The world has united in protest after a graphic video emerged showing a Black man dying under the restraint of a White police officer. The victim, George Floyd, was in clear distress. He was pinned to the ground by three officers, with one officer — Derek Chauvin — placing a knee on his neck. For over five minutes, he tells the officers that he is unable to breathe. George Floyd died as horrified bystanders told the officers they were killing him.
The video is unquestionably horrific.
But in our rush to condemn an aggressive use of force and pursue justice for George Floyd, we have ignored crucial information which is necessary in judging the conduct of the officers. While nothing can absolve George Floyd’s death, these facts do cast doubt on the appropriateness of a murder charge for Chauvin, and paint a more nuanced picture of the events leading up to the tragic encounter.
There are six crucial pieces of information — six facts — that have been largely omitted from discussion on the Chauvin’s conduct. Taken together, they likely exonerate the officer of a murder charge. Rather than indicating illegal and excessive force, they instead show an officer who rigidly followed the procedures deemed appropriate by the Minneapolis Police Department (MPD). The evidence points to the MPD and the local political establishment, rather than the individual officer, as ultimately responsible for George Floyd’s death.
These six facts are as follows:
Let’s be clear: the actions of Chauvin and the other officers were absolutely wrong. But they were also in line with MPD rules and procedures for the condition which they determined was George Floyd was suffering from. An act that would normally be considered a clear and heinous abuse of force, such as a knee-to-neck restraint on a suspect suffering from pulmonary distress, can be legitimatized if there are overriding concerns not known to bystanders but known to the officers. In the case of George Floyd, the overriding concern was that he was suffering from ExDS, given a number of relevant facts known to the officers. This was not known to the bystanders, who only saw a man with pulmonary distress pinned down with a knee on his neck. While the officers may still be found guilty of manslaughter, the probability of a guilty verdict for the murder charge is low, and the public should be aware of this well in advance of the verdict.
While we should pursue justice for George Floyd, we should be absolutely sure that we are pursuing justice against his real killers. A careful examination of the evidence points to the procedures and rules of the MPD, rather than the police officers following these procedures and rules, as the real killers of George Floyd. If anyone murdered George Floyd, it was the MPD and the local political establishment. This is why Attorney General Keith Ellison has expressed how difficult a conviction will be.
“Trying this case will not be an easy thing. Winning a conviction will be hard,” Ellison said.
There is still much to the case that remains unknown. As new information emerges, we should adjust our view accordingly. But a close inspection of all current information does not point to a murder charge being appropriate.
From the original government complaint, we know that he was falling to the ground and claiming he couldn’t breathe while still standing up.
Mr. Floyd stiffened up, fell to the ground, and told the officers he was claustrophobic […] 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 […] While standing outside the car, Mr. Floyd began saying and repeating that he could not breathe.
From the 911 transcript, we know that George Floyd was acting “drunk” and “not in control of himself” before the police were called. The 911 caller is concerned that such an “awfully drunk” man would attempt to operate a vehicle. This is an important departure from the earlier media reports, which indicated the officers were only called over a counterfeit bill.
“Um someone comes our store and give us fake bills and we realize it before he left the store, and we ran back outside, they was sitting on their car […], and he’s sitting on his car cause he is awfully drunk and he’s not in control of himself” […] He is not acting right […] and [he’s] not acting right so and [he] started to go, drive the car.”
This information on its own is of no significance. In fact, aggressively restraining someone who is experiencing distress only makes that restraint all the more heinous. But as will be seen later, when this information is seen in light of George Floyd’s behavior, it led the officers to suspect he was suffering from ExDS — a far more dangerous scenario than simple distress.
The Minneapolis Police Department (MPD) recognizes two types of resistance to arrest. There is active resistance, defined as follows:
a response to police efforts to bring a person into custody or control for detainment or arrest. A subject engages in active resistance when engaging in physical actions (or verbal behavior reflecting an intention) to make it more difficult for officers to achieve actual physical control.
And passive resistance, defined as follows:
a response to police efforts to bring a person into custody or control for detainment or arrest. This is behavior initiated by a subject, when the subject does not comply with verbal or physical control efforts, yet the subject does not attempt to defeat an officer’s control efforts.
Passive resistance is when a suspect is non-compliant in an arrest, but will not act to stop an officer from enacting an arrest. Imagine a child in a supermarket who has a meltdown and drops to the floor — this is passive resistance, as guardian can easily pick up the child. Now imagine a child who not only drops to the floor but pulls against their guardian. This is active resistance.
The MPD allows the use of force in action resistance. Relevantly, the MPD allows neck restraint. It is defined as:
Non-deadly force option. Defined 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). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints.
There are two types of neck restraint. What we are interested is in conscious neck restraint, defined as:
The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure.
The Conscious Neck Restraint may be used against a subject who is actively resisting.
We know from the original government complaint that Floyd was actively resisting, because they admit as much:
Mr. Floyd actively resisted being handcuffed.
We also know from the original complaint that he resisted again:
The officers made several attempts to get Mr. Floyd in the backseat of squad 320 from the driver’s side. 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.
While standing outside the car, Mr. Floyd began saying and repeating that he could not breathe. The defendant went to the passenger side and tried to get Mr. Floyd into the car from that side and Lane and Kueng assisted.
The defendant pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed
The three officers were unable to keep him in the police car. The little video evidence we have indicates that there was a struggle. “The defendant pulled Mr. Floyd out of the passenger side of the squad car” likely because they were unable to close the squad car door due to his resistance. A longer video was posted by the popular activist Shaun King which indicates a struggle. Shaun King believes this video shows the officers beating Floyd, however the government (who has access to the body cams) did not write this in their complaint (which they would, as it would help their case).
There appears to be two cases of active resistance, including immediately prior to prone restraint. As such, neck restraint was permissible in order to control George Floyd. Remember that the MPD guideline is to use light to moderate force. An officer placing a knee on a suspect’s neck does not mean he is exerting full force, and there is evidence that light to moderate pressure was used on Floyd. Given that Floyd was saying he couldn’t breathe while resisting being placed in the police car, the officers could not reasonably believe that light to moderate pressure would cause his proclaimed symptoms.
For reasons not yet known, Minneapolis is refusing to release the officers’ body cams of this moment. This information is important in order to determine how Floyd was acting the exact moment the officers pulled him from the police car. It is unconscionable that this information has not been released to the public. We must assume, given all relevant information already known, that their reason for pulling him out of the car was his continued resistance as noted in the government complaint.
(Note: the original page for the MPD detailing use of force has been wiped. Here is an archive hosted by — for some reason — the San Francisco police department. And here is an archive of the archive, just in case.)
In 2018, the MPD published a report on the use of ketamine in excited delirium. Attached to this report is an authoritative document on excited delirium entitled “White Paper Report on Excited Delirium”. A white paper is an authoritative report. The MPD attached this white paper because it was considered by the MPD the most authoritative document on excited delirium syndrome (ExDS).
The report specifies the nature of ExDS, the symptoms of ExDS, as well as what police officers should consider when dealing with those they suspect of suffering from ExDS. The report is long. First, let’s backtrack and establish that the officers did in fact suspect excited delirium. WaPo hosts the original government complaint:
Officer Lane said, “I am worried about excited delirium or whatever.” The defendant said, “That’s why we have him on his stomach.”
It must be understood that the public does not yet have enough information to conclude whether the police were accurate in their assessment of ExDS. We have some information indicating that the determination is correct, but absent the full body cam recording, we are unable to make a complete judgment on this point. This is discouraging, because the entire case rests on this point. We know that two officers believed he was experiencing ExDS, and that the other two officers did not comment to the contrary. We also know that George Floyd had some symptoms of ExDS, but we do not know if he had all symptoms of ExDS, or if he had any symptoms indicating the contrary. Below are the symptoms, affixed with whether we know he experienced the symptom or not:
Some of these symptoms can only be determined from body cameras. Unfortunately, other symptoms can only be determined by the officers’ account. It is not possible to know whether he was experiencing tactile hyperthermia except by asking the officers who had touched his skin. We will have to work with these limitations in our analysis of the event. However, that both the brand new officer (Lane) and the veteran officer (Chauvin) suspected ExDS is not poor evidence. And that no officer objected to this determination must also be considered.
There are also symptoms that we know in hindsight, but which the officers did not know. For instance, George Floyd had a history of stimulant abuse, as detailed in his arrest log, with four previous arrests involving drugs.
The White Paper goes on to describe the dangers of excited delirium, both to the officer and the suspect. This information is important, and explains why the officers responded as they did:
“Given the irrational and potentially violent, dangerous, and lethal behavior of an ExDS subject, any LEO interaction with a person in this situation risks significant injury or death to either the LEO or the ExDS subject who has a potentially lethal medical syndrome. This already challenging situation has the potential for intense public scrutiny coupled with the expectation of a perfect outcome. Anything less creates a situation of potential public outrage. Unfortunately, this dangerous medical situation makes perfect outcomes difficult in many circumstances.”
Each of these bullet points is of the utmost importance in understanding Chauvin’s state of mind. These points must be re-read and thoroughly understood before pronouncing judgment on an officer who was simply following these statements during the arrest. If you are skimming this article I advise you to spend time on these bullet points. Remember: the officer’s job is to follow protocol, not to re-write protocol during an arrest. It is the politician’s job to ensure that the protocols are correct, no the police officer’s.
There has been some controversy in the media regarding the legitimacy of ExDS as a true medical condition. It should be mentioned that ExDS is recognized by the American College of Emergency Physicians as a true medical emergency, and ACEP played a role in drafting the White Paper for ExDS. But regardless of its legitimacy, ExDS is recognized by the Minneapolis Police Department. It bears repeating that Officer Chauvin is not tasked with determining the legitimacy of the syndromes which his department and local government already recognizes. Any question of the legitimacy of ExDS must be lodged against the government of Minneapolis — Mayor Frey — and the MPD, not Officer Chauvin.
As noted earlier, the government complaint against Chauvin states that the officers suspected excited delirium:
Lane asked, “should we roll him on his side?” and the defendant said, “No, staying put where we got him.” Officer Lane said, “I am worried about excited delirium or whatever.” The defendant said, “That’s why we have him on his stomach.”
This excerpt is of twofold importance. First, it demonstrates that two officers suspected excited delirium. Second, it demonstrates that Chauvin was restraining Floyd in this position because he suspected excited delirium (“that’s why we have him on his stomach”). Restraining an individual on his stomach is common in ExDS encounters. This is called “prone restraint”. In fact, it is often the recommended form of restraint until the officers can safely put the suspect in a different position:
As mentioned before, people experiencing EXD are highly agitated, violent, and show signs of unexpected strength so it is not surprising that most require physical restraint. The prone maximal restraint position (PMRP, also known as “hobble” or “hogtie”), where the person’s ankles and wrists are bound together behind their back, has been used extensively by field personnel. In far fewer cases, persons have been tied to a hospital gurney or manually held prone with knee pressure on the back or neck.
Two years ago, the 8th circuit ruled on a case involving both prone restraint and ExDS, writing that officers are entitled to qualified immunity in cases involving prone restraint, specifically denying 4th amendment privilege against excessive force:
Officers determined that keeping Layton in a prone position was best given his continued resistance, and Baker pressed Layton’s shoulders to the ground while Groby held Layton’s thighs […] this court has not deemed prone restraint unconstitutional in and of itself the few times we have addressed the issue […] Under these cases, there is no clearly established right against the use of prone restraints for a suspect that has been resisting.
Now, qualified immunity is just that: qualified. The court ruled that prone restraint is not necessarily excessive in suspects who have been resisting arrest, even if that suspect is experiencing ExDS. This does not mean prone restraint is always justified, but that it isn’t always unjustified. We still must examine the use of prone restraint on a case-by-case basis.
It’s important to understand that the public — including journalists — are not well-versed in ExDS, and consequently do not have a good intuition as to what constitutes excessive force. As noted in the white paper, “there is no proof of the most safe and effective control measure,” “any LEO interaction with a person in this situation risks significant injury or death”, “this already challenging situation has the potential for intense public scrutiny coupled with the expectation of a perfect outcome […] Unfortunately, this dangerous medical situation makes perfect outcomes difficult […].” It would helpful here to examine ExDS in depth, and compare it to the George Floyd case.
Willard Truckenmiler was a sheriff’s deputy. While celebrating his birthday, he began to display “agitated and unusual behavior”. When officers arrived on the scene — many of them his colleagues— he did not recognize them and assumed a fighting stance. The responding officers suspected ExDS. The officers “handcuffed him and forced him to into a seated position on the ground”, and EMS personnel gave him ketamine. Moments later he experienced trouble breathing and went into cardiac arrest. He died two days later.
In the case of Truckenmiller, it is unreasonable to assume the police acted on prejudice — Truckenmiller was a colleague and police officer. It is unreasonable to assume that his cardiac arrest was due to use of force, because he was not held in prone restraint and was quickly given ketamine by the EMS. Despite all of this, Truckenmiller experienced trouble breathing, had a heart attack, and died. This demonstrates that ExDS is “potentially fatal syndrome in and of itself”, as the white paper used by the MPD notes. It is also proof that ExDS deaths are not necessarily caused by excessive force or prejudice.
Roy Scott was 65 years old. Police were called to his residence. After coming outside with a pipe in his hand and pulling a knife out of his pocket, police decided to pat him down. The police handcuffed him and began patting him down when he began experiencing extreme emotional distress. The police tried to deescalate verbally, which did not work. They then tried keeping the suspect on his back, which did not work. They momentarily placed him in the prone position, and even engaged in neck restraint for less than a minute. The police are calm the entire time — one officer tells the other officer to “just keep holding him, he’s going to keep rolling around, he’s going to hurt himself”. The police eventually place him on his side in the recovery position, which is a candidate for the safest restraint position in ExDS encounters. They hold his head with their palms so that he doesn’t bang it on the ground.
The Roy Scott video — linked above — may just be the best case recorded of how police should deal with ExDS. Everything they did was correct. They went above and beyond in deescalating the situation. The officers had compassion for Roy Scott.
But Roy Scott still died. How?
As the Journal of Emergency Medical Services notes,
“The usual response by subjects to restraints is to either accept that fighting is futile or continue to be verbally abusive. The patient with excited delirium, however, continues to fight the restraints until cardiac arrest occurs.”
This is what happened to Roy Scott. It did not matter how the officers restrained him, because he would fight against the restraints past the point of exhaustion and into cardiac arrest.
Out of all the cases of ExDS and prone restraint available, the Donald Lewis case most clearly mirrors the George Floyd case. Donald Lewis was a white man suffering from excited delirium.
The police first decide to use verbal deescalation. This doesn’t work, as he runs into traffic. He says he is going to die while being restrained by the police. From 1:50 to 2:40, we see an officer use knee-to-neck restraint. Lewis’ condition does not deteriorate from prone restraint, and he continues actively resisting arrest. They then use zip ties and hobble prone restraint. At 3:50 he tries to bite the officers (this is especially dangerous for officers who would prefer not to risk exposure to HIV or hepatitis). At 4:04 he appears to call for his mom. At 5:25 a Black police officer uses knee-to-neck restraint against the white suspect. The Black police officer resumes this position seconds later. The suspect dies in this position.
The parallel to our current case does not end here. An official autopsy declared cause of death “sudden respiratory arrest following physical struggling restraint due to cocaine-induced excited delirium.” The legal team hired Dr. Michael Baden, who testified that Lewis died from “asphyxia caused by neck compression.” Baden is the same medical examiner who was hired by the George Floyd family, and made a similar finding. Baden is also the same medical examiner who was hired for Eric Garner, and declared death by “compression of the neck”. Baden is also the same medical examiner who was hired by the Brown family to examine Michael Brown, and Baden found that Brown died while surrendering, an assertion totally disproven by a DoJ investigation spearheaded by AG Eric Holder under Obama. Suffice it to say, Michael Baden has a very specific interest, and a very tenuous track record. The Court will be aware of this when weighing the autopsies.
After recruiting Baden, a suit against the police was filed. As per CSMonitor,
The 11th Circuit rejected the contention that hogtying was unreasonable once Lewis was already handcuffed and his legs shackled. “Even though most of the officers in this case testified that Lewis was not a danger to them and was merely resisting arrest, he was, as the district court described, ‘an agitated and uncooperative man with only a tenuous grasp on reality,’ ” the appeals-court panel said. […] The panel concluded: “Because of his refusal to sit upright and his inability to remain calm, Lewis remained a safety risk to himself and to others.”
An article, “Delayed In-Custody Death involving Excited Delirium”, proves that ExDS deaths can occur without any restraint or even drug stimulant.
This case study presents a 37-year-old male who was experiencing excited delirium (ExD) and died in a county jail 4 days after being taken into custody. The male died in a jail observation cell without having been restrained and was not under the influence of a drug stimulant. The subject had a documented psychiatric history of bipolar disorder and schizophrenia and was known to consume marijuana, cocaine, and methamphetamines. This case illustrates the pernicious effects of ExD and how its lethality can be delayed when many cases involve drug use and use of force where subjects die shortly thereafter. Implications of ExD for correctional agencies and efforts of responding to it in correctional and law enforcement contexts are discussed.
It may be of interest to see what EMS personnel on the ground think about ExDS. Using archives of comments on the popular forum Reddit, we can get a halfway decent gauge of how professionals dealing with ExDS feel about the condition. One user, more than a year before the George Floyd incident, asked the following: “ What is your excited delirium story? What tactics would you recommend for handling such individuals?”:
The two top responses to this question are illuminating:EMS personnel answer, “What is your excited delirium story? What tactics would you recommend for handling such individuals?
George Floyd’s autopsy sheds light on his state of cardiovascular health. He was found to have arteriosclerotic heart disease and hypertensive heart disease. Additionally, he was found to have the following drugs in his system:
This level of fentanyl is dangerous. One review of fentanyl overdoses found a median amount of ng/mL in an overdose to be approximately 10 ng/mL:
Despite the ubiquitous presence of multiple drugs in these decedents, the effects of fentanyl were evidently so strong that there were no statistical differences in the fentanyl level (mean and standard deviation) with or without the presence of these co-intoxicants. The range of fentanyl levels was wide, from 0.75 to 113.00 ng/mL, with an average of 9.96 ng/mL.
Compare this information to an article published in Frontiers of Physiology detailing medical findings in ExDS deaths:
Many patients with excited delirium also have significant cardiovascular and psychiatric diseases. Autopsies often reveal severe atherosclerosis, cardiomyopathy and diabetes. Cardiomyopathy results from chronic cocaine and methamphetamine abuse. Atherosclerosis and diabetes can also be the result of smoking, obesity and a lack of overall health care. The combination of the metabolic arrest with severe cardiovascular disease makes a successful resuscitation highly unlikely.
To be clear: this information cannot be considered relevant in judging the officer’s actions. It is only relevant in determining Floyd’s cause of death, as well as the probability (in hindsight) of George Floyd experiencing ExDS. The actions of the police are never justified in hindsight, but must always be justified given what the officers knew firsthand. With that said, if we are determining the likelihood of Floyd dying from excessive force rather than an especially fragile cardiovascular system, it is minor relevance.
From the footage we have of Floyd’s arrest, we see at 2:11 Floyd is able to lift his head and neck despite the placement of Chauvin’s knee. This occurs exactly at 2:11 through 2:12, and only for a moment. Yet this act would be impossible were Chauvin exerting a dangerous amount of pressure with his knee.
Remember what we know about ExDS: the suspect struggles with restraint regardless of restraint used. That Chauvin has his knee in a position to exert force if the suspect tries to flee does not mean that he is exerting force the entire time. The knee is there to prevent Floyd from getting up, not from pushing Floyd into the concrete. This is a preventative force position rather than an aggressive force position.
It is, of course, impossible to know just how much pressure Chauvin is exerting in this encounter. He could be exerting only as much force as is required to keep him down. And he could be exerting maximal force. How can we know?
Well, there is one study on the weight of a single-knee and double-knee restraint on the body. On average, single-knee restraint distributes around 70 lbs of force. But Chauvin, for most of the arrest, was engaged in a double-knee restraint position. According to the study, the double-knee position (which Chauvin uses) produces a median force of 48 kg, or 106 lbs. This force would be distributed between the side of his neck and back, unless Chauvin were consciously applying more force in one of these locations. If the force applied were split evenly, that is only 53 lbs of exertion spread across the side of Floyd’s neck. This amount of force, while uncomfortable, is not enough to stop a suspect from breathing and not enough to cut off blood flow to the brain.
But let’s take a look at that study again. The study concludes that the double-knee weight was exactly 23.3 kg plus 24% of a specific LEO’s body weight. Some preliminary information indicates Chauvin is 156 lbs, which is a reasonable estimate, as the footage shows him to be thin and of average height. This means Chauvin was exerting 90 lbs in the double-knee position, for 45 lbs exerted spread across the back and the neck (implying balanced force). 45 lbs is definitively insufficient to restrict breathing or blood-flow in the neck. The other officers are of a similar build.
This study conducted at the Minneapolis-based University of Minnesota. The officers were recruited from the Minneapolis police department. The study was conducted last year.
There are 800 LEOs in Minneapolis. The study has 41 participants, meaning 5% of the officers in Minneapolis participated in the study. If you are an officer in the MPD and you spoke to 9 other officers about the use of prone restraint, the probability is that one of you would have been a participant. It’s probable that Chauvin knew about this study. With four officers involved in Floyd’s arrest, there’s roughly a 21% chance that one of them was a participant in the very study.
The conclusions of the study are enough to exonerate the officers from a murder charge:
The prosecution is going to have tremendous difficulty proving murder, when Chauvin likely knew of the scientific research indicating that prone restraint is not excessively dangerous to the suspect’s cardiovascular health.
The NYT published a “play by play” analysis on YouTube, analyzing how George Floyd died. They omit important information in their analysis.