Prosecutors in Floyd case say ex-cop had used excessive force before

Prosecutors in the case against the former Minneapolis police officers accused in the killing of George Floyd say they want to introduce evidence showing Derek Chauvin had used excessive force on arrestees before. Examples cited by prosecutors in a recent court filing include an incident last year in which Chauvin allegedly kicked an intoxicated man and used a neck restraint on him until he lost consciousness.

The “notice of intent to offer other evidence” was filed by the Minnesota attorney general's office in Hennepin County District Court a day before before all four accused ex-officers appeared for a hearing Friday. The wide-ranging motions hearing addressed a variety of pre-trial issues in the case against Chauvin, Thomas Lane, Tou Thao and J. Alexander Kueng — including whether the former cops should face trial together or separately — but didn't focus on the attorney general's recently-filed motion. 

Chauvin is charged with second-degree murder, third-degree murder and manslaughter. Lane, Kueng and Thao are charged with aiding and abetting second-degree murder and manslaughter.

Protesters gathered outside the courthouse to call for justice for Floyd, a 46-year-old Black man who was handcuffed, unarmed and begging for air as Chauvin pressed his knee into his neck during a May arrest, in the case that launched nationwide protests against police brutality and systemic racism.  

In the motion filed Thursday, Attorney General Keith Ellison and Assistant Attorney General Matthew Frank outline eight incidents they say they want to use to show Chauvin's “knowledge; intent; common scene or plan; absence of a justifiable mistake, accident, misunderstanding; and state of mind at the time of the crime.” They include:

• A March 15, 2014 incident during which Chauvin allegedly placed his body weight on the upper body and head of an arrested male as the arrestee laid in a prone position on the ground.

• A February 15, 2015 incident in which Chauvin allegedly arrested a man by applying pressure to his lingual artery beneath his chin bone and pressing him into a wall. Chauvin then allegedly pulled the man to the ground, placed him in a prone position and handcuffed him.

• An August 22, 2015 incident in which Chauvin allegedly responded to a scene where other officers fought with and tased a suicidal, intoxicated and mentally disturbed man. The other officers then positioned the man on his side to recover, consistent with training, and Chauvin transported him to the hospital. The officers were later commended, and medical staff said that if they'd prolonged the detention or failed to transport the man quickly to the hospital, he could have died.

• An April 22, 2016 incident in which Chauvin allegedly placed his hands around an arrested man's neck and applied pressure, then forced him backwards onto a sidewalk and handcuffed him. He then stood the man up. “[Chauvin's] actions resulted in a small crowd of concerned citizens to view [Chauvin's] actions,” the filing reads. “The male later complained of asthma, and paramedics were called to the scene.” 

• A June 25, 2017 incident in which Chauvin allegedly restrained an arrested woman by placing his knee on her neck as she was prone on the ground. “[Chauvin] shifted his body weight onto the female's neck and continued to restrain the female in this position beyond the point when such force was needed under the circumstances,” the filing said.

• A September 4, 2017 incident during which Chauvin allegedly restrained an arrested juvenile by using a neck restraint, flipping the youth onto his stomach and pinning him to the floor. Prosecutors allege Chauvin restrained the juvenile in the position past the point where the force was needed.

• A March 12, 2019 incident during which Chauvin allegedly detained an intoxicated man on the ground by applying a neck restraint while sitting on his lower back, restraining the man in the position after the force was necessary, according to prosecutors.

• A July 6, 2019 incident in which Chauvin allegedly kicked an intoxicated man in the midsection and applied a neck restraint until the man lost consciousness, again restraining the man beyond the point where such force was needed, prosecutors said.

Neck restraints were at the time allowed under departmental policy, including to render people unconscious, but only in a defensive manner directly proportional to the force being directed against the officer. The department has since banned their use completely ahead of a state civil rights review of police practices.

Prosecutors are also seeking to introduce previous on-the-job incidents for Kueng and Thao, including a December 2019 incident in which Kueng allegedly struck an “intoxicated, injured and uncooperative” person along with other officers and pinned the person to the ground in a prone position with their body weight. Prosecutors want to reference several incidents in which Thao allegedly falsified police reports and two incidents in which they say he “attempted to manipulate a domestic abuse victim to respond to questions in a manner which would allow [Thao] to avoid generating a domestic assault report.”

Judge Peter Cahill has not yet heard the motions or ruled on whether the evidence will be allowed in at trial. He has also not yet issued rulings on the motions he heard on Friday, including the prosecution's request to hold a joint trial, a defense request to move the trial out of Minneapolis, and other issues.

Finger-pointing among the defendants

Prosecutors said the four men should face trial together because the evidence and charges against them are similar, and multiple trials could traumatize witnesses and Floyd's family.

But defense attorneys have argued for separate trials, saying they would likely offer “antagonistic” defenses and the evidence against one officer could negatively impact another.

Finger-pointing has already prevailed in defense court filings. Attorneys for Lane and Kueng argued their clients were rookies who were following Chauvin's lead. Thao's attorney, Bob Paule, said his client's role was “absolutely distinct” from the others, because he was on crowd control and was securing the scene while the other three restrained Floyd.

Chauvin's attorney, Eric Nelson, wrote that his client's defense will be different, because prosecutors must prove Chauvin intended to assault Floyd, but they must also show that the other officers knew of Chauvin's intent before it happened.

“The other defendants are clearly saying that, if a crime was committed, they neither knew about it nor assisted in it,” Nelson wrote. “They blame Chauvin.”

But Chauvin pointed fingers at the others. Nelson wrote that Lane and Kueng — the officers who responded to a forgery call — initiated contact with Floyd before Chauvin and Thao arrived, and that Chauvin believed Floyd was overdosing on fentanyl. Nelson wrote that while Lane and Kueng called for a paramedic and believed Floyd was “on something,” they didn't elevate the call to one of more urgency or give medical assistance.

“Instead, they struggled to subdue Mr. Floyd and force him into their squad car, likely exacerbating his condition considerably,” Nelson wrote, adding that Chauvin could argue that their inaction led to Floyd's death.

“If EMS had arrived just three minutes sooner, Mr. Floyd may have survived. If Kueng and Lane had chosen to de-escalate instead of struggle, Mr. Floyd may have survived. If Kueng and Lane had recognized the apparent signs of an opioid overdose and rendered aid, such as administering naloxone, Mr. Floyd may have survived,” Nelson wrote.

Speaking to reporters after the hearing, Floyd family attorney Ben Crump took issue with the suggestion that Floyd overdosed on drugs, saying “the only overdose that killed George Floyd was an overdose of excessive force and racism by the Minneapolis Police Department.” Floyd's family maintains it was Chauvin's knee on Floyd's neck that caused his death by blocking his airway and blood flow to the brain.

The Hennepin County Medical Examiner's office determined Floyd died of “cardiopulmonary arrest complicating law enforcement subdual, restraint and neck compression.” An independent pathologist hired by Floyd's family found Floyd died of mechanical asphyxiation. Though they differed on key details, both reports ruled the death a homicide. 

“It is a classic police defense to blame the dead and claim that suspects with any amount of drugs in their system were responsible for their own death,” Crump said.