By JACK DUNPHY
June 4, 2020 3:10 PM
To secure convictions, prosecutors must prove that officer Derek Chauvin was the proximate cause of Floyd’s death and that the others assisted him in the act.
It was nearly 20 years ago that my first piece was published here on NRO. I described my experiences as an undercover cop circulating among the protesters at the 2000 Democratic National Convention, held that summer at the Staples Center in Los Angeles. Eager to prevent the type of bedlam seen in Seattle the previous year, when swarms of protesters extended themselves to disrupt the World Trade Organization conference, the Los Angeles Police Department and other local, state, and federal law-enforcement agencies prepared and trained in the months leading up to the DNC’s opening. The result was a success, with levels of violence and property damage a small fraction of those seen in Seattle. (Part I of my first piece on NRO is here; Part II, here.)
Alas, memories fade and hard-earned lessons are sooner or later forgotten. So, when the protests engendered by the death of George Floyd reached Los Angeles, the city was unprepared to follow the practices that had worked so well 20 years ago. Granted, in 2000 we were faced with a scheduled event and had months to train and stockpile the needed equipment, while the current protests arose unexpectedly. Still, events of the past several years have taught us (or should have) that proven strategies and tactics need to be rehearsed and refreshed at regular intervals so they can be implemented when circumstances demand.
I have retired from the LAPD and am now working for a smaller police agency in the greater Los Angeles area. I was among those in my current agency who responded last weekend when the LAPD, overwhelmed by the size and geographic spread of the protests, made a request for mutual aid. What I saw, and what was reported to me by former colleagues still with the LAPD, was discouraging, but it confirmed the decision I made several years ago to leave the city where I was born and had lived most of my life.
As it did throughout my LAPD career, the department’s current command staff consists largely of people who have spent minimal time in patrol or other assignments that might have exposed them to actual crime and its consequences. The preferred path to promotion in the department runs through internal affairs and other administrative posts. There are exceptions, but in insufficient numbers to make a difference when large disturbances break out at opposite ends of the city, as they have in recent days. The current staff roster includes a number of men and women I knew before I retired, some of whom have now risen to positions two, three, or even more ranks beyond what their talents would have carried them to in a genuine meritocracy. This resulted in chaos as police captains, commanders, and deputy chiefs made decisions and issued directions for which their own training and experience had not prepared them.
During my time with the LAPD, efforts were often made to prevent such people from being in charge during crucial incidents. They were relegated to positions from which they could cause little harm or compound confusion. This was not done last weekend, and the LAPD’s performance suffered for it. For example, on Saturday afternoon and evening, as officers struggled to contain looting in the Fairfax district, I monitored radio traffic from the scene in which an officer in a circling helicopter asked for more personnel to supplement the cops on skirmish lines and those chasing looters. No more officers were available, he was told. At that very moment, about 200 officers were waiting for instructions in a staging area miles away. They remained in that staging area for four hours before being dispatched to the trouble zone, by which time the looting had all but ended.
But it hadn’t ended completely, and I spoke to officers who had the maddening experience of waiting for orders at a command post while watching live news programs on their cell phones. A television-news helicopter was filming looters as they ransacked a computer store about a mile away, and the officers, who were among at least 200 at the command post at the time, could look up in the sky and see the helicopter hovering over the scene as it broadcast the images. The spectacle continued for 45 minutes as carload after carload of looters arrived and carried off computers and other merchandise, presumably until there was nothing left to steal. “I don’t know why anybody in the C.P. wasn’t watching the same thing I was,” one of them told me. “My partner and I could have walked there and handled it ourselves, but they didn’t send us. They didn’t send anybody.”
Perhaps some of those in charge were so preoccupied with demonstrating their solidarity with protesters that they simply forgot to do their jobs. Last weekend we were treated to scenes like this one, in which LAPD commander Cory Palka spoke to a group of protesters and promised to take a knee with them if they committed to remaining peaceful. It was a made-for-Twitter moment, and it surely endeared Palka to the group he was addressing, but the gesture was a pointless one, as the group consisted largely of aging hippies and young hipsters, some with young children in tow. An honest assessment of his audience should have told Palka that, even without the pandering showmanship, none of them would have been among the window-smashers and looters who did indeed rampage through the area later that night.about:blankabout:blank
It wasn’t all bad. Television cameras captured some great arrests, including this one, in which some fleet-footed cops from the LAPD’s Southeast Division chased down a looter in Hollywood, and this one, in which two officers from West L.A. Division did the same to a looter in Santa Monica. The second clip is all the more interesting for the candor displayed by the collared crook, who told a reporter he wasn’t really concerned with the protests but was “just trying to get some money.” My impression of things last weekend is that the man represented the great majority of the looters.
Turning now to the event that sparked the troubles, the death of George Floyd at the hands of the Minneapolis police. I have spoken to many of my current and former colleagues about it, and among them there is universal condemnation of what was shown in the Facebook video that captured Floyd’s last breaths. Floyd’s protestations and those of the onlookers must have been disturbing to hear as they occurred, but with the knowledge of what followed they are deeply haunting.
Much of my opinion writing over these last 20 years has been in defense of police officers whose actions have been misunderstood by the public, often after being willfully distorted in the media. Such was the case in 2014 when Michael Brown was shot and killed by a police officer in Ferguson, Mo. Multiple investigations, including one by Eric Holder’s Justice Department, concluded that Brown had attacked the officer, who therefore acted lawfully when he fired in self-defense. Despite this, the myth that Brown had his hands up when he was shot was widely embraced after it was repeated endlessly in the media and, sadly, by elected officials at all levels of government. In the aftermath of the George Floyd incident, I have often heard uninformed or purposefully deceitful talking heads invoke Brown as another innocent victim of police violence.
I acknowledge my bias in favor of police officers, but in writing about these controversial incidents I do my best to offer a fair analysis from a street cop’s perspective. I do not reflexively defend police officers and have on occasion endorsed criminal charges when I believed they were warranted. Four years ago, I criticized (now former) police officer Michael Slager for shooting and killing Walter Scott after a traffic stop in North Charleston, S.C., though I questioned whether he was truly as depraved as he had been portrayed in the press. (Slager is currently serving a 20-year prison sentence.) And in 2017, when Minneapolis police officer Mohammed Noor shot and killed Justine Damon, who had called the police to report a possible assault near her home, I wrote, “Noor is headed to prison, and deserves it.” Noor was convicted by a jury of third-degree murder and second-degree manslaughter. He is now serving a twelve-year sentence in prison.
Derek Chauvin, who was fired from the Minneapolis P.D. the day after Floyd’s death, faced the same charges, though as I write this comes the news that Minnesota attorney general Keith Ellison has, as expected, amended the complaint to charge him with second-degree murder. The other three involved officers, Tou Thao, J. Alexander Kueng, and Thomas Lane, all of whom have also been fired, will be charged with aiding and abetting Chauvin.
The video of course is damning. There lies Floyd prone on the ground, saying he can’t breathe while bystanders shout, “You’re killing him.” Through it all an oddly expressionless Chauvin keeps his left knee firmly on Floyd’s neck. And Floyd did indeed die, as the world would soon learn, so it seemed criminal charges would be forthcoming after the thorough investigation this or any killing deserves.
No such investigation had come close to completion, and yet Chauvin was arrested and charged within days, an obvious but futile attempt to appease those calling for his head on a spike. They hoped to avoid a riot, but it’s riots they got, and then some.
Now a narrative has been erected and universally adopted, one that brands Chauvin as a racist murderer and George Floyd as a martyr to the never-ending quest for social justice. And who would dare question this narrative, with the video of Floyd’s death as unambiguous as it is?
But there are reasons to question it, and an honest search for truth demands that it be questioned.
On May 28, three days after Floyd’s death, there emerged the first hint that the narrative may have been too hastily constructed and that its foundation was less than solid. The Hennepin County medical examiner issued a press release citing preliminary results from George Floyd’s autopsy. “The cause and manner of death,” it read, “is currently pending further testing and investigation.”
This should have given a dispassionate observer pause. Surely, one might have assumed, an autopsy would have revealed evidence of the injuries Floyd had suffered and that no further testing and investigation should be required. This first bit of equivocation from the medical examiner went all but unnoticed in the media as the protests and rioting in Minneapolis grew larger and spread across the country. Later came another press release, this one containing more — but far from complete — details on why Floyd died. The cause of death was listed as “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” It went on to list “other significant conditions: Arteriosclerotic and hypertensive heart disease; fentanyl intoxication; recent methamphetamine use.”
In other words, George Floyd fit the description of what is known in the law as an eggshell victim. The doctrine of the eggshell victim holds that a defendant is fully liable for injuries he inflicts on a plaintiff even if the plaintiff had a preexisting condition that made him more susceptible to being injured. But for this doctrine to apply, it must be shown that the defendant was acting unlawfully when he caused the injury. This is where things get murky and begin to escape the confines of the narrative.
There can be little argument that Floyd had been lawfully detained and arrested before he died. Police had been called after he was alleged to have paid for cigarettes with a counterfeit bill, a minor crime that nonetheless warranted his arrest. And security video from local businesses suggest he resisted being placed in a police car after being handcuffed. The New York Times and the Washington Post have each assembled a video timeline of the events, but both leave open the question of how Floyd went from standing on the police car’s left side one minute to lying face down on its right side the next. In the New York Times video, the narrator laments this gap in the public record. “The widely circulated arrest videos don’t paint the entire picture of what happened to George Floyd,” she says. “Additional video and audio from the body cameras of the key officers would reveal more about why the struggle began and how it escalated.”
Given the haste with which Chauvin was charged and the overwhelming media interest in the case, it is curious that the body-camera footage has not been released. Could it be that it has been withheld because it does not bolster the case against the defendants? Police officers are authorized to use force to effect an arrest, overcome resistance, and prevent escape, and if Floyd acted as described in the criminal complaint in which Chauvin was originally charged, the officers were justified in using force against him — at least up to a point.
In the complaint, the authors of which have seen the body-camera footage, the prosecuting attorney concedes that Floyd resisted being placed in the police car. “The officers made several attempts to get Mr. Floyd in the backseat of [the police car] from the driver’s side,” it reads. “Mr. Floyd did not voluntarily get in the car and struggled with the officers by intentionally falling down, saying he was not going in the car, and refusing to stand still. Mr. Floyd is over six feet tall and weighs more than 200 pounds.”
The same document tells us that Floyd, even as he was still standing and resisting efforts to put him in the police car, was repeatedly saying he could not breathe despite clear evidence that he could. Police officers, but few others, know that “I can’t breathe” is the universal complaint of the resisting arrestee. Police officers also know, as most others do not, that handcuffed suspects can fight and escape, especially when officers are confronted by hostile onlookers. (See, for example, this video taken last year in Chicago.)150
Defense attorneys will argue, not without evidence, that Floyd died not because of the application of unlawful force, but rather that it was his own resistance to lawful force, exacerbated by his documented medical conditions and drug use, that triggered a fatal heart attack. Fentanyl and methamphetamines can and often do bring about fatal arrhythmias even absent the type of exertions attributed to Floyd in the complaint. Yes, there came a point when Floyd ceased to struggle and should have been brought to a seated position. Was it this failure to follow what has for decades been standard police procedure that caused Floyd’s death, or did his struggling stop only when the fatal heart attack occurred? These are questions medical experts on both sides will testify about at trial, but for convictions the prosecutors must prove beyond a reasonable doubt that Chauvin was the proximate cause of Floyd’s death and that the others assisted him in the act. In all my years as a police officer I have never seen the seeds of reasonable doubt planted in the very pages of a criminal complaint as they have been here.
As I wrote of Michael Slager four years ago, it is not a question of whether Chauvin and the others were right or wrong, but rather of how wrong they were. Murder is a serious charge that requires serious evidence. As things now stand, I don’t think the prosecutors have it.