Jury selection is scheduled to begin next week in the case of Derek Chauvin, the police officer accused of murdering George Floyd in Minneapolis late last spring. The death of Mr. Floyd sparked protests, and riots across the country on the theory that his death was demonstrative proof of police racism against people of color. The narrative was oversold then, and it remains so now. Mr. Chauvin faces charges of murder and related homicide counts in a criminal prosecution. I will go on record now predicting that a conviction on the charge of murder is virtually impossible. Indeed, I expect Mr. Chauvin to be fully acquitted so long as the jury follows the law and is not cowed into a compromise by fear of more protests and rioting.
It is not clear to me that Mr. Chauvin is legally responsible for the death of George Floyd.
Oh, I’ve seen the video. I’ve seen Mr. Chauvin’s knee across the upper shoulder area of Mr. Floyd. And I’ve heard Mr. Floyd utter “I can’t breath.” Isn’t that enough?
The law distinguished between “but for” causation and “proximate” causation. But for the fact that I got out of bed this morning, all sorts of things would not have happened. My dog would not have been walked, I would not have fixed the bowl of oatmeal I ate, I would not be sitting here typing this. “But for” causation is not legally significant.
Proximate causation is legally significant, however; it is a legally sufficient linkage of one event to another. Nearness in time helps. So do the surrounding circumstances.
One can cause the death of another and not be legally responsible for the death. A defense of justification eliminates responsibility. Mr. Chauvin’s defense to all charges in this case is justification. It will come down to the following: He used the level of force he was trained to use to subdue a man in circumstances that warranted the use of such force.
George Floyd was not plucked off the street at random and subjected to a gratuitous beatdown. He wasn’t lynched. He was placed in custody in a routine confrontation over a seemingly trivial incident.
Mr. Chauvin responded to a call about a man potentially passing a counterfeit bill. He had the legal duty and responsibility to investigate. Apparently, a convenience store employee reported that Mr. Floyd passed a bogus $20 bill in exchange for cigarettes. When the cigarettes weren’t returned as demanded, the police were called. The store employee reported that Mr. Floyd appeared to be drunk and “not in control of himself.” These observations were apparently passed on to investigating officers.
When Mr. Chauvin arrived to investigate, there appeared to be three persons of interest sitting in a nearby car. Two of them did what was asked of them, stepping out of the car. Mr. Floyd did not. An officer drew a gun and demanded Mr. Floyd leave the car. A video of the incident shows Mr. Floyd in an agitated state. When Mr. Floyd refused to show his hands or get out of the car, officers removed him from the car. Nothing controversial there. Happens all the time, regardless of race.
It’s not apparent why Mr. Floyd did not simply answer the officers’ questions or why he did not do as ask. Yes, he was not on trial at the street scene. But he was a subject police had the right to question. They had an articulable suspicion he may have committed a crime. Officers had the right to briefly question him. Mr. Floyd would have none of it.
A struggle ensued. Mr. Floyd appeared agitated, repeatedly saying he could not breathe as officers placed him in the rear of a police cruiser. When he complained from within the car that he could not breathe, officers opened a window. Mr. Floyd appeared to get more agitated. He was removed from the car, and taken to the ground, as officers are trained to do in such circumstances, and Mr. Chauvin placed his knee on the upper torso of Mr. Floyd as Mr. Floyd continued to complain, while breathing, that he could not breathe.
It’s not pretty to watch, but, candidly, neither does it carry the shock value warranting nationwide protests. From the standpoint of those familiar with police procedure, it looks like a garden variety detention of an intoxicated, irrational, and angry man. His race has nothing to do with his state of mind.
Mr. Chauvin was offered training on the use of force to protect himself and others from the danger of harm by a person detained. Mr. Floyd was unpredictable. It appears Mr. Chauvin applied force in precisely the manner in which he had been trained to use it. Mr. Floyd wasn’t strangled to death.
The only real question is whether Mr. Chauvin should have released his pressure on Mr. Floyd sooner. Was nearly 8-minutes too long? At what point should Mr. Chauvin have known that Mr. Floyd was in distress? That could satisfy some jurors that Mr. Chauvin could have, and should have, done more to assure Mr. Floyd's safety and well-being.
At trial, jurors will be told that Mr. Floyd had enough Fentanyl in his system to kill him. The autopsy reports will reflect no crushed larynx or other injury associated with strangulation. Jurors will hear about something called “excited delirium syndrome,” the death of intoxicated persons under situations of stress.
Mr. Chauvin will most likely testify that he arrived to investigate a minor crime, tried to talk to a suspect, learned the suspect was intoxicated and irrational, and then used force in precisely the manner in which he had been trained to use it. He will also testify that complaints about mistreatment by detainees are as common as a red light in major cities. No one wants to be stopped by the police. Cries of police misconduct are the coin of the realm in metropolitan areas, especially now. Mr. Floyd complained he couldn’t breathe when he sat alone in the rear of the cruiser, hands cuffed behind his back.
Mr. Chauvin is not being charged with intentional murder. Even prosecutors don’t believe he set out to kill Mr. Floyd. As of now, Mr.Chauvin faces charges of reckless murder, that is acting with being aware of a serious and unjustified risk of death or physical injury but acting anyway. Notice the use of the term unjustified. If Mr. Chauvin acted as he was trained to do, then, despite the risk of death, his actions are arguably justified. I can easily see an acquittal here.
Expect Mr. Chauvin’s lawyer to argue that, given Mr. Floyd’s apparent inability to follow instructions, his irrationality, and intoxication, officers had a right to restrain him for fear of what he might do next. The same defense applies to the charge of felony murder – if Mr. Chauvin was justified in detaining Mr. Floyd, there is no murder in the course of commission of a felony.
The German sociologist Max Weber defined the state as an entity possessing a monopoly on the legitimate use of force. Police officers are the arms of the state. They are trained to use force and have the right to use it when circumstances warrant it. The case against Mr. Chauvin will turn on the totality of the circumstances known to Mr. Chauvin when he confronted Mr. Floyd. My hunch is that the jury will acquit Mr. Chauvin.
Gallons of ink have been spent writing about the death of George Floyd. Almost none of that ink was spent focusing on the law. The case became a cause celebre independent of the facts.
Next week, those narratives will collide with the law. It will make for a combustible mix, I fear. Such are the times in which we live.
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