Replies

I think manslaughter would be an appropriate charge as would criminally negligent homicide if that were such a thing. M[r] [F]loyd undoubtedly had the same or worse combination of drugs in his blood in the [p]ast along with his structural heart disease but did not die until restrained on the ground.
. . .
I think i a reasonable jury can and should convict of manslaughter.

The Man-2 charge reads, "Derek Michael Chauvin caused the death of George Floyd by his culpible negligence...."

If the defense can present a reasonable, rational argument that George Floyd died from Fentanyl toxicity, it would appear that even the Man-2 charge be in trouble.

I believe a juror could reasonably find that either the restraint or Fentanyl toxicity caused Mr. Floyd's heart to stop.

While it is reasonably certain that Mr. Floyd had some combination of drugs in the past, the amount is unknowable. His heart disease only gets worse with time (barring stents or bypasses). It is a matter of fact that the level of Fentanyl in George Floyd's system exceeded the average amount found in the 541-sample study in New Hamshire for accidental Fentanyl related deaths. This may, or may not, have been a level of toxicity sufficient to cause the death of George Floyd. However, a defense argument that Fentanyl toxicity caused the death of George Floyd would not seem unreasonable or irrational.

As bad as the police restraint appears on video, there is no way to tell if sufficient force was exerted to close off the carotids. Nor can the video tell if the force, whatever it was, was applied in the spot which would induce unconsciousness leading to death. There is just no way an expert can testify, to a scientific degree of medical certainty, that the video shows that the carotids were closed off.

For the defense, I would suggest showing numerous failed MMA choke holds, by men with gorilla arms, squeezing until their arms gave out. They had more than enough applied force, but could not find the precise spot required. That is typically with the elbow pointed forward, and the sides of the arm going for both carotids.

As one example, Liz Carmouche got a fairly good choke hold on Ronda Rousey. She could not put Rousey out. There are many more extreme examples with powerful men out there.

Officer Chauvin was only on one side of the neck. The first five minutes of the video is proof that his effort was insufficient to cause loss of consciousness. The last three minutes are inconclusive of any significant change. He may have increased pressure just enough, or adjusted position just right, but that seems impossible to prove.

As Judge Ito stated, "if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt that interpretation which points to the defendant's innocence and reject that interpretation which points to his guilt."

You accurately state that Mr. Floyd did not die until restrained on the ground. While true, the statement does not signify that the restraint on the ground necessarily caused the death. If a terminal patient on a ventilator were to be restrained before the tube was pulled, he would not die from the restraint. He was already terminal and the ventilator was keeping him alive. George Floyd may have been terminal before any restraint was applied. He complained he could not breathe before any restraint was used.

There was substantially more physical and testimonial evidence in the Eric Garner case. “In my opinion, that’s a chokehold,” Dr. Floriana Persechino, the medical examiner, said after video footage of the arrest was put on pause during the hearing. She said the chokehold would have been painful and constricted Garner’s airways, triggering “a lethal cascade of events” that led to his death. The grand jury refused to return an indictment. The Federal government investigated but brought no changes. The NYPD found Officer Pantaleo violated department policy and terminated his employment.

I am not saying Officer Chauvin did not wrong; just that there is no clear path toward showing criminal culpability as charged.

It would be interesting to see the police training on restraints and chokeholds. If we use restrains there are very strict rules around initiating and documenting their use.

Minnesota is/was one of the states which permitted the use of a choke hold or neck restraint to induce unconsciousness or to maintain control. Authorization is in cases of active resistance and the least amount of control likely to be effective. Officer Chauvin appears quite open to being charged with a violation of policy.

http://www.minneapolismn.gov/police/policy/mpdpolicy_5-300_5-300 [excerpts - full range of coverage at the link - quite lengthy]

5-300 Use of Force
5-301 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.
[...]
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.