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Derek Chauvin Murder Trial Continues; Use-Of-Force Expert Says Force Has to Be Reasonable When First Used and Throughout the Duration That It Is Used. Aired 3:30-4p ET

Aired April 12, 2021 - 15:30   ET



SETH STOUGHTON, POLICE USE OF FORCE EXPERT: There were two MPD officers already on the scene, along with two more now, the defendant and the officer that he arrived with, would have realized that there was a -- what we might call a point of conflict, between the officers and Mr. Floyd, who did not want to get into the back of the car.

One of the things that signifies is generally that -- excuse me -- generally that the individual has been searched. Typically an officer is not going to load someone into the squad in the back of a car until after they've been searched. As I said, a reasonable officer would have seen that this appears to be a point of conflict, would have heard that Mr. Floyd was describing himself as claustrophobic, would have understood Mr. Floyd to be -- offering some alternatives, right.

Laying on the ground or sitting up in the front of the car as opposed to be putting -- being put in the back of the car. In other words, the point of contention does not appear to be police custody, right. Mr. Floyd does not appear to be objecting to being kept in police custody but instead to be objecting to being put in the back of a vehicle.

STEVE SCHLEICHER, PROSECUTING ATTORNEY: Now, you're aware that the officers attempted to place him in the back of the vehicle, and he was eventually taken back out of the back of the vehicle and into the street, is that right?

STOUGHTON: Yes. There was some noncompliance initially, and then what we would describe as active resistance, what appears to be physical engagement of the muscles in non-assaultive or nonaggressive way, leading ultimately to the officer's decision to take him out of the rear passenger side of the vehicle.

SCHLEICHER: And so, in your view, a reasonable officer would not have perceived this as active resistance as an act of violence or act of aggression, I should say.

STOUGHTON: That's correct. This does not appear to be an act of aggression in the sense that Mr. Floyd does not appear to have the intention to assault or attack the officers here. His efforts appeared aimed at not being in the backseat of the car. SCHLEICHER: Now I'd like to publish the second clip. Clip two, which

is taken from Exhibit 43, which is Officer Kueng's body-worn camera, and the footage begins at time stamp 20:19:01, and it is labeled Floyd placed prone. If you would please publish that.


GEORGE FLOYD: Well, why, please, man. I can't fucking king breathe.

OFFICER: Here. Come on out.

FLOYD: Thank you, thank you.


SCHLEICHER: All right, so, we're paused here at mark 20:19:08, is that right?


SCHLEICHER: Now at this point, can you please describe what would have been apparent to a reasonable officer at the scene?

STOUGHTON: So as you heard Mr. Floyd has already said, I can't breathe, and as officers pull him out of the backseat of the car -- again that point of contention from earlier -- you hear Mr. Floyd say thank you.

SCHLEICHER: And he is also -- appears to be handcuffed, is that right?

STOUGHTON: He is. He is handcuffed. And I believe although not entirely clear from this freeze frame, I believe the video will show he's on his knees at this point.

SCHLEICHER: If you would resume playing the clip, please.


OFFICER: On the ground. On the ground.

You got your restraint? Hobble.


OFFICER: I'll grab that.

FLOYD: I can't breathe. I can't breathe.


SCHLEICHER: All right. Now, from that segment that we just watched, clip two, can you please describe what information would have been available to a reasonable officer in the defendant's position at that time?

STOUGHTON: Yes. So again, focusing on the threat analysis here in this stamp, Mr. Floyd remains handcuffed. He's put from his position on his knees where he said thank you and I appreciate that, having been taken out of the backseat of the car, He's agreeingly pushed over onto his left side, sort of facing the car, and then rolled from his left side into the prone position, into that face-down position.

SCHLEICHER: Now, prior to having him, I guess, first brought down to the ground, at the time he was placed on his knees, I believe you indicated that he said the I appreciate that or thank you, something to that effect?


SCHLEICHER: All right. At that point was it necessary for the officers to prone him?



SCHLEICHER: Why not? Why not?

STOUGHTON: Again, looking at the threat analysis here, it's clear from the number of officers and Mr. Floyd's position and the fact that he's handcuffed and has been searched, he doesn't present a threat of harm. His actions don't indicate that he presents any threat of escape.

And as he's saying thank you being taken out of the backseat of the car it would certainly suggest that the point of conflict that had provoked his resistance in the first place is over and suggests a lack of intention. Given the range of other alternatives available to the officers, it's just not appropriate to prone someone who is at that point cooperative.

SCHLEICHER: What is the purpose of placing someone in the prone position in accordance with generally accepted police standards?

STOUGHTON: Yes. The prone position is a very useful position in policing for getting control of someone for purposes of handcuffing them. Again, the prone position is just basically face down, right. Their chest, front of the hips on the ground.

When officers are struggling with someone or when they're handcuffing someone who they anticipate struggling with, you will often see officers put someone into that prone position for purposes of handcuffing because it's very difficult for someone to fight or to resist as they're face down on the ground, especially once their arms are out at their sides.

However, the prone position -- as useful as it is for handcuffing -- is supposed to be transitory. It's used for handcuffing. And then as soon as someone has been handcuffed, you take them out of that position for, I imagine reasons that we'll discuss.

SCHLEICHER: And the position that you take them out of and put them into, is that the side recovery position?

STOUGHTON: It is, yes.

SCHLEICHER: If you could then -- and just recalling the clip we saw initially when Mr. Floyd was on his knees and he was brought to the ground, what position was he in initially?

STOUGHTON: So, initially as he's on his knees, when he's brought over onto his left side, that would be consistent with the recovery position, laying on his side with his legs either straight or bent.

SCHLEICHER: And then from that -- essentially what would be the side recovery position, he was actually brought into the prone position from the recovery position, is that right?

STOUGHTON: Yes, that's correct.

SCHLEICHER: All right. And at this point or shortly after this point, the prone position -- I'm sorry, the prone restraint position begins, is that right?

STOUGHTON: Yes, when he is put into that prone position, that's where I would say that the prone restraint begins. He is restrained and prone.

SCHLEICHER: You know --

STOUGHTON: As well as the knee across the neck. These are really the two uses of force that I'm focusing on.

SCHLEICHER: All right. And this where you indicated is the beginning of the restraint period, is that right?

STOUGHTON: That's correct, that red line indicates where the prone restraint and knee across the neck begins in that timeline.

SCHLEICHER: Now I need to ask you, at the time that he was placed prone in this use of force was done, was Mr. Floyd a threat?

STOUGHTON: So again, threat is specific but I -- no, I don't see him presenting a threat of anything. He was not a threat of harm to the officers. Even to the extent he had physical ability. He didn't have much in the way of opportunity to assault or harm the officers, and just as importantly there's no specific and articulable facts that an officer -- a reasonable officer in the defendant's position could use to conclude he had intention of causing physical harm to the officers or others.

It's very clear that although he had legs, so I suppose he had the physical ability to run away, he does not have the opportunity to do so. And again, there's no facts from which we could assess any intention to escape, so no threat of escape.

And really in light of the situation, there's not even a credible threat of obstructing the investigation. With four officers in the immediate area and one more, I believe a parked police officer maybe half a block away across the street, there are ample resources on scene to maintain control and custody of Mr. Floyd. Two officers can stand with him and the other two can go about doing the -- what was ultimately a forgery investigation.

SCHLEICHER: And if we can go to the next clip, please.


Right, and that clip was taken from what's been received as Exhibit 49, in which is the body-worn camera of Officer Thao, is that right?

STOUGHTON: Yes, it is.

SCHLEICHER: And it starts at 20:21:31. If we could publish that, please.


FLOYD: I can't breathe, man. Please. Please, let me stand.


FLOYD: Please, let me breathe.


SCHLEICHER: Can you please explain to the jury what you heard and saw in this clip that's relevant to your analysis?

STOUGHTON: Yes. So, there are a couple of things. First, of course, you hear Mr. Floyd saying that he can't breathe. That will come up as we talk about the foreseeable effects of the use of force. You'll also hear the officers discussing and ultimately concluding that they aren't going to use the hobble restraint.

SCHLEICHER: Did they discuss why they wouldn't use the hobble restraint?

STOUGHTON: You hear -- yes, you hear one of the officers say because something -- something like if we use the hobble, a sergeant's going to have to come.

SCHLEICHER: Now, can you please tell the jury what the -- you know, generally how a hobble restraint system works and what it's for.

STOUGHTON: Yes, a hobble is used to limit the motion of someone's legs. So if they're kicking or flailing around with the legs, especially someone who's in, for example, the backseat of a police car who may be kicking out the windows or something like that. And essentially the hobble goes around the ankles and binds the ankles together, and then is connected to a belt piece, sort of a component around the midsection to slightly bend the individual's legs.

Historically, the legs used to be bent up behind someone. Think of laying on your stomach and kicking your feet up, up towards your butt.

The way hobbles are generally used now is the feet aren't behind the individual, they're just brought up so the knees are kept in front of the body and brought up a little bit. Again the point is just to make it much more difficult if not impossible for the individual to kick.

SCHLEICHER: And what would a reasonable police officer on the scene use to determine whether a hobble restraint is appropriate?

STOUGHTON: So hobbles are generally appropriate when officers cannot effectively restrain someone using only handcuffs. When they have someone who is continuing to kick or flail or flop around uncontrollably.

SCHLEICHER: Is the absence or presence or the need to summon a supervisor an appropriate reason to either use or not use a hobble?

STOUGHTON: No, if the situation justifies a hobble, then officers should use the hobble regardless of the fact that that means a supervisor will have to respond. If the situation does not justify a hobble, then they shouldn't use a hobble regardless of the requirement to summon the supervisor.

SCHLEICHER: And would you agree that a hobble is just sort of a brand name for a form of MRT or maximal restraint technique?

STOUGHTON: Yes. So hobble four-point restraint, maximal restraint, there are specific brands like the Rip Hobble, but, yes, these are all essentially the same concept that we're talking about.

SCHLEICHER: And was the application of force by the officers without the hobble essentially a maximal restraint technique but without the use of that tool?

STOUGHTON: To the extent that the hobble would effectively immobilize someone and keep them from kicking, then what you see here are officers controlling Mr. Floyd's upper body, middle body and lower body, which would keep him from kicking.

So although not a perfect parallel, I would certainly describe it as a behavioral analog of a maximal restraint or a hobble-like technique.

SCHLEICHER: And when an individual is placed in a maximal restraint, the hobble, are they supposed to be placed in the side recovery position?

STOUGHTON: Absolutely, just like handcuffing. As soon as an individual is restrained, handcuffs or hobble, you get the person off of their stomach, out of the prone restraint and into a side recovery position.

SCHLEICHER: And I'd like to then move to the next segment.

STOUGHTON: If I may on --


SCHLEICHER: We can move to the next segment here. We're looking at the next clip, which is Exhibit 47, beginning at 20:23:47. If you could publish that, please. (BEGIN VIDEO CLIP)

OFFICER: Roll him on his side?

DEREK CHAUVIN: No, he's staying put.



SCHLEICHER: All right. And you please -- and you can move forward the next. Please explain to the jury what you heard that was relevant to your analysis in that exchange.

STOUGHTON: So there's one officer who's suggesting or asking about whether they should roll Mr. Floyd onto his side. And you hear the -- the defendant say, no, he's staying put. And they're going to keep him in the prone restraint.

SCHLEICHER: OK. What was the significance of that?

STOUGHTON: It would indicate to a reasonable officer that at least one person there did not feel that Mr. Floyd presented the level of threat that required them to keep him in that prone restraint position. That at least one person was suggesting, we can flip him onto his side, or should we flip him onto his side?

SCHLEICHER: And if you could proceed to the next clip. And again if you can play that segment, Exhibit 47 at 20:25:38.


OFFICER: Roll him on his side?


SCHLEICHER: Move forward. And again, we heard a similar exchange, is that right?

STOUGHTON: Yes, we did. Along with one of the bystanders in the background saying, he's not responsive right now. Both of those are factors to consider in identifying the threat that Mr. Floyd presented.

If he's not responsive, obviously you can't present any threat and the fact that you have an officer suggesting roll him onto his side, again suggests that a perception that officers are fully capable of maintaining custody and control of Mr. Floyd without keeping him in that prone restraint position.

SCHLEICHER: Now in accordance with your four-step process, the next step is to identify foreseeable effects of the officer's actions, is that right?

STOUGHTON: Yes, that's correct.

SCHLEICHER: You did that in this case, is that right?


SCHLEICHER: And I'd like you to please discuss -- if you can advance the slide here. Go ahead.

We have some potential foreseeable effects. What does a reasonable officer have to take into account when determining what the potential foreseeable effects of their actions are?

STOUGHTON: Sure. So under that the first step of the analysis we look at the facts and circumstances as they would have been aware to a reasonable officer on the scene. And some of those facts and circumstances may indicate that there are specific foreseeable effects of force.

So, in this case, again we have those two separate components of force that I'm going to address. One is the knee across the neck. That foreseeably can cause pretty significant serious bodily injury or death.

If you think of someone who's lying face down, where the head or face is against the ground and the chest is against the ground, that means the neck is kind of like a suspension bridge, right? So it's generally accepted in policing that you do not put weight down on someone's neck in that position because of the potential that the neck won't be able to handle that weight. And you can end up damaging the structures of the neck. That's kind of generic. There's nothing specific that we need in this case. That applies to all defendants, so I'm -- I apologize -- all individuals.

There are also foreseeable effects of keeping someone in that prone position. Prominently what's called positional asphyxia. Someone who starts having trouble breathing who can't take in over time the amount of oxygen that they need to sustain their life functions.

This is something that's been very well known in policing for at least going on 30 years. The prone restraint position limits the ability of someone to breathe. And there are some additional specific factors relevant to this case that increase the susceptibility of Mr. Floyd to positional asphyxia that a reasonable officer would have known prior to the use of force, specifically --


CAHILL: Ask another question.

SCHLEICHER: And those additional risk factors, would those include the downward pressure of the weight of --


CAHILL: Overruled.

SCHLEICHER: -- weight of the officers? STOUGHTON: Yes, absolutely. Additional weight on a subject's back can

further compromise their breathing rendering them more susceptible to positional asphyxia. Knee --


CAHILL: There's no question.

STOUGHTON: My apologies, sir.

SCHLEICHER: All right. At this time I'm going to ask that the next clip, clip six which is taken from Exhibit 49 which is I believe Thao's body-worn camera and it starts at the time stamp 20:21:50. If you would play that, please.


OFFICER: What do you want? I'll go --

FLOYD: I can't breathe. Please, the knee on my neck, I can't breathe, sir.

OFFICER: Well, get up and get in the car, man.

FLOYD: I will.

OFFICER: Get up and get in the car.

FLOYD: I can't move.


FLOYD: (Floyd screams) Mama.

OFFICER: Well, get up and get in the car.

FLOYD: Mama. I can't.

OFFICER: Just stay down and do what he (INAUDIBLE).

FLOYD: All right, my knee, my neck.

OFFICER: You can't do it man.


SCHLEICHER: And can you please explain -- are we looking at a break?

Were you signaling to me, judge, that we --

CAHILL: No, no you come to the next ten minutes when a good break is.

SCHLEICHER: OK. Thank you, your Honor.

With respect to this portion that we just viewed, what did you see that was relevant to your analysis with respect to the potential foreseeable consequences of the officer's actions?

STOUGHTON: So two things really stand out. One is you hear Mr. Floyd saying that he can't breathe. And one of the indicators of susceptibility to positional asphyxia is that someone starts having difficulty breathing.

And the other -- the other component, one of the factors that can increase the susceptibility to positional asphyxia is drug or alcohol intoxication.

Even before the defendant arrived on scene the -- the counterfeiting suspect who was later identified as Mr. Floyd was described as possibly intoxicated, and here in this clip you can hear the officers discussing the likelihood that he's intoxicated, that he was found with drug paraphernalia on him, and they suspect that there might be other drugs in play.

SCHLEICHER: And there are other things that an officers can listen to even including a report of distress from the person himself, is that right? First upon who force is being applied.

STOUGHTON: Absolutely. If someone is describing that they are experiencing medical distress then officers have to take that into account as they are evaluating the continued effects of keeping someone in -- in this case a prone restraint position.

SCHLEICHER: I'd like to play clip seven which is taken from Exhibit 43, Keung's body worn camera at 20:22:18. If we publish.


FLOYD: I've got to focus. My stomach hurts.

OFFICER: Uh-huh.

FLOYD: My neck hurts.


FLOYD: Oh, that hurts. Give me water or something. Please. Please.

I can't breathe, officer.

OFFICER: It takes a heck of a lot of oxygen -- a lot of yelling.


Officer: It takes an awful amount of oxygen to --

Floyd: (CRYING OUT) Come on man.


SCHLEICHER: During what we just viewed as clip seven was a -- the defendant was the use of force the same as you know when you began analyzing this at point zero? STOUGHTON: Yes, the officers are maintaining Mr. Floyd in that prone

restraint position that there are some additional indicators that the foreseeable effects of force are occurring. He's experiencing positional asphyxia.

SCHLEICHER: And did hear Mr. Floyd say plainly that he was experiencing some form of medical distress?

STOUGHTON: Not only does he indicate it with the words that he's using saying that he can't breathe but even compared to that prior clip his voice is slower and thicker. So both what he is saying and how he is saying it would indicate an increased medical distress.

SCHLEICHER: And would a reasonable officer on the scene then hearing this has at least been aware of the complaint?

STOUGHTON: Absolutely, especially when you hear an officer responding to that complaint, certainly an indication that an officer was aware of it.

SCHLEICHER: OK. And you reviewed these body-worn cameras on numerous occasions, is that right?

STOUGHTON: Yes, many times.

SCHLEICHER: And did you have an opportunity to review body-worn camera in which the defendant's voice could be heard at the same time that you could see him as the speaker?


STOUGHTON: I believe there is -- yes. He's identifiable as the speaker. I forget which body-worn cameras that is, or maybe it's the comparison of multiple body-worn cameras but he's identifiable as the speaker there.

SCHLEICHER: And -- I'm sorry-- and in the exchange we just heard, was he identifiable as speaker who was saying, ah-hah?


SCHLEICHER: If we can go to clip eight just taken from Exhibit 47, at 20:24:40.

BROOKE BALDWIN, CNN HOST: All right. We've been listening to detailed testimony from this criminal law professor, this former police officer on the stand, but before that we heard from George Floyd's younger brother, Philonise Floyd, and that's really what I want to talk about here.

I've got Elie Honig and former police commissioner Charles Ramsey. And commissioner, I just want to begin with you. And obviously say what you will about all of this testimony that we've been hearing from this professor, but I really love to hear your thoughts first on Philonise Floyd. CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Well, it's very emotional. I mean whenever you have family testifying about their loved one it's going to be highly emotional, again, painting him as a real person that someone actually did care a great deal for.

Not just the guy who was high on drugs and resisted arrest for a period of time and so forth. I mean it's, again, it's humanizing him as a person, and so that's highly emotional and that's what we saw in the first week of the trial with the initial testimony of many of the witnesses and so forth. It was very emotional.

BALDWIN: Elie, why not end? I mean, I appreciate this expert and the detail and the use of force piece is key, but why not end on the brother's testimony?

ELIE HONIG, CNN CRIME AND JUSTICE EXPERT: That's exactly my question, Brooke. It may have been a scheduling issue. There was some reference from the prosecutor of is he here, is he ready? But 100 percent. If this is up to me, I am ending on Philonise.

If this guy has to go later, I just drop him. I don't think he's adding much for the jury to what the chief already gave us and many other witnesses about use of force.

But Philonise Floyd's testimony, to hear a younger brother talk about his love for his older brother in that way was so heartbreaking, so devastating, such a poignant way to finish this.

And what sometimes happens in murder cases is the victim can become an abstraction because you hear the person as somebody who's acted upon, somebody who something was done to. And Philonise Floyd I think reminded the jury this was a real living breathing human being. It would have been a perfect way to end.

BALDWIN: To hear him speak about, you know, Philonise Floyd got emotional looking at that old photo of his mother and a young George Floyd and then he was talking about losing the mother, and how George Floyd didn't want to leave the casket and just kept saying, mama, mama, mama over and over and over. Which of course, how can you not then think about the moments there on the ground at end of his life.

I know that there was, you know, concern about whether he was he referring to his former girlfriend. Was he really referring to his mother?

Big picture, Elie. I mean, I feel like this is coming to a close with regard to the prosecution, right? What happens when the prosecution rests?

HONIG: Yes, so the prosecution looks like they are getting ready to rest. Meaning it's like you see in the TV shows, someone stands up and says, your Honor, the prosecution rests its case. That will actually happen here soon.

At this point procedurally the defense makes what's called a motion for a judgment of acquittal which basically happens in almost every case and almost never succeeds. It's where the defense lawyer says to the judge, your Honor, they have not met their burden of proving their case beyond a reasonable doubt. I want you, judge -- forgot about the jury -- you judge, to enter a not guilty verdict. There is a zero percent chance of that succeeding here, but the defense will make that motion. And after that we'll be on to the defense's case which it looks like could start tomorrow morning.

BALDWIN: And when we listen for these witnesses that the defense will call -- commissioner over to you -- what will you be listening for from your law enforcement perch?

RAMSEY: Well, I'm sure they'll try to find their set of experts in law enforcement to talk about tactics, talk about training. Obviously, they will bring some medical experts in to kind of contradict some of what was said before.

It's going to be a steep uphill battle because even use of force experts that they may bring in, the fact that he held that position which is what this current expert is talking about for over nine minutes, I don't know how you justify that under any circumstances, and no one has argued that at some point in time force was reasonable.

If the question is how long, when did you reassess, when did you take positive steps to make sure that he wasn't in trouble in terms of not being able to breathe and so forth, so they'll do the best they can because that's all they have right now, quite frankly.

BALDWIN: Commissioner Charles Ramsey, Elie Honig, gentlemen, we'll see you back here tomorrow presumably when the defense begins their side of the case.

I'm Brooke Baldwin. Thank you for being with me these last two hours. Let's send things to Washington.