial Centers on Police Tactic That Is Hard to Prosecute,” published a couple of days ago on March 1, and at least at the time the post was not paywalled (at least if you use that specific link, above).
As so often happens in these cases of purported unaccountable POLICE-RACIST-MURDER, the closer we get to trial and the closer people look at the actual relevant law and evidence, and the further we get from the law-free and evidence-free hate-rants that erupt in the immediate aftermath of such events, the less the case looks like POLICE-RACIST-MURDER.
Unfortunately, even the Wall Street Journal appears unable to write on this case coherently, but nevertheless the news report makes a number of observations that I believe indicate that the reality of this case is starting to be brought into the light of day.
And not a day too soon, given that jury selection for the second-degree murder trial of Officer Derek Chauvin, who had his knee on Floyd’s neck during Floyd’s forcible resistance against lawful arrest, is to begin this coming Monday, with opening arguments in the case expected later this month.
Incidentally, you can read our prior extensive writings on this George Floyd case archived in a single convenient location here, and I encourage you to do so, so that I don’t have to repeat everything I’ve already written previously on the case in today’s content:
One of the failings of the Wall Street Journal news report linked above is that the headline refers to the challenges of prosecuting police officers who use the restraint tactics that Officer Chauvin and his colleagues used on the non-compliant Floyd, but the bulk of the actual report mostly discusses the difficulties of obtaining judgments in civil suits in such cases—that is, the difficulty of suing the officers or their departments in such cases. Usually such civil suits take place in Federal court as what are called §1983 cases, essentially violation of civil rights under color of law cases.
In fact, of course, prosecution and civil suits are two entirely different matters with entirely different legal standards. A successful prosecution, for example, requires proof beyond a reasonable doubt. A successful civil suit requires merely a preponderance, or mere majority, of the evidence. Accordingly, whatever difficulties might exist in getting a civil judgment are enormously greater when the same law and facts are placed in the context of criminal prosecution.
To put it another way, if the law and facts don’t even allow for a mere 51% of proof of wrongful conduct by a preponderance of the evidence, they certainly don’t allow for a finding of the 85% or 90% or 95% of proof required to meet the standard of beyond a reasonable doubt.
To put it yet another way, if attempts to find civil liability on the part of police who use these tactics rarely, if ever, succeed in civil court, there’s little reason to expect a finding of criminal liability for police who use these tactics.
Curiously, the Wall Street Journal observes the difficulty of obtaining such civil judgments in these cases, but never asks the question—why? Why is it so difficult to establish that officers who use such restraint tactics have committed, say, the wrongful death of the suspect?
Of course, the whole public narrative around the George Floyd case is founded on POLICE-RACIST-MURDER, so that public narrative simply accepts as an established premise that the use of such restraint techniques must qualify as POLICE-RACIST-MURDER, and any finding otherwise must therefore be the result of that generalized boogeyman, INSTITUTIONAL RACISM.
There is, of course, another possible explanation for why the use of these restraint tactics rarely, if ever, results in civil liability—and by extension, much more rarely in criminal liability. And that explanation is that the use of these restraint tactics are entirely lawful if done under the proper circumstances—and the lack of either civil or criminal liability in almost all cases tells us that the courts have found that these tactics are, in fact, almost always being used under the proper circumstances.
Indeed, the specific restraint tactics used by Officer Chauvin and his fellow officers—including Chauvin’s knee on Floyd’s neck—was a restraint technique explicitly approved by the Minneapolis Police Department and one in which these officers had been trained by their department.
Further, the conditions for the use of these techniques were met by Floyd’s non-compliance with arrest and his subsequent apparent collapse into excited delirium (a condition in which whole-body restraint is warranted to prevent the suspect’s death by over-exertion).
You may be wondering, but wasn’t it Chauvin’s knee that killed Floyd? Or at the very least, and as the prosecutor will be required to prove beyond a reasonable doubt to obtain a second-degree murder conviction against Chauvin, didn’t Chauvin’s knee cause Floyd serious bodily injury that resulted in Floyd’s death?
The answer to both those questions, based on the actual evidence, is no. So slight was the pressure applied by Chauvin’s knee on Floyd’s neck that it caused no apparent injury or even bruising, per the medical examiner’s report. Indeed, for almost the entirety of the time Chauvin’s knee was on Floyd’s neck, Floyd was speaking, meaning obviously that he was breathing. Further, it would be very difficult to constrain someone’s breathing with a knee to the side of their neck, where Chauvin’s knee was placed on Floyd, as opposed to the front of their neck.
A knee on the neck does not automatically equate to death for the suspect—as the Minneapolis Police Department use-of-force policy explicitly conceded when it allowed the technique as a less-that-deadly force restraint technique by its officers.
Indeed, any of us can go to our bathrooms, kneel beside our bathroom scales, place one knee on that scale, and vary the actual pressure applied to the scale from anything between about half our body weight to zero.
And there is no indication from any of the video of this event that Chauvin was ever applying death pressure to Floyd’s neck, as opposed to the pressure permitted by the knee-to-neck restraint technique he’d been trained to use by his department.
But Floyd DID die, so surely Chauvin’s knee killed him, right?
In fact, there is an obvious explanation for Floyd’s death entirely independent of Chauvin’s knee—the fact that Floyd had a three-times fatal dose of fentanyl in his body, per the medical examiner’s report. Further, Floyd had a history of ingesting illegal drugs when faced with the prospect of having those drugs found on his person by law enforcement—effectively “hiding” the drugs inside his body.
In short, that Floyd effectively committed suicide, even if unintentionally, by ingestion of a three-times fatal dose of fentanyl in an effort to avoid criminal liability for possession of the drug when he was confronted by Chauvin and the other officers for having passed a bad bill at a convenience store.
So when the Wall Street Journal idiotically wonders why officers using lawful restraint techniques under lawful circumstances are mysteriously not found to be civilly liable for such conduct, the answer is likely that the conduct was, well, lawful. And if it was lawful for purposes of a civil trial, it’s certainly lawful for purposes of a criminal trial.
And in the case of Chauvin and Floyd, in particular, not only were the techniques used lawful under the circumstances, these lawful and appropriate restraint techniques almost certainly made no substantive contribution to Floyd’s death, which was almost certainly caused by his self-ingestion of a three-fold toxic dose of fentanyl.
In any case, to the extent the trial, starting later this month, is made accessible to the public, you can be sure I’ll be following it closely and sharing my analysis and thoughts with all of you Law of Self Defense Members.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
IMPORTANT: We encourage civil and reasoned debate among Members in the comments. That said, comments reflect the opinion (legal or otherwise) of those who authored them only, and no comment should be assumed to reflect the opinion of, or be assumed to be shared by, Attorney Andrew F. Branca, except those authored by Attorney Branca. Law of Self Defense LLC does not systemically moderate comments for legal correctness, and we suggest that all comments be viewed with an appropriately critical eye and a grain of salt.
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
Law of Self Defense © 2021
All rights reserved.