The release of the police body-camera video confirms what the autopsy reports already showed: The officers had to subdue a large man resisting arrest, whose system was overwhelmed by the kind of drugs that routinely cause violence, and who died of a heart attack, not choking or strangulation.

Officers Derek Chauvin and Garrett Rolfe

Along with the tens of billions of dollars of destruction and pillaging against private and public property that has been accepted with minimal efforts to stop it, criticize it, or report it by the media; the takeover of police stations in three major cities; and the invading and occupying of a section of downtown Seattle (and other cities) along with the installing of what was widely described in every media source as a “warlord,” has been the usurpation of the public prosecutor’s role by other public officials, the media, and media-based groups like Black Lives Matter. Will the next step be the elimination of due process? That is, can the accused Minneapolis and Atlanta police officers get fair trials?

The three criminal charges against Minneapolis police officer Derek Chauvin in the death of George Floyd appear to have been manufactured without regard to either the facts of the case or the law. The same goes for the prosecution of Atlanta police officer Garrett Rolfe in the death of Ray Shard Brooks. At the very least, criminal trials in both cases—if it will be possible to convene such trials—will be complicated and multi-layered. Mr. Chauvin has more than one substantial avenue for his defense. And Mr. Rolfe has self-defense and defense of the public as two obvious defenses. And even with the national uproar over the Floyd and Brooks incidents, not one allegation has been made that either incident was racially motivated, nor that either officer had a history or practice of such behavior. That is, under the established but soon-to-be-defunct standard of racial discrimination, it has not been alleged that either incident was motivated by or occurred because of race.

In all state criminal investigations states concerning alleged misconduct by local police officers (and other local public officials) the obvious question is always whether local officials can investigate their own, especially concerning alleged crimes arousing substantial public controversy. The solution has been to transfer the cases away from local district attorneys and police departments to state attorneys general and state bureaus of investigation. An essential part of that solution has been the necessity of taking time for a full, complete, considered, and unemotional investigation.  That has now been repudiated in Minneapolis and Atlanta.

Minneapolis: “Speed is important.”

Floyd died on May 25. On May 26, the millennial mayor of Minneapolis, Jacob Frey, saying that “being Black in America should not be a death sentence,” fired the four officers without due process. He said nothing about the violence that had already broken out in the city, which went on to last five nights. On May 27, Minnesota governor Tim Walz, said that “our feelings of anger, anguish, and disillusionment are justified.” On May 27, Minneapolis mayor Jacob Frey usurped the prosecutor’s public duties by declaring that “if you or I had done it, we would be behind bars right now.” On May 29, the local district attorney, Michael Freeman who said that he had “never” previously charged a case so quickly, responded to Frey and the media by filing criminal complaints against Minneapolis police officer Derek Chauvin. By that date, the vociferous demand for murder charges against Mr. Chauvin was national. Five days later on June 3, Minnesota attorney general, Keith Ellison, filed entirely different complaints. Although asserting that the investigation of the case was “ongoing,” Ellison also said that he was filing charges because “speed is important.” He also went well beyond the case and his public office by expounding on the need “to begin rewriting the rules of a just society.”[1] Beyond prosecution, “new policy and legislation” as well as the involvement of “the world of arts and entertainment” and “all who dream of a justice we haven’t had yet” must be mobilized for “the change we need,” he said. This expansiveness on everything in human affairs will presumably lead to a motion for a dismissal of the case by Mr. Chauvin’s attorney on the grounds that Ellison was politically motivated and biased.

Mr. Chauvin is now charged under Minnesota law with a bewildering grab-bag of three versions of the same incident: felony murder (2d degree murder) based on the charge of 3d degree assault, 3d degree murder (a recent invention that is law in only three states) based on a dangerous act and Mr. Chauvin’s depraved mind, and culpably negligent (involuntary) manslaughter creating an unreasonable risk of causing the death or great bodily harm to Floyd. That is, neither of the murder charges allege that Mr. Chauvin intended to kill Floyd. And if the case proceeds to trial on all three charges, it will require the actual trial prosecutor to ask the jury to pick from this buffet of charges, thus, presenting himself or herself as lacking the necessary confidence in and control of the facts that every prosecutor must present to the jury.

Per the two charging complaints in the Mr. Chauvin case, Floyd successfully used a counterfeit $20 bill to make a grocery-store purchase.[2] Store personnel called police, and two arriving officers attempted to arrest Floyd. Per the autopsy report, When Floyd resisted both before and after being handcuffed, two additional officers, including Derek Chauvin, arrived to render assistance. While standing, Floyd repeatedly said that he could not breathe and that he was “claustrophobic.” He refused to get into the police car. Mr. Chauvin and the other officers unsuccessfully attempted to push and pull Floyd into the car. Whereupon, Mr. Chauvin pulled Floyd out of the car. The complaints continue and state “that Mr. Floyd went to the ground face down and still handcuffed” (the complaints do not say that he was pushed to the ground). The complaints then start the time clock that led to the “8 minutes, 46 seconds” of Floyd being held on the ground. While two of the other officers held Floyd down, Mr. Chauvin “placed his left knee in the areas of Mr. Floyd’s head and neck.” To Floyd’s repeated protests that “I can’t breathe” and “I am about to die,” the officers retorted to Floyd that he, Floyd, was “talking fine.”

What was Floyd’s physical condition and ability to resist at the scene? He had an extensive and violent criminal record, including armed robbery for which he was sentenced to five years imprisonment in 2009 in Texas.[3] Although one tends to think that the officers responding on the spot did not know of that criminal record, it has not been revealed how well Floyd was known for peacefulness or possible lack thereof, including to local officers, in the neighborhood. (Will Mr. Chauvin’s defense attorneys be allowed to get Floyd’s violent history into evidence as a way of showing how he actually behaved at the scene?). According to the autopsy report, Floyd was 6 feet, 4 inches tall and weighed 223 pounds. In his 911 call to the police, the grocery store clerk said that Floyd was “awfully drunk.”[4] The June 1 final autopsy report, reports positive blood and urine screens for fentanyl, methamphetamine (“ice”), THC (marijuana), and morphine, and “presumptive positive” urine screens for amphetamines (“speed”), cannabinoids, and fentanyl, of which ice and speed are well known to incite and cause violence.[5] Although never acknowledged in today’s national commercial marketing, marijuana can cause “anxiety, panic” and “can result in an aggressive outburst.”[6] It is not surprising that it took four men to subdue him.

How did Floyd die? Although widely assumed, he did not die of a “chokehold”; that is, his windpipe in the front was not blocked. As noted by the medical examiner in his report, Mr. Chauvin administered a “neck compression,” a dangerous but recognized police tactic, that entails pressure on the side or back of the neck. The second complaint (June 3), flatly asserts that Floyd died of a heart attack:

While the ME [medical examiner] did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd has arteriosclerotic and hypertensive heart disease, and toxicology resting revealed the presence of fentanyl and evidence of recent methamphetamine use. The ME opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions, and the presence of the drugs contributed to his death.

On June 1, the Floyd family commissioned an “independent” autopsy, the claimed results of which are alleged to have shown that Floyd died of “asphyxiation due to neck and back compression.” This writer has been unable to find any written report of that autopsy and is unaware that any public office or media source has posted such a report. So, it has to be wondered whether the two conductors of the independent report actually had access to Floyd’s body. The “independent” autopsy was conducted by Dr. Allecia M. Wilson of the University of Michigan and Dr. Michael Baden, a former New York City medical examiner. Dr. Baden had previously been hired to do “independent” autopsies in two other controversial cases: the 2014 cases of Eric Garner in New York City and Michael Brown in Ferguson, Missouri.

But what about the on-the-neck videos? Without a doubt, it certainly looks brutal, especially with the passionless and distant look on Mr. Chauvin’s face. But complete body-camera videos have never been released. In a trial, a jury will have to consider the entire incident, not just the end-of-the-incident videos that politics and the media have concluded is all that is necessary for a guilty verdict.

As of what is publicly known now, the facts presented by the prosecutors are that four police officers had to subdue a large man resisting arrest, whose system was overwhelmed by the kind of drugs that routinely cause violence, and who died of a heart attack, not choking or strangulation.

Per the autopsy report and both criminal complaints, Mr. Chauvin did not intend to kill Floyd. The case will turn on what his intent was with his kneeling Floyd’s neck in the last two-three minutes. Was Floyd already sufficiently subdued; was the kneeling necessary? If he was culpably negligent in kneeling on Floyd and that negligence caused Floyd’s death, he may be guilty of involuntary manslaughter. If not, Floyd’s death may have been an accident.

The case is now even more now complicated by the charging as aiders and abettors, also by public demand, of the other three officers, the only witnesses who were there for the whole incident. In light of those charges, none can be compelled to testify in the Chauvin trial. There remains, however, the possibility—or necessity—that the prosecution will offer some or all of them pleas to lesser offenses in exchange for their testimonies.

Atlanta: “Murder”

Seventeen days after Floyd’s death, Atlanta police officer Garrett Rolfe shot and killed Ray Shard Brooks on June 12. The public demands concerning and reaction to the incident has been the same as that to Floyd’s death. Brooks, a man with an extensive criminal history including violence, had passed out while his car was in the drive-thru lane of a Wendy’s restaurant.[7] After conducting standard tests for field sobriety, Mr. Rolfe and Officer Devin Brosnan told Brooks that he was unfit to drive and tried to arrest him. A forty-minute video of the encounter shows that the two officers were professional, polite, and even deferential to Brooks.[8] Punching Mr. Rolfe, Brooks fought their attempt to handcuff him and then out-wrestled and overpowered both officers. Brooks grabbed Officer Brosnan’s taser, pointed it at officers, and ran away. Mr. Rolfe fired his laser, hitting Brooks, as Brooks was fleeing. As he ran, Brooks turned and fired the taser he had taken from Mr. Brosnan, a deadly weapon under Georgia’s law, at Mr. Rolfe who responded by shooting Brooks three time with his handgun. Mr. Brosnan came forward and put his foot on Brooks to make sure that he was subdued.

Similar to Mr. Chauvin’s case, the main charge against Mr. Rolfe is with felony murder based on the underlying charge that he committed an aggravated assault on Brooks. Mr. Brosnan is charged with aggravated assault. Both are charged with the novel and abstract “violation of oath of office,” which is a criminal law in Georgia. Ga. Code 16-10-1. It is safe to conclude that such a criminal charge, which is rarely filed for any criminal purpose, has almost never been filed concerning a street incident involving a police officer. “Oaths of office” statutes occur at every level of government, and apply, like in Georgia, to “any public officer,” not just police officers. They are usually reserved for white-collar matters like treason or profiting from public office.

In retaliation for Brooks’ death, the next day the Wendy’s was burned down, and among the arsonists was Brooks’ girlfriend, who has been charged. Violent and armed demonstrators have occupied the site ever since, as well as in other parts of the city. In an attempt to have the case considered in an appropriate manner, the Atlanta Police Department, on the same day, June 12, as Brooks’ death, referred Mr. Rolfe’s case to the Georgia Bureau of Investigation (GBI). On June 14, the national NAACP said that Brooks’ death was a consequence of “systemic racism.” On June 15, Atlanta mayor Keisha Bottoms called Brooks killing “murder.” On June 17, five days after the incident, Paul Howard, the Fulton County (Atlanta) district attorney went ahead and filed charges against both Messrs. Rolfe and Brosnan. The affidavit for the arrest warrant was filed in court by Mr. Howard’s own investigator, not by an Atlanta police officer. Later that same day, the GBI responded that it had been continuing its investigation of the incident and had not been “consulted” or informed of District Attorney Howard’s decision to file charges.

Felony murder and due process

In response to political and media insistence, both Messrs. Chauvin and Rolfe have been charged with felony murder, which is defined as an unintentional killing as the result of the intentional commission of another serious felony, in both cases, a felony assault. Such an employment of the “felony murder rule,” is uncommon, if not novel. The usual and best example of felony murder is death by arson: Someone intended to burn down a building but did not know that a person who died in the blaze was in the building (distinguished from an intentional killing by means of arson, which is defined as first-degree murder).

A fundamental requirement of the felony murder rule is that the underlying felony, in these cases, assault, must be separate from the killing. If the two acts are proven to have merged—i.e., there was only one act, not two—then felony murder does not apply. In these two cases, the videos themselves show that the deaths were the final result of a continuous buildup of on-the-scene, perceived, and known circumstances and developments. There was no element like the unknown person in the burning building. Felony murder has been abolished in England, its country of origin. And, again, neither officer has been charged with intent to kill. Further, as to the viability even of the assault charges, the videos show that the incidents began with apparently lawful attempts, not assault, to arrest Floyd and Brooks, both of whom violently resisted. Both officers have the defense of self-defense and defense of the public.

In addition, there are special rules for police officers. A police officer may not use deadly force to prevent a misdemeanor or flight from a misdemeanor. But he may do so to make an arrest of or prevent the flight of a felon or if he reasonably believes that a fleeing felon poses a serious risk of harm to himself or to others.

In these two cases, politicians, the media, and Black Lives Matter would not allow any charge that did not include the word “murder.” But, if Messrs. Chauvin and Rolfe are guilty of anything, they are guilty of negligent, involuntary manslaughter. And if the two were not police officers, no prosecutor would have charged them with anything but manslaughter. Have they thus been denied the equal protection of the laws?

It has never been brought up by politicians and the media, but can Mr. Chauvin—the most despised man in the country (in the world?)—get a fair trial in Minneapolis, or really anywhere in this country? Just seating a jury may turn out to be a problem of historic uniqueness. During the jury selection process, people in the jury pool will first be asked if they know of the case and have formed an opinion about it. With the answer to that question more than obvious, it is conceivable that a jury of twelve and two alternates could not be seated. Even more fundamental, what citizens subpoenaed for the jury pool in this case will be free from the terror for the safety of themselves and their families if selected to serve on the jury? Surely, no one will have any confidence that he or she can possibly be protected in current Black Lives Matter and Defund the Police America. These considerations apply as well to the trial of Garrett Rolfe. And they apply as well to the judges in both cases.

In Baltimore in 2015, six Baltimore police officers were charged by the local prosecutor Marilyn Mosby, who remains in office today, in connection with the death by spinal-cord injury of Freddie Gray a week after having been transported in custody in a police van. Rioting, looting, and arson then occurred in Baltimore. Ms. Mosby filed the charges and had the officers arrested 18 days after the incident. Three of the officers were found not guilty by the judge at bench trials; after a hung jury, a fourth was never retried. Whereupon, Ms. Mosby dismissed the charges against the remaining two officers. Baltimore never recovered. In 2019, it had 342 homicides, the most since 1993, and even more than the 306 homicides in New York City—which has thirteen times the population of Baltimore.[9]

Four of the first eight Amendments in the Bill of Rights concern due process, that is, the rights of the criminally accused. Two more, the Third and Seventh, concern related civil guarantees. Today, of course, both the motives and the acts of the Founders are abominated. Still, their ideas, however deficient, were attractive enough to have been included later in the Fourteenth Amendment’s equal protection and due process of law. But is the next Black Lives Matter accomplishment to be the elimination of due process?

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Notes:

[1] “Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floyd, three former officers with aiding and abetting 2nd-degree murder,” Office of Minnesota Attorney General Keith Ellison

[2] See the complaints here and here.

[3] “A new start turns to a tragic end for George Floyd, who moved to Minneapolis determined to turn his life around after being released from prison in Texas,” The Daily Mail (UK).

[4] “Minneapolis police release 911 call that led to encounter with George Floyd,” CNN.

[5] See the autopsy report here.

[6] “Learn About Marijuana,” Alcohol and Drug Abuse Institute.

[7] “Rayshard Brooks was on probation for four crimes – including cruelty to children – and faced going back to prison if charged with a DUI, when he was found asleep and intoxicated at Wendy’s drive-thru,” The Daily Mail (UK).

[8] See the video here.

[9] “Baltimore breaks city record for killings per capita in 2019,” WTOP; “Baltimore grapples with ‘unacceptably high’ homicide rate,” CNN.

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