Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
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
I have some friends in a similar situation. Their daughter died unexpectedly while in the hospital for something else. It’s been years and the trial isn’t anywhere near starting. The couple is older, so I wonder if the hospital’s legal reps are hoping the plaintiffs die.
I don’t understand how he can be charged with both 2nd and 3rd degree murder. Doesn’t it have to be one or the other?
In other words, we have accepted a level of violence from our police that is unacceptable.
But rioting isn’t the way to fix the problem. It only makes it harder to fix the problem.
They can take the evidence to a magistrate to issue a warrant, too. They could easily have just given him a citation to appear in court. There was no need to even be confrontational. There was no danger to anyone. This was a manufactured crisis.
It would generally be malpractice to not charge the lesser included crimes. It would depend on how the laws are written in that state, but generally the degrees of murder involve the level of intent and it is perfectly reasonable to say that there was a murder, it was the higher degree of malice, but if the jury thinks that level of malice is not reached, then a lower level of malice is still applicable.
Yeah, the Marines do those all the time. They’re all just a bunch of babykillers. We need to defund the Corps.
If a cop tells you that you are under arrest, accompany them, keep mum until you consult with your lawyer, and take it from there. If you fight the cops, you will lose.
Of course. My point is that the police should have more restraints. But no one should argue with a cop. The place to say a cop is wrong is in court.
I don’t get your point. Marines don’t arrest Americans.
Of course not. They’re too busy killing babies. Brown babies. Black babies. Probably yellow babies, too. Who has time to arrest Americans when they have that job to do?
They restrained their impulse to pummel George Floyd until he took a poke at them. They had him in handcuffs in the car, until he himself said that he was claustrophobic and couldn’t breathe.
So they took him out of the car and put him on the ground. Was further restraint necessary? I don’t know. How likely is it that he could have gotten up off of his belly, with his hands handcuffed behind him, to do any further mischief? I’d suggest asking a cop. At that point they had already summoned an ambulance.
I’m going to ignore your non sequiturs.
What I’m saying is that they should have not felt a need to do anything except talk to him, and that wasn’t even strictly necessary. They could have gone to the magistrate to request a warrant, or better yet, a citation to appear in court. It’s really all that was needed. No confrontation of any kind was even necessary.
There is an element of hindsight there. The fact is that it was not inappropriate for the police to initiate an arrest in that situation. It’s likely that they wanted to interview him about the source of the bill. While I have major reservations about what ultimately went down, it’s not their job to foresee that Floyd would become obstreperous.
I wasn’t asking for hindsight. I’m saying that passing a $20 bill that may have been counterfeit is a petty issue that should never ever ever be a reason to arrest someone without a warrant. It’s certainly illegal and the law should be enforced, but it’s absurd that anyone would think that force should ever be involved. Once a warrant is issued, then there’s no question he should be arrested, but until then, gather evidence and then request a warrant. Then make a plan on how to arrest him, or invite him to come in on his own. There was no need for any confrontation. The police are far too prone to resort to force on every issue. It wasn’t even remotely necessary here.
Wouldn’t they have needed to talk to him to get his identification, even if they didn’t arrest him? The guy was pretty squirrely right from the first moments of the encounter, as I recall the video.
No, I could be wrong, but it’s either a lesser included offense or an alternative pleading. They will wait till all the evidence comes in to see what’s supported before they charge the jury.
Then let me try to explain it to you. My father was a policeman. My brother is a policeman. My uncle was a policeman. Etc. I’m the only non-LEO male in my immediate family. Despite never having been one, I know a lot about the police.
Being a policeman is not easy. There is a lot of training involved in most professional police departments. It’s kind of like being a Marine. God love the Marines. Every Marine officer I’ve ever known has been well-trained and smart. The enlisted Marines I’ve known have almost all been very good men. They had a lot of training. They knew their rules of engagement. They knew their jobs. They knew they were there to get their jobs done.
Outsiders often don’t know what goes into being a policeman or a Unites States Marine. It’s easy to criticize from the outside. It’s easy to say, “They used too much force!” I have heard stuff like that said about the Marines. Or there is the whole Hollywood thing. “Well, couldn’t they have just shot the gun out of his hand? They didn’t have to kill him!” As a Marine, you are a rifleman and trained marksman. You and I both know that fancy shooting under duress is only accomplished by a select few highly trained professionals. And even they are not trained to shoot guns out of people’s hands. They are trained to stop the bad guy with the gun by hitting center of mass or another target that will end his days.
Your statements above, such as, the police should have just cited him instead of arresting him, are just as silly from a policeman’s perspective as asking that a normal every day Marine shoot a gun out of the bad guy’s hand.
The police are doing their jobs. More than likely, they were (mostly) doing them as they were trained to do. There are crimes where the police are not allowed to just cite someone and tell them, “Come to court.” Counterfeiting and related crimes are federal felonies punishable by up to 20 years in prison and fines. These are not victimless crimes. They are not crimes to cite someone for and trust he will come to court. Police are required to bring such people in for booking and to be held until trial or bail is established.
Why is it silly? They do it all the time. They don’t always immediately arrest people. The officers didn’t even have personal knowledge of a crime, just an accusation by a person untrained in recognizing counterfeits.
Irresistible political pressure.
Here again, you’re speaking by principle instead of knowledge. A lot goes into the process that you don’t see. A lot of experience goes in, too. (Police are often shot when doing traffic stops. The bad guy knows who he is, but the police don’t necessarily know until well into the discussion.) The car could be stolen, but not yet reported, so they can’t assume the owner is driving. Thus, all they knew coming into the situation is that the store clerk said the guy was passing counterfeit bills, a federal felony. They have to do more than just write the guy a ticket. They have to first verify who the guy is. He could say, “My name is Adolph Schicklegruber, I just borrowed the car from my buddy George Floyd,” and they’re supposed to write that down on faith? No, they have to verify who he is by requesting ID. Then they have to run his info to ensure he isn’t wanted for anything else. They also need to secure him as a flight risk until they can confirm information. I am sure it will not come as a shock to you that someone facing charges that can bring twenty years in prison might decide to leave town quickly. That is why bail is set before releasing prisoners, it is their money to ensure their good conduct and for them to appear on their day in court.
It also should not be a surprise that a guy who allegedly is willing to commit one felony might also be willing to commit others, like shooting at police officers. The procedures for arresting, booking, jailing, and bailing people are all in place for good reasons. You are coming along saying, “Take that fence down,” even though you don’t have any understanding of why it was put up. You just feel like that fence is in your way.
I suppose that’s a possibility. But it’s also a rather convenient explanation for those who wish to disagree with the finding.
Arrest means stop. It comes from Middle French. Perhaps you are thinking of a further step in the process, such as taking them to the police station or jail and booking them in. They arrest people all the time. I have been arrested a few times by police. I stopped. I gave the officers the information they requested. In one case, I was not the guy they were looking for, but had a similar car. In a few others, I might have been exceeding posted speed limits. In some of those cases, I was let off with a warning. In others, the officer gave me a citation for my misdemeanor. I was not committing felonies. Had I been doing so, the process would have gone differently and been more involved, and I would have been booked for my crimes instead of cited. Also, had I resisted the arrest, things would have gone differently. The process where they stop someone, check ID, and otherwise verify information is the arrest.
The people of the United States through their representatives in Congress have decided otherwise. This is a very big deal. When counterfeiting is done by another country, it can be considered an act of war to destroy an economy in preparation for conquest.
When the arrest happens, the police know only the preliminary facts, that there was one suspect $20. They cannot assume that there is only one or that an even larger set of crimes are not being committed. It could have been a large counterfeiting ring sponsored by China. The cop on the street only knows that a man has been accused of a felony. He needs to question that man and determine the next steps. Does the person need to be charged? Does the Secret Service (Branch of the Department of Treasury charged with investigating counterfeiting) need to be able to question the suspect?
They try to talk to the suspect. They try to get ID. They try to get coöperation, and the suspect is not overly coöperative or coherent. What’s the next step? Pretty much what they did. The police are governed by laws, too. They have to follow them. They can’t just give felons a citation with a court date and hope the guy doesn’t skip town, etc. That’s the state’s attorney’s job.
No. Really? No trauma to the neck. Toxic levels of fentanyl, in addition to methamphetamine and THC. Advanced heart disease. Fluid-filled lungs causing “foaming at the mouth” observed at the scene.
Not to mention a memo where the examiner says had the circumstances been different, he would have ruled it an overdose. He made his judgment based on “circumstances,” not evidence. His judgment actually contradicts the evidence! Else the memo might have been released earlier.
There’s no way these policemen get a fair trial out of this. George Floyd killed himself. The police just had the misfortune of being at the scene.
So “circumstances” don’t matter? It’s all about “circumstances.” And one of those “circumstances” was Chauvin’s actions. As I’ve said elsewhere, Floyd was up and walking around until the encounter, and the fact that there might have been a different verdict had he been found dead in an easy chair at home (different “circumstances” after all) is irrelevant. It’s there in black and white: “homicide.” You’re free to disagree with a professional but to accuse the person of malfeasance is entirely different. At least we agree that the chances of a fair trial are very slim.
You ascribe ignorance to me. I’m not ignorant. I don’t much care if someone passes a bad $20 bill gets away with it for a short time while a police officer requests a warrant. Why do you think that is so unreasonable? Violence should be limited to when it is necessary and no sooner. The question is where to draw the line. I never said there should be no line, I’m saying the line needs to be further back.
Your airs of authority are not credible.
He was up and around and foaming at the mouth. He was well-into deadly pulmonary edema due to fentanyl overdose. And the examiner knows it and conceded the point when he noted the excessive weight of Floyd’s lungs and the lack of trauma that might have caused asphyxiation.
If Chauvin was guilty of anything, it was failing to administer Narcan and/or CPR. But, he didn’t kill George Floyd. George Floyd did that.
The cops still would have had to interact with Mr. Floyd to establish his identity. They’re not going to get a warrant for “some black guy we saw in the parking lot but didn’t talk to”.
And if you’ve watched the video, he was pretty out of it and disoriented from the beginning.
They knew the guy’s name. Asking a name doesn’t require hand cuffs. If he’s disoriented and “out of it” that’s all the more reason to leave him be. So long as he isn’t a threat to anyone, leave him be.
This last paragraph may be the most prescient of all.
Thank you to everyone who has contributed to this thread. You’ve done a great job with the issues. We should probably charge the defense lawyers for focus-group time.