by George Parry
In the death of George Floyd, the State of Minnesota has charged former Minneapolis Police Officer Derek Chauvin with second-degree murder and former officers Thomas Lane, J. Alexander Kueng, and Tou Thao with aiding and abetting that murder. But, as will be shown in detail below, the physical, scientific, and electronically recorded evidence in the case overwhelmingly and conclusively proves that these defendants are not guilty of the charges and, in fact, played no material role in bringing about Floyd’s death.
Instead, the evidence proves that, when he first encountered the police, George Floyd was well on his way to dying from a self-administered drug overdose. Moreover, far from publicly, brazenly, and against their own self-interest slowly and sadistically killing Floyd in broad daylight before civilian witnesses with video cameras, the evidence proves that the defendants exhibited concern for Floyd’s condition and twice called for emergency medical services to render aid to him. Strange behavior, indeed, for supposedly brutal law officers allegedly intent on causing him harm.
Similarly, the evidence recorded by the body cameras worn by the police conclusively establishes that Floyd repeatedly complained that he couldn’t breathe before the police restrained him on the ground. As documented by Floyd’s autopsy and toxicology reports, his breathing difficulty was caused not by a knee on his neck or pressure on his back, but by the fact that he had in his bloodstream over three times the potentially lethal limit of fentanyl, a powerful and dangerous pain medication known to shut down the respiratory system and cause coma and death. He also had in his system a lesser dose of methamphetamine, which can cause paranoia, respiratory distress, coma, and death.
Beyond those findings, his autopsy disclosed no physical injuries that could in any way account for his demise.
The transcript of the video footage from the camera worn by Officer Thomas Lane combined with the transcript of the video from Officer Alexander Kueng’s camera lay out on a second-by-second basis all that transpired in their presence from the time they arrived on the scene through Lane’s ambulance trip with Floyd to the hospital.
Upon their arrival, Lane and Kueng were told by a person identified as “Speaker 1” that a man in the “blue [Mercedes] Benz” parked in front of “Cup Foods” had passed “a fake [$20] bill.” As the officers approached the car, they observed concerning movements in the front seat by the person later identified as Floyd.
Lane drew his sidearm and ordered Floyd approximately seven times to show his hands. Once Floyd finally placed his hands on the steering wheel, Lane holstered his weapon. Nevertheless, Floyd continued to plead with Lane not to shoot him despite Lane’s repeated assurances that he was not going to shoot.
After he exited the car, Floyd was non-compliant and continued to resist and move about until he was handcuffed and seated on the sidewalk.
Lane and Kueng questioned Floyd and the other two occupants of the car concerning Floyd’s behavior and whether he might be under the influence of drugs.
As the officers tried to move Floyd to a police car, the following exchange occurred:
Lane to Floyd: What, are you on something right now?
Floyd: No, nothing.
Kueng: Because you are acting a little erratic.
Lane: Let’s go. Let’s go.
Floyd: I’m scared, man.
Lane: Let’s go.
Kueng: You got foam around your mouth, too?
Floyd: Yes, I was just hooping earlier.
Lane: Let’s go.
Floyd: Man, all right let me calm down now. I’m feeling better now.
Lane: Keep walking.
Floyd: Can you do me one favor, man?
Lane: No, when we get to the car. Let’s get to the car, man, come on.
Kueng: Stop moving around.
Floyd: Oh man, God don’t leave me man. Please man, please man.
Lane to Kueng: Here. I want to watch that car [the blue Mercedes Benz] too, so just get him in [the police car].
Kueng to Floyd: Stand up, stop falling down! Stay on your feet and face the car door!
Floyd: I’m claustrophobic man, please man, please.
Later in the video transcripts are these exchanges:
Floyd: Please, man. Don’t leave me by myself man, I’m just claustrophobic, that’s it.
Lane: Well, you’re still going in the [police] car.
Kueng to Floyd: Why are you having trouble walking?
Floyd: Because officer [inaudible]
Lane: I’ll roll the windows down, okay?
Kueng to Floyd at the door to the squad car: Take a seat!
Floyd: Y’all I’m going to die in here! I’m going to die, man!
Kueng: You need to take a seat right now!
Floyd: And I just had COVID man, I don’t want to go back to that.
Lane: Okay, I’ll roll the windows down. Hey, listen!
Floyd: Dang, man.
Floyd: I’m not that kind of guy.
Lane: I’ll roll the windows down if you put your legs in [the squad car] all right? I’ll put the air on.
Speaker 9 [civilian] to Floyd: Quit resisting bro.
Floyd: I don’t want to win. I’m claustrophobic, and I got anxiety, I don’t want to do nothing to them!
Lane: I’ll roll the window down.
Floyd: I’m scared as fuck man.
Speaker 9: That’s okay [inaudible]
Floyd: [inaudible] when I start breathing it’s going to go off on me, man.
Lane: Pull your legs in.
Floyd: Okay, okay, let me count to three and then I’m going in please.
Speaker 9: You can’t win!
As the officers continued their efforts to get Floyd into the police car, he continued to resist and repeatedly insisted that he was “claustrophobic.” Floyd hit his head on the car’s window and suffered a minor cut. Consequently, the police placed a “Code 2” call for Emergency Medical Services to tend to the wound.
And then, after Kueng told him once again to “take a seat” in the squad car, Floyd announced, “I can’t choke, I can’t breathe Mr. Officer! Please! Please!”
And then, this was said:
Floyd: I want to lay on the ground. I want to lay on the ground. I want to lay on the ground!
Lane: You’re getting in the squad [car].
Floyd: I want to lay on the ground! I’m going down, I’m going down, I’m going down.
Kueng: Take a squat (sic).
Floyd: I’m going down.
Speaker 9: Bro, you about to have a heart attack and shit man, get in the car!
Floyd: I know I can’t breathe. I can’t breathe. [crosstalk]
Lane: Get him on the ground.
Floyd: Let go of me man, I can’t breathe. I can’t breathe.
Lane: Take a seat.
Floyd: Please man listen to me.
Officer Chauvin: Is he going to jail?
Floyd: Please listen to me.
Kueng: He’s under arrest right now for forgery. [inaudible] what’s going on.
Floyd: Forgery for what? For what?
Lane: Let’s take him out [of the squad car] and just MRT [Maximal Restraint Technique by which a suspect’s feet are “hobbled” to his waist].
Floyd: I can’t fucking breathe man. I can’t fucking breathe.
Kueng: Here. Come on out [of the squad car]!
Floyd: [inaudible] Thank you. Thank you.
Officer Thao: Just lay him on the ground.
Let’s hit the pause button and consider the evidence so far. Floyd was incoherent, acting erratically, non-compliant, and foaming at the mouth. He was having trouble walking and standing up. He wanted to lie on the ground. But, while still upright, he complained three times that he was “claustrophobic,” seven times that he “can’t breathe,” and twice that he was “going to die.” And Speaker 9 exclaimed that Floyd looked like he was about to have a “heart attack.”
All of this happened before he was on the ground and immobilized by the police. Nevertheless, as he continued to resist and behave irrationally, his condition deteriorated and his complaints of being unable to breathe increased in frequency even though no one was applying force of any kind to his neck or compressing his back or chest.
After Floyd was on the ground, he continued to move about and say that he couldn’t breathe. Lane was near Floyd’s feet, Kueng at the middle of Floyd’s body, and Chauvin at his back and head with his knee on Floyd’s neck.
Thao: Is he high on something?
Kueng: I’m assuming so, we found a pipe.
Lane: He wouldn’t get out of the car. He wasn’t following instructions. [crosstalk] …
Floyd: Please, I can’t breathe. Please man. Please man!
Thao: Do you have EMS [Emergency Medical Services] coming code 3?
Lane: Ah code 2, we can probably step it up then. You got it? [crosstalk]
Floyd: Please, man!
Floyd: I can’t breathe.
Kueng: You’re fine, you’re talking fine.
Lane: Your talken (sic), Deep breath.
Floyd: I can’t breathe. I can’t breathe. Ah! I’ll probably just die this way.
Floyd: I can’t breathe my face.
Lane: He’s got to be on something.
Thao: What are you on?
Floyd: I can’t breathe. Please, [inaudible] I can’t breathe. Shit.
Speaker 9: Well get up and get in the car, man. Get up and get in the car.
Floyd: I will. I can’t move.
Speaker 9: Let him get in the car.
Lane: We found a weed pipe on him, there might be something else, there might be like PCP or something. Is that shaking of the eyes right is PCP?
Floyd: My knees, my neck.
Lane: Where their eyes like shake back and forth really fast?
Floyd: I’m through, I’m through. I’m claustrophobic. My stomach hurts. My neck hurts. Everything hurts. I need some water or something, please. Please? I can’t breathe officer.
Chauvin: Then stop talking, stop yelling.
Floyd: You’re going to kill me, man.
Chauvin: Then stop talking, stop yelling, it takes a heck of a lot of oxygen to talk.
Floyd: Come on, man. Oh, oh. [crosstalk] I cannot breathe. I cannot breathe. Ah! They’ll kill me. They’ll kill me. I can’t breathe. I can’t breathe. Oh!
Speaker 8: We tried that for 10 minutes.
Floyd: Ah! Ah! Please. Please. Please.
Lane: Should we roll him on his side?
Chauvin: No, he’s staying put where we got him.
Lane: Okay. I just worry about the excited delirium or whatever.
Chauvin: That’s why we got the ambulance coming.
As Floyd continued to shout that he couldn’t breathe and called for his mother, a radio transmission was recorded saying that the ambulance was approximately four blocks away. When it arrived, Lane got in the ambulance and helped to give Floyd CPR on the way to the hospital.
Before we discuss further what happened at the scene, let’s take a look at Floyd’s 20-page autopsy and toxicology report.
The autopsy report by the Hennepin County Medical Examiner’s Office is titled “CARDIOPULMONARY ARREST COMPLICATING LAW ENFORCEMENT SUBDUAL, RESTRAINT, AND NECK COMPRESSION.” Strangely enough, the report, which thoroughly sets forth in detail all physical and toxicological findings, makes no other mention of the purported cause of death. In fact, the first iteration of the report didn’t even mention “law enforcement subdual, restraint, and neck compression,” and the criminal complaint filed by prosecutors stated that the autopsy “revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation.”
Moreover, prior to issuing the autopsy report, the Hennepin County Medical Examiner preliminarily found that the “autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death.” (Emphasis added.)
These preliminary findings by the Medical Examiner were incorporated in the Statement of Probable Cause attached to the arrest warrant for Officer Chauvin, which was filed on May 29, 2020. This date is significant because, as you will see, neither the Medical Examiner nor the prosecutors had yet received Floyd’s toxicology report. That report was issued by NMS Labs of Horsham, Pennsylvania, on May 31, 2020.
In short, Chauvin was charged with third-degree murder (later raised to second-degree murder by Minnesota Attorney General Keith Ellison) without the benefit of a complete and competent investigation of all the relevant facts and circumstances of Floyd’s death.
Apparently dissatisfied with the Hennepin County Medical Examiner’s findings, the Floyd’s family attorney had a re-autopsy performed by Dr. Michael Baden*, the former Chief Medical Examiner of New York City, and Dr. Allecia Wilson of the University of Michigan.
In announcing the re-autopsy findings, Dr. Wilson stated that she and Dr. Baden “have seen accounts from the complaint and based on that, yes our findings do differ [from those of the Hennepin County Medical Examiner]. Some of the information that I read from that complaint states that there was no evidence of traumatic asphyxia. This is the point in which we do disagree. There is evidence in this case of mechanical or traumatic asphyxia.”
However, Dr. Wilson conceded that they did not have access to toxicology results, tissue samples, or some organs, but added that those items “are not likely to change” the results of the re-autopsy.
The re-autopsy concluded that, even without physical evidence of traumatic asphyxia, such as broken bones in the neck, the compression on Floyd’s neck and chest still caused his death by depriving his brain of blood and oxygen and his lungs of air. Dr. Baden stated that the pressure was not visibly supported by autopsy because the pressure applied by the police had been released by the time the body was examined. Noting that “the video is real,” Dr. Baden added that the abrasions on the left side of Floyd’s face and shoulder showed how hard police had pressed him against the pavement. Dr. Wilson also referenced this “physical evidence that there was pressure applied to his [Floyd’s] neck.”
After Drs. Baden and Wilson concluded that Floyd’s death was “a homicide due to the way he was being subdued,” the Hennepin County Medical Examiner then amended his report to include the reference to “complicating law enforcement subdual, restraint, and neck compression.”
With all due respect to Drs. Baden and Wilson, however, they rendered their opinion as to the cause of death without, by their own admission, having considered the results of Floyd’s toxicology screen. If they had, they would have seen that, at the time of death, Floyd was under the influence of a lethal overdose of fentanyl, which, according to the toxicology report, is a rapid-acting synthetic morphine substitute “reported to be 80 to 200 times as potent as morphine,” as well as a lesser dose of methamphetamine, which can also cause convulsions, circulatory collapse, coma, and death.
But before we get to the details of Floyd’s tox screen, let’s consider the following autopsy findings by the Hennepin County Medical Examiner:
No life-threatening injuries identified
- No facial, oral, mucosal, or conjunctival petechiae
- No injuries of anterior muscles of neck or laryngeal structures
- No scalp soft tissue, skull or brain injuries
- No chest wall soft tissue injuries, rib fractures (other than a single rib fracture from CPR), vertebral column in juries, or visceral injuries
- Incision and subcutaneous dissection of posterior and lateral neck, shoulders, back, flanks, and buttocks negative for occult trauma.
Some commentators have attached great importance to the finding of no “facial, oral or conjunctival petechiae,” which are small red or purple hemorrhages that can result from asphyxiation such as would occur if pressure was applied to block the flow of blood to the brain. However, while these petechiae can result when that happens, their absence does not necessarily prove that no such compression occurred.
Instead, the more pertinent question is whether Chauvin’s kneeling on one side of Floyd’s neck cut off the blood flow through both carotid arteries to his brain. The carotids are located on each side of the neck, and people can live with only one functioning carotid artery. This raises the question as to whether Chauvin’s direct application of pressure to only one side of Floyd’s neck cut off the carotid artery on the other side of his neck.
Moreover, in regard to Chauvin’s possible criminal intent or purported desire to harm Floyd, Minnesota police are trained to use a “neck restraint” technique, which is defined in the official training literature as “compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck).” The video of Chauvin kneeling on the side of Floyd’s neck appears in all respects to be a textbook application of this officially approved technique. Put another way, by the training that they had received, the police defendants would have no reason to believe that Chauvin’s kneeling on Floyd’s neck was either causing serious harm or anything other than the approved standard operating procedure.
We know from the video transcripts that Floyd, in addition to complaining about being unable to breathe while he was still upright, repeated that complaint for a matter of minutes while he was on the ground and being restrained by police. But Floyd remained conscious and complaining for several minutes. How can that be if Chauvin’s knee had cut off the flow of blood to Floyd’s brain? If the police had cut off the flow of blood and oxygen to Floyd’s brain, he would have lost consciousness within seconds, not minutes. (See Nichols, Larry, Law Enforcement Patrol Operations: Police Systems and Practices, McCutcheon Publishing Company, 1995.)
So why couldn’t Floyd breathe, and how did he die? The clear answers to those questions are to be found in his toxicology report, which overwhelmingly and unerringly supports the conclusion that Floyd’s breathing difficulties and death were the direct and undeniable result of his ingestion of fentanyl mixed with methamphetamine.
When Floyd arrived at the hospital, his blood was drawn. According to the toxicology report, postmortem testing of that blood established the presence of, among other drugs, “Fentanyl 11 ng/mL” (nanograms per milliter). In that regard, tucked away in the report’s “Reference Comments” is this: “Signs associated with fentanyl toxicity include severe respiratory depression, seizures, hypotension, coma and death. In fatalities from fentanyl, blood concentrations are variable and have been reported as low as 3 ng/mL.”
Got that? According to the toxicology report, which is central to the prosecution’s case, at 11 ng/mL, Floyd had over three times the potentially lethal 3 ng/mL dose of fentanyl in his bloodstream when he arrived unresponsive at the hospital.
Similarly, the toxicology report also disclosed the presence of methamphetamine, which it states is “capable of causing hallucinations, aggressive behavior and irrational reactions” as well as “restlessness, confusion, hallucinations, circulatory collapse and convulsions.”
Defense counsel should blow up those sections of the toxicology report to Mount Rushmore–size proportions, hang them on the courtroom wall, and read them every five minutes to the jury. They more than explain Floyd’s bizarre behavior, inability to stand, difficulty walking, and complaints about being unable to breathe while sitting, standing, and lying on the ground.
Moreover, according to the Centers for Disease Control and Prevention, among the most common characteristics of a fentanyl overdose is “foaming at the mouth … and confusion or strange behavior before the person became unresponsive” (emphasis added). In short, Floyd’s foaming at the mouth, incoherence, physical incapacity, non-compliant behavior, breathing difficulty, and rapid downward spiral into unconsciousness and death are fully explained by the toxicological evidence that he had ingested a massively lethal overdose of fentanyl mixed with a smaller dose of similarly dangerous and debilitating methamphetamine. In other words, by the time he first encountered the police, Floyd had already rendered himself a dead man walking and was only minutes away from expiring.
So, who killed George Floyd? He did.
The only crime here has been the prosecution’s shockingly incompetent investigation of Floyd’s death. In charging and continuing to prosecute these defendants, Minnesota’s attorney general has failed to take into account the most important and material evidence in the case, i.e., the fact that Floyd’s inability to breathe started while he was still upright and mobile and the scientific proof that his death was the direct and inescapable result of a massively fatal overdose of a powerful and dangerous drug known to cause, in the words of the toxicology report, “severe respiratory depression, seizures, hypotension, coma and death.”
The proof of the defendants’ innocence is undeniable. But given the violence and rioting that has followed in the wake of Floyd’s death, will it be possible for these defendants to receive justice? In other words, will there be a judge or jury with enough integrity and courage to defy the mob and, in recognition of the clear and overwhelming exculpatory evidence, set these wrongfully accused men free.
* In the interests of full disclosure, I have known Dr. Baden for over 40 years. He has testified as an expert on behalf of my clients in a number of cases and is a person of great integrity, skill, charm, and learning.
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George Parry is a former federal and state prosecutor who practices law in Philadelphia and blogs at knowledgeisgood.net.