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Groundwork laid for excessive use of force in Day 3 of Chauvin trial

Donald Williams, a trial witness, is seen in a car outside the Hennepin County Government Center on March 29, 2021
Donald Williams, a trial witness, is seen in a car outside the Hennepin County Government Center on March 29, 2021

Jurors in a Minneapolis courtroom on Wednesday were shown new videotape of George Floyd as prosecutors set the stage to argue that former police officer Derek Chauvin used excessive and unjustified force resulting in Floyd’s death.

Floyd is seen conversing amiably and even laughing inside a convenience store just minutes before police arrived at the scene as officers responded to a 911 call that Floyd had likely used a counterfeit bill to purchase cigarettes. Store clerk Christopher Martin who spoke with Floyd testified that “he seemed high,” but the witness saw no aberrant behavior to suggest that his customer was belligerent or out of control. “He seemed very friendly, approachable, talkative,” said Martin. “He seemed to be having an average Memorial Day, just living his life,” he added. It was a life that would soon end.

The questionable currency that was passed to the clerk was a $20 bill that had a slight blue tinge to it. Martin told the jury that he thought Floyd might not have even known that it was fake. This is important because officer Chauvin was dealing with a minor offense. The low monetary value means that Floyd could only be charged with a misdemeanor. And if he didn’t realize the bill was fraudulent, there would be no charge at all.

The use of force policy of the Minneapolis Police Department –identified in its training handbook and policy manual at the time– states that an officer must pay “careful attention to the severity of the crime at issue” before deciding to employ force to effectuate an arrest. In other words, Chauvin had options. He could have chosen a lesser alternative in his interaction with Floyd, such as taking a police report and referring the matter to investigators or prosecuting authorities for evaluation. Chauvin did not have to arrest Floyd. The defendant’s decision-making seems as excessive as his use of force.

It is truly tragic that a brutal death that shocked the nation and precipitated widespread violence and destruction of property arose from nothing more than a non-violent petty offense. Prosecutors will surely argue that Chauvin’s actions were wholly out of proportion to the situation that presented itself on that fateful day, May 25, 2020.

While it is true that a citizen is never justified in resisting a lawful arrest, an officer must first exercise “reasonableness” in his decision to take a suspect into custody. Was it reasonable to arrest Floyd for a petty crime that may have been no crime at all if he unknowingly passed a counterfeit bill? An officer cannot simply assume that a paying customer was committing an intentional fraud.

Given the prevalence of counterfeit currency that manages to make its way into our systems of commerce, many innocent people have no idea they are even handling it. They don’t scrutinize every bill in their wallets. Who does that? When Floyd was removed from his vehicle by police, he told them several times, “I didn’t know…I didn’t know.” It’s heard clearly on the police body cam videos. A dozen times he told them, “I’m not that kind of guy.”

Chauvin had an affirmative duty to “mitigate” any confrontation. This is mandated in the same police handbook which officers must commit to memory. Here it is: “Whenever reasonable according to MPD policies and training, officers shall use de-escalation tactics to avoid or minimize use of physical force.” The evidence demonstrates that the defendant did just the opposite –he escalated the encounter unnecessarily. Floyd died as a consequence.

In the most dramatic moment of the day another bystander, Charles McMillan, broke down and sobbed on the witness stand Wednesday as he observed on the court’s monitor a recording of a handcuffed Floyd struggling with police as they tried to place him inside a squad car. He is heard complaining frantically that he’s claustrophobic and having trouble breathing. The images are excrutiating to watch as a panicked Floyd becomes increasingly distressed and anguished. His moans and cries for help are gut-wrenching.

Chauvin could have called a supervisory officer to the scene to intervene and determine alternative ways of handling the volatile situation. Time was on his side. There were no exigent circumstances. That is what a reasonably prudent officer would do. Indeed, it is what Minneapolis officers are instructed to do. Yet, Chauvin didn’t do it. He did not “call additional officers or specialty units” with different resources to render assistance, as the manual states. Instead, the officer placed a handcuffed Floyd prone on the pavement and proceeded to press his knee on the back of the man’s neck for more than 9 tortuous minutes.

Chauvin can hardly claim that he never realized that Floyd was on the precipice of death. Before he lapsed into unconsciousness, he is heard saying “I can’t breathe!” over and over again. At one point he cried “Mama, they’re killing me. My body is shutting down!” He wails in agony. Moments later, the recording shows him motionless and silent with his eyes closed. It appears he is no longer breathing and there is no overt sign of life. Yet, with a defiant look on his face Chauvin continues to compress his knee on Floyd’s neck for three more minutes. It should have been obvious that Floyd needed urgent medical help, not continued restraint.

Even if the jury were to accept the theory that the initial use of force was somehow justified, once Floyd was under control on the ground, compliant, and no longer posing a perceptible threat, Chauvin was obligated to reduce his level of force. Conspicuously, he did not. Paramedics had to pry him off of Floyd when they eventually arrived at the scene.

Let’s assume for the sake of argument that the defendant’s knee compression was justified and reasonable for a period of time –let’s say the first minute. How about the second minute? Or the third? What about the fourth, fifth or sixth minutes… or at any time during any of the minutes and seconds that followed? In closing arguments, the prosecution will again play the videotape and challenge the jury to determine at what point during the 9 minutes and 29 seconds did Chauvin cross the line from legality into criminality.

During opening statements, the defense told the jury that their client “did exactly what he was trained to do over his 19-year career.” But this is belied by the written regulations that govern Chauvin’s conduct. The department’s training and procedures manual does, in fact, permit what is referred to as an “unconscious neck restraint.” However, it is a drastic method of last resort. There are strict parameters. An officer is not allowed to use it if “lesser attempts at control have been or would likely be ineffective.” Did Chauvin exhaust all available options? This is doubtful, as noted earlier.

Importantly, the policy manual cautions that if a suspect exhibits any health concerns, the neck restraint must be abandoned immediately. Loss of consciousness and respiration would obviously meet this standard. But Chauvin did not yield, as evidenced on the various recordings.

Choke holds or neck compressions are inherently dangerous tactics that have been vigorously debated because of the frequency of serious injuries and deaths. Many police departments across the nation have forsaken them. Regardless, the defendant can only be held to account for complying with the existing policy in his own department at the time of Floyd’s death. The question then for the jury will be whether Chauvin violated that policy, as well as the accepted standards of force application when he subdued Floyd. If the answer is yes, then the defendant is guilty of assault resulting in death which is the top count of second-degree murder.

The prosecution must still persuade the jury that such use of force was the cause of Floyd’s death. The defense has asserted that a fatal level of drugs and a pre-existing heart condition killed Floyd. But as I’ve explained before, prosecutors do not have to prove that Chauvin actions alone was the cause; only that they were a substantial factor.

Jurors will be given specific written directions on this. They will likely be drawn from the Minnesota guidelines for jury instructions which read, in relevant part: “‘To cause’ means to be a substantial causal factor in causing the death. The fact that other causes contributed to the death does not relieve the defendant of criminal liability.” This gives the prosecution a distinct advantage in obtaining a conviction.

As jurors digest those instructions during their deliberations, they will compare the law to the facts. The dominating facts are on vivid display in the now infamous digital recording of the defendant kneeling on Floyd’s neck for more than nine horrifying minutes.

Did Chauvin act recklessly and with a complete indifference to human life? Did he exhibit an utter lack of decency and humanity? The answers can be easily found in all of the visual evidence.