Lots of mail this morning on yesterday’s George Floyd post. It says something about our times that people are writing to me saying they agree, but can’t say so for fear of losing their jobs. They know that in this free country, there are some lies that we have to live by. It is quite revealing that so many people seem angry that this new bodycam footage has come out, complicating the received Narrative. Why? I can see why professional activists would be angry, but this new bodycam footage shows that the Minneapolis cops aren’t the depraved monsters we all saw on the previous footage — that they had been struggling with a hysterical, possibly delusional man who had spent nine minutes refusing to do anything the cops told him. This doesn’t mean that the cops are morally or legally innocent of wrongdoing — though they might be — but it does mean that the case is more complicated than we have been led to believe by the media and others.

I’m as guilty as anybody. I thought Chauvin was a monster, and have said so on this blog. What kind of man puts his knee on another man’s neck for almost nine minutes, while the subdued man says he can’t breathe, and then dies? A monster. The new bodycam footage, though shows that as part of his nine-minute shrieking freakout prior to being put on the ground, Floyd had claimed, “I can’t breathe!” even though he was standing up, unrestrained except for the cuffs. Maybe he really couldn’t breathe because he was having a panic attack, or was overdosing on fentanyl (which was found in his bloodstream in a high quantity). Or maybe he was just talking smack to keep them from putting him in the squad car. Whatever the truth, the cops made the fatal judgment that he was not serious when he was on the ground with Chauvin’s knee in his neck, saying he couldn’t breathe.

I don’t know precisely how that complicates matters legally, though lawyers have been writing to say (see updates) that it’s going to be very hard for the government to prove beyond a reasonable doubt that the cops are guilty as charged. This June piece by former federal prosecutor Andrew McCarthy is a somewhat technical walk-through of the charges, and what prosecutors have to prove (McCarthy believes that Chauvin and two of the three other cops should have been charged with something, but that Minnesota AG Keith Ellison has overcharged them, making it more likely that they won’t be convicted of anything). Morally, it’s up for debate, but I don’t see how one can admit into evidence the nine minutes of video prior to Floyd being subdued on the ground and still believe that this is an easy case to adjudicate morally.

A reader writes to say that complicating information was publicly available before the new bodycam footage, and that I, like others, either didn’t see it, or didn’t go looking for it. In my case, I didn’t go looking for it. I assumed the Narrative — white cops torture black suspect to death — was true, or mostly true. We had video, did we not? That reader sends this June 11 piece in Medium, by Gavrilo David, that works against the received Narrative of Floyd’s death. Excerpts:

The [initial George Floyd] video is unquestionably horrific.

But in our rush to condemn an aggressive use of force and pursue justice for George Floyd, we have ignored crucial information which is necessary in judging the conduct of the officers. While nothing can absolve George Floyd’s death, these facts do cast doubt on the appropriateness of a murder charge for Chauvin, and paint a more nuanced picture of the events leading up to the tragic encounter.

There are six crucial pieces of information — six facts — that have been largely omitted from discussion on the Chauvin’s conduct. Taken together, they likely exonerate the officer of a murder charge. Rather than indicating illegal and excessive force, they instead show an officer who rigidly followed the procedures deemed appropriate by the Minneapolis Police Department (MPD). The evidence points to the MPD and the local political establishment, rather than the individual officer, as ultimately responsible for George Floyd’s death.

More:

These six facts are as follows:

1. George Floyd was experiencing cardiopulmonary and psychological distress minutes before he was placed on the ground, let alone had a knee to his neck.
2. The Minneapolis Police Department (MPD) allows the use of neck restraint on suspects who actively resist arrest, and George Floyd actively resisted arrest on two occasions, including immediately prior to neck restraint being used.
3. The officers were recorded on their body cams assessing George Floyd as suffering from “excited delirium syndrome” (ExDS), a condition which the MPD considers an extreme threatto both the officers and the suspect. A white paper used by the MPD acknowledges that ExDS suspects may die irrespective of force involved. The officers’ response to this situation was in line with MPD guidelines for ExDS.
4. Restraining the suspect on his or her abdomen (prone restraint) is a common tactic in ExDS situations, and the white paper used by the MPD instructs the officers to control the suspect until paramedics arrive.
5. Floyd’s autopsy revealed a potentially lethal concoction of drugs — not just a potentially lethal dose of fentanyl, but also methamphetamine. Together with his history of drug abuse and two serious heart conditions, Floyd’s condition was exceptionally and unusually fragile.
6. Chauvin’s neck restraint is unlikely to have exerted a dangerous amount of force to Floyd’s neck. Floyd is shown on video able to lift his head and neck, and a robust study on double-knee restraints showed a median force exertion of approximately approximately 105lbs.

Let’s be clear: the actions of Chauvin and the other officers were absolutely wrong. But they were also in line with MPD rules and procedures for the condition which they determined was George Floyd was suffering from. An act that would normally be considered a clear and heinous abuse of force, such as a knee-to-neck restraint on a suspect suffering from pulmonary distress, can be legitimatized if there are overriding concerns not known to bystanders but known to the officers. In the case of George Floyd, the overriding concern was that he was suffering from ExDS, given a number of relevant facts known to the officers. This was not known to the bystanders, who only saw a man with pulmonary distress pinned down with a knee on his neck. While the officers may still be found guilty of manslaughter, the probability of a guilty verdict for the murder charge is low, and the public should be aware of this well in advance of the verdict. 

[highlight in the original text]

Gavrilo David then goes into detail on each of those six points. Again, David’s piece was published almost two months ago. I was unaware of it until two different readers sent it to me. David writes:

From the 911 transcript, we know that George Floyd was acting “drunk” and “not in control of himself” before the police were called. The 911 caller is concerned that such an “awfully drunk” man would attempt to operate a vehicle. This is an important departure from the earlier media reports, which indicated the officers were only called over a counterfeit bill.

“Um someone comes our store and give us fake bills and we realize it before he left the store, and we ran back outside, they was sitting on their car […], and he’s sitting on his car cause he is awfully drunk and he’s not in control of himself” […] He is not acting right […] and [he’s] not acting right so and [he] started to go, drive the car.”

This information on its own is of no significance. In fact, aggressively restraining someone who is experiencing distress only makes that restraint all the more heinous. But as will be seen later, when this information is seen in light of George Floyd’s behavior, it led the officers to suspect he was suffering from ExDS — a far more dangerous scenario than simple distress.

Did you know that the original 911 report from the store owner said that Floyd was “awfully drunk and … not in control of himself”? I didn’t. I should have. Part of the reason that I had decided that the MPD overreacted was that I couldn’t believe they were so hard on a guy who was just trying to pass fake bills. As David says, this is really important information to helping us understand the context of the officers’ actions.

This is really interesting too. Remember that Gavrilo David published this on June 11:

For reasons not yet known, Minneapolis is refusing to release the officers’ body cams of this moment. This information is important in order to determine how Floyd was acting the exact moment the officers pulled him from the police car. It is unconscionable that this information has not been released to the public. We must assume, given all relevant information already known, that their reason for pulling him out of the car was his continued resistance as noted in the government complaint.

This is true! Now that we have seen the bodycam footage — which someone leaked to the Daily Mail — we know that Floyd was acting crazily when they pulled him from the car, and was physically resisting being put into the car.

Look at this passage about ExDS (excited delirium syndrome), in light of the new bodycam footage. Remember that David published this almost two months ago:

It must be understood that the public does not yet have enough information to conclude whether the police were accurate in their assessment of ExDS. We have some information indicating that the determination is correct, but absent the full body cam recording, we are unable to make a complete judgment on this point. This is discouraging, because the entire case rests on this point. We know that two officers believed he was experiencing ExDS, and that the other two officers did not comment to the contrary. We also know that George Floyd had some symptoms of ExDS, but we do not know if he had all symptoms of ExDS, or if he had any symptoms indicating the contrary. Below are the symptoms, affixed with whether we know he experienced the symptom or not:

• Sweating [Y]
• Police Noncompliance [Y]
• Lack of Tiring [Y]
• Unusual Strength [?]
• Pain Tolerance [?]
• Tachypnea [?]
• Tactile Hyperthermia [?]
• Bizarre behavior generating calls to police [Y]
• Suspected or known psychostimulant drug or alcohol intoxication [Y]
• Erratic or violent behavior [?]
• Ongoing struggle despite futility [Y]
• Yelling/shouting/guttural sounds [?]
• Agitation [Y]
• Inappropriately Clothed [N]
• Mirror/Glass Attraction [?]
• Suspected or known psychiatric illness [N]
• Failure to recognize or respond to police presence at the scene [likely N]

Some of these symptoms can only be determined from body cameras. Unfortunately, other symptoms can only be determined by the officers’ account. It is not possible to know whether he was experiencing tactile hyperthermia except by asking the officers who had touched his skin. We will have to work with these limitations in our analysis of the event. However, that both the brand new officer (Lane) and the veteran officer (Chauvin) suspected ExDS is not poor evidence. And that no officer objected to this determination must also be considered.

Well, the bodycam footage is now available, and as David guessed from the testimony, Floyd fits most of these symptoms to a T. Everything we see on the new bodycam footage supports the officers’ diagnosis of ExDS. Again, this is crucially important in understanding why the cops reacted as they did later.

This is from a white paper on ExDS that the Minneapolis PD depended on for formulating its response:

• “ExDS subjects are known to be irrational, often violent and relatively impervious to pain. Unfortunately, almost everything taught to LEOs about control of subjects relies on a suspect to either be rational, appropriate, or to comply with painful stimuli. Tools and tactics available to LEOs (such as pepper spray, impact batons, joint lock maneuvers, punches and kicks, and ECD’s, especially when used for pain compliance) that are traditionally effective in controlling resisting subjects, are likely to be less effective on ExDS subjects.”

• “The goals of LEOs in these situations should be to 1) recognize possible ExDS, contain the subject, and call for EMS; 2) take the subject into custody quickly, safely, and efficiently if necessary; and 3) then immediately turn the care of the subject over to EMS personnel when they arrive for treatment and transport to definitive medical care.”

• “In those cases where a death occurs while in custody, there is the additional difficulty of separating any potential contribution of control measures from the underlying pathology. For example, was death due to the police control tool, or to positional asphyxia, or from ExDS, or from interplay of all these factors? Even in the situation where all caregivers agree that a patient is in an active delirious state, there is no proof of the most safe and effective control measure or therapy for what is most likely an extremely agitated patient.”

• “There are well-documented cases of ExDS deaths with minimal restraint such as handcuffs without ECD use. This underscores that this is a potentially fatal syndrome in and of itself, sometimes reversible when expert medical treatment is immediately available”.

Gavrilo David adds:

Each of these bullet points is of the utmost importance in understanding Chauvin’s state of mind. These points must be re-read and thoroughly understood before pronouncing judgment on an officer who was simply following these statements during the arrest. If you are skimming this article I advise you to spend time on these bullet points. Remember: the officer’s job is to follow protocol, not to re-write protocol during an arrest. It is the politician’s job to ensure that the protocols are correct, no the police officer’s.

Here is a knockout paragraph:

It’s important to understand that the public — including journalists — are not well-versed in ExDS, and consequently do not have a good intuition as to what constitutes excessive force. As noted in the white paper, “there is no proof of the most safe and effective control measure,” “any LEO interaction with a person in this situation risks significant injury or death”, “this already challenging situation has the potential for intense public scrutiny coupled with the expectation of a perfect outcome […] Unfortunately, this dangerous medical situation makes perfect outcomes difficult […].” It would helpful here to examine ExDS in depth, and compare it to the George Floyd case.

I plead guilty to this. I didn’t know that ExDS was until reading this Gavrilo David piece. David discusses cases of ExDS in which the suspects died of it even though they were not being restrained as Chauvin did to Floyd. He links to a video of a Las Vegas man’s case in which the police did everything right, but the man still died of ExDS. Why? Because, according to the Journal of Emergency Medical Services, “The patient with excited delirium, however, continues to fight the restraints until cardiac arrest occurs.”

There are documented cases of this happening (Gavrilo David links to them). If George Floyd had ExDS, it is possible that he would have died no matter what these cops did or didn’t do. It explains why George was extremely agitated for the nine minutes or so before he was put on the ground, and refused to do what the cops said. It explains why he said he couldn’t breathe, and was in full-blown panic. If he had ExDS, then he wasn’t listening to the cops. He was in the grips of a drug-induced psychosis, and was doomed to keep resisting the cops until his heart gave out.

Maybe that’s not the explanation for what happened to George Floyd. But the evidence points to it.

Gavrilo David writes at length about ExDS. I strongly encourage you to read it all. And I urge you to go watch the new bodycam footage at the Daily Mail‘s story.

If Gavrilo David could determine all this two months ago, why has it not been widely reported in the media? Again, I admit that I didn’t go looking for this information because I assumed that the story we were all being told by the mainstream media was a full account of what happened. Now it is clear that we were not told the whole story. It appears quite plausible that George Floyd died as the result of his “severe” (the coroner’s word) heart condition and the psychosis induced by the potentially lethal dose of fentanyl he had ingested, and the methamphetamine.

Maybe Derek Chauvin killed him. But maybe he did not. Why is it considered to be a moral outrage to consider facts that undermine the received Narrative?

Defense lawyers are going to present all of this to Minneapolis juries, who will take it into consideration when they decide whether or not these police officers are guilty. It is very important that the rest of us know this information too. George Floyd’s death is still a tragedy. The new information helps us determine the moral nature of the tragedy, and, of course, whether or not it was also a crime.

Maybe George Floyd’s death is not a manifestation of a grand battle between Good and Evil. Maybe it was a case of an ordinary police encounter with a man so high on drugs that he is a danger to himself and others — an encounter that ended badly. If this is so, why is that not good news? Why would people not be relieved by the possibility that vicious racist killer cops were not policing the streets of Minneapolis that day?

I gotta ask too: why did the City of Minneapolis not release this bodycam footage? Why would they hide it?

UPDATE: The official autopsy revealed that George Floyd had Covid-19 at the time of his death:

Apropos of nothing in particular, I wonder what scientists think are the combined risks of opioid use and COVID-19 infection, and how that might interact with the likelihood of unexpected cardiac arrest.https://t.co/Sz4Z3KFNyE https://t.co/937tKjhiOt pic.twitter.com/mpTaoRHE1h

— Spotted Toad (@toad_spotted) August 5, 2020

UPDATE.2: A reader who is a lawyer writes:

Once he’s cuffed and on the ground on his stomach, you or I could hold him down with a knee on his low back.  The knee to the neck while smirking at the camera was a power trip, a “because I can” move.  Chauvin’s defense may turn on how “passively resisting” is defined for purposes of the neck restraint.  I’d say cuffed and refusing to get in a squad car is passive resistance that doesn’t justify the neck restraint, while fighting the cuffs or the cops is active resistance, but it depends on the policy definitions.  In any case, it’s hard to say anything in the original 9-minute video was “active” on Floyd’s part.

“Stop resisting” is dirty-cop horseshit.  I’ve handled one police brutality case.  A ‘roid-raging officer handcuffed my client, put him face down in a parking lot, then started smashing his head into the gravel, then keyed his radio and shouted “stop resisting” several times.  My client (a former prosecutor) thought he was being set up to be killed, because he wasn’t resisting other than trying to keep his head from being smashed into the gravel, so the cop’s instruction made no sense.

All that said, the video and toxicology would provide a good defense in most cases.  I prefer the toxicology angle – that he probably died of the drugs.  Speaking as not-a-criminal-defense-lawyer, though, I think if Chauvin contributed to the death, it could still be murder, even if it’s not the main cause.  So it might not matter if Floyd would’ve died 20 or 30 minutes later and Chauvin merely hastened the death.  If you find a shooting victim who won’t survive, and you put him out of his misery with a bullet to the head, it’s still murder.  The prosecution may prove that Floyd would’ve survived if he’d lasted five more minutes so the EMS could give him a shot of Narcan.

I say the video and toxicology would be good defenses “in most cases.”  I think Chauvin will be convicted of … something.  I don’t know Minnesota criminal law, so I can’t say what.  “Murder” is not always intentional killing, but the intentional use of deadly force, maybe the use of deadly force with reckless indifference to whether someone is killed.  So accidentally shooting the toddler in the yard instead of his big brother is murder.  Hitting someone with a pool cue can be murder.  In more states, the latter would end up being manslaughter because of “heated blood.”  That might be the right outcome in this case, although it’s Chauvin’s cool blood that makes mine boil.  In most states, there are “lesser included offenses” with crimes like murder, so an overcharged defendant can be convicted of a lesser offense that has some (not all) of the elements of the charged offense.  That can be second-degree murder, manslaughter, negligent homicide, etc. – all depends on state law.  They’ll convict him of something, and rightfully so.

I don’t know that the knee on the neck was a “power trip.” That was the prescribed procedure for the MPD. Whether that was wrong or right is a different question, but if Chauvin was following established department procedure, how can we be confident that it was a “power trip” move?

UPDATE.3: Another reader writes:

Thank you for letting us have a deeper understanding of what happened prior to the killing of George Floyd.  I still believe it was grotesque abuse of police power, and a tragic, unnecessary death.  It shows me more than anything that we need to train police in de-escalation techniques, while weeding out those cops who should be nowhere near the force, including the cop who killed him.

But we tend to beatify people like George Floyd after tragic and outrageous events befall such victims (and I DO consider him a victim), and this warps our understanding of how events played out.  We often find these are dysfunctional men with multiple run-ins with the law, erratic behavior, drug problems, and who resist the police in ways which put themselves and the cops in hazard’s way.  This in no way excuses bad policing, or this particular killing, but it’s important to understand that the paeans being made to Mr. Floyd are the kinds of things we say of the dead, but wouldn’t apply to him while he lived.  The people which police encounter on a day-to-day basis are typically not the kinds of people we want our children to grow up to be.

On another note, let’s state the obvious that Rayshard Brooks was a fool, who might as well have run into traffic.  He wasn’t merely “asleep in his car” as the media reports, but black-out drunk in his car.  The police were hyper-professional with him, up to, through and including the moment he decided to violently resist a legal arrest, and grabbed what he likely thought was the cop’s pistol (the taser is intentionally designed to mimic that of a handgun) to run away with it.

Again, the cops didn’t absolutely *need* to shoot him under those circumstances.  It is a tragic situation which is almost entirely the fault of Rayshard Brooks.  Again, it’s a matter of needing to better train the cops in these situations – and to discuss publicly How to Act Around Legitimately Nervous Armed Police.  To simply reduce this to a cold-blooded killing of a black man by racist cops is absurd.  I am certain, as a white man, I would not be living to write this if I had acted in the same idiotic fashion as Rayshard Brooks.