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It Wasn’t Our Dog…
When plaintiffs file a wrongful death lawsuit, they know that the defendant will defend the case just like it was a dog bite case: it wasn’t our dog, it didn’t bite you, if it did bite you, you deserved to get bit, and what are you hollering for, because the dog bite didn’t cause your injury. Now, substitute any kind of tortious or negligent act for “dog bite” and you have the defense bar’s approach to wrongful death cases.
I handled a nursing home wrongful death case in 2014 that took nine years to get to trial. Every conceivable way a case can be delayed, this case was. The negligence in the case was horrible. The 88-year-old victim, whose daughter was a nurse, and had been the Director of Nursing at that institution, testified that her mother was terribly neglected. The medical records demonstrated that she went 26 days without a single nursing note during a period of time where she lost nearly 20 pounds of body weight.
At trial our case was simple: neglect caused her death. The judge told me my closing argument was one of the best he’d heard.
We lost.
In part, we lost because the defense had a slick expert who was an exceptionally gifted liar. But mostly we lost because of causation. While we made the case perfectly that the abuse heaped on the woman by the nursing home personnel caused her to stop eating and wish for death, at the end of the day, she didn’t eat. While we saw the causation as clear, as did our expert physician and nurse, the jury did not. The defense had a simple case too: she was old, she was going to die anyway.
In a civil case, all you have to do is show that your theory is more likely. You don’t have to prove it beyond a reasonable doubt (although many trial lawyers would tell you to win a malpractice case you have to have much more than a “more likely” and more like a “no other way it could have happened” standard). Malpractice cases are rarely defended on the standard of care. If you’re a nursing home defense lawyer, you can’t really argue that it’s okay to let a patient sit in a nursing home and not get seen for 26 days. So instead, you argue the ace-in-the-hole of every defense lawyer: causation.
Causation requires both factual causation (that the negligence caused the injury in fact) as well as proximate causation (that the injury that occurred was foreseeable as a natural and probable result of the negligence). Law school students have struggled with these concepts for the last 100 years, and most lawyers can’t explain these concepts in under an hour. But the bottom line is as the plaintiff you have to prove that the act of the defendant caused the injury the plaintiff is complaining about.
In criminal law, the burden is even steeper. It is not enough to show that the murderer had access to the house, hated the victim, owned a gun, and had said he would kill the victim. The prosecutor must show that in addition to that, the evidence puts him at the scene, at the time of the killing, and that some physical evidence ties him to the crime. Gunshot residue on the clothing. Hair and fiber. And the best of all: DNA. Evidence is key. There are no shortcuts in criminal law.
A friend of mine who is a former prosecutor has said that the worst witness he ever put up in a murder trial was a pathologist who worked for the medical examiner. English was not his native language. When asked on the stand what caused the death of a victim suffering a gunshot wound to the head, he said “Ah big ah hole, head, belly belly daid.” As if there could be quantitative measures of the degree of being dead. I suppose a person shot through the heart would just be “belly daid.”
It has now come out that Saint George, or as he was known at the time, George Floyd, had a fatal level of fentanyl in his system. The lawyers for the accused police officers are attacking the murder charges in the case by claiming, much like my nursing home patient, that he was drugged and was going to die anyway. And if the fentanyl didn’t kill him, then surely the fact that he was both an addict and a victim of the coronavirus surely would have.
In addition to that, in a May 26, 2020 memorandum the medical examiner concluded, “The autopsy revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation.”
For those of you without degrees in pharmacology, Fentanyl is a powerful synthetic opioid that is similar to morphine but is 50 to 100 times more potent. That means that in toxic amounts it causes respiratory depression and arrest, unconsciousness, coma, and death. On the positive side, you die with a happy buzz.
Derek Chauvin was charged with Second-Degree murder (which is murder without intent) under the felony murder rule because Chauvin was committing a felony assault on Floyd. That charge states that “on or about May 25, 2020, in Hennepin County, Minnesota, Derek Michael Chauvin, caused the death of a human being, George Floyd, 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, namely assault in the third degree.” He was also charged with Third Degree murder. That charge states that “on or about May 25, 2020, in Hennepin County, Derek Michael Chauvin caused the death of another, George Floyd, by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
If you look carefully at the charges, however, here’s what you notice. It is alleged that Derek Michael Chauvin, caused the death of … George Floyd. In other words, the state has to prove beyond a reasonable doubt that the acts of Derek Chauvin, and no other factors, directly caused the death of George Floyd. Unlike civil law, where the law sometimes states causation in terms of “caused or directly contributed to cause” (meaning that the acts of the defendant combined with other factors) here the state has to prove beyond a reasonable doubt that the police officer’s actions were the sole cause of the death.
In other words, Chauvin and the other police officers are going to argue it wasn’t their dog, and it didn’t cause the injury. You want someone for George Floyd’s murder, find the creep that sold him the clinical derivative of China White heroin. If the jury is honest and abides by their oath, I fail to see how a jury could convict any of these officers. Was their conduct bad? Yes. Did it cause death? Maybe. But “maybe” won’t cut it in a criminal trial.
The real question is, will there be riots when these officers go home free men?
Published in Policing
On the one hand, you’d think that this would cause him to be very sluggish. On the other, he’d been taking amphetamines which could to some degree and at times, counteract the effects of the fentanyl.
Remember the good old days when it was better that ten guilty men go free than 1 innocent man suffer?
With the Soros funded prosecutors and their prison releases and prejudged cases, I think it’s more along the lines of better that 10 guilty men go free while 100 innocents suffer.
But I’m sure the innocents will all take solace in being martyrs for someone else’s cause.
I’m getting that on my tombstone.
*Edited to highlight my words in {}.
Dude, there was a riot after a murder suspect killed himself rather than be arrested.
Of course there will be riots.
The great American pastime. Sports team wins a big game? Riot! Crazy, drug-addled man who is armed and non-compliant with police gets lead poisoning? Riot! Your candidate loses an election? Riot! It’s the solution to every question.
Tell that to Mike Flynn.
It is too glib to say that the police officer cannot be rationally convicted. Putting a knee on his neck that way was deadly.
Passing a bad $20 bill did not merit the treatment he was given.
He actually said at some point that he had COVID. I wonder if absent that statement and the pandemic hysteria that the media has ginned up if they wouldn’t have recognized the symptoms of a drug overdose and administered Narcan. We’ll never know but it is yet another factor that contributed to poor decision making.
It is indeed sad that rich and powerful prefer to act to sate their own vanity and care very little what happens to those below them. For all their posturing the Democrats despise the poor. They are very elitist and really do see the rest of us a serfs or worse. The irony of it is they media makes their condescension into a virtue.
My first thought reading the headline.
That overstates the effects. The coroner’s report says there is no evidence that the knee on the neck caused any harm at all. There is no evidence of physical trauma that it did.
I think, at most, the actions of the officers could justify a charge of involuntary manslaughter, wherein their negligence in failing to try CPR, or their violations of police procedure for an arrest might be judged to rise to the level of criminal negligence. Even this, as has been pointed out, might be justified that the method of restraint actually was in the best interest of the suspect, keeping him from harming himself, while waiting for medical assistance.
I don’t know enough about the detailed police procedures to be able to judge this fairly, but murder does not seem to fit the evidence. If I were sitting on a jury, I think I could be convinced of involuntary manslaughter, but based on the public evidence, not anything more. It would depend upon details and careful weighing of two cases, the defenses, and the prosecutions.
My first thought was that the question should be “will there be more riots?” But I think the proper question is “how many more riots?”
He also had a subsantial amount of fentanyl’s primary metabolite in his blood, so his liver had been working on it for a while.
It was meant as a compliment. Also, lawyer is not necessarily equal to liar, no matter what the media might tell you. But I sense that your comment was meant in jest, so I take no offense.
Flynn can appeal because his plea has never been accepted and he has moved to withdraw it citing prosecutorial misconduct (which is evident from the evidence adduced so far). But generally speaking, when a person pleads guilty, only under exceptional circumstances (factual innocence coupled with Brady violations) will an appeal be permitted. It’s called waiver.
It looks deadly. It may even feel that way. But the observation of two incidents in roughly the same time period does not equate to causation. Causation requires proof, and in criminal law, proof beyond a reasonable doubt. I agree that it looks and feels bad and that there should have been aid rendered. But correlation is not causation. My analysis is not superficial or glib. The idea that the knee on the neck is the sole cause (which it must be) of his death is glib. I realize that unsettles folks, but that’s how the law works.
Good points, but for the fact that there is no duty to rescue. Now, he was in custody, and it might be an 8th Amendment violation and a civil rights 42 USC 1980 type case. But you have a thoughtful analysis here.
Focusing on the degree of force used by Chauvin seems unnecessary, and something of a red herring. The issue is the degree of time for which Floyd was subdued, the extent to which it was necessary and in compliance with policy under the circumstances, and why Chauvin felt it necessary to continue “subduing” Floyd for a couple of minutes after he was aware no pulse had been detected and did not perform CPR. I agree that there needs to be a showing of causation between these events and Floyd’s death, but there certainly is a window where this is possible as the medical examiner apparently determined in the finding of homicide.
There have been posts (I think on PJ Media) pointing to someone who has thoroughly researched this case. In his report, he shows the training photos used by the Minneapolis PD that are nearly identical to what the police did to restrain George Floyd. Identical.
Sure, Floyd was still walking around with high levels of fentanyl in his system, but he was also foaming at the mouth. I think it’s mistaken to say he didn’t die of asphyxia. He died of suffocation alright, but from fentanyl poisoning, not Chauvin using the approved method to restrain him. He had tremendous fluid buildup in his lungs caused by fentanyl overdosing.
I agree that, at most, it would seem Chauvin and his collegues could be charged with negligence, given the failure to administer CPR and/or Narcan. But, “kneeling” on Floyd’s neck was not proximately the cause of his death.
It is evidence, and only the jury decides whether the evidence is proof beyond a reasonable doubt. They decide the weight of the evidence.
The issue is not the procedure used but the necessity of using that procedure under these circumstances and for the duration of time.
How about resisting arrest?
Maybe, but the coroner seems to have concluded nothing Chauvin did caused Floyd to stop breathing. There’s simply no evidence (trauma to the airway) supporting the notion.
How would you account for the medical examiner’s finding of homicide?
One point in the trial will be to determine whether there is causation between Chauvin’s actions and Floyd’s death.
See #’s 47 (Mr. DeWitt’s) and mine at #49, above.
I think this question is the heart of the matter. At what point is it permissable to use force without a warrant?
In Austin many years ago, a woman was jaywalking downtown, a very common occurrence. A police officer hollered at her to stop and she failed to comply, most likely because she didn’t realize he was hollering at her. The police officer decided she was not complying with his orders, so he thought he needed to correct her situation. He picked her up and threw her to the ground and then hand cuffed her, etc.
So was that police officer in the right? Is it justifiable to slam a person to the ground for jay walking?
Similarly, is it justifiable to use force to arrest someone for passing a bad $20, based only on the say so of a shop owner, and without getting a warrant? I would think the answer should be no. The police officer wasn’t acting on personal knowledge, and there was no threat to anyone. He even personally knew the guy somewhat, it’s not as though he couldn’t be found later. There was no need to escalate to the use of any force at all until a warrant could be signed.
If they passed a bad twenty, it is justifiable to arrest them,
If they resist that arrest, that is a separate charge. It is justifiable to use force to compel them.
This isn’t complicated.
George Parry, a former federal and state prosecutor who was also Chief of the Police Brutality/Misconduct Unit of the Philadelphia District Attorney’s Office – which investigated and prosecuted use of deadly force by police – has this take on the recently released June 1 memorandum in which Floyd’s toxicology results were discussed:
https://spectator.org/minnesota-v-derek-chauvin-et-al-the-prosecutions-dirty-little-secret/
How does the police officer know he passed a bad $20? How does he know it is bad? How does he know who did it? What level of probable cause should be allowed to make an arrest for a non violent crime where the citizen making the arrest has no personal knowledge of the crime nor any immediate or foreseeable threat to public safety?
It is an arrest, not a conviction. You take the statement of the vendor who received the twenty. You take the accused and the twenty down to the jail and book him. From there it is the same process as any other arrest. They are cops, not omniscient angels who can determine guilt or innocence on the spot.