Is the Case Against Derek Chauvin a Slam Dunk?

It should be obvious that we shouldn’t draw conclusions based on social media posts and “click bait” videos. But when it comes to race and the police, people do it all the time.  This is why Minneapolis prosecutors initially told the public that while the video of the death of 46-year-old George Floyd looks disturbing, there is a lot about the case we don’t know. They urged citizens to be patient.

The prosecutors probably had in mind the famous deaths of blacks at the hands of police and vigilantes  over the past ten years, in which the facts are often different from public perception. To most blacks, it was obvious that Trayvon Martin, Michael Brown, Freddie Gray, Philando Castile, and Eric Garner were murdered by racist whites (although Martin and Castile were killed by Hispanics). In each of these cases, either jurors or investigators determined that the killings were justifiable homicide.

It is easy to demand swift justice when rage takes over, based on a limited understanding of the facts, but that is not how an orderly, evidence-based criminal justice system works. This is the system whites value, but it is not how most blacks see things, especially if a black person is involved. They are often too emotional and impulsive to wait for the facts.

George Floyd, a black man known as “big Floyd,” had a 2007 conviction for a home invasion robbery and was sentenced to five years in prison as part of a plea deal. He also had many arrests for trespassing, theft, and narcotics. He tried to pass a counterfeit $20 bill at a grocery store. He struggled with officers and refused to get into a squad car. After being handcuffed, he got on the ground. He was subdued by officers while an agitated crowd — mostly of blacks — surrounded him. Officer Derek Chauvin was recorded on cellphone video with his knee pinned on Floyd’s neck as he says several times, “I can’t breathe.” He died soon thereafter.

What are my observations as a former police officer?  First, I can’t recall any official policy in which an officer was instructed to put his knee on someone’s neck, even if he was combative. I have seen officers use their knees this way, but it was never recommended in the “Use of Force” section of my department’s manual.

In most cases I saw, an officer put his knee on the suspect’s shoulder or back to pin him down. I even saw officers put their knees on a suspect’s cheek. Most of the time, this was a quick, temporary move so that someone’s feet could be hobbled — not nearly nine minutes of pressure, as in the case of Floyd.

The video of how Floyd was treated is an ugly sight, but police work is rarely pretty. It is very hard to subdue a big, muscular man like Floyd, who stood 6 feet 6 inches and weighed 200 pounds. Even when a man like this goes limp, it is hard to move him.

Officer Chauvin may well have violated his department’s rules for uses of force. The Minneapolis PD allows the “Carotid Restraint Hold” (a choke hold) under rare circumstances, but that’s not what Officer Chauvin used. His defense counsel may argue that a knee to the neck is common, even if it is not officially taught by his agency. One can see this sort of thing on TV shows, such as Cops or Live PD. What Officer Chauvin did may sometimes be necessary to control a much larger subject. However, I doubt his actions will be seen as following the Supreme Court’s 1989 ruling in Graham v Connor that any police use of force must be “objectively reasonable” in light of the facts and circumstances — and without regard to the officer’s intent or motive.

Defense counsel may call use-of-force experts to testify that the technique used by Officer Chauvin is not as dangerous as it looks. They may discuss how much weight was actually on Floyd’s neck, and whether it was enough to keep him from breathing. The preliminary autopsy found that Floyd did not die from strangulation or asphyxiation, but from hypertension, heart disease, the stress of the arrest, and “potential intoxicants.” An independent autopsy at the request of Floyd’s family and their high-profile black attorney, Benjamin Crump, concluded that he was asphyxiated.

The final autopsy found that Floyd had fentanyl, methamphetamines, and cannabinoids in his system. This may explain that even when he was standing, Floyd complained that he couldn’t breathe. Fentanyl suppresses breathing, and overdoses are common. This may support the defense if they argue that the real cause of Floyd’s death was his own use of illegal narcotics, not Officer Chauvin’s actions. Floyd also had Covid-19, which in advanced stages can make it very hard to breathe.

When the grocery store clerk called 9-1-1, he told the police that Floyd was “awfully drunk and he’s not in control of himself.” Floyd may already have been showing symptoms of an overdose.

The prosecution will argue that officers failed to recognize the seriousness of the incident, and ignored Floyd’s pleas. The officers did call for paramedics because they suspected medical complications, but they called too late. The moment Floyd said he couldn’t breathe, they should have made a call. Even if they thought he was lying, it is always better to be prudent. Let the medics decide.

Neglect may be the most potent charge against Officer Chauvin. If a second-degree murder and manslaughter charge don’t stick, he may later be charged with failing to render aid to someone under his care. Once officers take someone into their custody, they are responsible for his safety and welfare.

In light of Eric Garner’s death a few years earlier, in which he also claimed he couldn’t breathe, why would any officer ignore these words even if he thought Floyd was faking? The officers knew they were being videoed by bystanders, and an officer can’t afford to ignore appearances.

Some have complained of Officer Chauvin’s seemingly nonchalant — even callous — attitude towards Floyd’s complaints. However, it is very common for blacks under arrest to do all manner of crazy things to avoid going to jail. Only an officer who has had to police blacks knows the drama and chaos they can create when faced with a possible jail sentence. As a veteran policeman, Officer Chauvin would have known all about this. At the same time, the cellphone video shows the officers surrounded by an agitated crowd that could have easily become dangerous. This is a distracting and worrisome situation that meant Officer Chauvin paid less attention than he should have to Floyd’s complaints.

No matter what happened, neither Officer Chauvin’s actions nor what he said to his fellow officers indicate any racial motivation. He might have done the same with a white suspect who acted the same way.

Derek Chauvin was initially charged with third-degree murder. This section of Minnesota law reads: “Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree” [609.195(a)]. Prosecutors upgraded the charge to second-degree murder, arguing that Officer Chauvin showed “culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”

The charge of third-degree murder requires gross negligence, but no intention to kill. The charge of second-degree murder requires the creation of an unreasonable risk with full consciousness that this could lead to death or great bodily harm. Second-degree murder carries a prison sentence of up to 40 years. Are we really supposed to believe that Officer Chauvin put his knee on Floyd’s neck in an effort to kill him at the scene? Maybe he was neglectful, but it is far-fetched to claim that he meant to kill.

Why not make a charge of first-degree murder? The burden of proof would be much greater. The missing elements are premeditation and deliberation. If Officer Chauvin is acquitted because the prosecution aimed too high and made charges a jury rejects, there would be huge problems for Minneapolis and the nation. Even a verdict of second-degree murder is less than certain. A verdict of manslaughter seems mosts likely. But this will cause problems, too, because few blacks will accept anything less than a murder conviction.