Why Derek Chauvin May Get Off His Murder Charge

There is still much to the case that remains unknown. As new information emerges, we should adjust our view accordingly. But a close inspection of all current information does not point to a murder charge being appropriate.

1. George Floyd’s symptoms started well before being restrained to the ground

From the original government complaint, we know that he was falling to the ground and claiming he couldn’t breathe while still standing up.

Mr. Floyd stiffened up, fell to the ground, and told the officers he was claustrophobic […] Mr. Floyd did not voluntarily get in the car and struggled with the officers by intentionally falling down, saying he was not going in the car, and refusing to stand still […] While standing outside the car, Mr. Floyd began saying and repeating that he could not breathe.

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.

2. The Minneapolis Police Department policy authorizes neck restraint for actively resisting suspects

The Minneapolis Police Department (MPD) recognizes two types of resistance to arrest. There is active resistance, defined as follows:

a response to police efforts to bring a person into custody or control for detainment or arrest. A subject engages in active resistance when engaging in physical actions (or verbal behavior reflecting an intention) to make it more difficult for officers to achieve actual physical control.

And passive resistance, defined as follows:

a response to police efforts to bring a person into custody or control for detainment or arrest. This is behavior initiated by a subject, when the subject does not comply with verbal or physical control efforts, yet the subject does not attempt to defeat an officer’s control efforts.

Passive resistance is when a suspect is non-compliant in an arrest, but will not act to stop an officer from enacting an arrest. Imagine a child in a supermarket who has a meltdown and drops to the floor — this is passive resistance, as guardian can easily pick up the child. Now imagine a child who not only drops to the floor but pulls against their guardian. This is active resistance.

The MPD allows the use of force in action resistance. Relevantly, the MPD allows neck restraint. It is defined as:

Non-deadly force option. Defined as compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints.

There are two types of neck restraint. What we are interested is in conscious neck restraint, defined as:

The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure.

The Conscious Neck Restraint may be used against a subject who is actively resisting.

We know from the original government complaint that Floyd was actively resisting, because they admit as much:

Mr. Floyd actively resisted being handcuffed.

We also know from the original complaint that he resisted again:

The officers made several attempts to get Mr. Floyd in the backseat of squad 320 from the driver’s side. Mr. Floyd did not voluntarily get in the car and struggled with the officers by intentionally falling down, saying he was not going in the car, and refusing to stand still.

While standing outside the car, Mr. Floyd began saying and repeating that he could not breathe. The defendant went to the passenger side and tried to get Mr. Floyd into the car from that side and Lane and Kueng assisted.

The defendant pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed

The three officers were unable to keep him in the police car. The little video evidence we have indicates that there was a struggle. “The defendant pulled Mr. Floyd out of the passenger side of the squad car” likely because they were unable to close the squad car door due to his resistance. A longer video was posted by the popular activist Shaun King which indicates a struggle. Shaun King believes this video shows the officers beating Floyd, however the government (who has access to the body cams) did not write this in their complaint (which they would, as it would help their case).

There appears to be two cases of active resistance, including immediately prior to prone restraint. As such, neck restraint was permissible in order to control George Floyd. Remember that the MPD guideline is to use light to moderate force. An officer placing a knee on a suspect’s neck does not mean he is exerting full force, and there is evidence that light to moderate pressure was used on Floyd. Given that Floyd was saying he couldn’t breathe while resisting being placed in the police car, the officers could not reasonably believe that light to moderate pressure would cause his proclaimed symptoms.

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.

(Note: the original page for the MPD detailing use of force has been wiped. Here is an archive hosted by — for some reason — the San Francisco police department. And here is an archive of the archive, just in case.)

3. The officers reasonably determined that George Floyd was suffering from Excited Delirium

In 2018, the MPD published a report on the use of ketamine in excited delirium. Attached to this report is an authoritative document on excited delirium entitled “White Paper Report on Excited Delirium”. A white paper is an authoritative report. The MPD attached this white paper because it was considered by the MPD the most authoritative document on excited delirium syndrome (ExDS).

The report specifies the nature of ExDS, the symptoms of ExDS, as well as what police officers should consider when dealing with those they suspect of suffering from ExDS. The report is long. First, let’s backtrack and establish that the officers did in fact suspect excited delirium. WaPo hosts the original government complaint:

Officer Lane said, “I am worried about excited delirium or whatever.” The defendant said, “That’s why we have him on his stomach.”

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.

There are also symptoms that we know in hindsight, but which the officers did not know. For instance, George Floyd had a history of stimulant abuse, as detailed in his arrest log, with four previous arrests involving drugs.

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4. Neck restraint is common in ExDS, and ExDS suspects have died in all types of restraint

As noted earlier, the government complaint against Chauvin states that the officers suspected excited delirium:

Lane asked, “should we roll him on his side?” and the defendant said, “No, staying put where we got him.” Officer Lane said, “I am worried about excited delirium or whatever.” The defendant said, “That’s why we have him on his stomach.”

This excerpt is of twofold importance. First, it demonstrates that two officers suspected excited delirium. Second, it demonstrates that Chauvin was restraining Floyd in this position because he suspected excited delirium (“that’s why we have him on his stomach”). Restraining an individual on his stomach is common in ExDS encounters. This is called “prone restraint”. In fact, it is often the recommended form of restraint until the officers can safely put the suspect in a different position:

As mentioned before, people experiencing EXD are highly agitated, violent, and show signs of unexpected strength so it is not surprising that most require physical restraint. The prone maximal restraint position (PMRP, also known as “hobble” or “hogtie”), where the person’s ankles and wrists are bound together behind their back, has been used extensively by field personnel. In far fewer cases, persons have been tied to a hospital gurney or manually held prone with knee pressure on the back or neck.

Two years ago, the 8th circuit ruled on a case involving both prone restraint and ExDS, writing that officers are entitled to qualified immunity in cases involving prone restraint, specifically denying 4th amendment privilege against excessive force:

Officers determined that keeping Layton in a prone position was best given his continued resistance, and Baker pressed Layton’s shoulders to the ground while Groby held Layton’s thighs […] this court has not deemed prone restraint unconstitutional in and of itself the few times we have addressed the issue […] Under these cases, there is no clearly established right against the use of prone restraints for a suspect that has been resisting.

Now, qualified immunity is just that: qualified. The court ruled that prone restraint is not necessarily excessive in suspects who have been resisting arrest, even if that suspect is experiencing ExDS. This does not mean prone restraint is always justified, but that it isn’t always unjustified. {snip}

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5. George Floyd had a potentially lethal amount of fentanyl in his system, a history of drug abuse, and two serious heart conditions — resulting in an unusually fragile condition

George Floyd’s autopsy sheds light on his state of cardiovascular health. He was found to have arteriosclerotic heart disease and hypertensive heart disease. Additionally, he was found to have the following drugs in his system:

• Fentanyl 11 ng/mL 2.
• Norfentanyl 5.6 ng/mL 3. 4-ANPP 0.65 ng/mL 4.
• Methamphetamine 19 ng/mL

This level of fentanyl is dangerous. One review of fentanyl overdoses found a median amount of ng/mL in an overdose to be approximately 10 ng/mL:

Despite the ubiquitous presence of multiple drugs in these decedents, the effects of fentanyl were evidently so strong that there were no statistical differences in the fentanyl level (mean and standard deviation) with or without the presence of these co-intoxicants. The range of fentanyl levels was wide, from 0.75 to 113.00 ng/mL, with an average of 9.96 ng/mL.

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6. There is reason to believe Chauvin’s knee-to-neck restraint did not exert a dangerous amount of force

From the footage we have of Floyd’s arrest, we see at 2:11 Floyd is able to lift his head and neck despite the placement of Chauvin’s knee. This occurs exactly at 2:11 through 2:12, and only for a moment. Yet this act would be impossible were Chauvin exerting a dangerous amount of pressure with his knee.

Remember what we know about ExDS: the suspect struggles with restraint regardless of restraint used. That Chauvin has his knee in a position to exert force if the suspect tries to flee does not mean that he is exerting force the entire time. The knee is there to prevent Floyd from getting up, not from pushing Floyd into the concrete. This is a preventative force position rather than an aggressive force position.

It is, of course, impossible to know just how much pressure Chauvin is exerting in this encounter. He could be exerting only as much force as is required to keep him down. And he could be exerting maximal force. How can we know?

Well, there is one study on the weight of a single-knee and double-knee restraint on the body. On average, single-knee restraint distributes around 70 lbs of force. But Chauvin, for most of the arrest, was engaged in a double-knee restraint position. According to the study, the double-knee position (which Chauvin uses) produces a median force of 48 kg, or 106 lbs. This force would be distributed between the side of his neck and back, unless Chauvin were consciously applying more force in one of these locations. If the force applied were split evenly, that is only 53 lbs of exertion spread across the side of Floyd’s neck. This amount of force, while uncomfortable, is not enough to stop a suspect from breathing and not enough to cut off blood flow to the brain.

But let’s take a look at that study again. The study concludes that the double-knee weight was exactly 23.3 kg plus 24% of a specific LEO’s body weight. Some preliminary information indicates Chauvin is 156 lbs, which is a reasonable estimate, as the footage shows him to be thin and of average height. This means Chauvin was exerting 90 lbs in the double-knee position, for 45 lbs exerted spread across the back and the neck (implying balanced force). 45 lbs is definitively insufficient to restrict breathing or blood-flow in the neck. The other officers are of a similar build.

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