Derek Chauvin's Belief That George Floyd Was Intoxicated Does Not Help His Case

After paramedics removed George Floyd’s body from the scene of his fatal arrest on May 25, Minneapolis police officer Derek Chauvin defended his use of force in a conversation with a bystander. “We got to control this guy, because he’s a sizable guy, and it looks like he’s probably on something,” Chauvin told Charles McMillian in a body camera video that was played for jurors in Chauvin’s murder trial yesterday.

McMillian testified that Chauvin was responding to his criticism of the way the officer had treated Floyd, who was handcuffed and lying face down on the pavement as Chauvin knelt on his neck. According to prosecutors, Chauvin maintained that position for more than nine minutes, despite Floyd’s repeated complaints that he was having trouble breathing. Chauvin kept his knee there even after concerned bystanders repeatedly warned that Floyd’s life was in danger, even after another officer repeatedly suggested that Floyd should be rolled onto his side in light of his “excited delirium,” even after Floyd was no longer responsive, even after Chauvin was repeatedly told that Floyd had no detectable pulse, and even after the ambulance arrived.

Chauvin said that use of force was justified because he and his colleagues were dealing with “a sizable guy” who seemed to be intoxicated. Former Minneapolis police officer Tou Thao, who is charged with aiding and abetting Chauvin’s assault on Floyd and will be tried separately, shared that impression. “This is why you don’t do drugs, kids,” he jocularly told bystanders as Chauvin knelt on Floyd.

After Officers Thomas Lane and J. Alexander Kueng arrested him for buying cigarettes with a counterfeit $20 bill, Floyd panicked and struggled with them as they tried to place him in their squad car, saying he was claustrophobic, complaining that he could not breathe, and asking if he could ride in the front seat. Chauvin apparently thought Floyd was behaving that way because he was on drugs. But that consideration should have underlined the danger of the prone restraint he used.

The evidence indicates that Floyd had ingested black-market “Percocet” tablets that contained fentanyl and methamphetamine, and an autopsy report from the Hennepin County Medical Examiner’s Office said both drugs were detected in his blood. The report still classified Floyd’s death as a homicide, saying it was caused by “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” Chauvin’s lawyer, Eric Nelson, nevertheless argues that the drugs were partly responsible for Floyd’s death, which he attributes to “a cardiac arrhythmia that occurred as a result of hypertension, his coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body, all of which acted to further compromise an already compromised heart.”

Nelson says Floyd continued to resist even after he was handcuffed and pinned to the ground by Chauvin, Lane, and Kueng. But judging from a bystander video of the encounter, Floyd’s resistance was limited to moving his head and right shoulder (consistent with his complaint that he could not breathe) and begging for mercy. In any case, Floyd’s apparent intoxication should have counted against the restraint technique that Chauvin used rather than in its favor.

In a 1998 case involving a man who died in police custody, for example, the U.S. Court of Appeals for the 5th Circuit held that the use of force can be excessive “when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position,” which “may present a substantial risk of death or serious bodily harm.” Although Floyd was not hog-tied, the obvious stress caused by the prone restraint plausibly contributed to the “adrenaline flowing through his body” and the “cardiac arrhythmia” described by Nelson—even if you rule out asphyxia, as Nelson does.

The prosecution, meanwhile, argues that Floyd’s breathing was obstructed, so much so that it caused “an anoxic seizure.” But either way, Chauvin’s actions can hardly be viewed as irrelevant to Floyd’s death, even if there were other contributing factors.

Chauvin is charged with unintentional second-degree murder, which applies to someone who “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense”—in this case, third-degree assault. To prove causation, the prosecution need only persuade the jury that Floyd would not have died if Chauvin had not committed that assault.

Alternatively, the jury could convict Chauvin of third-degree murder. That charge accuses him of causing Floyd’s death by “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” Here, too, causation hinges on whether Floyd would have survived this encounter if Chauvin had acted differently.

Chauvin also faces a charge of second-degree manslaughter, which alleges that he caused Floyd’s death “by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another.” Again, that requires showing that Chauvin’s actions were the but-for cause of Floyd’s death.

The second-degree murder charge also requires proving that Chauvin intentionally committed an assault, while the third-degree murder and manslaughter charges require proving either that his actions were “eminently dangerous” and reflected “a depraved mind” or that he “consciously” created “an unreasonable risk” of “great bodily harm.” In these analyses—especially the latter two—Chauvin’s belief that Floyd was intoxicated does not help his case.