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Defense Gives Closing Argument in Chauvin Murder Trial. Aired 1-1:30p ET

Aired April 19, 2021 - 13:00   ET


ERIC NELSON, DEFENSE ATTORNEY: Whether they suspect the suspect was under the influence of a controlled substance.


They can take into consideration, because, again, this is a dynamic and ever changing -- just like life, things change, it's a dynamic situation, it's fluid. They take into account their experience with the subject at the beginning, the middle, the end. They try to -- a reasonable police officer tries to predict or is at least cognizant and concerned about future behavior based upon past behavior.

But the unpredictability of humans factors into the reasonable police officer's analysis too. Because sometimes people take -- reasonable police officers take someone into custody with no problem and suddenly they become a problem. It can change in an instant.

A reasonable police officer will take into consideration his immediate surroundings, are there bystanders, are there civilians. A reasonable police officer will take into consideration who he is at the scene with, are these veteran officers or rookie officers. What do I know about my partners and my partners' abilities?

So, throughout the course of this trial, the state has focused your attention on nine minutes and 29 seconds. The proper analysis was to take those nine minutes and 29 seconds and put it into the context of the totality of the circumstances that a reasonable police officer would know. And the proper analysis starts with what would a reasonable officer know at the time of dispatch.

These are records that are kept and they've been introduced. You can look at them. This is Exhibit 151. This is the computer aided dispatch report. You heard the testimony of Jena Scurry, the 911 dispatcher. This is information that they are passing out to the officers.

You will see that the initial information that a police officer has in his squad car looking at his computer or hearing over the radio was that on May 25th, 2020, at 20:02:13, that's 8:02:13, a business, Cup Foods, who police officers have the obligation to respond to these calls, whether it be from a person or a business, but a citizen of the state of Minnesota, Minneapolis, runs a business, and they called for assistance.

And they told the officers, the reporting party, there is a male who provided a counterfeit bill to the business. He's six feet tall or higher. He's sitting on top of a blue Mercedes ML 320 SUV, the license plates also appears this subject is under the influence.

So the analysis of what a reasonable police officer would know in this circumstance is that, A, a business is requesting its help, the suspect is still there, he's large and he's possibly under the influence of alcohol or something else.

So the analysis begins at 8:02:13 seconds. You may recall the testimony of Jena Scurry as well, and it's not reflected in this exhibit pretty well. But in the evidence, Exhibit 10, you can hear the audio recording of the dispatch, Jena Scurry to the officers.

Jena Scurry informed you that initially Officer Chauvin was assigned to this call on a code 3 priority 1 basis. It's code 3, get their lights and sirens, get there fast, right? It's priority 1 because the suspect is still on scene. So per the Minneapolis Police Department policy, get there fast, the person is on scene, right? That's what she testified.

And then very quickly after -- that occurred at 8:04:28.


Then what you see is officer or what she told you was that sector car, sector car 320, that's the car that patrols this part of the city, said, hey, we can take this call and Officer Chauvin and Officer Thao were canceled from the call. So they were canceled from the call and sector car 320, Officers Kueng and Lane took it, and that occurred at 8:05:11.

When Officer Kueng and Lane took it over, you can hear -- and, again, you can go back and you can listen to that audio of that dispatch, and you can hear them talking to each other.

Officers Kueng and Lane arrive at the Cup Foods at 8:08:20.

So now we see police officers are responding, they're on scene at 8:08.

Both Jena Scurry and Peter Chang describe that during the course of the interaction between the initial interaction between Officers Kueng and Lane and Mr. Floyd through dispatch, they heard what sounded like the sounds of a struggle. Jena Scurry described she's trained to listen, she heard these sounds of a struggle and she aired out on her own, other officers need to respond code 3 to assist Officers Kueng and Lane, right? And a reasonable police officer is going, emergent to a scene, and gets canceled from the scene, he's now being told that other officers need assistance and step it up, get there fast.

So you can see again, based on the records, that at 8:10:08, backed up 320 with 330, right? So now 330 is Officer Chauvin and Thao, they're backing up Officers Kueng and Lane, and you can see Peter Chang respond at 8:10:21.

You hear 320 taking one out. That means they're removing someone from the vehicle at 8:11:02. The scene is ultimately C 4, code 4, all clear at 20:12:21.

So, literally, this demonstrates to you a couple things, how quickly a situation can change from second to second, minute to minute, they went from get there fast, back off, get there faster because someone needs help. It's clear. The situation is dynamic and it's fluid. They're provided with information that an officer needs assistance. They testified about the sound of a struggle, right? And if you recall, Sergeant Stiger specifically said, all of this information would be known to a reasonable police officer and it goes into and factors into the reasonableness of the use of force.

Ultimately, Officer Chauvin and Officer Thao arrived at Cup Foods. This pauses for one second here. Sorry. When we look at officer -- I just have to give you a little piece of information. When we look at Officer Chang's video, Officer Chang arrives first, you see the time is 1:16:33 Z, zulu, that's Greenwich Mean Time, subtract 5 from 1:00 A.M. get you back to 8:00.

So, Officers Chauvin and Officer Lane pull up, 8:16, go over there.


Information gathering in terms of this assessment and reassessment of, again, the decision-making process of a police officer, right? Don't come over here where I am, Officer Chang says. Go over there. They need your help. Because what -- at that point, at that precise moment, they don't know what's happening over at the squad car. They don't know that Officers Kueng and Lane struggled with Mr. Floyd getting him out of the car, that they sat him down, that they stood him up, that they walked over. They haven't seen any of this information and there's no evidence to suggest that they had. So that doesn't factor into the information.

So, again, a reasonable police officer, what do they know, and they don't know that. But they're starting to get some indication, hey, go over there, right? Go over there.

You can see right at about 8:17, I apologize for the quality of the picture, Officer Chauvin is arriving and walking up to the squad car. So what a reasonable police officer -- what would a reasonable police officer see in this instance? What a reasonable police officer would see could be defined, because, again, reasonable police officer has to be aware of his department policies, active aggression or active resistance.

Let's call it active resistance. A response to police efforts to bring a person into custody or control for detainment or arrest, a subject engages in active resistance when engaging in physical actions or verbal behavior reflecting an intention to make it more difficult for officers to achieve actual physical control.

So, as Derek Chauvin walks up to this scene, he has all of the information from dispatch, he has all of the information from Officer Chang sending him over, he knows his department policy on the difference between active aggression, active resistance, passive resistance based on policy, training, et cetera, this is an officer's consideration of, again, the use of force. All of these things factor into it.

So what does he see? He sees Officer Kueng and Officer Lane struggling with Mr. Floyd, attempting to put him into the car. He hears the words that Mr. Floyd is saying at that point. I'm claustrophobic. I'm a good guy. I'm a good man. I'm claustrophobic. I just had COVID, right? He's hearing this information. He's observing with his eyes. A reasonable police officer is observing this with his eyes and his ears and assessing what he sees pursuant to policy and what he sees at a minimum is active resistance. Mr. Floyd is not simply getting in the back seat of the car.

So let's watch what does Officer Chauvin see when he walks up. This is from his body camera, from 8:17:21 seconds to 8:18:15, just shy of a minute.


By 8:18:15, Officer Chauvin has not laid a finger on Mr. Floyd but he's observing, and a reasonable police officer is doing this. He walks on to a scene, he sees active resistance occurring, potentially active aggression occurring, he has two other officers, he has not intervened.

But, again, based on the policies and the training that you have seen, what were his options available to him at that time? If a person is actively resisting, in the center, distraction techniques, controlled takedowns, conscious neck restraints. These are options available to Mr. Chauvin at this point. He has, per his training, these techniques at his disposal.

A reasonable police officer would be making these observations. He would have observed the white foam around Mr. Floyd's mouth. He would consider the possibility that this person was under the influence of something, basically using the information from dispatch, making these observations, how is he analyzing this. How would a reasonable officer analyze this and what would be known to a reasonable officer?

A reasonable officer would look at the size of the person and assess that person's size in relation to his own size because it's a part of the risk threat analysis, right, that we've heard about so much. A reasonable officer would with know that these are two rookies putting this man in the car. In fact, as the evidence established, Mr. Chauvin trained one of the officers. So a reasonable officer may step back at this point to see if these two guys can get this under control.

A reasonable officer will hear the words that the suspect is saying, I'm a good guy, I'm a good guy, I'm a good guy, I'm claustrophobic, and he's going to compare those words to the actions of the individual, right, because this is part of the analysis. Because I can say I'm going to cooperate with you, I'm going to do whatever I want, but if my behavior is inconsistent with what I am saying, reasonable officer takes that into consideration. In fact, a reasonable officer who is aware of his department policies, knows the de-escalation policy that is in place.

And part of what a reasonable officer has to do is to consider whether a subject's lack of compliance is a deliberate attempt to resist or an inability to comply based on these factors. Medical conditions, mental impairment, developmental disability, physical language, language barrier, influence of drugs or alcohol, or behavioral crisis.

So an officer, a reasonable officer, has to take the information and assess, is this suspect purposefully or intentionally, deliberately trying to thwart our efforts to take him into custody or are they experiencing one of these other types of factors. But, such consideration, when time and circumstances reasonably permit, shall then be balanced against the incident facts when deciding which tactical options are the most appropriate to resolve the situation safely.

So, again, reasonable officer, based on the totality of these circumstances, is going to take all of this information and all of these policies, all of these training, and a reasonable officer at that point would conclude that the amount of force that was being used by Officers Kueng and Lane was insufficient, was not enough use of force to overpower Mr. Floyd's resistance to getting into the car. He's seen it, he's heard it, he's familiar with the policies. And so at precisely 8:18:15, Officer Chauvin goes hands on.


Officer Kueng, Officer Lane and Officer Chauvin struggled, fought, however, whatever adjective you want to use, struggled with Mr. Floyd from 8:18 to 8:19:12, about a minute, a little over a minute. It doesn't really seem that -- it's that long of a time, but, again, the amount of physical exertion, remember how Jodi Stiger, Sergeant Jodi Stiger, described this. When the apparent attempts to get him into custody were futile, I wrote his quote down, the futility of their efforts became apparent, they weren't able to get him into the car. Three Minneapolis Police officers were not able to get Mr. Floyd into the car. They themselves are experiencing that surge of adrenaline, a reasonable police officer will be experiencing that surge of adrenaline.

And, again, balancing all of the evidence against each other, right, let's look at three different angles of the struggle. This is Officer Kueng's body camera.

He's under arrest for forgery. Forger for what? This is the video of the same time period from Officer Lane.

Officer Thao.

A reasonable police officer understands the intensity of the struggle. You can see at points when Mr. Floyd's legs kick back, it actually almost knocks Officer Lane over, right? It knocks off the body-worn camera and the badge of Officer Chauvin in this struggle.

A reasonable police officer would understand this situation, that Mr. Floyd was able to overcome the efforts of three police officers while handcuffed with his legs and his body strength.

[13:25:12] A reasonable police officer standard can be seen in another way from the Milestone camera, and this is what caught the attention of the 911 dispatcher, Jena Scurry. She said she observed the struggle and the vehicle rocking back and forth, back and forth. Watch the vehicle.

Reasonable police officers will consider their training.

Before we talk about the training again, there's something that I think is really important to understand, two things actually, at this moment. Not a single use of force expert that testified, not a single police officer who testified said that anything up until this point was unlawful or unreasonable. It was reasonable for these officers to put them into the -- Mr. Floyd -- into the squad car. It was reasonable, the efforts that they took to overcome his resistance were reasonable. Every single expert agrees to this point nothing is contrary to policy, training, defensive tactics, crisis intervention, all reasonable.

It's at the point that Mr. Floyd is brought to the ground that there becomes dispute about the reasonableness of the use of force and what a reasonable officer would know. It was Stoughton, the law professor, who said, at the point Mr. Floyd came out of the car putting him on the ground was unreasonable. So, was it reasonable for Officer Chauvin or a reasonable police officer to put Mr. Floyd on the ground in that instance? So a reasonable police officer is going to rely on his training and information, his evidence, what he knows all of the information he's built up to this point.

You Heard Lieutenant Mercil testify about how -- about 15 years ago, the Minneapolis Police Department went to ground defense tactics, getting people on the ground to control them, control the head, control the body, different types of moves that the police use to create and eliminate space, escape versus control. Those are two different things.


These are the tactics that have been employed by the Minneapolis Police Department for 15 years. Why? Because it's safer for the officers.