DAY 12 CHAUVIN TRIAL: Defense Begins – High Tension and ‘One-Upmanship’

By Koda Slingluff and Michael Wheeler

MINNEAPOLIS, MN— Two sides of George Floyd were juxtaposed Tuesday on Day 12 of the murder trial of former police officer Derek Chauvin for killing Floyd

Shortly before his death in May 2020, according to witness Shawanda Hill, he had been “happy, normal, talking, alert,” while body camera footage from a May 6, 2019, traffic stop showed Floyd dealing with the depths of opioid addiction.

The day concluded with swift and severe questioning by the prosecution of a defense use of force expert who seemed to contradict his own opinion.

The former officer’s defense attorney Eric Nelson attempted to show that Floyd’s drug use history had played a role in his death, focusing on Floyd’s 2019 traffic stop and questioning witnesses as to Floyd’s medical circumstances.

According to Scott Creighton, a retired police officer who participated in the traffic stop of the vehicle Floyd had been riding in in May 2019, Floyd had been unresponsive to police commands to make his hands visible.

“The passenger was unresponsive and noncompliant to my commands. I then had to physically reach in, because I wanted to see his hands, because I couldn’t see his hands. I reached in finally and put his hands up on the dash.”

Body camera footage of the incident was shown to the jury and showed that Creighton had pulled his gun during the second half of the traffic stop. On the tape, Floyd audibly asks not to be shot, with Creighton replying, “I don’t plan on shooting you.”

He also told Floyd, “You’re not going to get beat up or nothing if you just follow what we’re asking you to do,” before admitting under cross-examination that “it escalated real quick.”

Paramedic Michelle Moseng also testified to her experience with Floyd that day.

“It was quite hard to assess him. He was upset and confused…(Floyd) had been taking multiple [narcotics] every twenty minutes, and it was opioid-based,” Moseng said.

After Moseng took Floyd’s blood pressure, she recommended he be taken to the hospital.

At the time of the traffic stop, Floyd had been addicted to opioids for a year and a half, and had not been taking his medication to deal with his hypertension, said one witness.

Despite this, Moseng stated that his respiratory effort was normal.

The defense then turned its attention to the events surrounding Floyd’s death in May of last year.

Hill, a passenger in the car with Floyd when he was stopped by police outside of Cup Foods in Minneapolis, told the jury that when she saw Floyd inside the store, he had been “happy, normal, talking, alert.”

However, when later approached by police, Floyd reacted strongly to seeing an officer with a gun knocking on the window.

“He instantly grabbed the wheel and he’s like, ‘please please don’t kill me, please please don’t shoot me, don’t shoot me, what did I do? Just tell me what I did, please don’t kill me, don’t shoot me.”

Officer Peter Chang also testified to the events outside of Cup Foods. Chang, who is not one of the four officers who have been charged in relation to Floyd’s death, saw Floyd sitting handcuffed against a wall when he arrived on the scene.

After moving his squad car, he observed police officers Thomas Lane and Alexander Keung pinning Floyd to their own car.

In the background of Chang’s body camera footage, Hill implores Floyd multiple times to just get into the squad car. However, because Chang had been staying with Floyd’s vehicle, he had been unable to see what had been occurring between Floyd and any of the officers.

He did testify that he had been worried about the safety of the other officers, whom he referred to as his “partners” on the footage, and that the crowd “was becoming more loud and aggressive.”

However, the police officers with Floyd never asked for help during the incident, and radioed that the scene was in “code 4,” meaning that it was under control, suggested prosecutors.

The morning’s final witness, Officer Nicole MacKenzie, explained the training Minneapolis police officers are given for how to handle excited delirium, a controversial medical condition that many medical experts don’t believes exists. Police, added MacKenzie, also are given frequent CPR training.

But when asked if she would defer to the diagnosis of an emergency room doctor, she wholeheartedly concurred. “Absolutely, it’s not our place to diagnose that.”

Following a break for lunch, the defense called witness Barry Vance Brodd to the stand. Brodd identified himself as a consultant on use of force and police practices.

He explained that he taught numerous classes at Santa Rosa Public Safety Center, a program for current and prospective peace officers. He taught topics such as defensive tactics, crowd control, and a de-escalation practice called “verbal judo.”

In his direct examination with defense attorney Nelson, Brodd emphasized numerous points to contribute to Chauvin’s overall defense strategy. He explained the policing standard set by the Graham v Connor case. Brodd said this standard was more or less “what would a reasonable officer do in a similar circumstance.”

The first standard of Graham v Connor is “severity of the crime at issue,” he explained to the room. Higher risk arrests naturally lend themselves to higher uses of force, and is the first factor for peace officers to consider when determining use of force.

Second is the “imminent threat factor,” where the officer, he said, determines if they have a reasonable fear that, as Brodd said, “somebody is either going to strike you, stab you, shoot you.” The final factor is whether the suspect is “resisting or attempting to evade.”

Considering these factors, Brodd said that he would not consider George Floyd’s arrest to be a use of deadly force. He alluded to the situation being closer to an “accidental death incident,” using an example of someone who is tased and then falls and dies from hitting their head.

Brodd briefly discussed what he called “one-upmanship,” where an officer is justified to use slightly more force against someone than the person used against the officer.

Poignantly, he summarized his opinions to the court, stating, “I felt that officer Chauvin’s interactions with Mr. Floyd were following his training, were following current practices in policing, and were objectively reasonable.”

Then, prosecutor Steve Schleicher cross examined Brodd. And, what followed was a long, tense, and methodical cross examination that almost eclipsed the rest of the day.

Schleicher inquired into what Brodd had said about the prone position— the face-down position which Floyd was held in by Chauvin as he cried out ‘I can’t breathe.’ Brodd had just said that the position was not likely to inflict pain, and he would not consider the use of the position to be a use of force.

Schleicher asked if it did inflict pain, if that would change Brodd’s position on Chauvin’s actions. Brodd responded, “If the pain were inflicted through the prone position, yes, that would be a use of force”

He then showed Brodd exhibit 17, a picture of Chauvin with his knee on Floyd’s neck in the midst of the incident. He asked, “you believe that orienting yourself on top of a person on the pavement with both legs is unlikely to produce pain?” Brodd admitted, “it could.”

Then, the attorney pivoted to the topic of positional asphyxiation. As a use of force educator, he reasoned, Brodd would have a good understanding of it. His suspicion was correct, with Brodd answering multiple questions about the condition.

As it turns out, positional asphyxiation is understood in law enforcement to be a result of oxygen restriction that can happen from someone’s own weight when in the prone position.

Brodd agreed that it could happen with someone’s own body weight, adding that it was more likely in obese people. He also agreed that being handcuffed could exacerbate the condition.

But when Schleicher asked the somewhat intuitive-seeming question of if someone else’s body weight would also exacerbate the chances of this condition, Brodd hesitated. “It’s possible,” he said.

Throughout the examination, Schleicher got Brodd to agree that Chauvin did have his weight on Floyd, that if Floyd was in pain then Chauvin was using force, and that since Floyd was crying out he was in pain.

“If a person is not resisting and not non-compliant – so let me phrase it better – compliant, the officer is not justified in using force? They’d be using control, if the subject is in custody. And control, for your definition, that is a restraint that is not likely to inflict pain. That’s control?” Schleicher questioned.

“Yes,” Brodd responded. Compiled together, Brodd’s answers seemed to indicate that he should consider the prone position as a use of force by his own definitions.

Reviewing a clip towards the end of the incident, where Floyd appeared to be limp on the ground, the witness described him as “becoming more compliant.”

Schleicher responded, “Well, is there any non-compliance you were able to see in that clip?” To which Brodd said no.

“So he’s not exhibiting non-compliance, and based on your testimony and your review and the plain video record in front of you, you see that the defendant has not changed his position correct?” the prosecution asked.

“Correct” Brodd answered.

This question was calling back to Brodd’s earlier testimony about “one-upmanship.”

Brodd had suggested, in different words, that proportional escalation and de-escalation of force was acceptable for an officer. Now, Schleicher pigeonholed him into admitting that Chauvin was not being proportional in his force.

The pillars of Brodd’s initial statement seemed to be that Chauvin was not using force and was proportional in his response to Floyd. By the end of the cross examination, Schleicher had effectively tumbled those pillars over.

There was a short re-direct and re-cross examination before the day’s end. In the re-direct, Nelson emphasized that just looking at clips in a courtroom cannot tell the whole story. He also asked about the prone position’s physical effects, questioning if it impacted the “structure of the neck” to which Brodd said “no.”

Nelson confirmed with the witness that he saw Floyd as actively resisting the officers. He then quickly asked if traffic on the street could be considered an environmental hazard, and Brodd confirmed this possibility.

Schleicher came back in his re-cross to address each of Nelson’s new points. He asked Brodd if he had seen George Floyd’s autopsy, and Brodd replied “no.” Schleicher latched onto this reply, continuing, “So you didn’t see the bruises on his neck?” and then asking the same question of his back and face. Each time Brodd said, “no.”

He asked if positional asphyxia could cause a reaction, like how someone would flail with their head held underwater. Brodd confirmed this was the case. This seemed to respond to Nelson, who had just addressed “active resistance.”

The prosecution had only one question regarding Nelson’s mention of traffic as an environmental hazard. “You aren’t holding it was reasonable to hold [Floyd] down in order to keep him from getting hit by a car are you?” Schleicher asked.

And with yet another “no” from Brodd, prosecution had no more questions. Court recessed shortly after.

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