In the Foreword, I talked about my background in Emergency Medicine and working with Police. That background informs my opinions today.

After watching both the bodycam and cellphone videos (which you can’t find anywhere anymore except in a misleading “news” context), everyone has an opinion on George Floyd, and so do I. Executive Summary: You’re All Wrong.

Precis:

• George Floyd was a criminal scumbag, of little or no use to society.
• George Floyd was killed by Derek Chauvin.
• The killing was legally wrongful.
• Minnesota law is kind of weird to call this Murder in the Second Degree, but that’s Minnesota law.
• The conviction itself will be just.
• The sentence will not be just; it will be barbaric.
  • Mitigating factors, of which there are many, will not be taken into account.
  • Unproven allegations that the murder was racially motivated will be taken into account.
• Chauvin will die in jail.
• None of this is Justice.

I’m pretty sure everybody can disagree with that, because I’ve seen all manner of commentary to oppose my view. So let’s just take this item by item. (I won’t always provide a cite, you know you read this stuff somewhere, go look it up.)

Assertions in bold are false, and they come from all points of the spectrum.

George Floyd was innocent.

George Floyd was apprehended for passing a counterfeit bill. He was operating a motor vehicle while in a high state of intoxication. Floyd himself massively escalated the situation. Nothing the officers did should have caused Floyd’s extreme reaction or made it impossible for Floyd to comply with simple commands and stop physically resisting. Had he simply calmed down and complied, he would have been fine.

At the beginning of the call, Floyd’s demeanor and conduct expressed mostly fear, but he was clearly a physical threat. The officer who can be seen exercises admirable restraint throughout this stage of the video.

George Floyd violently resisted arrest.

Floyd was six-foot-eight, rangy, and out of his wits. He repeatedly disobeyed commands and wouldn’t keep his hands in sight. The officer who made first contact was taking no chances, covering Floyd’s head with his pistol. I don’t think the officer wanted Floyd to see the gun as a threat, he was trying to keep it out of sight and keep Floyd covered at the same time. But Floyd did see it.

They managed to get Floyd out of the vehicle and cuffed. Floyd was burly and squirrely and it took two officers working in tandem and kind of bending him up to get the cuffs on. At any time, Floyd’s best hold would be to stop resisting, just as the officers repeatedly instructed him to do.

At no point did Floyd produce a weapon, throw a kick or a punch or head-butt. He passed up several chances to bite an officer’s ear. But any of those things might have happened any time. To say he was unarmed is a misnomer; anyone of George Floyd’s build is armed by definition.

Even cuffed, Floyd gave effective passive resistance. They couldn’t get him in the car. As long as he stayed stiffened up like a plank, they couldn’t fit him in the back seat. When they finally got his head under the doorsill, he squirmed away, handcuffs or no, and got out on the other side. He must have bruised himself quite a bit; apparently he didn’t care.

That’s notable resistance, but it is not violent resistance. Thing is, cops have no way of knowing if or when passive resistance will turn violent, so their escalation was also justified, up to a point.

The Coroner’s report showed no evidence of strangulation.

Red Herring. Nobody ever said anything about strangulation.

George Floyd diead of asphyxiation, which can happen many ways other than strangulation. His death was predictable and preventable. Derek Chauvin had been trained to prevent exactly this manner of death.

It’s called “positional asphyxia”. Both police and ambulance personnel are trained to avoid positional asphyxia with handcuffed subjects. Positional asphyxia can happen when a handcuffed subject is positioned face-down. It’s worse for fat people and people with heart or lung issues. Unintentional fatalities have resulted in the past, from simply handcuffing a subject and putting him face down in the back of the car. All cops know this. Derek Chauvin knew it (or should have known it) when he put his knee on George Floyd’s neck.

They were holding George Floyd in a “recovery position”

Recovery Position is one of the first things they teach you. It’s not prone; it’s always on the side with the knees tucked up a little and a couple other things. That position drains the airway, allows easy breathing, and lets the body rest naturally.

George Floyd died in the positional asphyxia position, not the recovery position.

They were restraining Floyd so he wouldn’t injure himself.

It’s true, Floyd was flopping around pretty hard and he could have banged his head on the pavement or something.

You know who else does that? Seizure patients. They thrash around and they can bang their heads on the walls or floor. There are a couple of things you can do to protect the head of a patient in convulsive siezures. Kneeling on the neck is not one of them.

It’s a legitimate restraint technique which police are trained to use!

True, but irrelevant.

I’m not exactly a bleeding-heart when it comes to police use of force. If it was up to me, those rioters in Portland would have been gassed and batoned into early retirrement on the third night at latest. I have no problem with officers applying chokes, busting heads, or kneeling on necks.

But there’s a time and a place for everything, and this wasn’t the time and place. Police are trained to use deadly force. That doesn’t mean they get to blow your brains out for jaywalking.

Derek Chauvin, in placing his knee atop George Floyd’s neck when Floyd was handcuffed and prone, was applying deadly force. It’s not as immediate as a bullet, but it kills you just as dead. Believe me, if I tied your hands behind you and set you down prone, and had three other people hold you, and put my weight on your neck, you would die. That goes double (as in double-quick) if you have heart issues, which George Floyd did.

Knee-on-neck makes a lot of sense when you have a subject on bath salts or ketamine or similar, a person who can’t be reasoned with, who displays superior physical strength and knows neither pain nor fear. A person who will set himself on fire with gasoline just so you can’t touch him. Most importantly, a person you haven’t got the cuffs on yet.

George Floyd in handcuffs isn’t the same thing. Chauvin continued the deadly force even after Floyd became unresponsive. Deadly force against an unresponsive, handcuffed subject, a person who poses no threat to anyone at that point, is a crime no badge will cover.

George Floyd died of a Fentanyl overdose.

In news about George Floyd’s post-mortem toxicology report, Floyd had about 11 ng/mL fentanyl in his blood. Fatalities have been reported as low as 3 ng/mL. So some have claimed that Floyd died of a fentanyl overdose.

People have indeed died at 3 ng/mL. But then, alcohol synergizes with opiates, and an inexperienced user who had a drink or two and tried Fentanyl would be at risk, sometimes with tragic consequences. There’s no public evidence George Floyd had been drinking. Based on his history, his opiate tolerance would have been high, and his experience lengthy. 11 ng/mL would hardly be out of line for a guy like him.

Leave out the numbers and look at the video. Say what you will about George Floyd’s state of physical and mental health, it is obvious he didn’t die of a opiate overdose. There’s no torpor, no loss of muscle tone, no unresponsiveness. To look at this sequence of events and say George Floyd died of an overdose is as ridiculous as watching the Hindenburg go up in flames and saying Hmmm…Fentanyl.

At least one guy with major medical training agrees with me. The headline is “George Floyd had fatal levels of Fentanyl in his system”, but the Doctor says:

The new documents say Floyd had a “heavy heart” and “at least one artery was approximately 75% blocked.”

Dr. Stephen Nelson, chairman of Florida’s medical examiners commission, who is not affiliated with the case, reviewed the new files and says that doesn’t mean the drugs or health condition is what caused Floyd’s death.

“We’ve all had cases where those kinds of of levels come into play. You’ve got to look at the whole picture,” Nelson said. “It’s one thing to die *with* something. It’s another thing to die *from* something.”

The documents say Baker performed the autopsy before watching the videos of police restraining Floyd, with Officer Derek Chauvin’s knee on Floyd’s neck, because Baker wanted to avoid bias in his autopsy.

In Baker’s final report after watching the videos, he ruled Floyd’s death a homicide caused by “law enforcement subdual, restraint, and neck compression.”

The FBI asked the Armed Forces Medical Examiner to review Baker’s autopsy and they agreed with his findings, writing “his death was caused by the police subdual and restraint” with cardiovascular disease and drug intoxication contributing.”

George Floyd died of homicide, not a drug overdose. That’s what a lay person intuits from the imagery; that person is correct.

You can’t call it murder!

This is a reasonable point of view. “Murder” is a very strong word and Americans mostly reserve that word for crimes of obvious intent.

Minnesota law, however, defines the offense of murder in such a way that Derek Chauvin can be guilty. There are two subdivisions under the 2nd-Degree Murder statute in Minnesota. The second subdivision covers “unintentional murders”:

Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.

2) [causes the death of a human being, without intent to effect the death of any person, while in violation of a domestic court order, i.e. violent stalker or abuser.]

Chauvin will be charged under provision 1 of this subdivision. It’s a concept known as “felony murder”, and not all jurisdictions agree on how to define it. Suppose you rob a bank, and you run down a bicyclist in the getaway vehicle (stop smirking). You may not have intended to kill the guy, but you took deadly risks in the commission of a felony, which shows a callousness paramount to a lesser form of murder. Many if not most states have a statute like this.

But what if you got mad at someone and hit him with a baseball bat, and he ended up dying of a spleen fracture? Maybe you didn’t intend to kill him, but you did commit a felony and he died as a result, so that looks like felony murder. But in some states, it is specifically forbidden to upgrade a felony assault to a felony murder; the intended crime has to be something else: robbery, arson, etc. In those states, assault is only murder if you can prove intent, and then it’s not mere assault anymore.

Minnesota is different. In Minnesota, an assault which results in an unintended death can be prosecuted as felony murder. (Note that you can’t get busted for felony murder in Minnesota if you merely assault and rape someone or participate in a drive-by shooting. This raises the argument that Chauvin could be exempted under this provision if he had only forcibly penetrated George Floyd or let off some random fire in his direction.)

So that’s the legal line against Chauvin. They have to prove he feloniously assaulted George Floyd, and they have to prove that was the cause of death.

It won’t be hard to prove. Chauvin himself seems to know this. He tried to plead guilty to Murder in the Third Degree, last year. Attorney General Barr personally scuppered the deal. That’s a tell.

It was state-sanctioned murder!

People actually said this.

Chauvin, a policeman, did five months in maximum security waiting to bail out. He faces charges that could send him away for the rest of his life. If that’s your idea of state sanction, I wonder what your idea of state persecution is.

It was a racist murder!

This is an inflammatory, unprovable, and irresponsible thing to say. Nobody knows for sure what Derek Chauvin was thinking.

There are some lines of inquiry that might shed some light. Did Chauvin have a history of complaints from black subjects? During Chauvin’s 18-year career, did any other blacks get injured or killed in Chauvin’s custody?

Did Derek Chauvin have previous run-ins or associations with George Floyd? Was Floyd a “frequent flyer”, a known troublemaker?

Did Chauvin have general reasons to be stressed? Wife having an affair, gambling debts, anything like that?

He certainly had specific reasons to be stressed. George Floyd turned what should have been a routine stop into a deadly encounter.