For the trial of Derek Chauvin, click here

For the pre-trial essay, “Slugging it Out Before the Fight”, click here
 



Posted 6/3/20

PUNISHMENT ISN’T A COP’S JOB

An officer metes out his brand of discipline. He then faces society’s version.

     For Police Issues by Julius (Jay) Wachtel. It’s impossible to not be repulsed by the horrific scene. A bystander video depicts Derek Chauvin, a veteran Minneapolis cop, relentlessly pressing his knee against George Floyd’s neck. Even as Mr. Floyd protests he can’t breathe and bystanders implore the now ex-cop to stop, Chauvin doesn’t relent.

     Public fury propelled an unusually swift official reaction. It took only one day for Minneapolis Mayor Jacob Frey to fire Chauvin and the three colleagues who participated in Mr. Floyd’s arrest. Only two days after that state prosecutors charged Chauvin with third-degree murder (“perpetrating evidently dangerous act and evincing depraved mind”) and second-degree manslaughter (“culpable negligence creating unreasonable risk”). As of yet, charges have not been filed against his colleagues.

     “Depraved” is an obviously challenging standard. How “depraved” were Chauvin’s actions? Here’s how Mayor Frey described the episode:

    For five minutes we watched as a white officer pressed his knee into the neck of a black man who was helpless. For five whole minutes. This was not a matter of a split-second poor decision. (Emphasis ours.)

While the mayor intimated that Chauvin acted maliciously, he didn’t say what it was a “matter” of. What were Chauvin’s motives? First, let’s examine what’s known.

Click here for the complete collection of George Floyd / Breonna Taylor essays

     According to the complaint, it all began with a 9-1-1 call from a nearby convenience store. Here’s an excerpt:

    9-1-1:  How can I help you?

    Caller:  Um someone comes our store and give us fake bills [a counterfeit $20] and we realize it before he left the store, and we ran back outside, they was sitting on their car.  We tell them to give us their phone, put their (inaudible) thing back and everything and he was also drunk and everything and return to give us our cigarettes back and so he can, so he can go home but he doesn’t want to do that, and he’s sitting on his car cause he is awfully drunk and he’s not in control of himself.

     MPD (ex-)officers Thomas Lane and J.A. Kueng went to the store.  They were directed to a vehicle parked across the street. Inside were Mr. Floyd and two companions, a man and a woman. A nearby security camera captured much of what took place. [UPDATE: Newly released officer bodycam videos. Click here and here.]

     George Floyd, who occupied the driver’s seat, was the officers’ first objective. Once handcuffs were applied – according to the complaint, Mr. Floyd resisted – Lane took charge of him while his partner concerned himself with the others. Mr. Floyd was 6-6, over 200 lbs. and uncooperative. With some difficulty the cop walked him to the sidewalk and had him sit down. They argued throughout, with the officer reprimanding and Mr. Lloyd protesting. While the cop grew exasperated and eventually launched into a lecture, the interaction didn’t seem (from this ex-l.e.o.’s point of view) especially heated. Neither did it portend violence, particularly as Mr. Floyd was well restrained. (Had he not been securely handcuffed, there’s no question that he would have bolted.)

     Soon, the officer brought Mr. Lloyd to his feet and, together with his partner, marched the reluctant man across the street. At that point the episode seemed like just another low-level, no-big-deal arrest, one of the innumerable such events that take place every day, on every shift, and nearly always end without serious consequence. Once the trio observably reaches the other side it really does seem like “game over.” Mr. Lloyd’s pockets had already been searched, and all that was left was to put him in the back of a patrol car and head for the station.

     That’s where this video ends. And where the real problems begin. According to the murder complaint, and as partly depicted on some shaky video footage included in a montage assembled by the New York Times, on reaching the patrol car “Mr. Floyd stiffened up, fell to the ground, and told the officers he was claustrophobic.” Chauvin and the fourth officer, Tou Thoa, arrived and tried to help get Mr. Floyd into the car. But he continued resisting:

      “The officers made several attempts to get Mr. Floyd in the backseat of squad 320 from the driver’s side. Mr. Floyd did not voluntarily get in the car and struggled with the officers by intentionally falling down, saying he was not going in the car, and refusing to stand still.”

     Mr. Floyd was partly in the car and still struggling when Chauvin – he was the senior officer on scene – gave up. He pulled Mr. Floyd out, pushed him to the ground and held him there. Officers Kueng and Lane assisted by holding the man’s back and legs. That’s when that infamous, final video takes over. It  depicts Chauvin pressing his left knee against the right side of Floyd’s neck.

     What’s Chauvin trying to do? We saved the online use of force section of the Minneapolis PD manual and posted it here. It authorizes two control techniques that involve the neck:

  • Choke Hold: Deadly force option. Defined as applying direct pressure on a person’s trachea or airway (front of the neck), blocking or obstructing the airway…
     
  • Neck Restraint: Non-deadly force option. Defined as compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck)…
  • Conscious Neck Restraint: The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure…

    Unconscious Neck Restraint: The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure…

     “Choke holds” cut off oxygen and can kill so are considered a last resort. But supposedly safer “vascular control” techniques remain in widespread use. “Carotid restraints,” applied by pressing on the sides of a neck, can supposedly more safely render a person unconscious by sharply reducing blood flow to the cerebral cortex. While not without controversy, these holds remain widely accepted by the policing community and continue to be taught in academies (click here for the California POST manual section).

     Officers are well aware of the risks posed by chokeholds and usually avoid them. Chauvin is depicted applying a carotid restraint, the so-called “conscious neck restraint” described in the M.P.D. manual. However, even this lesser form is only supposed to be used “against a subject who is actively resisting” (M.P.D. section 5-311, emphasis ours). Here’s how that’s defined (sec. 5-302):

    Active Resistance: A response to police efforts to bring a person into custody or control for detainment or arrest. A subject engages in active resistance when engaging in physical actions (or verbal behavior reflecting an intention) to make it more difficult for officers to achieve actual physical control. (10/01/10) (04/16/12)

And here’s its lesser cousin:

    Passive Resistance: A response to police efforts to bring a person into custody or control for detainment or arrest. This is behavior initiated by a subject, when the subject does not comply with verbal or physical control efforts, yet the subject does not attempt to defeat an officer’s control efforts. (10/01/10) (04/16/12)

Well, we’re stumped. Passivity requires that one “not attempt to defeat” control efforts. But even “verbal behavior reflecting an intention” constitutes “active” resistance. So as far as M.P.D. rules go, “passive” resistance doesn’t really exist. Chauvin apparently capitalized on that ambiguity to apply a neck restraint to a physically immobilized person literally to his heart’s content. (Note: As of June 5, 2020 MPD officers were prohibited from using chokeholds or neck restraints. See MPD Manual Sec. 5-302[1][C], p. 243.)

     In our view, why he did so was obvious: as punishment, and as a public shaming. That his motive was impure seems evident from his impassivity, his “look of indifference” in the face of Mr. Floyd’s obvious distress. According to the criminal complaint, Mr. Floyd complained “he could not breathe” before being taken to the ground. And once he was down, his pleas persisted. Their obvious authenticity didn’t just worry spectators. Lane, the officer who brought Mr. Floyd from his car, also expressed concern. But Chauvin, the late-comer, overruled him. Here’s another outtake from the charging document:

    The defendant placed his left knee in the area of Mr. Floyd’s head and neck. Mr. Floyd said, “I can’t breathe” multiple times and repeatedly said, “Mama” and “please,” as well. The defendant and the other two officers stayed in their positions. The officers said, “You are talking fine” to Mr. Floyd as he continued to move back and forth. Lane asked, “should we roll him on his side?” and the defendant said, “No, staying put where we got him.” Officer Lane said, “I am worried about excited delirium or whatever.” The defendant said, “That’s why we have him on his stomach.” None of the three officers moved from their positions.

     Cause of death was initially attributed to a combination of factors. According to the complaint, the medical examiner reported “no physical findings that support a diagnosis of traumatic asphyxia or strangulation.” Instead, Floyd’s death was attributed to forceful restraint by police, existing health problems including “coronary artery disease” and “hypertensive heart disease,” and the possible presence of intoxicants.

     That soon changed. On June 1st. the Hennepin County Medical Examiner released an “update” that directly blames use of force for causing Mr. Floyd’s heart to stop beating: (full autopsy report here)

    Cause of death: Cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression

    Manner of death: Homicide

    How injury occurred: Decedent experienced a cardiopulmonary arrest while being restrained by law enforcement officer(s)

    Other significant conditions: Arteriosclerotic and hypertensive heart disease; fentanyl intoxication; recent methamphetamine use

While factors other than force were present, the examiner concluded that they alone would not have caused Mr. Floyd to suffer the episode. It took force to cross the lethal threshold.

     As the report explains, “homicide” doesn’t ascribe blame. Indeed, should officers encounter a lethal threat, homicide can be justifiable. That, of course, isn’t what they faced here. Chauvin must argue that the death was accidental, and had he believed that Mr. Floyd was having problems breathing or had he known about those “other significant conditions” he would have stopped using force and summoned an ambulance.

     But an autopsy performed by doctors hired by Mr. Floyd’s family reached a dramatically different conclusion. According to one of the physicians, Dr. Allecia Wilson, “there is evidence in this case of mechanical or traumatic asphyxia.” In other words, that substantial direct pressure was applied to Mr. Floyd’s neck and deprived him of oxygen. If her account holds up, Chauvin’s good-faith defense crumbles, as even M.P.D.’s loosey-goosey policy defines pressing on someone’s neck to restrict oxygen intake – a chokehold – as deadly force. And there was clearly no reason to apply lethal force here.

     We’ll leave the legal dispute for lawyers and courts to hash out. Let’s address the human factors that determine how policing gets done. With ex-cop Chauvin and Mr. Floyd we have two very hard heads. Neither seemed the type to be overly concerned with what others want. Beginning with Mr. Floyd, a search of court files revealed that he had accumulated an extensive criminal record while living in Houston. Here’s an abbreviated version of the summary from the Harris County court:


     Mr. Floyd’s most serious conviction, for aggravated robbery with a deadly weapon, stemmed from a November 2007 incident in which he reportedly invaded a home and pointed a handgun at its occupant. Mr. Floyd pled guilty in 2009 and drew a five-year prison sentence. After his release he relocated to Minneapolis. A Hennepin County record search turned up two misdemeanor convictions, both for no driver license, one in 2017 (27-VB-17-250861) and another in 2018 (27-VB-18-128822). Then came May 25th. and the bogus $20 bill. (Note: see 6/21/20 update)

     Chauvin was a nineteen-year veteran of the Minneapolis force, which he joined in 2001. A search at the “police conduct resources” page of the Minneapolis Dept. of Civil Rights website revealed that he was the subject of twelve formal citizen complaints, all filed between 2003 and 2015. Each was marked as closed without discipline, and the details are recorded as non-public.


However, a CNN investigation found eighteen complaints, with two leading to discipline, in both cases written reprimands for using demeaning language. A deeply detailed NBC News piece notes that Chauvin was present during several encounters over the years when suspects were shot. But the only occasion in which he shot someone was in 2008, when he wounded a man who allegedly went for Chauvin’s gun. Chauvin was awarded a medal for valor. Most recently, in 2011, he and other officers were praised for resolving an incident involving an armed man.

     To this observer, a dozen formal complaints seems like a lot, even over nineteen years. A retired Minneapolis officer and college educator conceded that it does appear “a little bit higher than normal.” But Chauvin was never a desk cop. He obviously liked to mix it up. In fact, he held a long-time second job as a weekend bouncer at a local dance club. A former owner praised Chauvin and said they had been friends. But her “main guy” had a temperamental side. “I’ve seen him in action and I’ve seen him lose it and I’ve called him out on it before. I’ve told him it’s unnecessary and unjustified some of the ways that he behaves. He just loses it.”

     Chauvin was by far the most senior officer on scene. His partner, Tou Thao, had about eight years on the job, while Lane and Kueng were both rookies. We speculate that Chauvin’s temperament and seniority led him to take charge of the encounter and to do it his way, unorthodox as it may have been. Actually, in the policing business, unwelcome intrusions from experienced cops who think they’ve got all the answers aren’t uncommon. And the consequences have occasionally proven devastating. For example:

  • In October 2014 Chicago cop Jason Van Dyke, a 14-year veteran, butted in on officers as they actively contained a youth who had been prowling parked cars and was waving a knife. He emptied his pistol within six seconds, killing 17-year old Laquan McDonald. (Van Dyke’s partner reportedly kept him from reloading.) Van Dyke was eventually convicted of second-degree murder.
     
  • Two years later, NYPD Sgt. Hugh Barry arrived at a residence where patrol officers were carefully managing Deborah Danner, a mentally ill 66-year old woman who had gone berserk. Sgt. Barry instantly moved to grab Danner, leading her to flee into a bedroom and grab a baseball bat. He promptly followed and, as she took a swing, shot her dead. Tried for 2nd. degree murder, Sgt. Barry was acquitted by a judge. New York settled a lawsuit with the family for $2 million.

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     What to do? Here’s some self-plagiarism from our post about Danner:

    Police protocols should place those most familiar with a situation – typically, the first officer(s) on scene – in charge, at least until things have sufficiently stabilized for a safe hand-off. Officer Rosario and his colleagues had been monitoring the disturbed woman and waiting her out. Had Sgt. Barry taken on a supportive role, as supervisors routinely do, and let her alone, a heart-warming Hollywood ending might have been far more likely.

     Mr. Floyd’s killing has propelled yet another drive  to devise newfangled controls and elaborate systemic solutions. That’s likely unstoppable. But from this former practitioner’s eye, the real “solution” lies in the craft of policing. It’s in the workplace, in the everyday working relationships that influence nearly everything cops do. For example, there’s not an officer out there who hasn’t had a peer or superior step in and “mess things up,” nor one who’s never worried about a temperamental colleague, say, “Joe,” that unpredictable, annoying officer on swing shift.

     Officers successfully handle difficult characters like Mr. Floyd every hour of every day. Alas, these triumphs always seem to fly “under the radar.” What makes them possible? How do they come about? That’s what we should be examining at roll call.

UPDATES

6/30/21  In December 2015 St. Louis police arrested Nicholas Gilbert for trespassing and placed him in a cell. Gilbert acted as though he was suicidal and became violent. Officers handcuffed and shackled Gilbert and forcefully held him down on his stomach. After fifteen minutes. Gilbert died. His family’s Federal lawsuit was rejected by a District Court which found that the officers had qualified immunity. On appeal, a Circuit Court held that constitutionally excessive force wasn’t used. But in Lombardo v. St. Louis (no. 20-391, 6/28/21) the Supreme Court sent the case back to the Circuit to consider whether the prone positioning was reasonable given its known dangers and the agency’s own warnings about its use.

6/6/21  Three days of protests have followed the shooting death of Minneapolis resident Winston Smith, 32 by sheriff’s deputies assigned to a Federal fugitive task force. Smith, who was wanted on Federal charges of being a felon with a gun, allegedly fired on officers as they approached his vehicle. The gun he reportedly used and a spent bullet casing were recovered. There is no bodycam video.

5/25/21  The first anniversary of George Floyd’s death sparked major events around the U.S., including  a day of celebrations of his life in Minneapolis, both at the site of his death, now named “George Floyd Square,” and at a downtown park. According to organizers, it would be “a time to inwardly reflect, a time to use music and art to think deeply of the seismic shifts in America society over the past year, a time to educate from the speakers who'd be interspersed with musicians, and a time to think deeply of the meaning of the guilty verdict in the Derek Chauvin trial.”

5/7/21  A Federal Grand jury indicted Derek Chauvin and his three colleagues, Tou Thao, J. Alexander Kueng and Thomas Lane for violating the Federal civil rights of George Floyd, both through their actions and by failing to render aid. In addition, Chauvin is separately accused of violating the civil rights of a 14-year old whom he held “by the throat” and struck “multiple times in the head with a flashlight” in 2017.

4/28/21  An October 2019 use-of-force that seems nearly identical to the tactics used against George Floyd led the City of San Diego to settle a lawsuit filed by the family of Angel Zapata Hernandez for $5.5 million. Mr. Hernandez, a mentally disturbed 24-year old, died after two civilian transit officers placed the handcuffed man on his stomach and applied pressure with their arms and knees to his back and neck for six minutes. According to the medical examiner, the cause of death was “sudden cardiopulmonary arrest while in a prone restraint.” Heart disease was listed as “a contributing factor.”

4/21/21  One day after the conviction of former Minneapolis officer Derek Chauvin, DOJ announced that it will conduct a “patterns and practices” investigation of the Minneapolis Police Department: “The investigation will assess all types of force used by MPD officers, including uses of force involving individuals with behavioral health disabilities and uses of force against individuals engaged in activities protected by the First Amendment. The investigation will also assess whether MPD engages in discriminatory policing.”

4/16/21  One day after killing Mr. Wright (see below update) Brooklyn Center, Minn. police officer Kim Potter resigned from the force. One day after that she was charged with second-degree manslaughter, a felony punishable by up to ten years imprisonment. Officer Wright, a 26-year veteran who was training new officers at the time, was released on $100,000 bail. Her chief also resigned, and the mayor fired the city manager for allegedly mishandling the citizen protests that have ensued.

4/12/21  A Minneapolis suburb erupted into rioting and looting after a Black man died during an encounter with local police. During the afternoon of April 11, Brooklyn Center, Minn. police stopped Daunte Wright, 20 for a traffic violation, then tried to arrest him on a misdemeanor gun warrant. According to Police Chief Tim Gannon, the officer who shot Mr. Wright accidentally fired her gun instead of a Taser. Her body camera video records the shouted warning “Taser! Taser! Taser!” as Mr. Wright leaps back for his car. She then fired one round and exclaimed “Holy shit, I just shot him.” Mr. Wright drove off but the vehicle soon crashed.

3/21/21  A comprehensive New York City report found serious flaws in its police department’s response to summer 2020 protests sparked by the death of George Floyd. It criticized, among other things, the lack of a “clearly defined” strategy for handling such events, “excessive enforcement” of minor transgressions (e.g. curfew violations) which needlessly increased officer-citizen conflicts, a thoughtless, overly rigid use of intelligence, and officers’ lack of recent training in handling protests. An inquiry by the New York Times reported similar lapses by police departments across the U.S.

3/12/21  Minneapolis settled the lawsuit filed by George Floyd’s family for a record-breaking $27 million. It’s the city’s largest payout for a death due to officer misconduct. Its next-largest payout, $20 million, was in 2019. It went to the family of Justine Ruszczyk Damond, a 9-1-1 caller who was shot and killed after startling a cop. Other payouts to families of citizens killed by police include $3.1 million in 2013 and $2.2 million in 2011. In 2007 the city paid $4.5 million for the mistaken shooting of officer Duy Ngo by a colleague. Officer Ngo, who was left disabled, committed suicide two weeks after the settlement.

3/10/21  An online poll of 1,165 American voters disclosed “a stark divide” between Black and White opinions on race and policing. While a decided majority of Blacks (64 percent) felt that police had murdered George Floyd, only 28 percent of Whites agreed. “Fully funding” police was endorsed by 65 percent of Whites and 37 percent of Blacks. Similar Democratic/Republican splits were also evident.

3/4/21  Narrowly passed by the House, the “George Floyd Justice in Policing Act” (summary; full text) seeks to eliminate discriminatory policing and hold officers accountable for misconduct. Among other things, it lowers the criminal intent required for Federal prosecution of police abuses, narrows the scope of the qualified immunity officers now enjoy, creates a national registry of officer misconduct, requires additional training and reporting on use of force, and expands the requirement to wear body cameras.

12/11/20  Minneapolis police will not be “defunded.” But $8 million - 4.5 percent of the agency’s $179 million budget - is being redirected to social services, including funding mental health response teams that will operate independently of police.

11/26/20  Breonna Taylor’s death is leading to a tightening of no-knock policies elsewhere. In Minneapolis, where George Floyd was killed, new rules require that officers yell “police” and “search warrant” even when “no-knock” has been authorized. To go further requires approval of the police chief and an extreme situation, such as the rescue of a hostage.

11/14/20  A surge of robberies, shootings and killings after George Floyd’s death has beset Minneapolis, and particularly its poverty-stricken North side. Citywide, murder is up fifty percent and more than 500 have been shot, twice the number last year. But police coverage is down as waves of officers go on sick leave or resign. Some temporary officers are being hired but no solution is in sight. One resident complains of living in a state of war as politicians “embark on a campaign against your own police department, fighting and demonizing an entire internal city organization instead of making it better.”

11/8/20  Interviews by the New York Times revealed split opinions between Blacks and Whites about the protests sparked by police use of force against minorities, with Blacks generally viewing them as reflective of their everyday concerns while many Whites expressed anxiety about the impact of the disorder on their communities.

10/21/20  In a joint announcement with Minneapolis police chief Medaria Arradondo DOJ unveiled a “National Response Center Initiative” intended to help Minneapolis and police across the U.S. “adapt to the wide range of challenges” posed by gangs, drugs and social problems such as homelessness and “enhance and reform policies and practices to prevent the use of excessive force.”

9/27/20  Former officer Thao was repeatedly reprimanded as a cadet for taking shortcuts. He also had six complaints as an officer. Five ended without discipline, and one remained open. A 2014 excessive force complaint was settled with the victim for $25,000, and an internal inquiry was conducted in 2017 about his “expediency and dishonesty,” apparently for trying to avoid writing reports in certain cases.

8/20/20  According to Earl Gray, the lawyer for ex-officer Lane, autopsy results prove that Floyd, who had a pre-existing heart condition, literally “killed himself” with a drug overdose. In videos, Floyd reportedly complained about not being able to breathe well before ex-cop Chauvin pinned him with his knee. “We are going to show that my client and the other cops were doing their jobs” said Gray.

8/15/20 Newly released officer bodycam videos. Click here and here.

7/9/20  Transcripts of footage from the body-cams of Minneapolis officers Lane and Kueng reveal that officer Lane voiced concern that George Floyd was suffering from “excited delirium or whatever.” Officers summoned an ambulance early during the struggle but confusion about their location and the urgency caused a delay.

6/30/20  In the New York Times, an extensive inquiry into seventy police in-custody deaths during the last ten years where the decedents complained they couldn’t breathe. Many (but not all) the arrestees had been forcibly restrained, most often by being placed on their stomachs, had drugs in their system, and suffered from serious health issues.

Floyd’s final, full autopsy report indicates that a wide assortment of drugs were in his system, including “Fentanyl 11 ng/mL, Norfentanyl 5.6 ng/mL, 4-ANPP 0.65 ng/mL, Methamphetamine 19 ng/mL, 11-Hydroxy Delta-9 THC 1.2 ng/mL; Delta-9 Carboxy THC 42 ng/mL; Delta-9 THC 2.9 ng/mL, Cotinine positive,  Caffeine positive.” His blood was free of alcohol. Urine was “presumptive positive for cannabinoids, amphetamines, and fentanyl/metabolite” and “morphine (free) 86 ng/mL.”

6/27/20  In the New York Times, a probing portrait of Alex Kueng, the black rookie who was arrested in Floyd’s death. Now out on bail, ex-cop Kueng faces the wrath of both friends and family members.

6/21/20  Floyd’s 2004 drug sales conviction was based on the testimony of a black narcotics detective, since retired, who is being investigated for falsifying his work, leading to a 2019 raid that went murderously astray. More than one-hundred prior cases are under review and will likely be dismissed.

6/9/20 In the Los Angeles Times, a searching account of George Floyd’s life in Houston, based on in-depth interviews with two friends with whom he sold drugs. “As young men growing up in poverty, we all done missed the mark” said one, who also has a felony record and did time. “There was a generational curse on the ghetto. And when you got home, the hood still embraced you.”

5/26/20  Stating that “being black in America should not be a death sentence,” Minneapolis mayor Jacob Frey announced that he already fired the four officers who participated in the encounter.

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