Posted on 05/30/2020 11:35:47 AM PDT by Hildy
The George Floyd - Minneapolis video. Analysis and comments
“youll hear from his lawyers..they are waiting for toxicology to come back...if theres heroin or cocaine there, this case is a wrap....never get a conviction....”
NOPE!
1. Cops used an unauthorized tactic which. likely contributed to the death.
2. Cops maintained the unauthorized pressure after subject became unconscious.
3. Cops maintained pressure even. after determining subject had no pulse.
4. Cops gave no medical assistance to the restrained subject, unconscious with no pulse.
i see the family hired liberal loon Dr Michael Baden to do a autopsy....gee, i wonder why ...lol..they knows whats coming.
a a
a a
Dude is 86 years. old!
At least you can understand what Baden says. Henry Lee (81 yo) is unintelligible.
[basalt #159]“youll hear from his lawyers..they are waiting for toxicology to come back...if theres heroin or cocaine there, this case is a wrap....never get a conviction....”
[TexasGator (Z1z)]
NOPE!
1. Cops used an unauthorized tactic which. likely contributed to the death.
2. Cops maintained the unauthorized pressure after subject became unconscious.
3. Cops maintained pressure even. after determining subject had no pulse.
4. Cops gave no medical assistance to the restrained subject, unconscious with no pulse.
I did not hear Sebalik characterize the actions of the officers as murder or any other crime. He offered that it did not comport with any police policy that he had seen. The question may be not whether the officer was right or wrong, but what was the chargeable offense.
https://assets.documentcloud.org/documents/6933246/Derek-Chauvin-Complaint.pdf
CHAUVIN Derek, COMPLAINT
STATEMENT OF PROBABLE CAUSE (excerpt)
The defendant pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed. Kueng held Mr. Floyd’s back and Lane held his legs. 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.
BWC video shows Mr. Floyd continue to move and breathe. At 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, “want to roll him on his side.” Kueng checked Mr. Floyd’s right wrist for a pulse and said, “I couldn’t find one.” None of the officers moved from their positions.
At 8:27:24, the defendant removed his knee from Mr. Floyd’s neck. An ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.
The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. The full report of the ME is pending but the ME has made the following preliminary findings. The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death.
The defendant had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous.
This may indicate problems for a charge of murder. It indicates coronary artery disease and hypertensive heart disease and potential intoxicants, and police restraint actions all likely contributed to George Floyd's death. It indicates that traumatic asphyxia or strangulation likely were not the cause of death. The specific cause of death is unstated and awaits the final autopsy report.
All the contributing factors could well contribute to death by heart attack. It is not clear that the pressure applied by Chauvin caused Floyd to lose consciousness, or that it caused any serious physical injury. With three likely contributors to an unspecified cause of death, none is certain beyond a reasonable doubt. Perhaps the final report will be phrased differently and strengthen the claim for murder, but this appears to be an impediment to a murder charge. Even Minnesota Second Degree Manslaughter requires "A person who causes the death of another... by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another."
I did not say they did nothing wrong, just that it may not be sustainable as murder or manslaughter.
While the use of a neck restraint or choke hold is provided for in the Minneapolis Police Use of Force procedures, the initial and continued use must be objectively reasonable.
http://www.minneapolismn.gov/police/policy/mpdpolicy_5-300_5-300
5-300 Use of Force5-301 PURPOSE (10/16/02) (08/17/07) (07/28/16)
A. Sanctity of life and the protection of the public shall be the cornerstones of the MPD’s use of force policy.
B. The purpose of this chapter is to provide all sworn MPD employees with clear and consistent policies and procedures regarding the use of force while engaged in the discharge of their official duties.
(Note: MPD Training Unit Lesson Plans – Use of Force, are used as a reference throughout this chapter.)
5-301.01 POLICY (10/16/02) (08/17/07)
Based on the Fourth Amendment’s “reasonableness” standard, sworn MPD employees shall only use the amount of force that is objectively reasonable in light of the facts and circumstances known to that employee at the time force is used. The force used shall be consistent with current MPD training.
Regarding the neck restraint or choke hold, it may be used either to cause unconsciousness or as a prolonged conscious neck restraint.
5-311 USE OF NECK RESTRAINTS AND CHOKE HOLDS (10/16/02) (08/17/07) (10/01/10) (04/16/12)DEFINITIONS I.
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 (04/16/12)
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). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints. The MPD authorizes two types of neck restraints: Conscious Neck Restraint and Unconscious Neck Restraint. (04/16/12)
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. (04/16/12)
Unconscious Neck Restraint: The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure. (04/16/12)
PROCEDURES/REGULATIONS II.
A. The Conscious Neck Restraint may be used against a subject who is actively resisting. (04/16/12)
B. The Unconscious Neck Restraint shall only be applied in the following circumstances: (04/16/12)
1. On a subject who is exhibiting active aggression, or;
2. For life saving purposes, or;
3. On a subject who is exhibiting active resistance in order to gain control of the subject; and if lesser attempts at control have been or would likely be ineffective.
C. Neck restraints shall not be used against subjects who are passively resisting as defined by policy. (04/16/12)
D. After Care Guidelines (04/16/12)
1. After a neck restraint or choke hold has been used on a subject, sworn MPD employees shall keep them under close observation until they are released to medical or other law enforcement personnel.
2. An officer who has used a neck restraint or choke hold shall inform individuals accepting custody of the subject, that the technique was used on the subject.
Attorney Sebalik cited Graham v. Conner which is a 1989 opinion of the U.S. Supreme Court. It was a 42 U.S. C. §1983 violation of constitutional rights case, not a criminal murder case.
Below is the Syllabus or summary of Graham v. Connor which precedes the copy of official opinion of the Supreme Court in U.S. Reports. The Syllabus and full opinion are at the link provided. The Opinion of the Court begins with "Chief Justice Rehnquist delivered the opinion of the Court."
Graham v. Connor, 490 U.S. 386 (1989)
GRAHAM v. CONNOR et al.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 87-6571. Argued February 21, 1989—Decided May 15, 1989
Petitioner Graham, a diabetic, asked his friend, Berry, to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive him to a friend’s house instead. Respondent Connor, a city police officer, became suspicious after seeing Graham hastily enter and leave the store, followed Berry’s car, and made an investigative stop, ordering the pair to wait while he found out what had happened in the store. Respondent backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham’s condition. During the encounter, Graham sustained multiple injuries. He was released when Connor learned that nothing had happened in the store. Graham filed suit in the District Court under 42 U. S. C. § 1983 against respondents, alleging that they had used excessive force in making the stop, in violation of “rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U. S. C. § 1983.” The District Court granted respondents’ motion for a directed verdict at the close of Graham’s evidence, applying a four-factor test for determining when excessive use of force gives rise to a § 1983 cause of action, which inquires, inter alia, whether the force was applied in a good-faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. Johnson v. Glick, 481 F. 2d 1028. The Court of Appeals affirmed, endorsing this test as generally applicable to all claims of constitutionally excessive force brought against government officials, rejecting Graham’s argument that it was error to require him to prove that the allegedly excessive force was applied maliciously and sadistically to cause harm, and holding that a reasonable jury applying the Johnson v. Glick test to his evidence could not find that the force applied was constitutionally excessive.
Held: All claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard. Pp. 392-399.
(a) The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected. Instead, courts must identify the specific constitutional right allegedly infringed by the challenged application of force and then judge the claim by reference to the specific constitutional standard which governs that right. Pp. 393-39(b) Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secure in their persons . . . against unreasonable seizures,” and must be judged by reference to the Fourth Amendment’s “reasonableness” standard. Pp. 394-395
(c) The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. Pp. 396-397.
(d) The Johnson v. Glick test applied by the courts below is incompatible with a proper Fourth Amendment analysis. The suggestion that the test’s “malicious and sadistic” inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances is rejected. Also rejected is the conclusion that because individual officers’ subjective motivations are of central importance in deciding whether force used against a convicted prisoner violates the Eighth Amendment, it cannot be reversible error to inquire into them in deciding whether force used against a suspect or arrestee violates the Fourth Amendment. The Eighth Amendment terms “cruel” and “punishments” clearly suggest some inquiry into subjective state of mind, whereas the Fourth Amendment term “unreasonable” does not. Moreover, the less protective Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. Pp. 397-399.
827 F. 2d 945, vacated and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which White, Stevens, O’Connor, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, in which Brennan and Marshall, JJ., joined, post, p. 399.
H. Gerald Beaver argued the cause for petitioner. On the briefs was Richard B. Glazier.
Mark I. Levy argued the cause for respondents. On the brief was Frank B. Aycock III.
Chief Justice Rehnquist delivered the opinion of the Court.
At 490 U.S. 396-397; Opinion of the Court:
Because "[It]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U. S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U. S., at 8-9 (the question is "whether the totality of the circumstances justife[s] a particular sort of ... seizure").The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, at 20-22. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U. S. 797 (1971), nor by the mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison, 480 U. S. 79 (1987). With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," Johnson v. Glick, 481 F. 2d, at 10332, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.
As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U. S. 128, 137-139 (1978); see also Terry v. Ohio, supra, at 21 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra, at 138, citing United States v. Robinson, 414 U. S. 218 (1973).
The acts of officer Chauvin could violate the constitutional rights of George Floyd without chargeable murder or homicide. As it stands, the preliminary autopsy report does not find that the actions of officer Chauvin caused the death of George Floyd, but likely contributed to the unstated cause of death. If George Floyd suffered a heart attack, and that caused him to be unresponsive, at what point did George Floyd die? One cannot kill a person who is already dead. This may be a challenge for the coroner and/or the prosecutor regarding a murder charge. While officer Chauvin continued the restranit after non-responsiveness for several minutes, for how much of that time was George Floyd alive? What part did neck pressure play in his death? At what point could he have been resuscitated?
If the toxicology report suggests that intoxicants could have caused George Floyd to suffer a heart attack and die, it may not be possible to prove that the acts of officer Chauvin caused George Floyd to lose consciousness or die. Decisions about murder and manslaughter must await a final autopsy report.
“As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”
Boiled down to simple statement: The officers’ actions were not reasonable.
“It is not clear that the pressure applied by Chauvin caused Floyd to lose consciousness, or that it caused any serious physical injury. “
If I and my three buddies were to handcuff a person and continue a sleeper hold three minutes after loss of consciousness and no pulse ...
Whatever.
Whether the suspect poses an immediate threat to the safety of the officers or others,
NOPE
and whether he is actively resisting arrest
NOPE
or attempting to evade arrest by flight
NOPE
excellent post....
Last I heard, OJ was still looking for the Killer or Killer's.
Now, with that said, can I interest you in some ocean front property in Arizona. It's a chance of a life time, (to be made a fool of.)
“Last I heard, OJ was still looking for the Killer or Killer’s. “
Rumor has it that OJ found him in jail. OJ then got himself sent to that same jail.
Though it is possible for the Minneapolis DA to throw the trial. The San Francisco DA did with the 2015 pier shooting of Kathryn Steinle by a homeless weirdo. Given my familiarity with California jury instructions, I know exactly how the SF DA did it, and Minneapolis seems far more corrupt than San Franciso.
Can you clarify? “abandoned and malignant heart” is not in the statute. A similar phrase is in the 3rd degree murder statue.
I haven’t seen an EMT statement. Are you referring to the ME summary in the complaint filing?
It varies from state to state. In California “abandoned and malignant heart” is a criminal law jury instruction term, while “reckless disregard” is a roughly equivalent civil law term for the same mental state. “Abandoned and malignant heart” is turning into an archaic legal term.
She's an important witness for the prosecution in proving that the officer knew what he was doing. OTOH, he openly violated MPD regulations in doing it and, with the years of repeated training he went through given his many years on the force, he bloody well knew it already and intended to kill the victim. That's why I changed my mind and think he can properly be charged with second degree murder.
If I and my three buddies were to handcuff a person and continue a sleeper hold three minutes after loss of consciousness and no pulse ...Whatever.
If you and your three buddies did that to a dead body that succumbed to a heart attack, it would neither be murder nor manslaughter.
Continuing a sleeper hold implies there was a sleeper hold for the first five minutes while Floyd continued to speak.
Not only were no physical findings to support traumatic asphyxia or strangulation found, but the report finds clogged coronary arteries, and high blood pressure, and potential intoxicants, and the police restraint action likely contributed to Floyd's death. Were death caused by pressure to the carotids cutting off blood supply to the brain, it does not seem that clogged coronary arteries or high blood pressure would likely contribute to the cause of death. All of the cited factors could well contribute to the cause of death if it were a heart attack.
If the cause was heart attack, then officer Chauvin's actions may not have been what rendered Floyd unconscious, and there would be a lack of evidence of incorrect applied pressure or blocking off the carotids. Also, Floyd may have been dead very shortly after he became unresponsive from a heart attack or arrythmia. One cannot kill a dead person, so any act after the time of death cannot be murder or homicide. Much of the time that the restraint continued after Floyd became non-responsive may have involved a dead person.
The final report with cause of death is needed to assess criminality.
Boiled down to simple statement: The officers’ actions were not reasonable.
But that would only go to a section 1983 civil suit for violation of constitutional rights. A murder or manslaughter charge requires proof that the defendant caused the death of the decedent, not that he violated a policy and thereby violated the Fourteenth Amendment rights of the decedent.
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