To suggest that counterfeiting is not a serious crime opens the door to an array of complications.
To suggest that counterfeiting is not a serious crime opens the door to an array of complications.
O n Tuesday afternoon, in the Derek Chauvin murder trial, the state called a use-of-force expert from out of town, Sergeant Jody Stiger of the Los Angeles Police Department, to opine that the former police officer used excessive force in applying a neck hold that, he believes, caused the death of George Floyd.
I’ll have more to say in a separate post about the state’s case and the effort by Chauvin’s counsel to dismantle it. For now, let’s turn to the prosecution’s suggestion that counterfeiting is not a serious offense, and therefore that the method of detaining Floyd was necessarily excessive since, on this theory, he should not have been arrested in the first place. This prosecution gambit is simultaneously reckless and underhanded.
It is reckless because it potentially opens the door to admission of Floyd’s very extensive prior criminal record, which included a violent armed robbery for which he served several years in prison. It is underhanded because it is not true: Minneapolis progressives would like to make a rule that police may not detain people for nonviolent crimes, but that would be politically damaging, so they are hanging cops out to dry for violating a “policy” they lack the courage to enact.
Opening the Door
Prosecutor Steve Schleicher asked Sergeant Stiger whether the amount of force police are authorized to use against a suspect is limited depending on what type of crime the person is suspected of committing. Floyd was believed to have passed a counterfeit $20 bill. The intimation is that because this was a nonviolent and comparatively trivial crime, force should not have been used.
Stiger, who is a very cooperative witness for the state, nevertheless countered that, while the crime in question can be relevant in assessing the amount of force that is appropriate, it is not dispositive. That’s correct. Obviously, if police happen upon a suspect who has just committed a violent crime, that indicates the suspect is dangerous, and they may have to elevate force accordingly. But, as Stiger elaborated, what matters more is the behavior of the suspect — a person who commits a nonviolent crime may resist arrest violently, and the police may use reasonable force to detain him.
In fact, there is much more to it than that. Besides his size and strength, and the appearance that he was high on drugs, anything the police knew about Floyd, or could quickly find out by running a rap sheet, would have been relevant. It has been reported, for example, that Chauvin and Floyd worked security for the same local nightclub — Floyd as a bouncer inside, and Chauvin providing an apparent police presence outside. (Whether Chauvin should have been doing that while he was off duty is a separate question.) Chauvin may well have known who Floyd was, that he was a physically intimidating figure, and perhaps even that he had been an athlete.
Obviously, the state does not want Floyd’s criminal record to be considered by the jury. In fact, prosecutors have aggressively fought defense efforts to introduce details of Floyd’s May 2019 arrest, a year before his death in police custody last Memorial Day. So far, while Judge Peter Cahill has agreed to permit a limited amount of evidence about the 2019 incident (for purposes of showing that Floyd ingested drugs and may have tried to manipulate his physical condition, as he may also have done in connection with the 2020 arrest), references to why Floyd was detained are barred. The court is trying to draw a careful line that permits Chauvin to introduce pertinent evidence but avoids any implication that Floyd was a bad guy who deserved what happened to him.
This is known as an in limine ruling: The court preliminarily excludes evidence, but it is a shield not a sword. If the party that gets the favorable ruling uses it offensively by creating a misimpression that the excluded evidence could correct, that “opens the door” to the court’s allowing the evidence to be admitted.
The prosecutors should be content to have Floyd’s criminal history out of the case. But by pushing the false and misleading line that police have no reason to be concerned about their safety, and that of the community, when a person commits a nonviolent crime, they risk that the judge will give the defense leeway to correct this misimpression by permitting at least some proof of Floyd’s criminal background involving forcible aggression.
That prosecutors would chance this is baffling since the upside for them is so minimal.
The Excessive-Force Question Does Not Hinge on Crime of Arrest
As I’ve previously argued, it is underhanded of the state to suggest that the question of whether Chauvin used excessive force, to the point of committing felony assault, hinges on the seriousness of the suspected offense.
Counterfeiting is a crime — potentially a felony under state and federal law. As Bernie Madoff could tell you, many very serious crimes are nonviolent. The law is straightforward: If a police officer witnesses activity that amounts to probable cause of a crime, he has lawful authority to make an arrest; to effect that arrest, the police may use force that is reasonable under the circumstances to detain the suspect. If the suspect violently resists arrest, the police may use superior force — but not excessive force.
Whether the use of force is excessive turns on the nature and circumstances of the resistance. A suspect who has just committed a violent crime may offer no resistance. A suspect who has just committed a nonviolent crime may resist aggressively.
As the state prosecutors and the Minneapolis Police Department (MPD) have been informing the jury at great length, they have thick manuals laying out endless pages of regulations and guidelines. If there were a formal MPD policy that nonviolent offenders are not to be taken into custody — i.e., that they are merely to be issued tickets instructing them when to come to court — they would show us that policy.
Minneapolis is a haven of new-style progressive policing and prosecution, so there is no reason to doubt that many top law-enforcement and political officials would favor such an inane policy. But they would do so quietly. Minneapolis already has a serious crime problem, including record crime under its current police leadership. If the city were to proclaim a formal policy of not making arrests for nonviolent crimes, no matter how serious, lawlessness would explode. Businesses would shut down, residents would move out, and Minneapolis would be over.
So, there is no such policy. If there were, Floyd would not have been arrested. There is no evidence that the police wanted to arrest him. Floyd was detained because he appeared to have committed a crime, he presented as someone who was high on drugs, and there was reason to believe he might have illegal items in the car of which he appeared to be the driver — a vehicle which police had not searched, and by which Floyd would have endangered the public if he drove away under the influence of narcotics. Moreover, by the time Chauvin and his partner, Tao Thao, arrived on the scene, Floyd was already resisting the original arresting officers, Thomas Lane and Alexander Keung. Resisting arrest is itself a crime — indeed, a violent one (obviously, the degree of violence varies widely).
If there actually were a Minneapolis policy that police are not permitted to arrest a counterfeiting suspect, that is virtually all anyone would have heard about during the trial. The case would be open and shut. There would be little reason for the state to be eliciting hours of testimony about the use of force, conscious neck restraints, unconscious neck restraints, the maximum-restraint technique, crisis management, the MPD’s Critical Decision-Making Model (laborious bureaucratic jargon for exercising common sense), and so on. The state’s argument would be that the arrest itself was lawless — or, at the very least, in violation of formal police policy.
Chauvin may well have used excessive force — indeed, whether he did is the central question in the case. But if he did so, it is because the restraint technique he used was significantly greater than what was necessary under the circumstances — particularly given that Floyd was handcuffed behind his back in a prone position, had ceased resisting, was having difficulty breathing that deteriorated into a cessation of breathing, and then did not have a pulse. If the force to effect detention was excessive, it would no more exculpate Chauvin if Floyd had committed a violent crime than it incriminates Chauvin that Floyd’s crime was nonviolent. If the arrest was lawful (i.e., if Floyd was being detained on probable cause of a criminal offense), then the police were allowed to use reasonably necessary force — no more, but no less — to effect an arrest.
The state prosecutors know this. They know they have not accused Chauvin of making an unlawful arrest, but rather of engaging in an unlawful method of detention. Yet, they are signaling to the jury that the arrest itself was illegitimate, and that the jury should weigh this in the calculus of whether Chauvin’s use of force was excessive.
The prosecution’s strategy is foolish. It does not advance (and could detract from) their case that Chauvin used excessive force amounting to felony assault that caused death. It risks the admission into evidence aspects of Floyd’s criminal history to refute the misimpression, created by prosecutors, that there was no reason to believe he had violent propensities. And most importantly, it could undermine the prosecutors’ credibility with jurors — who understand that defense lawyers are going to push every envelope for the client but expect the state’s lawyers to play it straight.