The defense in Derek Chauvin's murder trial yesterday presented testimony from a use-of-force expert who said the former Minneapolis police officer's "interactions" with George Floyd "were following his training, following current practices in policing, and were objectively reasonable." That conclusion contradicted the testimony of the city's police chief, other supervisors, and other use-of-force experts. It was also highly implausible, relying on dubious definitions, eyebrow-raising assumptions, and the omission of crucial details.
Incredibly, former police officer Barry Brodd testified that pinning a handcuffed Floyd facedown on the pavement for nine and a half minutes did not constitute a use of force. "I don't consider a prone control as a use of force," he said. "The maintaining of the prone control, to me, is not a use of force…because it's a control technique. It doesn't hurt. You've put the suspect in a position where it's safe for you, the officer, safe for them, the suspect, and you're using minimal effort to keep them on the ground."
While Chauvin was using this "control technique," he had one knee on Floyd's neck and the other on his arm or back. Officer J. Alexander Kueng also was applying pressure to Floyd's back, while Officer Thomas Lane was holding down his legs. But according to Brodd, the officers were not using force, because they were not hurting Floyd.
Yet Brodd admitted during cross-examination that pressing Floyd against the pavement "could produce pain," in which case, according to his idiosyncratic definition, it would qualify as a use of force. As prosecutor Steve Schleicher pointed out, Floyd repeatedly complained that he was in pain. He said his neck, stomach, and "everything" hurt. Hennepin County Chief Medical Examiner Andrew Baker testified that Floyd had abrasions on his cheek and shoulder from contact with the pavement.
Los Angles Police Department Sgt. Jody Snider, a use-of-force expert, testified that the officers used "pain compliance" techniques on Floyd's hands and wrists. "If the officers were manipulating Mr. Floyd's hands in a way that would create pain," Brodd conceded, "then I would say yes, that would be a use of force."
In any case, the Minneapolis Police Department's definition of force does not require the infliction of pain. "Do you accept that the Minneapolis Police Department generally defines force to include restraint?" Schleicher asked. Brodd acknowledged that Schleicher was right about that.
Given that Chauvin used force against Floyd (a point I did not realize was up for debate until I watched Brodd's testimony), was that use of force justified in the circumstances? While addressing that question, Brodd, prodded by defense attorney Eric Nelson, introduced several irrelevancies.
The officers believed that Floyd, who had ingested black-market "Percocet" tablets that contained fentanyl and methamphetamine, was under the influence of drugs. "Drug-influenced" suspects, Brodd averred, "don't feel pain" and "may have superhuman strength"—an old canard with racist roots that police tend to drag out when they are accused of using excessive force.
Even drug warriors who still promote this myth generally do not claim that opioids like fentanyl make people aggressive or enable them to overpower several police officers at once. And while they do make that claim about methamphetamine, prior testimony indicated that the amount of that drug consumed by Floyd was comparable to a single prescribed dose. Superhuman strength and insensitivity to pain are not commonly noted side effects of Desoxyn or of other oral stimulants with similar effects, such as Adderall and Ritalin.
In any event, Floyd was not displaying the characteristics that Brodd attributes to "drug-influenced persons" during his prone restraint. Far from demonstrating superhuman strength, he was at the cops' mercy, and he certainly was not insensible to pain, judging from his repeated complaints that the officers were hurting him. Yet Nelson seems to think that introducing discredited notions about how people behave when they are "on something" will distract jurors from what actually happened in this case.
Speaking of distraction, Brodd reinforced the defense argument that bystanders who objected to the officers' treatment of Floyd drew Chauvin's attention away from the man under his knee. That claim is inconsistent with much of the video record, which shows Chauvin looking at Floyd, acknowledging his complaints, and talking to his colleagues about how Floyd should be treated.
The defense makes it sound as if the officers were facing an incipient riot. But for much of the time, the bystanders were simply watching the encounter and recording it on their cellphones. Even when some of them were moved to criticize the officers' conduct and express concern about Floyd's welfare, they were not violent and did not make any threats. And regardless of what the bystanders were doing, as Schleicher pointed out and Brodd agreed, their behavior cannot legally justify the use of force against Floyd.
Nor can it justify the officers' failure to perform CPR after Floyd became unconscious and no longer had a detectable pulse. Brodd suggested it was reasonable for them to "wait for the professionals to show up." But he also acknowledged that they had a duty to care for Floyd—a duty that was not obviated by the fact that an ambulance was on the way.
Brodd also noted that Floyd, who initially seemed to be having a panic attack, struggled with Kueng and Lane when they tried to force him into the back of their squad car after they arrested him for using a counterfeit $20 bill to buy cigarettes. Floyd said he was claustrophobic, complained that he could not breathe, and asked to ride in the front seat. But once Kueng and Lane pulled him out of the car and onto the street, Floyd, at this point handcuffed and kneeling, stopped struggling and thanked them.
That was when Chauvin, Kueng, and Lane tackled Floyd and pinned him to the ground on his stomach, keeping him there despite his complaints that he was having trouble breathing and despite bystanders' warnings that his life was in danger. Chauvin continued kneeling on Floyd even after he stopped talking, became unresponsive, and no longer had a detectable pulse. The fact that Floyd had earlier resisted Kueng and Lane cannot justify this continued use of force.
Brodd claimed that Floyd was still resisting the officers even when they had him pinned. But his definition of resistance is broad:
Brodd: It appeared to me in that video that he was still struggling.
Schleicher: Struggling or writhing?
Brodd: I don't know the difference.
Schleicher: Would a reasonable police officer on the scene consider whether somebody is actively resisting or writhing on the ground because they can't breathe?
Brodd responded that it was reasonable to discount Floyd's 27 complaints that he could not breathe because he had said something similar during the struggle inside the squad car. Schleicher suggested that it was not reasonable to ignore Floyd's complaints once the officers were pressing him against the pavement, a different context in which it was less plausible that Floyd was faking.
Brodd's idea of how Floyd would have behaved if he were "perfectly compliant" underlines how police interpret distress as resistance:
Brodd: A compliant person would have both their hands in the small of their back and just be resting comfortably…He is still moving around.
Schleicher: Did you say "resting comfortably"?
Brodd: Or lying comfortably.
Schleicher: Resting comfortably on the pavement?
Schleicher: At this point in time…he's attempting to breathe by shoving his shoulder into the pavement.
Brodd: I was describing what the signs of a perfectly compliant person would be.
Schleicher: So attempting to breathe while restrained is being slightly noncompliant?
Brodd's discussion of "positional asphyxia," which is what the prosecution says killed Floyd, likewise had an air of unreality. He initially suggested that the hazard is relevant only when police are dealing with an "extremely obese" suspect whose body weight would press against his lungs when he lies on his stomach. But during cross-examination, he conceded that there could be a risk of positional asphyxia when police apply their own body weight to a thinner person in that position. He also acknowledged that Minneapolis police officers are trained to move suspects to a "side recovery position" because of that danger, which he said is widely recognized by police.
Lane twice suggested that Floyd should be rolled onto his side, but Chauvin flatly rejected the idea. "In this situation, there [were] space limitations," Brodd said. "Mr. Floyd was butted up against the tire of the patrol car. There was traffic still driving down the street. There were crowd issues that took the attention of the officers. Mr. Floyd was still somewhat resisting. So I think those were relatively valid reasons to keep him in the prone [position]." According to prosecution witnesses, including the police chief, the decision that Brodd calls "relatively valid" was objectively unreasonable and a clear violation of department policy.
Even by Brodd's account, Floyd was "actively resisting" or "struggling against the officers" for "a couple of minutes." Yet Chauvin kept kneeling on Floyd for an additional seven and a half minutes. At one point, Lane said, "He's passing out." Brodd conceded that Floyd did not seem to be resisting after he lost consciousness. Yet Chauvin maintained his position over Floyd for nearly five minutes after he became unresponsive, even after Kueng said he could not find a pulse.
While the prosecution says the prolonged prone restraint killed Floyd, Brodd said it was for his own good. Given an intoxicated suspect's "potential erratic behavior, going from compliant to noncompliant, not feeling any pain, potentially having superhuman strength," he averred, "it's just safer for the officer and for the suspect to keep them in that prone control."
How is it safer for the suspect? "If they were to get up and run, handcuffed," Brodd said, they could "trip and fall, sustain facial injuries, other injuries. On the ground, their mobility is reduced…and their ability to hurt themselves is reduced." If you believe Brodd, the cops killed Floyd to stop him from hurting himself.