Derek Chauvin’s defense against the charge that he murdered George Floyd is based on two dubious claims. First, defense attorney Eric Nelson argued in his opening statement yesterday, the force that the former Minneapolis police officer used while restraining Floyd was appropriate in the circumstances. Second, Nelson said, Chauvin’s use of force did not cause Floyd’s death.
Nelson noted that Floyd resisted Officers Thomas Lane and J. Alexander Kueng as they attempted to place him in their squad car after arresting him for buying cigarettes with a counterfeit $20 bill on May 25. He noted that Floyd was more than six feet tall and weighed 223 pounds, which he said made it difficult to restrain him. Nelson maintained that Floyd’s resistance continued even after he was handcuffed and pinned face down on the pavement, held there by Lane, Kueng, and Chauvin. “You will see and hear them continue to struggle with Mr. Floyd, as he’s attempting to kick,” Nelson said.
That version of events seems inconsistent with the widely viewed bystander video of Floyd’s arrest. Although Floyd moves his head and his right shoulder, complains that he cannot breathe, and begs for relief, he does not appear violent. In circumstances like these, the officers may have interpreted as “resistance” what bystanders perceived as a man’s desperate attempt to avoid asphyxiation.
Nelson also seemed to contradict the video by implying that Chauvin did not kneel on Floyd’s neck. In Nelson’s telling, “Mr. Chauvin used his [left] knee to pin Mr. Floyd’s left shoulder blade and back to the ground and his right knee to pin Mr. Floyd’s left arm to the ground.” Floyd’s shoulder, of course, was right next to his neck, and the video shows Chauvin kneeling on both—for more than nine minutes, according to prosecutors.
“Derek Chauvin did exactly what he had been trained to do over the course of his 19-year career,” Nelson said. “The use of force is not attractive, but it is a necessary component of policing.”
Nelson undermined that claim by suggesting that Chauvin and his colleagues were distracted by the angry bystanders who were objecting to their treatment of Floyd. “They’re called names,” he said. “They’re screaming at them, causing the officers to divert their attention from the care of Mr. Floyd to the threat that was growing in front of them.” If everything the officers did was by the book, one might wonder, why is this distraction relevant?
Nelson noted that Floyd had ingested black-market “Percocet” tablets that contained fentanyl and methamphetamine, which he suggested helped explain Floyd’s panic. But even if that is true, the propriety of the force Chauvin used has to be judged based on the threat Floyd posed after he was handcuffed and pinned, not on his previous struggle with Lane and Kueng.
An autopsy report from the Hennepin County Medical Examiner’s Office said Floyd’s death was caused by “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” An independent analysis commissioned by Floyd’s family concluded that he died from “mechanical asphyxiation.” Both reports agreed that the manner of death was homicide.
Nelson, by contrast, said “there was no evidence that Mr. Floyd’s airflow was restricted” and no “telltale signs of asphyxiation.” Rather, Floyd “died of a cardiac arrhythmia that occurred as a result of hypertension, his coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body, all of which acted to further compromise an already compromised heart.”
That explanation, of course, elides the crucial question of whether Floyd would have died but for the force that Chauvin and his colleagues used against him. By deeming his death a homicide, both the autopsy report and the independent analysis imply that Floyd would have survived this encounter if the police had treated him differently.
Nelson was keen to distract jurors from what the bystander video seems to show, saying “the evidence is far greater than nine minutes and 29 seconds.” He was referring to prosecutor Jerry Blackwell’s opening statement, in which he urged the jurors to focus on “those nine minutes and 29 seconds when Mr. Derek Chauvin was applying this excessive force to the body of Mr. George Floyd.” As Blackwell described it, Chauvin “put his knees upon [Floyd’s] neck and his back, grinding and crushing him…until the very life was squeezed out of him.”
While Chauvin did that, Blackwell said, he “was well aware that Mr. Floyd was unarmed, that Mr. Floyd had not threatened anyone, that Mr. Floyd was in handcuffs.” Chauvin knew that Floyd was “defenseless” and “completely in the control of the police.” Under Chauvin’s knee, Blackwell noted, Floyd complained 27 times that he was having trouble breathing, cried out for his mother, and repeatedly exclaimed that “they’re going to kill me.”
Although Blackwell did not mention it, Lane twice suggested that Floyd should be rolled off his stomach and onto his side. “I am worried about excited delirium or whatever,” Lane said at one point. Chauvin rejected his suggestions.
This was the horrifying spectacle to which outraged bystanders—some of whom testified today—were responding. Although Blackwell thinks their reaction reinforces the impression that Chauvin was using excessive force, Nelson argues that it somehow mitigates his actions, since it distracted him from “the care of Mr. Floyd.”
For nearly a minute toward the end of his life, Blackwell noted, Floyd was “completely silent and virtually motionless with just sporadic movements.” Blackwell described those “involuntary movements” as a “part of an anoxic seizure” caused by oxygen deprivation. But judging from Nelson’s description of the movements that supposedly justified Floyd’s continued restraint, Chauvin may have thought Floyd was “attempting to kick.”
Even after Chauvin is twice informed that Floyd has no detectable pulse, Blackwell said, “he does not let up” and “he does not get up.” Chauvin maintains his position for “four minutes and 44 seconds” after Floyd is no longer responsive, even after an ambulance arrives. He does not remove his knee until paramedics “want to move the lifeless body of George Floyd onto the gurney.”
Police are “not allowed to use any more force that is necessary to bring a person under their control,” Blackwell noted, and “the use of force must be evaluated from one moment to the next moment,” since “what may be reasonable in the first minute may not be reasonable in the second minute, the fourth minute or the ninth minute.” He said he would be presenting testimony from experts who think Chauvin’s use of force was patently unreasonable by that standard.
Once Chauvin was unconscious, Blackwell said, the officers had a duty to render aid. Yet “when Mr. Floyd was in distress, Mr. Chauvin wouldn’t help him,” and “he stopped anybody else from being able to help him.” Here, presumably, is where the angry bystanders come into play for the defense, since they allegedly “divert[ed]” Chauvin’s attention “from the care of Mr. Floyd.”
Nelson is certainly right that the jury needs to understand the context of Chauvin’s actions, which can be illuminated by evidence that goes beyond what the bystander video shows. But that video raises an obvious question that Nelson will have trouble answering: What threat did Floyd pose that justified continuing to restrain him in the position where he spent the last moments of his life?
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