Andrew’s commentary and opinions do not reflect or represent CCW Safe. They are his own and we are presenting the coverage because this trial could be of interest to our members and to generate thought and discussion.  

Chauvin Trial: Verdict Prediction (of Sorts), with Reasons

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense.

 

While we’re waiting for closing arguments tomorrow morning, and for the court to release the final form of the jury instructions with which the jury will be charged immediately after closing arguments, I thought it might be worth stepping through my current view of the case as things currently stand, in terms of the facts and law of the case.

Obviously, what qualify as the “facts” of this case proven beyond a reasonable doubt is subject to considerable uncertainty, where reasonable people can disagree—that’s why we have juries in the first place.

Also, the state and defense obviously have their own conflicting views on precisely how Minnesota law should be applied to the facts, in whatever form they are deemed proven—that’s why we have arguments between the parties about the precise wording of jury instructions.

With those caveats in mind, perhaps it’s worth stepping through the facts argued at trial, at least as I perceive them, considering them in light of the relevant law, and seeing where we end up.

The bottom line: If the verdict were based solely on the legal merits, the facts and law in this case, were I personally a juror I would have more than enough reasonable doubt to be unable to vote guilty on any of these criminal charges, for all the reasons of fact and law that I detail below.

That said, this case left the “facts and law” train station quite some time ago, making where it will end up largely unpredictable in any realistic sense, especially given the political and social dynamics looking to drive this train clear off the rails.

Also, I’ll be sticking here to the charges actually brought in this case, meaning second-degree “felony” murder, second-degree manslaughter, third-degree murder, and third-degree assault. I’ll not be addressing any lesser-included offense in a hypothetical sense—if those become real, I’ll discuss them at that point.

With that caveat, let’s dive into the stuff I do know something about, having watched every minute of this trial, and having thoroughly reviewed the relevant statutes, jury instructions, and case law.

Murder in the Second Degree: “Felony murder”: Question of Causation

Let’s start with a look at the second-degree murder charge in this case, really a felony murder charge, with a particular focus on the issue of causation here.

As a reminder, Minnesota use of the term “murder” is much broader than is typical in most states, or how the legal concept of murder is taught in law school.

Conceptually, a homicide (the killing of one person by another) can be unlawful and intentional—what is traditionally referred to as murder—or unlawful and unintentional—what is traditionally referred to as manslaughter or criminally reckless homicide—lawful and intentional—usually self-defense or defense of others—or lawful and unintentional—accident or misadventure.

Most other states use the term “murder” to refer to only that first category of homicide—the unlawful and intentional killing.  None of the killing charges brought against Chauvin fall into the unlawful and intentional category of homicide, and so would not in most other states be referred to as murder.

In the context of the second-degree murder charge brought against Chauvin under Minnesota statute §609.19, that statute has two subsections.  The first deals with intentional homicides, and drive-by shootings—Chauvin is not charged under that section. The second section deals with unintentional homicides, either in the course of the commission of an underlying felony, or under circumstances involving a court-issued order of protection.

Chauvin was charged with “second degree murder” under that second section, §609.19(2)(1), based upon an unintentional killing in the course of the commission of an underlying felony—what is traditionally called “felony murder.”

The relevant jury instruction for this charge is CRIMJIG 11.28, which appears straightforward enough:

Under Minnesota law, a person causing the death of another person, without intent to cause the death of any person, while committing or attempting to commit a felony offense is guilty of the crime of murder in the second degree.

Normally in felony murder cases the only real burden on the state is to prove the underlying felony—if the jury finds the defendant guilty beyond a reasonable doubt of the underlying felony, it usually naturally follows that this also satisfies the requirements for the felony murder charge.

If my use of the word “normally” makes you wonder if things are not so simple in this case, you would be correct.  And that’s because one element of felony murder that’s generally not in dispute in most such cases, but is in dispute in the Chauvin case, is that it must have been the defendant who actually caused the death, or perhaps more accurately that it was the felony in which the defendant was engaged that caused the death.

In most felony murder cases, the cause and manner of death is unambiguous.  Two people decide to commit the felony armed robbery of a liquor store, robber A being armed with a gun, and robber B being unarmed and serving as a lookout.  During the robbery the store clerk is shot and killed by robber A.  Robber A has committed an intentional and unlawful killing—“murder,” as traditionally defined.

Has Robber B committed the offense of felony murder?  Was he engaged in a felony? Yes. Was the felony a cause of the clerk’s death? Certainly.  Boom, felony murder.

And we need that causation component tying the conduct of Robber B, even indirectly, to the clerk’s death, in order for Robber B to be guilty of felony murder. Imagine, for example, that the clerk was not shot by Robber A at all, while the robbery was taken place.  Instead, even as the clerk was getting robbed, at that moment the angry husband of the clerk’s current lover stepped in from the back of the store, and shot and killed the clerk entirely independently of the robbery.  In that case Robber B would not be guilty of felony murder, because the murder of the clerk was not casually related to the robbery.

In the Chauvin case, however, things are more complicated than our robbery scenario, because the issue of cause of death of George Floyd is more complicated than in our hypothetical, raising a real question of causation.

In the Chauvin case, however, things are more complicated, because the issue of cause of death of George Floyd is more complicated than in our hypothetical.

Note that this also distinguishes the Chauvin trial from the Noor case, with which many legal commentators have been drawing parallels (much too broadly, in my opinion).  In the Noor case there was no ambiguity about the cause and manner of the death of Justine Damond, the victim in that case—Noor shot her, and she died of the gunshot injury. Period.

In the case of George Floyd, his precise cause of death has been a subject of hot dispute for roughly half the trial proceedings.  What really killed Floyd?

We’ve heard the state and state witnesses argue, sequentially, that Floyd was killed by a “blood choke” by Chauvin’s knee cutting off Floyd’s blood supply to his brain, by a “respiratory choke by Chauvin’s knee cutting off Floyd’s air supply (a quite different thing altogether), and by positional asphyxia-induced compression of Floyd’s chest and airways (yet another quite different thing).

And that’s just the variable prospective causes of death proposed by the state itself!  At least all of those variations have in common that Chauvin’s conduct played a direct role, and thus is arguably consistent with a theory of guilt.

The defense had other credible theories of Floyd’s cause of death, however, each of which suggested causes and manner of death that had little to do with the placement of Chauvin’s knee or the position of Floyd’s body.  I’ll note as an aside that state witnesses acknowledged the facts of each of these claims, so those facts are not credibly in dispute.

For example, Floyd had substantial blockage of his major coronary arteries—of the three most important coronary arteries, two were 75% blocked and the third 90% blocked.  Thus, his heart was unusually vulnerable to any further restriction in blood flow and oxygen supply, on the one hand, or abruptly increased demand for blood, on the other.

Floyd also had pathological hypertension, with the resultant enlarged heart common to that. This increased the heart’s demand for blood and oxygen under even normal resting conditions, making the heart exceptionally vulnerable under stressful conditions that increased such demands where the demand could not readily be met (e.g., because of profound blockage of the coronary arteries).

Floyd was also an acknowledged drug addict and user of both methamphetamine and fentanyl, as well as other drugs. In the cardiovascular health context, methamphetamine in particular is widely recognized as causing long-term damage to the heart, again making Floyd unusually vulnerable to heart failure, especially under stressful circumstances.

In the context of fentanyl, a reasonable inference can be made that the 11ng/ml of the drug found in Floyd’s system, plus another 5ng/ml or so of the active metabolite nor-fentanyl, also contributed to Floyd’s death.

The state made much of the fact that Floyd did not appear to die a “traditional” fentanyl overdose death, in that he did not simply nod off, stop breathing, and die quietly.  After all, Floyd was observed violently resisting arrest!

First, it’s not clear to me that a fentanyl-type death did not occur in Floyd’s case.  We know from the testimony of Floyd’s friend in the SUV, Hill, that moments before the police arrived on scene Floyd had nodded off, was just about impossible to rouse, and when roused immediately fell back asleep. Indeed, although Hill was in Floyd’s SUV specifically to accept his offer of a ride, she ultimately gave up trying to rouse him as an effort in futility and called her adult daughter to come pick her up.  That sure sounds like fentanyl, to me.

Then, of course, we have a period of activity by Floyd when he’s forcibly resisting lawful arrest.  It must be kept in mind, however, that sedation and stimulation are always forces acting against each other. Someone inclined to fall asleep can be kept awake if prone to substantial stimulation—say, the police attempting to lawfully force you into a squad car.  That doesn’t mean that sedating forces weren’t at play, it merely means that they were momentarily offset by stimulating forces.

Also, there is evidence of Floyd ingesting fentanyl even as he was first contacted by officers while seated in his SUV, and then when he was fighting lawful arrest in the back of squad car 320, presumably to prevent the officers from discovering the illicit drugs.  The effects of this fentanyl would not be expected to be evident for several minutes—and, indeed, Floyd’s energetic resistance to the officers slowly declined exactly over the progress of the next several minutes.  Again, that’s consistent with rapid onset fentanyl overdose.

Further, fentanyl could well have been a substantial contributing factor in Floyd’s death even in the absence of acute toxicity—and it’s quite possible that Floyd had developed a tolerance to fentanyl that would have prevented acute toxicity even at 11ng/ml.

Just because a level of fentanyl is not sufficient to induce fatal overdose, however, does not mean that it’s not depressing respiration.  The state argued that this could not be the case because Floyd’s respiration was purportedly “normal.”  But normal for what? Normal for a resting state, in which the heart’s demands for blood and oxygen are also normal?  Or normal for the demands of a heart that has just forcibly fought multiple police officers for 10 minutes?

If Floyd’s respiratory rate was 20 breaths a minute, perhaps a normal rate at rest, but his physical exertions called for a respiratory rate of 30 breaths a minute, then his respiratory function was profoundly depressed for his actual circumstances—and yet again his heart, already extremely vulnerable to any further restriction in blood and oxygen, would be paying the cost.

The state also made many claims that Floyd’s death could not have been a “heart attack” because there were no indications of the damage to the heart that usually follows a “heart attack.” In this context what is being discussed is an event in which there is an abrupt stoppage of blood flow to a portion of the heart, that portion the heart muscle suffers damage as a result, and that damage can be observed afterwards.  No such damage was visible in Floyd’s case.

But there are other ways a heart can be stopped besides abrupt cessation of blood flow that results in damage, and those alternative means do not leave any such telltale signs of damage to the heart.

In particular, a heart under stress can experience an abrupt arrythmia that disrupts the normal pumping action of the heart.  Without the heart pumping properly, blood and oxygen are no longer being effectively supplied to the heart, brain, or other tissues of the body, and death results within seconds—indeed, a death due to arrythmia is often described as having been instantaneous.

Much as they did in arguing against fentanyl overdose as a cause of death—that Floyd’s fighting lawful arrest for 10 minutes was evidence counter to overdose—the state similarly argues that Floyd’s death occurring during the course of a 9-minute restraint meant that he did not suffer an “instantaneous” death.

Of course, it means nothing of the sort. It’s quite possible that the stresses on Floyd’s heart were increasing gradually over the course of that 9-minute restraint—his heart’s reserves of oxygen were being depleted at a rate faster than they could be replenished because of the increased demands of an enlarged heart, the coronary artery disease limiting blood supply, and the fentanyl depressing oxygenation of his blood in any case—but that the actual moment of death came when those gradually increasing stressors hit the threshold needed to trigger a fatal arrythmia, and boom, that was that—instantaneous death.

I recount all of that argument to bring us back to the issue of causation as a required element of Floyd’s death.  Because, if Floyd’s death was the result of factors largely independent of Chauvin’s use of force, then that use of force did not cause Floyd’s death, and could not be the basis of a felony murder conviction on the facts of this case.

Of course, that raises the question of what “causes” means.  Certainly, the state has argued that if Floyd had not been subject to prone restraint by Chauvin, he would still be alive. Does that mean Chauvin “caused” Floyd’s death?  It’s equally true that if Floyd had not resisted being lawfully placed in squad car 320, he would also be alive.  Did Floyd’s unlawful resistance to arrest “cause” his death?  If Floyd had not been chewing down fentanyl while being subject to arrest, would he still be alive, and if so did fentanyl “cause” Floyd’s death?

Cause is often a complex issue in the law, as the law is applied to complex real-world fact patterns, and that’s where we find ourselves in this case.

Minnesota law defines “to cause” as “to be a substantial causal factor in causing death.”  In the Noor case, again, this was not a question.  Justine Damond was killed by Noor’s bullet, period.  That bullet was not only the substantial cause of death, it was the only cause of death.

In the Floyd case, the question is ambiguous, given the many and varied factors that likely contributed to Floyd’s death.  Indeed, the fairest view of the cause of Floyd’s death is that there was not a single cause, but rather a perfect storm of many causes that resulted in this unfortunate outcome.

Another way to look at this question is this:  If Floyd had fought lawful arrest and placement in the back of squad car 320, but finally been secured in the vehicle, and thus never subject to prone restraint on the street—would he have died anyway?  Was the physical struggle with officers, given the fragility of his cardiovascular system and his substantial (even if not acutely fatal) concentration of fentanyl enough to kill him, all by themselves, without any restraint whatever?

Can we know that the answer to that question is no, and beyond a reasonable doubt? Because if we can’t, then we can’t conclude beyond a reasonable doubt that Chauvin’s restraint of Floyd “caused” Floyd’s death—Floyd was already effectively dead before he was ever put on the street—and then we’ve failed to prove beyond a reasonable doubt that required element of felony murder.

So, the questions of causation, and whether it has been proven beyond a reasonable doubt given the complex facts of this case, remains a key vulnerability for the prosecution on this charge of second-degree “felony” murder.

Of course, another vulnerability in proving this charge is that as with any felony murder charge it is premised on first proving beyond a reasonable doubt the predicate underlying felony.  In this case that predicate felony is third-degree assault §609.223.  Proving that predicate felony assault charge presents its own challenges to the prosecution, primarily in overcoming the likely defense of justified use of force by a police officer, but I’ll circle back to that in a moment.

The bottom line there, however, will be that if Chauvin’s use of force was reasonable under the totality of the circumstances, then there is no criminal assault, and if there is no criminal assault there is no predicate felony for the felony murder charge—and neither the predicate assault nor the felony murder will have been proven beyond a reasonable doubt.

I’ll come back to §609.223 and the question of justification in a moment.

Third-Degree Murder & Second-Degree Manslaughter: Intent Still Matters

Two of the other charges against Chauvin are third-degree murder and second-degree manslaughter, and I’ll address them together here because I think the prosecution faces the same essential challenge with respect to each of these.

I’ve already noted that none of the charges against Chauvin are intentional homicide charges.  What I mean by that is there is none of the charges require that Chauvin intended to take the life of George Floyd.

The relevant portion of the third-degree murder statute, §609.195(a), provides that this offense can apply to a person who kills “without intent to effect the death” of the victim.  The relevant portion of the second-degree manslaughter statute, §609.205(1), simply doesn’t mention intent to kill as an element at all, so clearly intent to kill is not a required element here, either.

That doesn’t mean, however, that intent is irrelevant to either of these criminal statutes, because both statutes require a form of intent independent of an intent to kill.

Specifically, third-degree murder requires a reckless disregard of the danger created to the victim by the defendant’s eminently dangerous conduct. If the state has not proven beyond a reasonable doubt that the defendant’s conduct was eminently dangerous (which bring us back to the issue of causation, above) and that the defendant recklessly (consciously) disregarded that risk, then the state has not proven the crime of third-degree murder.

Further, second-degree manslaughter requires that the defendant creates an unreasonable risk, and “consciously takes chances of causing death or great bodily harm.”  If the state has not proven that the defendant intentionally engaged in conduct that had a reasonably foreseeable risk of causing death or great bodily harm, then the state has not proven the crime of second-degree manslaughter.

Both of these offenses require that the defendant engaged in conduct that was unreasonable, that created a foreseeable risk of deadly force harm, and that the defendant consciously incurred that risk or, alternatively, consciously disregarded that risk.  If any of these conditions are not proven beyond a reasonable doubt, then the underlying crime has not been proven beyond a reasonable doubt.

(Of course, part of the conduct being “unreasonable” would include that the conduct was unjustified, which we’ll come back to in a moment in our discussion of third-degree assault.)

So, did Chauvin’s conduct create a foreseeable risk of deadly force harm to Floyd? Remember that Chauvin would be making any such assessment in the total absence of Floyd’s seriously damaged physiology and toxicology.

That is, Chauvin would have no knowledge of Floyd’s profound coronary artery disease, pathological hypertension, enlarged heart, paraganglioma, nor the possibility that Floyd’s respiration was dangerous depressed, on the one hand, or that he had fatal levels of fentanyl on board, on the other hand, depending on your preferred view of the fentanyl issue.

What would Chauvin have known, or reasonably believed to be true under the circumstances? That he was dealing with a forcibly non-compliant, physically very large and apparently fit and healthy suspect, a suspect who had required the efforts of multiple police officers to subdue, and who they believed might be experiencing an unspecified but likely overdose-related medical crisis requiring the prompt medical attention of an intensity that only paramedics, or higher-level care, could provide.

Chauvin would also have believed that this higher-level medical care would be arriving within moments, a reasonable expectation according to state’s witnesses, and thus that Floyd would (he believed) need be restrained only briefly until that care arrived.

He would also have been aware, as testified to by state witnesses at trial, that just-violent persons who became unconscious due to drug toxicity and who were revived often began to immediately fight even more forcefully than they had previously—and it had already taken several officers to subdue a handcuffed Floyd just minutes before. The eminently expected paramedics would have available the powerful sedative ketamine, used for precisely such circumstances.

Further, he would have known, or reasonably believed, that he was facing an explicitly hostile, threatening, and growing crowd, from which there was a genuine possibility of imminent violence—hence, Chauvin’s display of his pepper spray to the crowd.

Under the totality of those circumstances, and the absence of knowledge of Floyd’s exceptionally fragile physiology and drug toxicity, did Chauvin’s restraint of Floyd constitute the knowing creation of a “foreseeable risk of deadly force harm” to Floyd?

To put it another way, if it is fair to ask if Floyd would still be alive but for Chauvin’s restraint of him, is it also fair to ask if Floyd would still be alive but for his fragile physiology and drug toxicity?

Unless the state can prove beyond a reasonable doubt that Chauvin knew he was creating a foreseeable risk of deadly force harm to Floyd, and also prove beyond a reasonable doubt that Chauvin has consciously disregarded that risk, they have not proven beyond a reasonable doubt either second-degree manslaughter or third-degree murder.

In this context, I’ve seen frequent mention in the talking head media and elsewhere about a legal doctrine known as the “eggshell thin skull” rule.  The idea behind this doctrine is that an aggressor is bound to accept his victim as he finds him, and that if it turns out later that the victim was unusually vulnerable to the act of aggression, that’s on the aggressor.

To illustrate, if you throw a normally non-deadly punch at someone who turns out, unknown to you, to have an “eggshell thin skull,” and unexpectedly kill them, you still have liability for that death even if it was not reasonably forseeable.

What most are not pointing out, however, is that this legal doctrine has application primarily in the civil law context, not the criminal law context.  In civil court, where you are being sued by surviving family members of your “eggshell thin skull” victim, they need merely prove general negligence on your part, and only to a preponderance of the evidence.

In the criminal context, however, the state is bound to prove each and every element of the crime charged. If the crime charged requires the knowing creation of a risk and/or the intentional disregard of that risk, then an unanticipated risk that may be sufficient to find civil liability is still not sufficient to prove criminal liability beyond a reasonable doubt.

Also often not pointed out by the advocates of the “eggshell thin skull” doctrine in the context of the Chauvin trial, that doctrine applies only where the use of force was not otherwise justified—it requires that the user of force was an unlawful aggressor.

To put it another way, if the person throwing the punch against the “eggshell thin skull” is lawfully defending themselves, they have no liability whatever, because the use of force was legally justified.  In that context, their lawful conduct doesn’t become unlawful simply because the person against whom they lawfully defended themselves turns out to have had an “eggshell thin skull.”

Which finally gets us around to the issue of justification, which I’ll discuss primarily in the context of third-degree assault, but which also obviously has implications for the second-degree manslaughter and third-degree murder charges, as just discussed.

Third-Degree Assault:  Issue of Justification

As previously mentioned, the third-degree assault charge here, under §609.223, is both a criminal offense in and of itself, but also the predicate for the second-degree “felony” murder charge already discussed.

In contrast with second-degree manslaughter and third-degree murder, the assault charge does not require that Chauvin knew he was creating a foreseeable risk of deadly force harm to Floyd, nor to prove that Chauvin has consciously disregarded that risk. Indeed, in order to convict on third-degree assault, the state need not prove that Chauvin intended any particular degree of harm to Floyd at all.

What they do need to prove beyond a reasonable doubt, however, is that Chauvin’s conduct constituted an unlawful physical assault of Floyd, and that this assault inflicted substantial bodily harm—that the harm inflicted was unintentional is irrelevant to this charge.

What is very relevant, however, is whether the purported assault was unlawful, on the one hand, or whether that use of force was legally justified. If the force was justified, then the use of force was not unlawful, and cannot be the premise for an assault conviction of any degree, including third-degree assault.

Normally, here at Law of Self Defense we discuss the justified use of force in the context of force used in defense of persons and property, and such use-of-force justifications apply to both law enforcement officers and to everybody else.

Police officers, however, are also given the privilege to use force under broader circumstances than are non-officers. Conceptually, police officers are privileged to be the initial physical aggressors under circumstances that would not be permitted to non-officers.

These broader provisions allowing for use of force by officers can be found under Minnesota law at §609.06(1)(1), which reads in relevant part that an officer can use force “in effecting a lawful arrest” or “in executing any other duty imposed upon the public officer by law.”

(I’ll note in passing that subdivision (3) of that statute prohibits chokeholds and hogties, but this section took effect only on July 24, 2020, and so is not applicable to the in-custody death of Floyd on May 25, 2020.)

There are also, of course, additional constraints applied to the use of deadly force by police officers.  These additional conditions include, generally speaking, limiting the use of deadly force to the protection of the officer or others from deadly force harm. (Again I feel obliged to note that major sections of this statute, §609.066, including the entirety of section 1a, and some re-writing of section 2, became effective only after Floyd’s death, and those new sections do not apply in this case.)

It’s worth recalling that not even the state of Minnesota prosecuting Chauvin believes that he intentionally used deadly force upon Floyd, or they would have charged him with a crime of intentional homicide, which they have not done. Accordingly, Chauvin is not attempting to raise a justified use-of-deadly force defense, making §609.066 irrelevant in this context.

Chauvin is, of course, accused of recklessly, unintentionally, using deadly force upon Floyd, and of consciously disregarding that risk, but we’ve already addressed the difficulties facing those charges, above.

To put it another way, if the jury believes that Chauvin is guilty of the reckless use of deadly force and of consciously disregarding that risk they will already have found him guilty of either the second-degree manslaughter or third-degree murder charges, or both.

If, on the other hand, the jury has not convicted Chauvin of either the second-degree manslaughter or third-degree murder charge, it means that they do not believe reckless use of deadly force, and conscious disregard of the resultant risks of deadly force harm, have been proven beyond a reasonable doubt.

So, the question in the context of the third-degree assault charge, standing alone, becomes whether Chauvin was justified in using non-deadly force to effect Floyd’s arrest, or for executing any other police duty.

Well, no one disputes that Floyd’s arrest was lawful—the state has suggested it was ill-advised, but that’s a different matter entirely.  Even the state witnesses conceded that everything up to Floyd’s prone restraint was a lawful use of force by the officers.

So was the prone restraint a lawful use of force to effect Floyd’s arrest, under the totality of the circumstances, such that this use of force did not constitute an unlawful assault upon Floyd?

Again, here the facts of this particular case get complicated, and create ambiguity.

The state has suggested that for much of the period of restraint Floyd had stopped resisting arrest, and that from this point forward no further restraint was justified. This is, really, just silly—the state’s own witnesses testified that just because a suspect appeared to have become compliant did not mean they would remain so, and that indeed the fact that the suspect had been violently resisting lawful arrest only minutes before, as Floyd had been here, was a factor to consider in deciding whether to maintain restraint.

Even during the period that Floyd appeared to lose consciousness, continued restraint could well be reasonable. Again, the state’s own witnesses testified that suspects who lost consciousness due to drug overdose, and then revived, were often more violent upon revival than they had been previously—and it had already required three officers to subdue a handcuffed Floyd the first time around.

But in addition, there’s that second justification for the police use of force:  “executing any other duty imposed upon the public officer by law.”

As the state has reminded the court repetitively throughout this trial, police officers have a generalized duty of care to people in their custody.  Is it possible that Chauvin and the other officers were continuing to restrain Floyd not merely for purposes of effecting a lawful arrest, but to meet their duty to care for Floyd in their custody?

The officers had reason to believe that Floyd was suffering from excited delirium, for example—we can hear them discussing the concern on their body worn camera video.  Well, the protocol for excited delirium is full-body restraint of the sufferer, to prevent them from engaging in the over-exertion of large muscle groups that is believed to be the cause of sudden death in these people.

We’ve already noted that suspects who revive in custody are often more violent than they were initially. This applies not only in the context of the officers preventing Floyd from causing injury to them, but also their duty to prevent Floyd from causing injury to himself.  They were prone on a very busy intersection.  If Floyd were released from restraint, then awoke, jumped up, and ran into traffic to be run over by a bus, would the officers have been blamed for failing to meet their duty to care for the suspect in their custody?

Now, that rationale could not apply if the officers believed they were, instead, killing Floyd by restraining him as they did—but as already discussed, even the state does not believe the officers were committing an intentional killing.

If not intentional, however, could the restraint nevertheless have been criminally reckless?  Even if the officers didn’t actually know they were creating a deadly force threat to Floyd—itself a question of causation we’ve already discussed, but assumed here for purposes of discussion—can it be argued that a reasonable officer should have known they were creating a deadly force threat to Floyd?

And here again is where we consider the totality of the circumstances. In a perfect world, perhaps the officers should have recognized that risk.  But this was a far from perfect world.  Floyd was not a compliant suspect, he’d just been fighting off four officers just minutes before—which means, of course, that the officers had been fighting back, a stressful experience for all involved.  Floyd was also on substantial levels of illicit drugs—although the specific nature of the drugs in question could not be known to the officers, creating more uncertainty.  Floyd was large and powerful, as already demonstrated, and not easy to get under control.

The officers also had all the concerns presented by the busy street traffic behind them, itself a potential deadly danger to both themselves and an abruptly revived and perhaps even more violent Floyd.

We also have to consider the presence of the hostile and explicitly threatening crowd.  At one point Chauvin displays his pepper spray to the crowd, a clear indication that he perceived an imminent threat from their conduct.

Further, the apparent danger presented by the crowd was sufficiently real that even the arriving paramedics declined to treat Floyd on site, but rather immediately did a “load & scoot” and travelled three long blocks away before parking to provide intended care.  This effect of the angry crowd would also result in a substantial delay in the Minneapolis Fire Department meeting up with the paramedics to add their own efforts and expertise to Floyd’s care.

Indeed, all the time the officers were restraining Floyd, they were expecting the medical experts to arrive on scene momentarily—even the state’s witnesses testified to the effect that the medical response took much longer than anyone would have had reason to expect.

So given all this—the recent fight with the large and powerful Floyd, the dangers of the street traffic, the apparent danger presented by the hostile and threatening crowd, the unexpected delay in medical professionals arriving on scene—all of this must be considered among the totality of the circumstances in determining whether the officers’ continued restraint of Floyd was reasonable and justified.

And to convict on third-degree assault, the state must prove beyond a reasonable doubt that given the totality of the circumstances the continued restraint by Chauvin and the others was not reasonable and justified, either to effect a lawful arrest, or to meet their duty of care to a suspect in their custody.

Incidentally, to the extent that the reasonableness of the officers’ continued restraint of Floyd under the totality of the circumstances is not disproven beyond a reasonable doubt, that failure would also serve as a perfect defense to all the other criminal charges brought against the officers.  If their use of force was not unlawful period, it cannot be the basis for an assault conviction, and therefore not as a predicate for felony murder, but also cannot be the basis for either second-degree manslaughter or third-degree murder.

If reasonable, it’s not a crime, period.

So, What’s the Predicted Verdict?

I know what you’ve all been waiting for—what’s Andrew’s prediction for a verdict in this case?  I know that because I’ve been asked that question maybe 100 times in just the last couple of days, since the parties rested last Thursday.

First, I hate to disappoint everybody, but I’m a legal professional—I don’t predict verdicts.

Juries are at the best of times dangerous and unpredictable creatures. Their single saving grace is that humans have never yet come up with a superior way to apply law to facts than our American jury system.

Further, in this case we have a great deal of ambiguous facts, and even a remarkably fluid state of the law—in terms of the law, just look at how third-degree murder was in this case, then out, then back in, even as jury selection had already begun.

Now, my inclination is that ambiguity of facts favor the defense—it’s the burden of the state to prove each and every element of the crime charged beyond a reasonable doubt in order to secure a conviction, after all.

Unfortunately for the defense, the video evidence of Floyd’s restraint obviously has had an emotional impact on the public generally, and on many if not all of the jurors in particular, that can easily separate a verdict from a foundation of reasonable application of the law to perceived facts within the constraints of this particular case, to a foundation of emotional outrage and the desire to “make a difference” and “obtain justice” in a broader societal sense.

Also unfortunately for the defense, the political and social dynamics around this case are of an intensity beyond any I’ve ever seen in any criminal trial. Not only are the jurors going to and from the courthouse through riot-like (or even actual riotous) conditions, we now even have a United States Congresswoman on scene outside the courthouse demanding that riots continue if Derek Chauvin is not convicted of premeditated murder—a crime with which he is not even charged in this case.

Either a guilty verdict or not guilty verdict must be unanimous—therefore the entire world will know that every single juror, without exception, will have voted for whatever verdict is arrived at.  Every juror also knows that their identities will ultimately be released to the public, “when safe to do so” if released by the court, perhaps a great deal sooner if leaked.  To what extent are the jurors going to perceive a threat to their safety, and the safety of their families, and to their employment and social standing, if the hand down the “wrong” verdict?

And in this context, it must be said, the “wrong” verdict can only be one of “not guilty.”  While certainly not all protestors are violent rioters, the violence occurring throughout the area of the courthouse specifically and Minneapolis and surrounding neighborhoods generally, is being wrought by those who are demanding “justice for George Floyd,” meaning nothing short of a guilty verdict for Derek Chauvin.

So, however perilous it is to predict the thinking of a jury, and their likely verdict, under the best of circumstances, even for someone who considers himself pretty good at the legal stuff in the legal context, given the tsunami of political and social dynamics around this case, it is difficult to have any degree of confidence that Chauvin’s guilty or innocence will be judged solely on the legal merits of the case.

For what it’s worth, if we were sticking strictly to the legal merits, were I (heaven forbid) on the jury, I would have a sufficient degree of reasonable doubt on each of these criminal charges that I would not be able to vote for guilt on any of them.

That doesn’t mean that it’s a good thing that George Floyd died—it’s definitely not a good thing—nor does it mean that the officers involved did nothing wrong or that they should still be police officers.

It just means that based on the evidence I saw in watching literally every minute of this trial, and having reviewed the relevant law to the best of my abilities, I can’t conclude that these criminal charges have been proven beyond a reasonable doubt.

OK, folks, that’s all I have for all of you today. We will, of course, be continuing to follow the court’s proceedings live, especially tomorrow’s closing arguments and the instruction of the jury.  Once the jury goes into deliberations, we’ll be on VERDICT WATCH! until news of a verdict (or a mistrial) is received.  After that, Professor Jacobson and I will be having an online discussion and Q&A of the case, for your viewing enjoyment, the timing of that obviously being dependent on when an outcome of the case is known.

Course Special: Lawful Defense Against Rioters, Looters, and Arsonists

Before I go, in view of the ongoing riots raging presently in Minneapolis, and likely to explode across the nation when this case arrives at a verdict (or mistrial), I’ve also taken the liberty of putting together a special opportunity to access our best-selling course, “Lawful Defense Against Rioters, Looters, and Arsonists,” available in both online streamed and DVD formats.  You can learn more about that course, by clicking here.

And thanks, as always, to both Legal Insurrection and CCW Safe for the support that makes my coverage of this case possible.

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC

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