Another Side To The George Floyd Death:
Why Derek Chauvin May Get Off His Murder Charge
A deeper look at the policies behind the death of George Floyd
Jun 11 · 24 min read
Pictured: Derek Chauvin (left) and George Floyd
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:
George Floyd was experiencing cardiopulmonary and psychological distress minutes before he was placed on the ground, let alone had a knee to his neck.
The Minneapolis Police Department (MPD) allows the use of neck restraint on suspects who actively resist arrest, and George Floyd actively resisted arrest on two occasions, including immediately prior to neck restraint being used.
The officers were recorded on their body cams assessing George Floyd as suffering from “excited delirium syndrome” (ExDS), a condition which the MPD considers an extreme threat to both the officers and the suspect. A white paper used by the MPD acknowledges that ExDS suspects may die irrespective of force involved. The officers’ response to this situation was in line with MPD guidelines for ExDS.
Restraining the suspect on his or her abdomen (prone restraint) is a common tactic in ExDS situations, and the white paper used by the MPD instructs the officers to control the suspect until paramedics arrive.
Floyd’s autopsy revealed a potentially lethal concoction of drugs — not just a potentially lethal dose of fentanyl, but also methamphetamine. Together with his history of drug abuse and two serious heart conditions, Floyd’s condition was exceptionally and unusually fragile.
Chauvin’s neck restraint is unlikely to have exerted a dangerous amount of force to Floyd’s neck. Floyd is shown on video able to lift his head and neck, and a robust study on double-knee restraints showed a median force exertion of approximately approximately 105lbs.
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.
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.
1. George Floyd’s symptoms started well before being restrained to the ground
From the original government complaint, we know that he was falling to the ground and claiming he couldn’t breathe while still standing up.
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.
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.
2. The Minneapolis Police Department policy authorizes neck restraint for actively resisting suspects
The Minneapolis Police Department (MPD) recognizes two types of resistance to arrest. There is active resistance, defined as follows:
And passive resistance, defined as follows:
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:
There are two types of neck restraint. What we are interested is in conscious neck restraint, defined as:
We know from the original government complaint that Floyd was actively resisting, because they admit as much:
We also know from the original complaint that he resisted again:
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.)
3. The officers reasonably determined that George Floyd was suffering from Excited Delirium
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:
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:
Police Noncompliance [Y]
Lack of Tiring [Y]
Unusual Strength [?]
Pain Tolerance [?]
Tactile Hyperthermia [?]
Bizarre behavior generating calls to police [Y]
Suspected or known psychostimulant drug or alcohol intoxication [Y]
Erratic or violent behavior [?]
Ongoing struggle despite futility [Y]
Yelling/shouting/guttural sounds [?]
Inappropriately Clothed [N]
Mirror/Glass Attraction [?]
Suspected or known psychiatric illness [N]
Failure to recognize or respond to police presence at the scene [likely N]
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.”
“LEOs must also be aware that remorse, normal fear and understanding of surroundings, and rational thoughts for safety are absent in such subjects.”
“ExDS subjects are known to be irrational, often violent and relatively impervious to pain. Unfortunately, almost everything taught to LEOs about control of subjects relies on a suspect to either be rational, appropriate, or to comply with painful stimuli. Tools and tactics available to LEOs (such as pepper spray, impact batons, joint lock maneuvers, punches and kicks, and ECD’s, especially when used for pain compliance) that are traditionally effective in controlling resisting subjects, are likely to be less effective on ExDS subjects.”
“The goals of LEOs in these situations should be to 1) recognize possible ExDS, contain the subject, and call for EMS; 2) take the subject into custody quickly, safely, and efficiently if necessary; and 3) then immediately turn the care of the subject over to EMS personnel when they arrive for treatment and transport to definitive medical care.”
“In those cases where a death occurs while in custody, there is the additional difficulty of separating any potential contribution of control measures from the underlying pathology. For example, was death due to the police control tool, or to positional asphyxia, or from ExDS, or from interplay of all these factors? Even in the situation where all caregivers agree that a patient is in an active delirious state, there is no proof of the most safe and effective control measure or therapy for what is most likely an extremely agitated patient.”
“There are well-documented cases of ExDS deaths with minimal restraint such as handcuffs without ECD use. This underscores that this is a potentially fatal syndrome in and of itself, sometimes reversible when expert medical treatment is immediately available”.
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.
4. Neck restraint is common in ExDS, and ExDS suspects have died in all types of restraint
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.
Informational Asymmetry: what the police and EMTs know, and what the public knows
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.
4.1 ExDS Encounters Explored
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.
More Cases of Note
It takes four officers to restrain this man experiencing ExDS in prone restraint until the EMT arrives (likely with ketamine).
In this case from 2011, the officers used a taser and knee-to-back prone-restraint.
In this more recent video, it takes six officers, a taser, and multiple batons to restrain the suspect. Even with six officers restraining him, he is still able to get halfway up. At 6:14 in the video, a Black police officer kicks the suspect near the head and then applies force near the suspect’s neck — this is appropriate use of force, even though it appears unnecessary, because the suspect was an extreme threat. This particular ExDS suspect was able to cause facial injuries to the officers despite being overpowered 6-to-1. As the white paper notes, ExDS suspects often “show signs of unexpected strength”.