The city of Minneapolis will pay $27 million to settle the federal lawsuit that George Floyd's family filed last July, two months after he died during an arrest for using a counterfeit $20 bill to buy cigarettes. Benjamin Crump, one of the family's lawyers, says the payout is the largest pretrial settlement ever in a wrongful death lawsuit involving excessive force by police.
The size of the settlement reflects the widespread outrage and nationwide protests provoked by the May 25 incident, during which former Minneapolis police officer Derek Chauvin knelt on Floyd's neck for more than eight minutes as the prone and handcuffed arrestee repeatedly complained that he could not breathe, begged for relief, and cried out for his mother. But it could complicate Chauvin's murder trial, and it leaves unresolved the question of whether the lawsuit could have overcome qualified immunity, a formidable barrier to federal civil rights claims.
So far seven jurors have been selected to hear the state case against Chauvin, who faces charges of second-degree murder, third-degree murder, and second-degree manslaughter. Opening arguments were expected to begin on March 29.
Nearly all of the potential jurors had seen the shocking bystander video of Floyd's arrest, although the ones who have been seated said they were prepared to entertain defense arguments that Chauvin's use of force was appropriate. While it does not officially amount to an admission of fault, the city's decision to settle the case will make it harder to keep an open mind on that question. "Mary Moriarty, the former chief public defender in Minneapolis, said that the timing could hardly be worse for the [criminal] case and that Mr. Chauvin's lawyers might even ask for a mistrial," The New York Times reports.
Until this case, the city's biggest payout for a death caused by police was its $20 million settlement with the family of Justine Ruszczyk Damond, who was shot to death by Officer Mohamed Noor in 2017 after she called 911 to report a possible assault in the alley behind her house. But in that case, Noor had already been convicted of third-degree murder. He was later sentenced to 150 months in prison.
In addition to the city, Floyd's family sued Chauvin and three other former officers who were at the scene: Thomas Lane and J. Alexander Kueng, who helped restrain Floyd, and Tou Thao, who failed to intervene despite repeated and emphatic warnings from bystanders that Floyd's life was in danger. Lane, Kueng, and Thao, who have been charged with aiding and abetting the assault on Floyd, will be tried separately from Chauvin.
The complaint filed by Floyd's family says the officers "had no reason to believe that Mr. Floyd was armed or dangerous" and "did not have a reasonable fear of imminent bodily harm" or "a reasonable belief that any other person was in danger of imminent bodily [harm] from Mr. Floyd." It adds that "every reasonable officer would have known that using force against a compliant, handcuffed individual who is not resisting arrest constitutes excessive force in violation of the Fourth Amendment."
More specifically, "Chauvin's use of deadly force in applying direct pressure to and kneeling on Mr. Floyd's neck was objectively unreasonable and violated clearly established law." Lane and Kueng's "use of force in applying direct pressure to and kneeling on Mr. Floyd's back" likewise "was objectively unreasonable and violated clearly established law." The complaint also faults Chauvin, Lane, and Kueng for "maintain[ing] Mr. Floyd in a prone position without properly monitoring his breathing or pulse." It says all four officers violated the Fourth Amendment by failing to "render medical aid following Mr. Floyd's complaints that he could not breathe and Mr. Floyd's loss of consciousness, each of which demonstrated a serious medical need."
The lawsuit argues that the city also bears responsibility for Floyd's death because it "tolerated, permitted, failed to correct, promoted, or ratified a number of customs, patterns, or practices that failed to provide for the safety of arrestees, detainees, and the like during arrest, including but not limited to the handcuffing and restraint process." It says the city failed to properly train its officers and encouraged them to "turn a blind eye to and not intervene [in] the use of excessive force."
It is well-established that the Fourth Amendment prohibits the use of excessive force during an arrest. But to proceed with their case, Floyd's relatives would have had to show it was "clearly established" at the time of his arrest that the specific restraint techniques Chauvin and his colleagues used qualified as excessive force in these circumstances. The U.S. Court of Appeals for the 8th Circuit, which includes Minnesota, has heard a couple of cases in which detainees died after prolonged restraint in a prone, facedown position. In both cases, it concluded that lawsuits were barred by qualified immunity.
Those cases involved detainees who were actively resisting. Floyd, by contrast, initially resisted when the officers tried to put him in a patrol car but did not seem to be fighting them once he was pinned to the ground. While that factor presumably would have weighed against qualified immunity, it is impossible to say for sure. In practice, qualified immunity frequently requires defendants to identify precedents with nearly identical facts. As UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, put it, Floyd's family "would have to find cases in which earlier defendants were found to have violated the law in precisely the same way."
The settlement not only means we won't find out how qualified immunity would have been applied in this case. It also means that question remains open in future cases, since there still will be no 8th Circuit precedent addressing facts like these.
Even without establishing such a precedent, large payouts like this one could encourage Minneapolis and other cities to adopt policies aimed at curtailing police abuse. "That trickles down to decisions in the communities across this country," said L. Chris Stewart, another lawyer representing Floyd's family. "When there is a city council or a mayor deciding, 'Oh, should we get rid of no-knock warrants, should we get rid of chokeholds, do we want to change these policies?'" he suggested, "they have 27 million reasons now why they should. And that will make decisions happen. That will make accountability happen."
The Times reports that the money for the settlement will come from "a fund for legal payouts and workers' compensation claims," and "residents have expressed concern that their taxes are subsidizing payments for the misconduct of the police while failing to hold officers accountable." But according to City Coordinator Mark Ruff, "officials were confident that the Floyd agreement would not lead to an increase in property taxes."