Rounds Two And…Three?

Like a lot of Twin Cities residents, I’m eyeing next spring – sometime after the scheduled March opening of the Derek Chauvin trial – nervously, remembering that the LA riots (at least the ones everyone remembers) began not with the pummeling of Rodney King, but with the acquittal of the four officers involved.

And here’s a fearless prediction (one I’ve already made): Chauvin will be acquitted of Second Degree Unintentional Murder – not because of any legal cop-fu, but because while I’m not a lawyer, I don’t think you need to be a lawyer to see why it’s going to be very hard to show that Chauvin was – check the emphasis, taken from the statute for 2nd Degree Unintentional Murder…:

(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; or

Is a cop responding to a call “the commission of a felony?” I can see Alondra Cano believing that – but Ellison? Someone who’s ostensibly been to law school?

Unless there’s some bodacious lawyer-fu in store, or the Attorney General’s office plans on tampering with the entire witness pool, I’m just not seeing it.

But does the concept of qualified immunity mean there could be yet a third adverse verdict for George Floyd’s supporters and the Twin CIties’ far left’s many professional and amateur hooligans?

Was it “clearly established” on May 25 that kneeling on a prone, handcuffed arrestee’s neck for nearly nine minutes violated his Fourth Amendment rights? The issue is surprisingly unsettled in the 8th Circuit, which includes Minnesota.

The U.S. Court of Appeals for the 8th Circuit blocked civil rights claims in two recent cases with broadly similar facts: handcuffed detainees who died after being restrained face down by several officers. Unlike those detainees, Floyd was not actively resisting at the time of his death, except to repeatedly complain that he could not breathe.

While that distinction could make a difference in the constitutional analysis, we can’t be sure. Even if the 8th Circuit concluded that Chauvin’s actions were unconstitutional, it could still decide the law on that point was not clear enough at the time of Floyd’s arrest, meaning Chauvin would receive qualified immunity.

The 8th Circuit could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut. To defeat qualified immunity in this case, says UCLA law professor Joanna Schwartz, a leading critic of the doctrine, Floyd’s family “would have to find cases in which earlier defendants were found to have violated the law in precisely the same way.”

The whole piece is worth a read – and the whole concept of seriously reforming qualified immunity is something conservatives need to take an enlightened lead on.

Because it’s for damn sure the other side won’t.

14 thoughts on “Rounds Two And…Three?

  1. This will definitely be interesting.

    There have been a number of things pointed out since the “family’s” requested second autopsy by coroner for hire Michael Baden, conveniently concluded that George died from asphyxiation. But, contrary evidence seems to indicate that, high on fentanyl, he was complaining that he couldn’t breathe before he was ever put on the ground.

  2. Exactly right, hoss.

    He was freaking out, and very probably hyperventilating. Now you can say the coppers should have handled the take-down more carefully, and I’d agree with that. You could also say Chauvin didn’t have to put his knee on Floyd’s neck, and I’d agree with that too.

    Forcing a guys head down with a knee, or a boot is meant to humiliate…cops do it when they’re pissed off at you, but outright kicking your ass isn’t possible. The transcript tells us Floyd was using passive-agressive tactics to fight the coppers, ie; “I’m not resisting! (shove)…yes sir, I’ll do what you say (twist arm away). He pissed the cops off.

    But it was an accepted tactic at the time. And I’m confident the actual body cam footage is going to show Floyd was being combative.

    I read that a quartet of attention seeking, scumbag lawyers have signed on to help Hakim X, pro bono. It’s not gonna help, unless Chauvin becomes the first lynching in 100 years.

  3. Agreed both that murder 2 is probably an overcharge that will almost certainly backfire, and that QI doctrine is a mess bound up in legal precedent where the legislature ought to step in. What I would say here, judging by the toxicology reports, is that what most likely happened is that officers who were “subduing” a cuffed and soon unconscious suspect missed the signs that he wasn’t getting oxygen.

    One thing to note, though, is that the firing of the officers was done under the pretext that such a submission hold was not approved by the MPD, and that Chauvin had a litany of complaints against him. A glance at their policies seems to corroborate both. That ought to be good at least for a few million for his kids and ex-wife/whatever.

  4. Well, now, hold on a minute there, Bikebubba. The neck restraint was banned under the Minneapolis Police Department Use of Force policy when it was amended on June 9th.

    But at the time Floyd died, the neck restraint was taught by instructors and allowed for use against subjects that were “actively resisting.”

    “Actively Resisting” is defined as: “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.”

    If the neck restraint was an approved tactic at the time, and it was used in an approved manner in an approved situation, then kneeling on a guy’s neck is not an “assault” on Floyd so there’s no “felony” being committed by the officer and therefore the death cannot have been Second Degree Murder.

    Everything depends on whether Floyd was “actively resisting” (so the hold could continue) or had stopped “actively resisting” so the hold should have ended. Supreme Court case-law mentioned in the Use of Force Policy suggests the officer’s on-the-scene judgment should prevail over armchair experts reviewing a tape years later.

    In this case, where there are four cops who all thought it was an approved tactic and actively cooperated in holding Floyd down, a conviction is going to require convincing a jury that the officers all conspired together to commit a felony assault so they could all help kill Floyd. With the evidence I’ve seen so far, I think that’s a hill too far.

  5. Is a cop responding to a call “the commission of a felony?” I can see Alondra Cano believing that – but Ellison? Someone who’s ostensibly been to law school?

    You really think Ellison cares about a rule of law? Really? Did not 2nd degree charge prove Hakim does not give a crap about the rule of law? Geez!

    I have friends who just put their houses up for sale in MSP. They are not willing to wait for round 2, which is coming as sure as death and taxes.

  6. You really think Ellison cares about a rule of law? Really?

    Of course not.

    But he (ostensibly) knows the law he’s flouting, as opposed to someone for whom it’s all just stuff they heard on Law and Order when they were kids.

  7. Imagine this news story:

    County Attorney Mike Freeman announced that four experienced prosecutors had volunteered to help convict a Somali police officer accused of killing a White woman in an alley.

    “They are volunteering to help put this Black man behind bars for what he did,” Freeman said. “Won’t cost the taxpayers a dime. We’ll get some justice this time, for sure.”

  8. Pingback: In The Mailbox: 07.14.20 : The Other McCain

  9. Round two of riots. Trump winning.
    Round three of riots. Jury doesn’t send back the correct verdict.

    Save your plywood.

  10. Agree 100% with you, Mitch, and my position has been that way from the beginning. I’m not a conspiracy theorist, but if I were, Keith X Ellison’s attempt to call this a felony homicide could be construed as deliberate incompetence, sure to garner an acquittal and make Round Two even more of a shitstorm than forecast.

  11. Fresch, invest in hurricane shutters. Plywood is flammable, if it’s years old.

  12. Qualified Immunity is a relevant topic in these times, but it’s not relevant to the Floyd case in any way.  That’s a bad article that Sullum writes with the Floyd case as a context for QI.

    Qualified immunity is a principle of civil litigation and precedence, so it will have no bearing on the criminal case at all.

    Floyd’s family is not going to get denied in civil court over qualified immunity because the city of Minneapolis is going to settle with Floyd’s family for Damond money, IE, $20 million, and the boiler plate language of the settlement will indemnify Chauvin and the other 3, and the plaintiffs don’t care about bankrupting Chauvin, Lane, Thou, and Keung at that point.

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