Facts, unlike feelings

Andrew C. McCarthy:

Things are often more complicated than they appear at first blush. That is certainly the case with the murder of George Floyd, with which former Minneapolis police officer Derek Chauvin was charged in a complaint filed on Friday.

For one thing, contrary to most people’s assumption, Mr. Floyd appears not to have died from asphyxia or strangulation as Chauvin pinned him to the ground, knee to the neck. Rather, as alleged in the complaint, Floyd suffered from coronary-artery disease and hypertensive-heart disease. The complaint further intimates, but does not come out and allege, that Floyd may have had “intoxicants” in his system. The effects of these underlying health conditions and “any potential intoxicants” are said to have “combined” with the physical restraint by three police officers, most prominently Chauvin, to cause Floyd’s death.

As I’ve noted in a column on the homepage, Hennepin County prosecutors have charged Chauvin with third-degree depraved-indifference homicide. Now that the complaint has been released publicly, we see that a lesser offense was also charged: second-degree manslaughter. This homicide charge involves “culpable negligence creating an unreasonable risk” of serious bodily harm, and carries a maximum sentence of ten years’ imprisonment.

It is easy to see why prosecutors added this charge (and why they shied away from more serious grades of murder described in my column). The case is tougher for prosecutors if there is doubt about whether Chauvin’s unorthodox and unnecessary pressure on Floyd’s neck caused him to die. Had he been strangled, causative effect of the neck pressure would be patent. But if the neck pressure instead just contributed to the stress of the situation that triggered death because of unusual underlying medical problems (possibly in conjunction with intoxicants Floyd may have consumed), it becomes a harder murder prosecution.

The manslaughter charge requires only findings that Chauvin acted negligently, rather than with depraved indifference to human life, and that his negligence both created an unreasonable risk and contributed in some way to death. To be clear, I am not arguing against the murder charge. I am providing a legal analysis of why a jury could find that the manslaughter offense — which is a homicide charge — better fits the facts of the case.

If the complaint is accurate (and a great deal of it seems to be based on video from the cops’ body-worn cameras), Floyd was not as cooperative with the police as the media has been reporting. I do not see anything to suggest that the police were in real danger at any time, but Floyd was a large, well-built man (as we’ve seen from the video — the complaint says he was over six feet tall and weighed in excess of 200 pounds). Still, there is no indication that he was any threat to police during the critical last eight minutes, as Chauvin and two other officers, Thomas Lane and J. A. Kueng, held him down.

When Floyd was first confronted, by Lane and Kueng, he was not being sought for a violent crime. The allegation is that he had passed a counterfeit $20 bill. According to the complaint, Floyd briefly resisted when Lane first tried to handcuff him. This was after Floyd, while in a car with two other people, complied when Lane ordered him to show his hands and then to step out of the vehicle.

Floyd became more uncooperative when Lane and Kueng told him he was being placed under arrest. The complaint alleges that he stiffened up, dropped to the ground, and told them he was claustrophobic. He also refused to get in the squad car, intentionally falling down, refusing to be still. By then, the back-up officers, Chauvin and Officer Tou Thao, arrived in a second police car. Floyd continued to tell all four cops that he would not get into the squad car.

At a key juncture, the complaint is confusing. Sometime shortly after 8:14 p.m., we’re told, the officers were trying to force Floyd into the backseat of the squad car, when Chauvin “went to the passenger side and tried to get Mr. Floyd into the car from that side,” with Lane and Kueng assisting. The complaint then curiously jumps to a new paragraph, which begins by saying Chauvin “pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m.

Note: We are told neither how Floyd came to be in the squad car, nor why Chauvin was pulling him out. Nothing that happened in the interim is related. These undescribed moments may be significant, given that Floyd’s underlying hypertensive heart condition apparently contributed to his death.

Instead, we learn that when Chauvin pulled Floyd out of the car, Floyd went straight to the ground, “face down and still handcuffed.” Is this because he threw himself down, or did something happen to him in the car, or in the process of being put in the car, that caused him to be unable to walk? We are not told.

The complaint says that at that point, Chauvin, using his knee, pinned Floyd’s head and neck down, while Kueng held his back and Lane his legs. Why was this done? The complaint provides no useful information. To repeat, we are not told what went on in the squad car before Chauvin pulled Floyd out.

From there, the complaint summarizes the excruciating eight minutes between 8:19:38 and 8:27:24, when Chauvin finally removed his knee from Floyd’s neck — nearly two minutes after Floyd had not only ceased to breathe or speak, but ceased to have a pulse (according to Kueng, who checked for one at 8:25:31). In the minutes leading up to that point, Floyd had pleaded with the police to recognize that he could not breathe, and called out “please” and “mama” – a poignant plea, for Floyd’s mother passed away two years ago.

At one point, while Floyd was still moving but apparently not talking, Lane said he was “worried about excited delirium or whatever” and suggested that the police should “roll him on his side.” Chauvin rejected this suggestion, opining that the excited delirium Lane feared was “why we have him on his stomach.” Finally, an ambulance arrives . . . but we’re not told why. Did the police call the ambulance? Was it because of something that happened in the squad car? Because of something that happened on the street? We don’t know. As the complaint relates the matter, the ambulance just materializes, along with emergency medical personnel.

To summarize: The narrative complaint conveys the complexity of the encounter, though it raises new questions by leaving potentially key moments unaccounted for. It usefully demonstrates something of great importance in excessive-force cases: There is a big difference between resisting by refusing to cooperate physically in being taken into custody, and resisting by menacing the police and putting them in fear of harm. In the moments leading up to Floyd’s death, there may have been plenty of the former, but he did not hurt or threaten the cops.

But we are left with what appears to be an awful, patently unreasonable hold, one that looks like a variation on a choke hold, but that did not choke Floyd — or at least did not kill him by asphyxiation, even if it probably made breathing more difficult. This will give Chauvin’s defense daylight to argue that the video makes his actions look worse than they really were, and that Floyd died from a tragic combination of circumstances Chauvin could not have grasped in the moment.

That said, the video is monstrous, and a third-degree murder conviction is certainly foreseeable. The difficulty of proving that the grisly-looking hold employed by Derek Chauvin directly and proximately caused George Floyd’s death makes the murder charge more challenging for prosecutors. But the hurdle is by no means insurmountable. And even if the defense argument against depraved murder were to gain traction, one could easily see a jury convicting Chauvin of manslaughter for creating an unreasonable risk.

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