By BRANDON BIRMINGHAM
Dallas County Criminal Court District
A good friend of mine texted me about two months ago – no particular reason, just to catch up on things like we do every so often. I had one of those guilt-ridden moments this morning when I realized I never called him back. I started to reply and noticed the date was March 12 and thought of how different our world is now. I hadn’t heard of COVID-19 back then, and certainly didn’t think my court would ever be shut down because of a Pandemic, but here we are. I texted him, “Lots of things have changed since your text…others remain exactly the same. Call me when you can.”
What’s changed? Video conferencing, face masks and shelter-in-place orders. What’s the same? The horrifically weakening cries of “I can’t breathe” fell on the deaf ears of police. George Floyd in 2020. Eric Garner in 2014.
The killing recurs.
For this month’s column, we’ll discuss the major issues that will likely confront future Minnesota jurors in the murder case against police officer Derek Chauvin.
2nd degree murder requires that the prosecution prove that Chauvin caused Floyd’s death while intentionally inflicting “substantial bodily harm.” There is no requirement that Chauvin intended to kill Floyd; only that he intentionally inflicted “substantial bodily harm,” thereby causing Floyd’s death. How will jurors know if Chauvin’s intent was to cause “substantial bodily harm?”
Floyd tells them better than anyone, “I can’t breathe” nearly 20 times, “Please” nearly 10 and “You’re gonna kill me” three times. After his words stopped, jurors will hear the sound of his descendingly softer, muffled cries. Most powerfully, they will see and hear 173 seconds of deafening silence.
Jurors will consider the words of the bystanders, too, “Let him breathe” about 10 times; “Show me his pulse” nearly a dozen; “You got him down, at least let him breathe,” “You’re stopping his breathing,” and “He’s not moving” among others. In addition to the literal words, jurors will also consider the increasingly concerned and panicked tone of their delivery.
If Jurors think the act itself – the body-weighted knee to the neck – is a dangerous act capable of inflicting substantial bodily harm, they’d be right in line with Chauvin’s training, “Police are trained that this type of restraint with a subject in a prone position is inherently dangerous,” according to the official Criminal Complaint. And let us not leave our common sense at the door, either. Jurors don’t not need a police manual to tell them that a body-weighted knee to the neck is “inherently dangerous,” if even only for one second, let alone 526.
Chauvin’s defense? Minnesota law authorizes officers to use deadly force in three situations: 1) to protect the officer from death or great bodily harm; 2) to arrest or capture a person the officer reasonably believes committed a felony involving deadly force; or 3) to arrest or capture a person the officer reasonably believes committed a non-deadly felony and will cause death or great bodily harm if the apprehension is delayed. The degree of force an officer may lawfully use in effecting an arrest in these circumstances is limited by – and here’s the key – what a “reasonable peace officer” in the same situation would believe is necessary. If it’s not necessary, the killing is not legally justified.
Floyd was unarmed, handcuffed, and held down by three officers. He was already “captured.” He wasn’t dangerous. He couldn’t move. He couldn’t escape. He couldn’t even breathe. And yet, even when he became still and lifeless, Chauvin’s body-weighted-knee remained.
Since the law on self-defense singularly focuses on whether it was necessary at the time of the killing to use deadly force for the three reasons quoted above, the question for jurors thus becomes who was Floyd threatening with “death or great bodily harm” for the 173 seconds he was unresponsive? The bystanders begging to let him up? The female identifying herself as a firefighter demanding to check him for a pulse? The officers on top of him?
These future jurors have no idea how powerful and long-lasting their answers to these questions will be: They have the final say-so about what a “reasonable peace officer” in the same circumstances views as a “necessary act” in cases like this. Their verdict will reverberate from police academies to city halls, squad cars to courtrooms and legislative chambers to ballot boxes for generations to come.
The Honorable Brandon Birmingham presides over the 292nd District Court.