Coming Soon to a City Near You: George Floyd Riots Redux

By Matt Daley

When videos showed Derek Chauvin placing his knee on George Floyd’s neck for eight plus minutes and Floyd subsequently died, many – myself included – concluded that we had witnessed a homicide. To quote Mark Lane, we perhaps had engaged in a “rush to judgment.”  Certainly, the dominant narrative in the US was that Floyd had been killed by racist police and the Minnesota Attorney General Keith Ellison raised the charges against Chauvin from third degree murder to second degree murder and charged the other officers on the scene with aiding and abetting second-degree murder. This step was likely welcomed by the many Americans who had concluded that George Floyd was manifestly killed by the police who will understandably expect that Chauvin and one or more of the other officers present will be convicted of murder and sentenced harshly. One can also understand how this expectation has been baked into the public consciousness with the tenor and intensity of media coverage of the encounter as well as the subsequent discussion of and protests against police misconduct.

Against this deeply embedded narrative, the autopsy report of the Hennepin County Medical Examiner, Pathologist Andrew M. Baker amounts to a buried landmine awaiting the prosecutor’s foot. It describes in detail the blunt force injuries and the natural diseases, as well as the toxicology and virology findings. The medical examiner’s office determined that the “Decedent experienced a cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression” which it classified as homicide. The stunning finding is that “No life-threatening injuries [were] identified.” There were “No injuries of anterior muscles of neck or laryngeal structures.” There no “No scalp soft tissues, skull or brain injuries.” Ordinarily, it would be difficult to imagine a jury convicting Chauvin, let alone the other officers, of murder given these findings.

Beyond the absence of life-threatening injuries, the toxicology findings will loom large at trial. These include Fentanyl 11 ng/mL, Norfentanyl 5.6 ng/mL, Methamphetamine 19 ng/mL and other substances.  There will be a spirited debate about what level of Fentanyl constitutes a lethal dose given the many variables including the presence of other controlled substances in Floyd’s body. As a point of reference, the autopsy report noted that “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.”  Floyd was already well over that mark on Fentanyl alone. In addition to having drugs other than Fentanyl in his system, Floyd suffered hypertensive heart disease, severe arteriosclerotic heart disease, and an enlarged heart.

The meme “I can’t breathe” has become a rallying cry. Suffice to say that if one cannot breathe, one probably cannot utter those words, or any words at all.

The defense will likely argue that compliance with then-current police procedures, the absence of life-threatening injuries, the presence of lethal quantities of drugs, all combined with Floyd’s general medical condition to make him a “dead man walking” on May 25. There will also be a cogent argument that intent was lacking.  Chauvin and his colleagues fell far short of conducting themselves in a professional manner on that day but convincing a jury that they intended to kill George Floyd may well be a bridge too far. Nonetheless given the dominant narrative and tenor of the times, a not guilty verdict on the murder charges (or even a guilty verdict on some lesser included offense such as negligent homicide) may well occasion renewed widespread violence in our streets.

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