Posted on 05/30/2020 11:35:47 AM PDT by Hildy
He was killed in Minnesota. California statutes do not apply.
NO. It goes for all claims of excessive violence leading to injury or death.
STUPID! He was alive. I posted he lost consciousness while in the hold. The cops actions were unreasonable leading to the guys death.
As a practical matter, the decedent's dying cries of "I can't breathe" were caused by his sensing the oxygen deprivation which was the OBJECTIVE of the carotid compression hold the officer was using.
Normal people will die if a carotid compression hold is continued several minutes after loss of consciousness. Not everyone will die in the period at issue, but a lot will given the same conditions (40-50% IMO) and those will disproportionately be the most vulnerable. This is why the legal causation definiton includes "contributed to".
FYI, "heart attacks" are caused by the heart muscles being deprived of oxygen. A carotid compression hold on a person with a history of high blood pressure dramatically increases blood pressure, tends to cause chunks of fatty tissue in hardened blood vessels to flake off and sail into areas like the heart, where they obstruct the blood vessels there and cause "heart attacks". Basically everything goes wrong when a carotid compression hold is held too long, and it's a race to see what kills the victim first.
Reality bites. The cop killed Floyd. Unless the DA deliberately throws the prosecution, involuntary manslaughter is the best the cop can hope for, and I see enough credible evidence for a jury to properly convict him of second degree murder.
[TexasGator #183] STUPID! He was alive. I posted he lost consciousness while in the hold. The cops actions were unreasonable leading to the guys death.
Please do not assign your singular dominant characteristic to me.
Geroge Floyd was alive and complaining he couldn't breathe before he was being restrained.
George Floyd lost consciousness while in the restraint by officer Chauvin.
Officer Chauvin's continuing the restraint after George Floyd became unresponsive violated policy and was unreasonable.
There is no finding in the preliminary autopsy to support the conclusion that officer Chauvin's restraint application to George Floyd's death. There is LESS THAN ZERO finding that George Floyd died of traumatic asphyxia or strangulation. "The autopsy revealed no physical findings that support a diagnosis of traumatic asphysia or strangulation."
There is no finding that Geroge Floyd became unconscious or died as a result of a restraint hold.
In addition, George Floyd's "underlying health conditions [including coronary artery disease and hypertensive heart disease] and any potential intoxicants in his system likely contributed to his death." This is inconsistent with a finding of death occurring due to traumatic asphyxia by pressure closing off the carotids.
George Floyd had a record that included possession of cocaine, and possession with intent to distribute cocaine, and aggravated assault entering a woman's home, sticking a gun in her gut, and looking for drugs and money.
[Thud #184] You are not familiar with the legal definition of "causation", which includes the term "contributed to". The coroner's report states that the illegal hold "contributed to" the death, and that is all the prosecution need prove. This was my day job for forty years.
You are not familiar with the term likely, as in likely contributed. It is a death knell for a criminal prosecution requiring all facts be proven beyond a reasonable doubt.
Likely contributed comes with pre-packaged reasonable doubt of any contribution. When multiple possible factors are likely contributors to a death, none is proven to be a cause beyond a reasonable doubt.
Here is a legal definition for you:
CAUSE that which effects a result. 169 F. 2d 203, 206. In law cause is not a constant and agreed-upon term. The following is a list of some of the attempts to conceptualize “that which effects a result”:DIRECT CAUSE the active, efficient cause that sets in motion a train of events that brings about a result without the intervention of any other independent source, see 6 N.E. 2d 879, 881; often used interchangeably with “proximate cause,” 199 F. Supp. 951, 954. See also probable cause.
PROXIMATE CAUSE that which in natural and continuous sequence unbroken by any new independent cause produces an event, and without which the injury would not have occurred, see 323 P. 2d 108, 114. In criminal and tort law, one’s liability is generally limited to results “proximately caused” by his conduct or omission.
Steven H. Gifis, Law Dictionary, 7th Ed., 1016
And here from Black's:
proximate cause. (17c) 1. A cause that is legally sufficient to result in liability; an act or omission htat is considered in law to result in a consequence , so that liability can be imposed on the actor. 2. A cause that directly produces an event and without which the event would not have occurred.- - - - - - - - - -
causality (kaw-zal-a-tee), n. (17c) The principle of causal relationship; the relation between cause and effect {the foreseeability test is one of duty and of causality}. — Also termed causation. — causal, adj.
causation (kaw-zay-shan). (17c) 1. The causing or pro ducing of an effect {the plaintiff must prove causation}.
2. CAUSALITY.
“Here is the key to the juridical treatment of the problems of causation. We pick out the cause which in our judgment ought to be treated as the dominant one with reference, not merely to the event itself, but to the jural consequences that ought to attach to the event.” Benjamin Cardozo, The Paradoxes of Legal Science 83 (1928).
• general causation. (1922) The potential of an agent to produce the general occurrence of injuries in a population.
• specific causation. (1930) The fact or implication that an agent produced a particular injury in a specific person.
- - - - - - - - - -
cause. n. (13c) 1. Something that produces an effect or result {the cause of the accident}. Cf. AGENT.
• contributing cause. (18c) A factor that — though not the primary cause — plays a part in producing the result.
• Proximate cause. (17c) 1. A cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, that that liability ca be imposed on the actor. 2. A cause that directly produces an event and without which the event would not have occurred. — Also termed (in both senses) direct cause; direct and proximate cause; efficient proximate cause; efficient cause; efficient adequate cause; initial cause; first cause; legal cause; procuring cause; producing cause; primary cause; jural cause. Cf. (in sense 2) remote cause.
Black's Law Dictionary, 11th Ed., 2019
I take it your day job did not complete cause and proximate cause and never advanced to likely and reasonable doubt.
As a practical matter, the decedent's dying cries of "I can't breathe" were caused by his sensing the oxygen deprivation which was the OBJECTIVE of the carotid compression hold the officer was using.
As a reality, the complaints of "I can't breathe" started before George Floyd was placed in the neck restraint. That started while Floyd was upright. It became famous with the case of Eric Garner who said "I can't breathe." There are many more factors in the Eric Garner case to suggest criminal liability. The complete autopsy report was presented to the Grand Jury. Officer Pantaleo testified for two hours. The Grand Jury did not find objective facts that would warrant a felony indictment. AG Eric Holder announced a federal investigation which was overseen by U.S. Attorney Loretta Lynch until she became AG. Prosecution under 18 U.S.C. 242 — Deprivation of Rights Under Color of Law would require the government to prove that the officer initiated the encounter on the basis of race under the guise of a state action. No federal criminal charge was brought against anybody in the case. The autopsy did not reveal any damage to the windpipe or neck bones which would have been consistent with strangulation or indicative of choking. Dr. Clark concluded: “A normal and healthy male would have been transiently distressed by the actions of the arresting officers. Mr. Garner had no margin of safety, no reserve at all, and was precariously unstable even before he was accosted. The actions of the arresting officers, undoubtedly used many times before without significant ill effect, combined with Garner’s pathophysiology to rapidly produce hypoxia, very likely aggravated by carbon dioxide retention and narcosis, which suppresses the normal reflex to breathe. This was rapidly followed by cardiac arrhythmia and death.”
George Floyd's rap sheet from Texas shows, 8/3/1997 less than 1 gram; 10/29/2002 less than 1 gram; 2/6/2004 less than 1 gram; 12/15/1005 POSS W/ INT greater than or equal to 4 less than 200g.
Price v. County of San Diego, 990 F. Supp. 1230 (S.D. Cal. 1998) is a case where Daniel Price died after being restrained by hogtie. The Opinion of the Court is quite interesting.
*1237 With these principles in mind, the Court must determine whether the deputies acted reasonably with respect to each of the actions that Plaintiffs claim they took.a. The Hogtie Restraint
Plaintiffs argue that the hogtie restraint constituted excessive force because it is potentially lethal. Plaintiffs claim that the hogtie restraint can cause "positional asphyxia." Asphyxia is a decrease in blood oxygen levels or an increase in blood carbon dioxide levels either of which can kill. (Eisele Excerpt of Trial Tr. at 16.) Positional asphyxia is asphyxia that results from body position.
Plaintiffs argue that positional asphyxia can occur when a hogtied person lies prone with pressure on his back. Plaintiffs claim that hogtying poses an especially great danger to large-bellied persons, such as Price. Plaintiffs claim that if the deputies had closely monitored Price and/or placed him on his side, then the hogtie's dangers would have been reduced or eliminated.
The Court first will discuss whether the hogtie restraint, in and of itself, constituted excessive force. The Court then will discuss whether the hogtie restraint constituted excessive force in light of Price's girth and the pressure on his torso.
i. Whether The Hogtie Restraint Itself Constituted Excessive Force
Plaintiffs primarily rely on the testimony of Donald T. Reay, M.D., who first hypothesized the concept of positional asphyxia.[9] Dr. Reay conducted experiments and concluded that after exercise (such as a violent struggle with deputies) blood oxygen levels decrease. Dr. Reay found that the hogtie restraint prevents these oxygen levels from rising again because the hogtie restraint impairs the mechanical process of inhaling and exhaling. See Donald T. Reay et al., Effects of Positional Restraint on Oxygen Saturation and Heart Rate Following Exercise, 9 Am. J. Forensic Med. Pathology 16 (1988); Donald T. Reay et al., Positional Asphyxia During Law Enforcement Transport, 13 Am. J. Forensic Med. Pathology 90 (1992).[10]
Plaintiffs also rely on the testimony of Dr. Eisele. Dr. Eisele testified that Price experienced lactic acidosis. Lactic acidosis is a natural bodily reaction to exercise in which the body produces lactic acid. To compensate for the increased acidity of the blood, the body then produces extra carbon dioxide.
Dr. Eisele testified that because the hogtie restraint impairs the mechanical process of exhaling, it prevents the body from "blowing off" excess carbon dioxide. In other words, Dr. Eisele opined that Price suffered from asphyxia (an increase in carbon dioxide levels) that, because of the hogtie, Price's body could not correct.
Dr. Eisele based his opinions largely on Dr. Reay's work. In fact, it appears that every scientist who has sanctioned the idea that hogtying causes asphyxia has relied to some degree on Dr. Reay's studies. However, it appears that no scientist had ever critically examined Dr. Reay's methodology and logic until recently.
After Price's death, at the request of defense counsel, Thomas Neuman, M.D., of the University of California at San Diego Medical Center ("UCSD") conducted a sophisticated study of positional asphyxia and the hogtie restraint.[11] Dr. Neuman found, contrary to Dr. Reay's findings, that blood oxygen levels do not decrease after exercise. Dr. Neuman also found that although the hogtie restraint impairs the mechanical process *1238 of inhaling and exhaling to an extent, the hogtie does not affect blood oxygen or carbon dioxide levels. In other words, the impairment is so minor that it does not lead to asphyxia, and in fact has no practical significance. Dr. Neuman explained the disparity between his findings and those of Dr. Reay by describing methodological flaws in Dr. Reay's experiments and logical flaws in Dr. Reay's reasoning.
The UCSD study, which Dr. Reay concedes rests on exemplary methodology, eviscerates Dr. Reay's conclusions. The UCSD study refutes Dr. Reay's underlying premise that blood oxygen levels decrease after exercise. Thus, the UCSD study refutes Dr. Reay's ultimate conclusion that the hogtie restraint prevents the lungs from replenishing the blood's oxygen supply; according to the UCSD study, the blood needs no replenishment after exercise because it already has adequate oxygen.
The UCSD study also refutes Dr. Eisele's opinion that the hogtie prevents the lungs from "blowing off" excess carbon dioxide. The UCSD study found no difference in carbon dioxide levels between subjects who had exercised and been hogtied, and subjects who had exercised and not been hogtied. Thus, as Dr. Neuman testified and Dr. Reay now concedes, the hogtie restraint is "physiologically neutral." (Reay Excerpt of Trial Tr. at 47.)[12]
After Dr. Reay's retraction, little evidence is left that suggests that the hogtie restraint can cause asphyxia. All of the scientists who have sanctioned the concept of positional asphyxia have relied to some degree on Dr. Reay's work. The UCSD study has proven Dr. Reay's work to be faulty, which impugns the scientific articles that followed it. Like a house of cards, the evidence for positional asphyxia has fallen completely.
In light of the UCSD study, the hogtie restraint in and of itself does not constitute excessive force when a violent individual has resisted less severe restraint techniques, applying a physiologically neutral restraint that will immobilize him is not excessive force. See Mayard v. Hopwood, 105 F.3d 1226, 1227-28 (8th Cir.1997) (holding that placing a person wearing handcuffs and leg restraints in a prone position was reasonable as a matter of law where the person had violently resisted arrest).[13]
ii. Whether Price's Girth Made The Hogtie Particularly Dangerous For Him
Plaintiffs press, however, that the hogtie as applied to Price posed a grave danger. Plaintiffs note that even the UCSD study found that hogtying impairs the mechanical process of breathing to a small extent. Plaintiffs argue that this impairment, combined with Price's girth, caused him to asphyxiate.
Plaintiffs have failed to prove this alleged fact. Plaintiffs have adduced no reliable evidence that suggests that Price's girth impaired his breathing. Dr. Reay opined that as Price lay prone, his belly may have applied pressure to his lungs, which could have impaired his breathing. However, Dr. Reay admitted that he has no empirical evidence that suggests that lying prone with a large belly can impair breathing to a significant extent. Thus, his testimony was wholly speculative.
*1239 Moreover, Dr. Neuman studied individuals of Price's general size, shape, morphology, and body mass index. Dr. Neuman's study included persons with a body mass index of thirty, which is greater than Price's body mass index at the time of the struggle.[14] Dr. Neuman testified that although his study has limited applicability to extremely obese individuals, Price was merely somewhat overweight. As Dr. Neuman testified, it is wild speculation to say that a person lying prone with a potbelly will asphyxiate to death while a slightly smaller person will have no physiological reaction whatsoever. Thus, the Court finds that Plaintiffs have not established that Price's girth made the hogtie especially dangerous for him.
iii. Whether The Pressure The Deputies Applied To Price's Back Made The Hogtie Particularly Dangerous
Plaintiffs next argue that pressure on Price's back impaired his breathing. Plaintiffs argue that this pressure, combined with the breathing impairment caused by the hogtie, led to Price's death.[15]
Plaintiffs have failed to establish this alleged fact. Plaintiffs' witnesses produced wildly different accounts of the deputies' actions. Some witnesses claimed that the deputies "sat on" Price. Other witnesses did not recall seeing the deputies apply any pressure at all. Even those witnesses who testified that the deputies applied pressure provided different accounts about whether the deputies applied pressure before or after they applied the hogtie restraint.
The Court doubts that a deputy sat on Price, for three reasons. First, sitting on a hogtied person (whose hands and feet are necessarily above his torso) would be awkward indeed. Second, the deputies simply had no reason to sit on Price the hogtie had immobilized him. It seems unlikely that a deputy would have sat in an awkward position for no reason. Third, Plaintiffs themselves have relentlessly claimed throughout this lawsuit that the deputies stood far away from Price after they hogtied him.
The deputies admit, however, that they applied minor pressure to Price's back. As they handcuffed and hogtied him, they necessarily had to control him from thrashing around, so a deputy placed a knee in Price's back and a hand on his shoulder. The Court finds that this action was reasonable. See Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir.1997) (holding on similar facts that "the officers' response was reasonable [inasmuch as the officers] placed just enough weight on [the arrestee] to keep him from rolling over and kicking"). A deputy testified that he may have maintained this pressure for a few seconds after he completed the hogtie as he got up from the ground. The Court holds that this innocent, brief action was reasonable.
In addition, Deputy Tally testified that he knelt next to Price, placing most of his weight on his heels. However, he placed a knee in Price's back. Deputy Tally did this to calm Price (and thus keep him from smashing his face into the ground) and to convey a sense of control in a tense, confused situation. Notably, Deputy Tally did not apply significant pressure to Price. The Court finds that Deputy Tally's actions were reasonable. See id.
Plaintiffs have not established that the deputies applied any more than the above-described pressure. Even if the deputies applied more pressure, Plaintiffs have not shown that the pressure impaired Price's breathing to a significant degree. Plaintiffs have not offered any evidence that indicates the amount of the pressure, nor have they *1240 established what amount of pressure can impair breathing.[16]
Thus, Plaintiffs have failed to establish that any pressure that Price may have experienced impaired his breathing or affected his blood gas levels. In short, Plaintiffs have not proven that the hogtie as applied posed any danger to Price, or that it led to his death. Accordingly, the Court concludes that the deputies used reasonable force when they placed Price face-down and hogtied him, with incidental pressure applied to his torso. Insofar as the hogtie and pressure are concerned, Plaintiffs' excessive force claim fails.[17]
The obvious question remains, however: What did cause Price's death? The Court finds that, as several expert witnesses testified, he most likely died from a cardiac arrest that occurred during his encounter with the deputies.[18] Numerous factors indicate that methamphetamine-induced toxic delirium caused this cardiac arrest.[19] First, Price had methamphetamine in his system when Dr. Eisele conducted the autopsy, which means that he had recently used it.[20] Second, methamphetamine irritates the heart and makes it more prone to a cardiac arrest. (Eisele Excerpt of Trial Tr. at 25, 27.) Third, Price had "internal derangements" within his heart that chronic methamphetamine abuse could have caused. (Id.) Fourth, methamphetamine can cause the body to release catecholamines (adrenaline) which also can irritate the heart. Dr. Eisele found catecholamines in Price's body. Fifth, Price had been acting in a bizarre fashion, which indicates that he was suffering from a methamphetamine-induced psychosis. (Neuman Excerpt of Trial Tr. at 34-35.) Sixth, Price developed a high fever at the hospital, which methamphetamine-induced toxic delirium frequently causes. (Id. at 36.) Seventh, while in the hospital, Price developed rhabdomyloysis, which is a breakdown of muscle cells. This is also a symptom of methamphetamine-induced toxic delirium.
Dr. Neuman perfectly captured the cause of death when he made the following statement:
We have clear data that there is no respiratory component to the hogtie position. We also have clear data that Price was a chronic methamphetamine abuser. He had essentially all of the signs and symptoms of methamphetamine use, and he died a death that was completely consistent with toxic delirium secondary to methamphetamine use. To suppose anything *1241 else placed a significant role in his death is speculation.(Id. at 43.)
Moreover, Defendants' expert on methamphetamine abuse, Joseph Shannon, M.D., stated: "The only factor that can explain his death in and of itself was acute methamphetamine intoxication or excited delirium .... This is a highly lethal illness which may well have caused his death regardless of where he was, the restraints used or the struggle involved." (Shannon Excerpt of Trial Tr. at 7.)[21]
Thus, in the words of Dr. Neuman which the Court hereby adopts, "Mr. Price did not asphyxiate due to the hogtie position. Rather, the most obvious cause of death is toxic delirium secondary to methamphetamine abuse, which in turn caused Mr. Price to experience a cardiac arrest." (Neuman Decl. at 13.)
b. The Foot On Price's Head
Plaintiffs next assert that a deputy used excessive force by placing his foot against the back of Price's head. Plaintiffs asserted during closing argument that the deputy did so for a malicious purpose.
Plaintiffs have offered no evidence to back up their assertion of maliciousness; indeed, all evidence points to the contrary. Price had been smashing his face into the asphalt repeatedly. The deputy testified that he placed his foot against Price's head in order to stop him from doing so. In fact, a deputy placed a kleenex box underneath Price's face in order to protect him further.
The Court has no reason to doubt this testimony. The Court finds that the deputy placed his foot against Price's head for a patently reasonable, benevolent purpose. Thus, Plaintiffs' excessive force claim fails with respect to the foot on the back of Price's head.
c. Leaving Price On Hot Asphalt
Plaintiffs next argue that the deputies used excessive force by leaving Price on the hot asphalt. The asphalt temperature was approximately 133.9 degrees Fahrenheit.
Although the Court does not suggest that leaving him lying on hot asphalt was ideal, the Court cannot find that this action was unreasonable. The struggle with Price had tired the deputies, which would have made it somewhat difficult to move a hefty, belligerent person. Moreover, the deputies had to perform other tasks, such as calling for medical assistance, controlling onlookers, and sundry other tasks that law enforcement work involves. The fact that the deputies did not move Price immediately is therefore understandable.
In addition, despite the high asphalt temperature, Price did not suffer any burns. Of course, the primary danger of leaving someone lying on hot asphalt is that the person might sustain burns. The fact that Price did not suffer burns indicates that the asphalt temperature was not so high that it was unreasonable to leave him lying on it for the short time that he did. Similarly, Plaintiffs have not established that the hot asphalt caused Price's death.
Thus, Plaintiffs' excessive force claim fails with respect to leaving Price on the asphalt.
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