By Natasha Feuerstein and Koda Slingluff
MINNEAPOLIS, MN – Lt. Johnny Mercil, a use of force instructor for the Minneapolis Police Department, testified that although Derek Chauvin may have used an authorized restraint technique against George Floyd, the use of his knee on Floyd’s neck did not constitute a properly trained neck restraint.
After displaying a photograph of Chauvin kneeling on Floyd’s neck, Prosecutor Steven Schleicher asked Mercil if this was a “MPD-trained neck restraint,” to which Mercil replied, “No sir.”
“Has it ever been?” asked Schleicher. “No sir,” Mercil replied.
When defense attorney Eric Nelson asked if Chauvin’s technique could have been part of training, Mercil replied that it might be considered using body weight as a means of control.
In response to whether the photograph displayed showed an MPD authorized restraint technique, Mercil added, “A knee on the neck may happen, and it is not unauthorized.”
Mercil later clarified that officers are trained to “stay away from the neck” and to concentrate their body weight on the subject’s shoulder instead.
Mercil testified that his use of force training focuses on ground defense training. This type of training draws on Brazilian Jiu jitsu techniques involving the use of leverage and body control to de-emphasize the use of strikes or punching in the field.
The prosecution displayed an image to the courtroom showing presentation slides included in Mercil’s use of force training sessions—including the training he gave to Chauvin in 2018, according to sign-in sheets.
Schleicher asked Mercil to explain “proportional force” to the jury in reference to the slides shown.
Mercil explained that “you want to use the lowest force possible to meet your objectives” and that if these low force options do not work, officers can escalate the level of force.
But he emphasized that the use of a lower level of force is safer for everyone involved.
Next, the prosecution displayed to the court what Mercil referred to as a “use of force continuum” that is included in the MPD defense and control response training guide.
This continuum shows officers’ response actions escalating along with the subject’s resistance level.
At lower levels of aggression and with passive resistance, Mercil testified that officers should use lower levels of force in response.
The court was then shown an exhibit detailing strike zones on arresting subjects. The neck, head, and sternum of the chest were shown in red. These red areas indicate areas of the body more prone to serious injury.
“And this would not just pertain to strikes, but also pressure?” And, “Is this something you probably knew before any use of force training,” Schleicher asked. “Yes sir,” Mercil replied, twice.
During another part of Mercil’s testimony, he described the use of neck restraints to the court.
Mercil said that MPD training authorizes two types of neck restraints—conscious and unconscious—in order to “gain control of a subject” when making an arrest.
A conscious neck restraint is performed to make the subject comply, but an unconscious neck restraint may be performed when the subject does not comply, and thus pressure is put on the subject until unconscious.
Mercil clarified that an unconscious neck restraint can only be applied if there is active aggression from the subject, or if it is needed for life saving; it cannot be used for subjects who exhibit only passive resistance—verbal resistance, for example.
Neither neck restraint can be used when a subject is showing passive resistance, said Mercil, adding while neck restraints can be done with the leg, they do not train officers on leg neck restraints at MPD.
Officers are also required to employ “after care guidelines” which means keeping the subject under close observation after performing a neck restraint, explained Mercil, who described handcuffing techniques to the court, in particular, prone handcuffing.
He explained that prone handcuffing involves “isolating an arm,” and that “a lot of times, we train officers to use a knee to isolate the shoulder of a subject in order to handcuff.”
“Preferably, this is done with a partner; it makes it a lot easier to control someone,” Mercil added.
When the prosecution asked if it was appropriate for an officer to release the leg after handcuffing, Mercil replied that this was not necessarily the case. “In a prone position, a subject can thrash around, bite, or smother things” if still resisting.
But Mercil agreed with the prosecution that once the subject is handcuffed, no longer resisting, and is compliant, this would be an appropriate time to remove the knee.
When asked why, Mercil explained that there is a possibility and risk that people have difficulty breathing when on their stomach and their arms are handcuffed behind them.
Additionally, after being placed in a prone position, Mercil advised that the subject be placed into a “recovery position” as soon as possible because “when you further restrict [the subject’s] ability to move, it can further restrict their ability to breathe.”
Being placed into a recovery position involves either standing the person up, rolling them onto their side, or sitting them up.
In terms of continuing the use of force on a subject, Chauvin’s defense attorney, Eric Nelson, asked Mercil if officers take into consideration what has happened with a subject in the preceding events of the use of force, such as prior fighting.
Mercil stated that this was the case and that officers also take into consideration the size of the subject and whether or not the subject is under the influence of a controlled substance.
Nelson also asked Mercil to differentiate between a neck restraint and a choke hold. A choke hold is more like strangulation, and both hands are used to constrict the neck.
“At any point in videos you saw, did you see Chauvin use a choke hold?” asked Nelson. “No,” Mercil replied.
In terms of neck restraints, to which Mercil testified to having taught “hundreds of times,” Nelson asked how much pressure it takes to make someone unconscious.
Mercil said “it depends.
“The size of the person, your skill, whether they’re on narcotics or not, whether they’re having an adrenaline rush, heart rate, general physical health—there’s just a lot of factors involved,” Mercil said.
He explained that one does not necessarily need to apply much pressure over a long period of time to make someone unconscious, noting that based on his training and experience, it takes “under 10 seconds.”
But, as prompted by Nelson, Mercil testified that it is possible to hold a person in the prone position and under the officer’s body weight after they have stopped resisting.
This is due, in part, to the fact that officers are trained to take into account the totality of the scene when making decisions.
This could include a crowd of bystanders voicing displeasure with the officer’s use of force, or the possibility of the subject resisting the officer again, even after showing compliance for some time.
However, the prosecution asked Mercil, “Would it be appropriate and within training to hold a subject in a prone position with the knee on the back and the knee on neck for an extended period of time when the subject has stopped any resistance?” to which Mercil replied that it would not be appropriate.
“Have you ever encountered a circumstance where an individual has lost their pulse and suddenly come back to life and gotten more violent?” Schleicher asked. “No,” replied Mercil.
Earlier in the proceedings Tuesday, Sgt. Ker Yang testified. Yang is the crisis intervention training coordinator for the Minneapolis Police Department.
According to Yang, a crisis is “any event or situation that is beyond a person’s coping mechanism.”
Yang trains officers and designs curriculum to teach officers how to assist people in crisis and bring them back down to pre-crisis level.
According to records, Chauvin participated in a 48-hour crisis intervention course.
Yang further testified that the MPD has a “critical decision-making model” that officers use when assessing situations and responding to ever changing events in the field.
Upon cross-examination of Yang, Nelson asked if officers are trained to take into account the totality of the circumstances in the field, which involves more than just the interaction with the subject to be arrested. Yang agreed.
Yang also agreed with Nelson’s statement that the critical decision-making model is ever changing, based on what an officer is dealing with at the time, such as interpreting whether or not bystanders pose a threat or a risk to the officer.
Crowds can create an additional crisis from the one the officer may already be dealing with, he admitted.
The prosecution asked some follow-up questions about how officers can differentiate between “small things” and “big things” when deciding a course of action.
“Needing medical attention would be a big thing?” asked Schleicher.
“Yes,” replied Yang.
“Contrasted with a 17-year-old filming you—that would be a small thing?” Schleicher asked.
“Yes,” Yang agreed.
Tuesday’s court session began with a Zoom appearance by Morries Hall. Hall’s counsel informed the court that Hall aims to avoid testifying so as to not self-incriminate himself.
“Mr. Hall has no immunity and no protection for his testimony at this time. Because of this he is invoking his 5th Amendment rights in several key areas we believe he is certain to testify on,” stated his attorney, Adrienne Cousins.
Hall is currently in prison for charges unrelated to George Floyd’s death. According to previous evidence presented in the court, Hall was in the car with Floyd prior to Floyd’s arrest. Hall is also known to be a friend of George Floyd.
After Chauvin defense attorney Nelson outlined what the defense planned to ask of Hall, Judge Peter A. Cahill said it appeared almost everything Nelson planned to ask of Hall would lead to definite 5th Amendment incrimination.
There was one very narrow area of questioning Judge Cahill felt would not be incriminating, and this involved Hall’s observations on how George Floyd appeared in the car and about Floyd potentially falling asleep suddenly.
Without the mention of drugs, Judge Cahill maintained that this line of questioning would not lead to self-incrimination. It would simply show Hall as a passenger in the car, which has already been confirmed through video evidence.
Hall’s attorney maintained otherwise, stating that this line of questioning puts Hall close to Floyd in the car, where drugs were found twice.
Chauvin’s defense team further argued that they “want a fair trial for Chauvin” and that “what we can’t have is an indication of this privilege in front of the jury.
“The standard is not just whether this evidence itself implicates him, it is whether it creates a link,” the defense stated.
Judge Cahill ultimately did not rule on whether Hall would testify, but ordered Chauvin’s lawyer to draft a list of questions only involving the narrow area he mentioned as likely to not incriminate Hall.
The draft is to be presented in a separate hearing outside of the jury to Judge Cahill who will decide whether or not to allow the questions to be asked.
Hall will then be given the opportunity to meet with his lawyers to decide if he will testify or not.
The second to last witness of the day was Officer Nicole Mackenzie, the medical support coordinator for Minneapolis Police Department. Officer Mackenzie is a former EMT with a human resources background who has been in law enforcement for six years.
She is the EMR (emergency medical response) instructor for officers with MPD. As the EMR instructor, Mackenzie has provided medical training for the entire department of officers, including the defendant, although she does not specifically recall him in her class.
Prosecutor Schleicher asked Mackenzie a variety of questions regarding expertise and department policy. Among them, he asked her to walk the jury through the acronyms AVPU and ABC which officers use to remember the order of procedures for emergency response.
AVPU stands for alert, verbal stimuli, painful stimuli, and unresponsiveness. This means that to check for responsiveness, officers begin by seeing if the person has an alert response, then if they respond to verbal stimuli, then if they respond to a slight painful stimuli (such as pressing a fingernail into the skin) and if there is no response to these three things the officer can determine if the person is unresponsive.
For painful stimuli, Mackenzie explained that it should be something small that would make a person pull away in order to “see if the person reacts.”
If determined unresponsive via AVPU, the officer goes to the ABC’s (Airway, Breathing, Circulation). This means to move the person to a position “where their airways can be as responsive as possible,” tilting the head up, then checking for breathing by listening and looking for if their chest is rising and falling. The final step, circulation, means to search for a pulse.
A key exchange occurred when Schleicher asked Mackenzie if speaking was sufficient to say that someone could breathe properly.
Mackenzie replied with a firm “no,” explaining “there is a possibility that someone could be in respiratory distress and still be able to verbalize it. Just because they’re speaking doesn’t mean they’re breathing adequately.”
Officers are only supposed to stop performing CPR in very specific situations, Mackenzie elaborated.
These situations are when the officer has “been relieved by somebody with higher level training than [themselves], or if maybe there are obvious signs of death, or if [the officer has] been doing it for a while and are just absolutely physically exhausted from CPR.”
Defense attorney Nelson had several questions for Officer Mackenzie as well, mostly centering around a condition called “excited delirium” and circumstances when it would not be safe to administer CPR.
Excited delirium, one of many conditions which Officer Mackenzie trains other about, is a medical condition which may be caused by a variety of things such as controlled substances and psychosis.
Mackenzie explained that it is often observed as “psychomotor agitation, psychosis, hypothermia, [and] a wide variety of things you might see in a person or bizarre behavior.” Importantly, Mackenzie trains officers to recognize that “this is a medical condition in a person and not necessarily a criminal matter.”
The condition can cause physical attributes such as elevated body temperature, heart rate elevation, and insensitivity to pain. Some people observe what Mackenzie called “superhuman strength,” where the person’s insensitivity to pain causes them to exceed their body’s typical limits.
Nelson questioned Mackenzie on the informal term “load and go” which is sometimes used by EMTs. The officer was familiar with the term, explaining that it means to prioritize getting a person into an ambulance and to a hospital as fast as possible.
The choice to “load and go” would be because of someone’s immediate need for surgery or if a hostile crowd made it too difficult to perform first aid on the scene.
Countering Nelson, Schleicher questioned Mackenzie in a redirect. He asked her how she would define hostility in a crowd. She replied, “That would be a growing contingent of people around, if they’re yelling, even being verbally abusive… if they’re physically trying to interfere.”
To further clarify, the prosecution asked if the activities of a group of onlookers could excuse an officer from rendering medical aid to a person who needs it.
She said, “Only if they were physically involved, I would say,” before adding “if the officer was being physically assaulted.”
Finally, the prosecution asked about excited delirium and its relationship to pain. If this delirium could cause an inability to feel pain, he asked, would expressing a response to pain indicate that the person was not experiencing excited delirium?
The officer could not say for certain, responding that “no two people really present the same way.”
Officer Mackenzie was then excused, but is expected to be called by the defense to testify again next Tuesday.
The final witness of the day was Sergeant Jody Steiger of the Los Angeles Police Department. Sergeant Steiger has 28 years with the police, during which he has patrolled and supervised the most dangerous areas of LA, including Skid Row and other crime hotspots in the southern area of the city. He also spent six years instructing on use of force and de-escalation.
In addition, Steiger worked on the use of force review board for the LAPD, where he did approximately 2,500 reviews of officer conduct to determine if their force was excessive.
Steiger emphasized that, when evaluating force, it is important to distinguish between “risk” and “threat.” Risk, he explained, is an almost-constant factor in police work.
“Any time we go into a situation, there’s a risk factor involved,” he told the jury. Threat, on the other hand, is the chance of immediate assault on an officer or someone else.
Size and stature, which was part of Chauvin’s justification for his use of force on Floyd, is considered a factor of risk rather than threat. When asked if it is appropriate to use force against an individual simply based on their size, Steiger said no.
Based on the accepted standards for reviewing force, Steiger had the following opinion: “Initially when Mr. Floyd was placed in the backseat of the vehicle, he was actively resisting the officers. So at that point the officers were justified in trying to have him comply with their commands to seat him in the backseat of the vehicle.
“However, once he was placed in the prone position on the ground, he slowly ceased his resistance and at that point the officers, or ex-officers I should say, they should have slowed down or stopped their force as well.”
The prone position is when a person is placed face-down and flat against the ground. Steiger continued to explain that they then used a hobble restraint on Floyd, which secured his legs to keep him from kicking. When a hobble restraint is used, the practice of officers is to place the person in a side recovery position to ensure that they can breathe.
In the prone position, restrained with a hobble restraint, people “can have difficulty breathing, which can cause death.”
The court recessed for the day. Steiger will continue his testimony Wednesday morning.
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