It Was NOT Murder
The death of Minneapolis resident George Floyd is without doubt a tragedy. It will haunt Floyd’s family and will irrevocably damage the lives of the police officer/officers involved. It will reawaken the fears of apprehensive minorities across the land. It will call into question the equity of our system of law enforcement. It will fan the flames of racial divisiveness. It will provide an excuse for the wanton criminality currently taking place in many of our cities. It will do all these things. But one thing it will NOT do is to meet the criteria for murder. Even murder in the third degree, as Officer Derek Chauvin has been charged.
The Minnesota Statutes (609.195) define MURDER IN THE THIRD DEGREE, verbatim, as: (a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years. (b) Whoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule I or II, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years or to payment of a fine of not more than $40,000, or both.
The key to understanding why the Floyd death does not constitute murder as defined in the Minnesota statutes is the requirement that a third degree murderer evinces evidence of a “depraved mind.” Having scrutinized numerous videos of the incident as well as reading the verbal transcript, I’m convinced that Officer Chauvin’s actions do not meet that criterion. To understand why I believe that, it’s necessary to take a look at a deeply ingrained medical teaching. And that teaching exists completely separate from ANY law enforcement considerations involved in this case or any other.
Complaints of difficulty breathing are extremely common in medical practice. The unavoidable human need for ready access to oxygen, and the extraordinary rapidity with which hindered access leads to catastrophe make respiration the most basic and urgent of human needs. When patients have difficulty breathing they invariably become extremely anxious, even terrified, VERY quickly. Accordingly, it’s not uncommon for medical practitioners to hear that complaint from patients. The causes of what clinicians refer to as “shortness of breath” can be everything from heart disease (congestive heart failure), lung disease (asthma, pneumonia, pulmonary embolism), neurological disease (spinal cord injury, myasthenia gravis), obstruction of the airway and trauma. All physicians in training learn the importance of rapid assessment and treatment when such a situation arises. In days gone by, medical students were taught to
immediately look at the color of the lips and fingernail beds, but this method can be unreliable, especially in black patients where it can be difficult to determine color. More recently medical technology has provided a more accurate means to assess oxygenation: pulse oximetry. A pulse oximeter uses a colorimetric test based upon the bright red color of oxygenated hemoglobin in the blood, and can actually measure the percentage of blood oxygenation, enabling the clinician to rapidly determine the correct way to manage the patient. But what if pulse oximetry is unavailable? What if nail bed and lip inspection is inconclusive? What does the clinician do in this circumstance? He/she’s got to make a split second judgement, but he/she doesn’t have a method that can be counted on. What does he/she do? In this circumstance they are taught to rely upon a very basic principle. A principle I was taught while in training, and which I would expect that every well trained clinician was taught as well: If the patient can move enough air to talk, they are able to move enough air to live. It’s that basic. Whether this principle is always, or even mostly, correct is not the point. The point is that it’s TAUGHT to medical professionals in training as a last resort to use in dire situations when no other methods are available. Now, I will admit that I don’t know for certain whether the “talking principle” is taught to police officers in training as it is to doctors in training, and I am not aware, of course, whether or not it was taught specifically to Officer Chauvin. I suspect, none-the-less, that it WAS taught to him, because of something he was recorded as saying to Floyd during the incident.
It turns out that the entire altercation was not only video recorded, but audio recorded as well. A complete transcript of the audio has already been released. Excerpts from the transcript were recently published in the New York Times (source: Furber, Burch and Robles, NYT, May 29, 2020). A key segment of that transcript documents Officer Chauvin’s response to Floyd’s complaint that “I can’t breath.” Officer Chauvin replies: “You’re TALKING fine.” (emphasis mine). He doesn’t say “breathing fine.” He says, very specifically, “talking fine.” The only way this response would make sense is that Chauvin BELIEVED that talking was evidence of adequate air exchange. Consequently, this brief exchange shows that Officer Chauvin was NOT in a “depraved” state of mind. It demonstrates that he was coherently assessing the situation and making a reasoned judgement based upon a principle he was taught and believed. It may be that his judgement was wrong in this circumstance, but it was not “depraved” as required by the Minnesota statutes for a charge of murder in the third degree.
In addition to the analysis I have given above, there are a number of other things about this tragic case that should be considered.
First, the cause of death is far from certain. The initial forensic autopsy did NOT find evidence of strangulation (there was no broken hyoid bone, among other findings). In fact it’s difficult, if not impossible to strangle someone by exerting pressure on the neck FROM ONE SIDE (the cartilaginous structures of the trachea keep it open even with significant tracheal deviation produced by pressure applied unilaterally). It’s possible that pressure on the chest rather than the neck may have been the more likely culprit. It’s even possible that the cause wasn’t pressure at all; a primary cardiac event may have occurred. In this regard it’s crucial to note that Floyd began complaining that he couldn’t breathe WHILE STANDING OUTSIDE THE SQUAD CAR AND BEFORE HE WAS ON THE GROUND. (this is also documented in the NYT article listed above). It is possible that a cardiac event may have thrown him into acute congestive heart failure BEFORE he was restrained by the officers. When he was turned onto his back he did show foaming at the mouth that would be consistent with acute congestive heart failure (by the way, the prone position, while looking awful, may be the safests method of restraint for an intoxicated individual that may be at risk for vomiting). It is known that he did have preexisting heart disease. It has also been established by toxicology that he was on methamphetamine at the time of his arrest and that is also known to be a severe stressor to the heart.
Next, it should also be kept in mind that Floyd resisted arrest. It always amazes me that the act of resisting arrest gets little attention in cases like this (Eric Garner in NYC, Michael Brown in Ferguson, Missouri, and others). Once a suspect shows that he is resisting arrest, it throws the arrest process into dangerous indeterminacy. In other words, when a suspect begins to resist arrest, ANYTHING CAN HAPPEN. He can injure, maim or kill the officer/officers involved, or he can even injure or kill HIMSELF. Control of the suspect becomes mandatory at that point, and the use of physical restraint and even chokeholds may become necessary. Although chokeholds are banned in some jurisdictions, they ARE ALLOWED by Minnesota law (source: James Lartey and Simone Weischelbaum, www.themarshallproject.org, 5/28/2020). And, as the multiple videos of this incident clearly show, Mr. Floyd was an extremely large and muscular individual and NOT one that you would want to be out of control, even in hand cuffs. The fact that Floyd threw himself to the ground to avoid being transported in the squad car is evidence that he was not behaving rationally (perhaps due to the combination of fentanyl and methamphetamine found in his blood stream) and was, in fact, a danger to himself. Physical restraint in such a dangerous situation is legal under Minnesota law and is justified as well.
So, while the death of George Floyd is a horrible tragedy in many ways, it is NOT murder. Even murder in the third degree.