It is important to clarify the kind of force that was actually used.
It is important to clarify the kind of force that was actually used.
D erek Chauvin never put George Floyd in a choke hold. That was the conclusion of Lieutenant Johnny Mercil, the top use-of-force training official in the Minneapolis Police Department (MPD).
Though it has not gotten much press coverage, that testimony on Tuesday, coming from the state’s most authoritative witness on police defensive tactics, was stunning. Quite apart from its torpedoing of a ceaseless narrative about Floyd’s death, it undermined the prosecution’s confident assurances that the expert use-of-force testimony would remove any doubt that Chauvin killed Floyd.
This is not to underestimate the evidence that Chauvin used more force than was necessary under the circumstances. But it is important to clarify the kind of force that was actually used. We must also take note of how the prosecution has veered, even if the press coverage hasn’t. On the matter of murder, this is not a “choked him to death” case; it is a “failure to render obligatory medical assistance” case.
In a choke hold, a person’s ability to breathe is intentionally obstructed. We can’t say a police officer may never apply a choke hold, because a cop may use whatever force is necessary to save his life if he is dealing with an active, aggressive, lethal threat — and that depends on the circumstances. Yet that is beside the point in Chauvin’s case. Contrary to popular belief, he never choked Floyd.
Instead, Chauvin applied a neck hold. Unlike a choke, a neck hold is not intended to prevent a person from breathing. The purpose is to control a person. Depending on the threat posed by a suspect, a police neck hold can include anything from just enough pressure to persuade a person to submit, up to cutting off blood flow to the brain in order to induce temporary unconsciousness (similar to what is sometimes seen in mixed-martial-arts matches).
It is essential to understand that neck holds are legitimate tactics if applied in appropriate circumstances. To the extent it has been claimed, or at least conclusorily assumed, that Chauvin applied an illegal tactic, or a restraint technique that violated MPD policy, this is not true.
During the appearances of several MPD witnesses, an infamous still photo (the state’s Exhibit 17) has been displayed: Chauvin appearing to kneel on Floyd’s neck. MPD witnesses have generally eyed this picture with theatrical disdain, one sneering, “We don’t train that.”
As Mercil explained, however, there is a salient difference between what is trained and what is permitted. The MPD does not train police to hit a suspect over the head with a coffee pot. But if a suspect is trying to gouge a cop’s eyes out, and the coffee pot is in reach, the cop is permitted to grab it and bang the suspect over the head. More to the point, if a particular restraint technique, such as a neck hold, is permissible, the fact that an officer’s technique of applying it does not mirror the training manual does not make the hold itself impermissible.
The MPD trains neck holds with a preference for applying them with the arms and hands because that usually provides more control. As Mercil explained, this does not mean it is prohibited to use the legs. Indeed, MPD might show such a leg technique to recruits, because it could be used against them; but MPD does not instruct officers to employ neck holds that way.
On this point, it is worth noting some startling testimony given on Wednesday about Chauvin’s physical stature.
Floyd’s stature has been much remarked upon: tall, muscular, a football tight-end and basketball power-forward in his youth, later a nightclub bouncer, with height given as six-and-a-half feet in most reporting, and his proportions described as six-feet-four-inches and 223 pounds in the state’s autopsy report. What hasn’t gotten much attention is Chauvin’s proportions. And now we see why. He is a slight man. In connection with his interview by investigators right after Floyd died, he weighed in at just 140 pounds.
State prosecutors are obviously concerned about this differential — the fact that Floyd had an 83-pound weight advantage over Chauvin. It becomes much easier to grasp why Chauvin, even with three other cops, was unable to control Floyd as the latter forcibly resisted arrest in the squad car and squirmed his way onto the street. Prosecutors elicited from the lead investigator an estimation that Chauvin’s patrolman’s belt (holding gun, ammo magazines, radio, flashlight, mace can, etc.) must have weighed 30 or 40 pounds. They need to inflate the weight because they are understandably worried that the jury may not buy the notion that a little guy like Chauvin effectively strangled a big guy like Floyd.
And, of course, that is not what happened. But the weight differential does make it easier to see why Chauvin might rely more on the strength of his legs than try to restrain Floyd with his arms — having moments earlier been unable to restrain him, despite the help of three other trained police officers.
None of that would matter, of course, if the restraint tactic that Chauvin used, regardless of how applied, was impermissible. But neck holds are permissible in appropriate circumstances. I italicized that last bit because that’s really the issue in the case.
There are two different kinds of neck holds that police may use. They are described as unconscious and conscious.
The first is called unconscious because the officer is attempting to render the person unconscious. Obviously, since police uses of force must be reasonable, it follows that unconscious neck holds are permissible only in dire situations, when a person is creating such a risk of death or severe injury that a reasonable officer would believe that rendering the person unconscious was an appropriate way to quell the threat.
That is not the Floyd/Chauvin situation. Chauvin did not apply an unconscious neck hold, which calls for simultaneously putting pressure on both sides of the neck to cut off blood flow. As elaborated on by Mercil, a martial-arts expert, an unconscious neck hold can work in a matter of seconds if applied properly — though it is in the category of lethal force because it can kill or cause irreparable damage if improperly applied.
What Chauvin applied was a conscious neck hold. The point of this tactic is to control the suspect, not knock him out.
As police learn in training, and as most of us know from common sense and experience, to gain physical control over certain parts of another person’s body is to achieve physical control over the whole person. The neck is one of those parts. Police are trained to be especially careful in manipulating a person’s neck because a serious injury can otherwise result. But most unconscious neck holds are not applications of lethal force. By themselves, they do not even render a person unconscious, much less cause asphyxiation.
I highlight “By themselves” because this is where we come to the big problem in the case for Chauvin.
Defense counsel Eric Nelson has done an effective job of demonstrating that appearances can be deceiving. The still photos and videos shot at angles that appear to show Chauvin pressing his knee on Floyd’s neck are horrifying. But videos shot from other angles, particularly the footage from body cameras worn by the police, illustrate that Chauvin was mainly pressuring the trapezius area — between the shoulder blades and the base of the neck. When applying a hold like this, aiming for control not unconsciousness, police are trained to focus on that upper trapezius area, being careful of the neck but, naturally, unable to completely avoid the neck. It is also clear that Chauvin was not pressing the whole of his 140 pounds onto Floyd, just enough (with the help of two others, also not pressing all their weight) to keep the handcuffed man down. Floyd was able to move his neck and to speak.
If that was all there was to it, Chauvin should be acquitted — in fact, the case should not have been charged criminally.
But of course, that’s not all there is. Neck holds are supposed to be temporary. There is no time limit on them. The rule of reason applies. But once the goal of control has been achieved, police are trained immediately to roll the subject onto his side (the “side-recovery” position). This is because, even if weight pressure were not being applied, it can become hard for a person to breathe if maintained too long in the prone position — face down, with chest and stomach on the surface. That’s especially so if a person has cardio-respiratory problems, as Floyd did. Rolling the person over on his side opens the air passages, facilitating breathing.
Notably, then, while prosecutors are trying to prove that the police asphyxiated Floyd, their case is not what you would think it is based on the political narrative of knee-to-the-neck strangulation — the racialized horror story about a white cop persecuting a black victim. Floyd was not choked; he was kept too long in the prone position. His breathing became labored and his heart stopped.
Now, it is fair enough from the police standpoint to observe that resisting and detained suspects often claim not to be able to breathe and often say things that aren’t true in hopes of getting out of their predicament. Police do not have to credit these complaints; but they can’t dismiss them out of hand either. They have to weigh them with other objective evidence — and it doesn’t get more objective than not being able to detect a pulse, which is what happened with Floyd, about three minutes before the ambulance arrived.
Police go by the standard “in my custody, in my care.” Even if a suspect has resisted arrest, if he falls into medical distress, cops are trained to begin emergency medical first aid. If a detainee suddenly has no pulse, police are supposed to begin chest-compressions (their CPR training). Unless a person is palpably dead, cops are supposed to continue compressions until someone with superior medical training — generally, a paramedic — arrives on the scene and can take over. Chauvin and his fellow officers never even began compressions, even though they knew Floyd was pulseless and might not be breathing regularly.
Chauvin’s defense offers several rationalizations for this dereliction, not least (as further discussed in my post yesterday) that Floyd’s death is principally attributable to a drug overdose. I will analyze these in a separate post.
But I’ll conclude with how the case has changed — or, at least, with an observation that it has played out in the real court much differently from how it has been related in the court of public opinion. At bottom, this is not a police brutality case. It is a police failure of care case. Even an egregious failure of care, while condemnable, is not the same as an aggressive killing. If one egregiously fails to take measures one is duty-bound to take, and death results, that is manslaughter, not murder.
Does that matter, though, when the mob is baying for blood?