Focusing on a critical element involving the manner in which George Floyd was restrained.
Focusing on a critical element involving the manner in which George Floyd was restrained.
‘I t coulda been worse.” That old New York City wisdom — the Bronx translation is, “Look at the bright side” — will be making its way to Minneapolis this week at Derek Chauvin’s murder trial in last year’s death of George Floyd.
It has a lot to do with a linked leather strap police refer to as the “hobble.”
The outlines of the ultimate defense that will be pitched to the jury by Eric Nelson, counsel for the fired cop who is charged with two counts of murder, as well as manslaughter, were elucidated in the last day and a half of the first week of trial, which broke early on Good Friday and resumed this morning before Judge Peter Cahill.
A critical element involves the manner in which Floyd was restrained, principally by Chauvin, who had hands-on assistance from Thomas Lane and Alexander Kueng, as Tao Thao provided crowd control. Lane, Kueng, and Thao, who were also Minneapolis police at the time, were similarly fired after Floyd’s death and are scheduled to be tried together in August on charges of aiding and abetting Chauvin.
Recapping Last Week
The state put its best foot forward by starting its presentation with the last nine minutes and 29 seconds of Floyd’s detention by the four policemen. This is the strongest evidence in the case for the state, and it was the focal point of the prosecution’s opening, highlighted by a chilling recording of Floyd, splayed prone on the street, with Chauvin pressing his knee on Floyd’s neck. A gathering crowd angrily pleaded with police to stop the neck hold as they awaited an ambulance. After the opening statements, the first two days of trial were spent trying to make that first impression for the jury a lasting one. Prosecutors offered their video and audio evidence through emotional testimony from some of those eyewitnesses. It was effective, though the defense also scored some points.
Inevitably, the case shifted to the events leading to the cops’ restraint of Floyd on the street. Here, it is more of a slog for the state: Floyd patently high on dangerous drugs; Floyd passing a palpably counterfeit $20 bill; and most significantly, Floyd — a tall, muscular man and former athlete — violently resisting the efforts of the four police officers to make him sit in the back of the squad car. Though the cops were physically capable men in their own right, and though they were not only trained to handle resisting suspects but also had Floyd handcuffed behind his back, they were not able to restrain Floyd in the squad car.
Importantly, the jury learned that the bystanders who were admonishing the cops during the last nine minutes and 29 seconds were obviously not participants in, and for the most part could not see, Floyd’s forceful resistance in the back of the squad car. By contrast, jurors got a good look at it thanks to the cops’ body cameras.
Moreover, while it is a big issue in the case that Floyd was in the prone position on the street, which can make it difficult to breathe, he was not placed in that position initially by police. Floyd put himself in that position because, with no apparent justification (except perhaps the dubious claim that he was claustrophobic), he refused to sit in the squad car and pushed himself out onto the street. Of course, the police did not have to maintain him in that position, but the suggestion that they had it in mind to asphyxiate Floyd — when in fact it was the police who called for emergency medical technicians to treat Floyd — is untenable.
The Paramedics and the Use-of-Force ‘Continuum’
On Thursday and Friday, the presentation shifted to the securing of the street scene after Floyd was taken by ambulance to the hospital, where he was pronounced dead approximately an hour later, at about 9:30 p.m. For the most part, this was uncontroversial evidence — so much so that the parties (with the judge’s encouragement) streamlined it in an effort to move things along. Still, there were helpful nuggets for both sides.
For the prosecution, the testimony of paramedics Seth Bravinder and Derek Smith established that Floyd appeared to be dead when the ambulance arrived — even though Chauvin still had his knee of Floyd’s neck and had to be signaled to move off him. Floyd had no pulse and, when paramedics got him into the ambulance, their cardiac monitor indicated “asystole” — meaning, as Bravinder explained, he had “flat-lined.”
This is very damaging testimony against Chauvin. Other evidence shows that Floyd had lost his ability to breathe and had no pulse for about four minutes before the ambulance arrived. Ergo, if he seemed dead to the paramedics, it must have occurred to the police that he might be dead, or at least in extreme distress. So why would Chauvin maintain the neck hold, not only through that time but for another minute after the ambulance got there?
On the other hand, Nelson was able to elicit from the police supervisors who responded to the scene that it is not unusual, particularly with people who have been rendered unconscious in a fight or who have ingested dangerous drugs, to regain consciousness and instantly become violent. This reiterated a theme Nelson developed last week when, as I recounted here, Donald Williams II, a mixed-martial-arts fighter and trainer, related that he had not only witnessed but personally experienced this phenomenon while in a match.
In addition, Chauvin profited from some sloppy testimony from the avuncular Lieutenant Richard Zimmerman, a homicide investigator and, in terms of service time, the most senior officer in the Minneapolis PD.
For the most part, Zimmerman was a valuable witness for the state, particularly in explaining the use-of-force “continuum.” In essence, cops are trained to assess the need for force moment by moment, and to apply more or less force as a suspect becomes more or less resistant. Because knee pressure to the neck can choke a person, it is considered in the top category — lethal force — and while it may be justifiable if police are facing a lethal threat, it is no longer justifiable once that threat has been drastically reduced. Indeed, Zimmerman emphasized that once a suspect is cuffed, cops are responsible for his care as well as his custody. Consequently, not only were the police obliged to reduce force once Floyd was restrained; as first-responders, they were arguably duty-bound to begin chest-compressions if his pulse stopped.
That was very damaging testimony for Chauvin, and the state should have left it at that. But instead, prosecutors allowed Zimmerman to testify that, once a suspect is handcuffed behind the back, he is no longer a threat. Not only is this obviously wrong, the jury had already seen recordings of Floyd, while cuffed behind his back, forcibly fending off four cops. As Zimmerman had to admit on cross-examination, a suspect cuffed in that position can clearly be quite dangerous.
That’s why the police have the hobble.
The ‘Hobble’ Defense . . . and Its Deficiencies
When a suspect is powerful and violently resistant, especially if he cannot be restrained by a single officer (let alone four), police are trained to employ the “maximum restraint position.” This is done by binding the detainee behind his back, not only by handcuffs but also leg restraints. To accomplish this (as this training video further explains), they use a hobble. It ties around the ankles, is then looped around the handcuffed wrists, and is finally latched closed and locked back at the ankles.
Floyd was sufficiently violent in his resistance that the police could have justified using the hobble. But they did not employ it. So here is Chauvin’s defense on this point: The neck hold he used, while it looks horrible, was not as severe as maximum restraint — i.e., Chauvin will claim he actually used less restraint than the law would have allowed.
In fact, Nelson will argue (with some justification) that when one looks at certain angles of the various videos, they show that the state’s allegation that Chauvin was continuously pressing with his full weight on Floyd’s neck is an exaggeration — even though there is no doubt that he was restraining Floyd.
In any event, the police had a hobble in one of their squad cars. Floyd had not only used significant force against them; he appeared to be on drugs, and the police were legitimately worried about “excited delirium” — the condition in which a person, who appears passed out on drugs, suddenly comes to and become wildly violent. The cops can be heard on the recording discussing this possibility, and it is part of why they decided to call an ambulance rather than put Floyd in the hobble and take him to the police station.
Chauvin’s defense will claim that he opted against the hobble because he wanted a quick transition from the police to the medics. They had good reason to put Floyd in the hobble, but if they’d done that, it would have taken a few minutes to unhook him from the maximum-restraint position once the ambulance arrived. That would have delayed the administration of prompt medical treatment, which Floyd appeared to need.
Needless to say, there are problems with this story. To begin with, police are trained that if they have to use a neck hold to employ the maximum-restraint position, they must end the neck hold once the hobble is in place. They are also instructed that, once they have the suspect restrained in the hobble, they must roll the suspect on his side in order to open air passages and facilitate easier breathing.
In sum, the state will argue that what Chauvin did was much worse than the hobble. When that device is referred to in the context of “maximum restraint,” it means maximum permissible restraint. Chauvin did what is not permissible: He maintained Floyd in a prone position, and he persisted for over nine minutes in a neck hold.
Furthermore, flouting the use-of-force continuum, Chauvin did not modulate his use of force to make it commensurate with the threat presented by Floyd. Even if police were legitimately worried about excited delirium, they had Floyd restrained on the ground with his arms cuffed behind his back. He was not resisting at that point, and they could have rolled him over on his side. And once he stopped breathing and had no pulse, it was not reasonable to continue the neck hold — it was blatantly excessive. If Floyd had started to come out of what was clearly a near-death state, Chauvin would have had time to react and reapply a neck hold if necessary.
Battle of the Experts Sets Up the Question: Manslaughter or Murder?
Two final thoughts.
First, these holes in Chauvin’s theory are ones that Nelson hopes to fill with the other big plank of the defense: Floyd had ingested such a large amount of dangerous drugs, and had such serious underlying cardiopulmonary problems, that he would have died even without the neck hold.
That is why this week will be pivotal, as the trial moves its focus to the battle of expert witnesses on both the use of force and the cause of death in medical terms. The defense will stress: While Floyd may have had the right to be spared a neck restraint that was excessive under the circumstances, he had no right to be spared the distress of being placed under arrest after committing an apparent counterfeiting crime and resisting police efforts to detain him. It is not enough for the state to prove that the arrest contributed to Floyd’s death; prosecutors must show that death was materially caused by the method of physical restraint.
Second, even if Chauvin’s hobble defense is not convincing, he may calculate that it need not be convincing — at least not completely. If the jury finds that Chauvin exhibited terrible judgment but was not intentionally trying to harm Floyd and did try to get him medical help, Chauvin could be found guilty of negligence rather than criminal assault or depraved indifference to human life. That would call for a verdict of manslaughter, rather than murder in the second or third degree.
If that were the outcome, it would be serious criminal conviction. But given the circumstances, the Chauvin defense would doubtless regard it as a victory.