George Floyd WAS Murdered, by Derek Chauvin and His Cohorts — Part Two
Leonard R. Jaffee, Copyright © 2021, all rights reserved
This is the second part (Part Two) of what was, initially, an unpartitioned article that Substack’s formatting or length limitations precluded my posting in one piece. The reader must review the FORENOTE and PREFACE of Part One of this article, “George Floyd WAS murdered, by Derek Chauvin and His Cohorts — Part One,” to be able to appreciate this Part (Part Two) of this article.
As Part One explained, this article’s endnotes do not merely cite sources; they are substantive texts that supplement critically the text of this article. The reader must read the endnotes to be able to appreciate this article’s text.
This Part’s (Part Two’s) endnotes are designated “Part Two endnotes” — and appear thus:
[Part Two endnote n ], where the “n” appears as a superscript hyperlinked (and blue-font) endnote-number. (Part One’s endnote are styled
[Part One endnote n ], where the “n” is a superscript hyperlinked (and blue-font) endnote-number. In this Part (Part Two), Part One endnote numbers are referenced accordingly — e.g., Part One endnote X — just as in Part One, this Part’s endnotes are referenced as indicated above —
[Part Two endnote n ].
EGGSHELL SKULL RULE, FORESEEABILITY, AND ENHANCED FORESEEABILITY
A. The Eggshell Skull Rule
Minnesota recognizes and has applied the “eggshell skull” (a.k.a “thin skull” or “eggshell plaintiff”) rule.
In Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 50 N.W. 1034 (1892) [not available online except with for-fee legal search engine], the pregnant plaintiff was a streetcar passenger. She claimed that as a result of near-collision between the defendant's streetcar and the vehicle in which she was riding, she experienced extreme mental shock that caused her to suffer violent convulsions that led eventually led to her giving premature birth.
In upholding an award of damages for the miscarriage, the court held untenable the defendant's defense that the defendant was not liable to the plaintiff because of the plaintiff was predisposed to injury:
If the recovery of a passenger in feeble health were to be limited to what he would have been entitled to had he been sound, then, in case of a destruction by fire or wrecking of a railroad car through the negligence of those in charge of it, if all the passengers but one were able to leave it in time to escape injury, and that one could not because sick or lame, he could not recover at all. The suggestion mentioned would, if carried to its logical consequences, lead to such a conclusion.
The Purcell decision remains law in Minnesota.
[Part Two endnote 1 ]
The Eight Circuit U.S. Court of Appeals recognizes the eggshell skull rule. Jenson v. Eveleth Taconite Co., 130 F. 3d 1287, 1294-1295 (8th Circuit 1997). That recognition is important, because the Floyd-case arresting policemen’s criminal liability involves not only violation of Minnesota law, but also violation of the U.S. constitution’s 4th amendment’s bar of excessive-force restraint — which 4th amendment bar deprived Minneapolis of power of authorizing Minneapolis police to use the neck/dorsal-thorax compressions the defendant police applied to George Floyd. [See below.]
In Minnesota, as in most or all other U.S. jurisdictions and as in England, the eggshell skull rule is a rule of common law — not a provision of legislation. Accordingly, the English common law’s eggshell skull rule development is pertinent, and predictively instructive.
In Dulieu v. White & Sons, 2 K.B. 669, the pregnant plaintiff had been working behind a bar in her husband's tavern when the defendant lost control of his carriage that he was driving past the establishment in which the bar was located. The carriage’s draft-horse collided with the building. Though physically untouched, the plaintiff claimed that the collision caused shock and fright that resulted in her giving premature birth to an idiot child.
In overruling an earlier decision, Dulieu held that if the alleged fright were accompanied by some physical manifestation of the mental injury, then the subsequent injury was compensable. Thence, the Dulieu court asserted that though the pregnancy was a pre-existing condition, the plaintiff’s ultimate injury was not too remote from the defendant's negligence of causing her mental fright:
If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.
Dulieu, supra,  2 K.B. 669, at 675.
In R v Dear (1996) CLR 595, the culprit’s child daughter told the culprit that the victim assaulted her, sexually. The culprit slashed the victim several times with a stanley knife. The victim died two days later.
The immediate direct death-cause was a sudden loss of blood emitted from slash-wounds the culprit inflicted. The culprit claimed the chain-of-causation was broken by the victim’s committing suicide (a) by re-opening the wounds deliberately after they had healed or (b) if the wounds reopened spontaneously, by the victim’s failing to quench the consequent blood-flow. The court held that if the victim committed suicide because of the culprit’s attack on him, the chain-of-causation was not broken, and the culprit was guilty of murder.
In R v Hayward (1908) 21 Cox 692, the culprit argued with the victim and chased her from her house while shouting at her but never actually touching her. During the affray, the victim collapsed and died. The culprit did not know the victim suffered a thyroid abnormality that increased the chance of her dying from fright and physical exertion. The culprit argued that the victim’s pre-existing medical condition broke the chain of causation. The court held the culprit was convicted properly of manslaughter, because of the eggshell skull rule.
In R v Blaue  1 WLR 1411 (2), the victim refused the culprit’s demand that she engage in coitus with him. For her refusal, the culprit stabbed her. The victim was admitted to hospital. But, being a Jehovah’s Witness, she refused blood-transfusion. She died from blood loss. Because of his diminished capacity, the culprit was convicted of manslaughter, rather than murder. He appealed arguing that the victim’s blood-transfusion-refusal broke the chain of causation. His conviction was upheld because of the eggshell skull rule.
Because the eggshell skull rule derives solely from common law (not any form of legislation), a Minnesota Court may rely on pertinent judicial decisions of sister states and the federal courts. Below are here-pertinent common law considerations that obtain in various U.S. jurisdictions.
B. The Eggshell Skull Rule, Foreseeability, Enhancement of Forseeability, Time of Death, and Proximate Cause
In some U.S. jurisdictions, courts distinguish (a) intentional murder from (b) felony murder and other murder species — including “depraved mind,” “depraved heart,” or “depraved indifference” murder — in which the culprit did not intend, “in cold blood,” to kill the victim. Some courts hold that the eggshell skull rule does not apply in intentional killing cases. In non-intentional murder cases — some felony murder cases and, e.g., “depraved mind” murder cases — all courts hold that the eggshell skull rule applies. See, e.g., Brackett v. Peters, 11 F.3d 78 (7th Cir. 1993), supra.
In Brackett (supra), the culprit, age 21, raped and severely battered the victim, an 85-year-old woman, Mrs. Winslow. The victim was admitted to hospital. Her injuries were a broken arm, a broken rib, and extensive bruises. During her several-weeks hospital stay, she (allegedly “feisty” before the rape and beating) became depressed, resisted efforts of feeding her, and became progressively weak.
Transferred to a nursing home, she deteriorated further, though her physical injuries were healing. Her appetite was very poor. Her physician ordered nasal gastric feeding, but the feeding tube could not be inserted, partly because culprit-inflicted face-injuries made tube-insertion too painful. About ten days after her nursing-home-admission, she died while a nurse was feeding her pureed food through a syringe. An autopsy revealed that a large quantity of food, some six or seven ounces, had become lodged in Mrs. Winslow’s trachea and caused her to die by asphyxiation.
The question was whether the assault was a proximate cause of the death. If so, the culprit committed felony murder — felony murder because the assault was a predicate act causally connected with the victim’s death.
The court observed the criminal-law principle that “cause” means not only an event without which death would not occur, but also an enhancement of likelihood (“foreseeability”) of death. Even a later event or events will “enhance” the death-potential created by the culprit’s act (assault in the Brackett case) and, thence, render the predicate event a more-proximate cause of the subsequent death — hence reinforce a conclusion that the culprit committed felony murder.
The court held: The issue was whether a rational jury could find that the culprit’s assaults (predicate offenses) caused the victim’s death. “The answer…is yes.”
Richman v. Sheahan, 512 F. 3d 876 (7th Cir. 2008) was a case in which law enforcement officer defendants had possible defenses far stronger that do the Floyd-case defendants. So, if in Richman the officers’ acts, each alone, or together, constituted a liability-imposing proximate cause of the victim’s death, then, a fortiori, the Floyd-case defendant police have no defense that could justify legally legitimate acquittal.
Richman involved 4th and 8th amendment “excessive force” claims. The court applied the “eggshell skull” rule. The death-causing events happened in a Chicago, Illinois state court. The victim, Jack Richman [hereinafter called “Jack”], was a grossly obese 34-years-old man, 6 feet 2 inches tall and weighing 489 pounds. He walked with a cane.
Jack and his mother [hereinafter called “Mom”] were in court and waiting for Mom’s traffic ticket case to be called. At the end of the court day, the judge told Mom he was continuing the case to the next day. Jack and Mom were irate, protested strenuously. The judge listened a while, then demanded they be quiet and threatened to hold them in contempt.
Jack and Mom did not desist. The judge summoned deputy sheriffs. Two deputies responded. The judge told Jack and Mom to leave the court with the deputies, but Jack and Mom refused. The judge declared Jack in contempt, ordered the deputies to arrest him. Jack continued to refuse to leave peaceably. The judge upped Jack’s jail sentence until it reached 120 days.
When the deputies tried to remove Jack forcibly, he clung to a podium and they could not dislodge him. Additional deputies entered the courtroom and tried to seize Jack. Mom began screaming and waving her cane. Three female deputies dragged her out of the courtroom and took her cane away. She tried to reenter but was blocked by a deputy. The female deputies thrust her into a wheelchair, wheeled her to another courtroom, and detained her briefly.
Back in the courtroom, Jack continued to cling to the podium until several deputies managed to drag him from the podium to the floor, where he lay prone, his face down, still struggling, now with “a swarm of deputies.” Deputies tried to handcuff him — eventually succeeded. The judge now absent, several deputies positioned themselves on Jack’s back. Jack screamed that he could not breathe. Then he fell quiet. The deputies noticed that Jack had urinated and defecated and that his skin had turned blue. He was dead.
An autopsy report stated that Jack died as a result of coronary artery disease to which “restraint hypoxia” (a.k.a. “positional asphyxia”) had contributed, partly because of Jack’s morbid obesity. Hypoxia can be induced by compressing the lungs — as by the weight of several persons on a victim’s back. Just so, for at least 25 years, national and local police training manuals warned law enforcement officers not to sit on the back of a person they are trying to restrain or use other restraint-techniques that threaten asphyxiation.
[Part Two endnote 2
Applying the eggshell skull rule, the Richman court put a hypothetical case to help explain the court’s pertinent holding: “So, if you kick someone and unbeknownst to you he has a serious infection at the spot in which you kick him and as a result he dies of septicemia, you are fully liable for his death even though you could not have foreseen such a consequence from the kick.”
The court’s holding was: Because of his infirmities, Richman [Jack] did not have a normal life expectancy. But the force used against him by the swarm of deputies accelerated his death; how soon he would have died from causes unrelated to the use of that force is relevant only to damages — not to liability.
That holding means that, as a matter of law, the defendant deputy sheriffs had violated Jack’s civil right not to be victim of would-be-felonious homicidal “excessive force” exerted by the defendant deputy sheriffs. The defendants had no defense against liability, but only a defense against a bogus or excessive claim of money-damages.
B. The Rules Applied to the Conduct of Chauvin and his Cohorts
Notwithstanding whether Floyd died merely because his food-diet, lifestyle, or pre-existing health-problems weakened him vitally or because of drugs present in his system, the police murdered Floyd. Floyd could not withstand the more-than-9-minutes-long neck/dorsal-thorax compressions, though, perhaps, some (remarkably) healthy man might have survived. Because of the eggshell skull rule, the police are guilty of murdering Floyd.
Unlike the Richman victim, Floyd did not resist arrest with berserk behavior that threatened police, but actually Floyd did not actually resist arrest at all. Only did Floyd beg that he not be put in a closed-windows squad car because he was “claustrophobic.” So, since the Richman defendants were liable for the Richman victim’s death, a fortiori Chauvin and his cohorts are liable (criminally) for the death of Floyd.
Suppose Floyd would have died in the near future had the police not applied neck/dorsal-thorax compressions. Still the neck/dorsal-thorax compressions “enhanced” the likelihood (“foreseeability”) of Floyd’s death, hence rendered legally irrelevant — immaterial — the question whether Floyd would have died when he did even if the police had not submitted him to the compressions they applied. (Actually, zero evidence suggests Floyd would not have survived had Chauvin and his cohorts not applied their compression-holds to Floyd; but much evidence indicates Floyd would have survived. See this article’s Part One.)
Because of his physiological condition and his perhaps extreme fear of arrest, Floyd was specially life-threatened by the neck/dorsal-thorax compression applied to him. By applying clearly life-threatening carotid-restraint and dorsal-thorax compression to Floyd, the police “enhanced” the foreseeability of Floyd’s death — increased the probability he would die from asphyxiation.
Minnesota tort law appears to hold that if an alleged tortfeasor breached, negligently, a duty of care, the tortfeasor is liable for all damages of which the tortfeasor’s duty breach was a proximate cause — irrespective of whether the tortfeasor could have foreseen that the duty-breach could result in the damages of which the breach was a proximate cause.
[Part Two endnote 3
“What a man may reasonably anticipate is important, and may be decisive, in determining whether an act is” a breach of duty of care — a duty of not committing possibly harmful acts that law proscribes. But “…if the act itself is [a legal wrong], then the …[actor is] is equally liable for all its natural and proximate consequences, whether he could have foreseen them or not” [ellipses added here]. See Part Two endnote 3, supra (Dellwo v. Pearson quoting Christianson v. Chicago, St. P.M. & O. Ry. Co.).
Minnesota has recognized the concept of “enhanced likelihood” or “enhanced” foreseeability expressed in Brackett v. Peters, supra — though Minnesota courts have used the language “increase” risk of harm or “aggravate” pre-existing condition.
[Part Two endnote 4
Positional Asphyxia-Sudden Death, National Institute of Justice Program, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice (June 1995) [hereinafter “Positional Asphyxia”] and sundry other sources have warned that if police apply compression-restraints like those applied to Floyd, sudden death is a likelihood — a foreseeable outcome — that police must not engender. [See also Part Two endnote 2, supra.] Positional Asphyxia and other like sources have served all police notice that neck or dorsal thorax compression-restraints may cause “sudden death” — notice that rendered Floyd’s death foreseeable.
Positional Asphyxia was prepared by the International Association of Chiefs of Police for the National Institute of Justice and has been distributed to all or virtually all police departments. Hence it was, very likely, notice to Minneapolis police.
Pre-George-Floyd-killing, some police departments banned choke holds because of their lethality. See, e.g., this and this. Other cities recognized the too-frequent lethality of neck-restraints and, facing resistance against prohibition of such restraint-techniques, recommended stern limitation of such restraints’ use, as, e.g., in the case of Mesa Arizona (addressing carotid use 2013 to 2019):
PERF (Police Executive Research Forum) has traditionally recommended the prohibition of any type of neck restraint, such as MPD's Carotid Control Technique, due to the limited occasions in which it is necessary/required, and the extensive training and skill required to perform it safely and effectively. Should MPD decide to continue the use of the Carotid Control Technique, MPD should ensure that it remains authorized at the level of lethal force, as is current practice, and that all officers are trained and tested yearly on the Carotid Control Technique.
Compare this California position (year 2019) at p.7: The Sacramento California Police Department “...should prohibit certain problematic uses of force, including needlessly high-risk force, such as carotid restraints....” [Emphasis added.]
Further notice obtained from federal judicial excessive force opinions, like Richman v. Sheahan (supra) and the Los Angeles v. Lyons, 461 US 95 (1983), dissent of Justices Marshall, Brennan, Blackmun, and Stevens, at id. (dissent) footnote 3, which warned that police have killed many civilians (especially Blacks) with carotid-artery/jugular-vein neck-compressions. Just in 1980 Los Angeles, a city where Black males constituted 9% of the population, Black males accounted for 75% of the 16 deaths resulting from police-use of choke-holds of sundry kinds, likely including the neck-compression applied to Floyd.
Compare In Re Estate of Booker, 745 F. 3d 405 (10th Circuit 2014) [hereinafter “Booker”], in which, at pp.424, 425, 428-429, the court cites numerous cases in which courts held “excessive force” sundry neck-and-dorsal-thorax compressions like those applied to Floyd. In Booker, supra, one Denver Sheriff’s deputy put Mr. Booker, the homicide victim, in a “carotid restraint.” The court observed that according to the Denver Sheriff Department’s training materials,
“[t]his technique compresses the carotid arteries and the supply of oxygenated blood to the brain is diminished while concurrently sealing the jugular vein which returns the deoxygenated blood.” .... The hold is capable of rendering a person unconscious within “10-20 seconds.” *** The Sheriff’s training materials warn that “[b]rain damage or death could occur if the technique is applied for more than one minute,” and “[t]herefore the application of the technique should not be applied for more than one minute.”
Booker, supra, at 413.
In Booker, the carotid/jugular-vein compression was wrought by an officer’s locking one arm around the victim’s neck. That technique is markedly less potentially lethal than the knee-press technique Officer Chauvin applied to Floyd’s neck.
[Part Two endnote 5
According to Minneapolis police records, in recent times previous to the date of Floyd’s arrest and death, Minneapolis police used arm-effected or leg inflicted neck-restraints more than 200 times. And 44 times those restraints caused the arrest-subject to lose consciousness.
In 2012, more than 100 Minnesota police attended conferences organized by the Chicago Israeli consulate. Another such Israel-hosted “counterterrorism training” conference was held in Minneapolis; and surely that conference was attended by many Minneapolis police.
[Part Two endnote 6
In those Israel-run training conferences, Minnesota police — including Minneapolis police — learned violent methods used by Israeli forces to terrorize Arabs of Israeli-occupied Palestinian territories. Israeli forces use the knee-on-neck compression-restraint technique often on Palestinians; it is a stock device of Israel's oppression of Palestinians. Israel has a long record of human rights violations; and surely more than a few Minneapolis police were aware of Israel’s record of killing unarmed Palestinians.
[Part Two endnote 7
Those 44 Minneapolis neck-restraint consciousness-losses must have been caused by brain hypoxia or brain hypercapnia (or both) induced by neck-compression-caused carotid artery occlusion or jugular vein occlusion (or both): nothing else could explain those losses of consciousness. As observed in Part One endnote 11, the brain cannot survive more than ≈2 minutes of hypoxia or hypercapnia associated with consciousness-loss caused by carotid artery or jugular vein occlusion.
The Minneapolis police department authorized use of a neck-compression hold like that applied to Floyd. But the authorization indicates that such neck-compression may be applied only with minimum necessary pressure and only when necessary to maintain custody.
[Part Two endnote 8
Per the Body-cam Transcript (supra PART ONE of this article) & sundry online-available videos of Floyd’s arrest, one must infer that Floyd was not resisting arrest, or not resisting in a way that could have rendered Chauvin’s more-than-9-minutes-long, heavy-weight-force neck-compression necessary or rendered with minimum necessary pressure. Compare, e.g., opinions of Dr. Mike Hansen and Dr. Melinek, also this and this and this and this and this and this and this and this.
Applied to the George Floyd’s case, the preceding considerations indicate:
(a) that the defendant police foresaw or ought to have foreseen that their neck/dorsal-thorax compression-holds threatened to be lethal
(b) that the defendant police knew or ought to have known that George Floyd was an “eggshell skull” victim
(c) that the defendant police knew or ought to have known that by applying their neck/dorsal-thorax compression-holds for 9 minutes, even more than 3 minutes after Floyd became unconscious, they “enhanced” (or increased or aggravated) the foreseeability that their neck/dorsal-thorax compression-holds would kill Floyd
(d) that because the defendant police knew or ought to have known that Floyd was an “eggshell skull” victim, the defendant police enhanced Floyd’s death’s foreseeability beyond the enhancement observed in “(c)” immediately above
(e) that for reasons “(a) through “(d)” observed immediately above, the defendant police are patently guilty of murdering Floyd
Compare R v Dear (1996) CLR 595 (supra) and R v Hayward (1908) 21 Cox 692 (supra) and R v Blaue  1 WLR 1411 (2) ( supra) and Brackett v. Peters, 11 F.3d 78 (7th Cir. 1993) (supra) — which cases indicate that a culprit is liable even if after the culprit’s act, the victim or a third party aggravates the injury the culprit caused, if the aggravation was “foreseeable” or did not “break the chain-of-causation.”
Floyd was alive and not suffering “excited delirium” when the defendant police began applying neck/dorsal-thorax compression holds to Floyd. His pre-existing “eggshell skull” (drug-use, alleged arteriosclerotic/hypertensive heart disease, Covid-19 infection)
[Part Two endnote 9
] had not killed him. And nothing suggests that he would have died because of his “eggshell skull” had the police not applied neck/dorsal-thorax compression-holds to him.
Though the matter is not clear [see supra under heading “9. The Toxicology Report Appended to the Autopsy Report”], Floyd may have survived a few minutes after the police ceased applying compression-holds and paramedics put Floyd into an ambulance. But nothing unforeseeable or causation-chain-breaking transpired after the police ceased applying their compression-holds. The foreseeably lethal, 9-minutes long compression-holds were not only events without which death would not have occurred, but also enhancements of likelihood (“foreseeability”) of death.
The defendants cannot defend on the ground that the Minneapolis police department authorized the deadly force they used on Floyd, an “eggshell skull” victim. Such authorization would violate the 4th amendment. Compare In Re Estate of Booker (supra) and Salcido v. Harris County, Dist. Court (Civil Action No. H-15-2155, SD Texas 18 Dec. 2018).
In Salcido, the defendant county’s chief law enforcement officer, Sheriff Garcia, testified that the defendant officers followed Harris County training and policies throughout the incident that the court held shown to be a use of excessive force that violated the victim’s federal constitutional rights. The court stated, inter alia, this:
The testimony of Sheriff Garcia, Leveston, and Bell that the officer defendants were “maintaining their training” throughout the incident, including when they ignored [the victim’s] complaints that he could not breathe, is evidence from which a reasonable jury could conclude that Harris County trained its officers to ignore complaints of an inability to breathe during restraint, and that that training reflects deliberate indifference to a serious medical need.
Salcido involved several claims, including 42 U.S.C. § 1983 claims premised on allegations of use of excessive force causing a jail-inmate’s death. Sheriff’s department officers “placed [the deceased] face down on a gurney and held his shackled limbs behind his back in a hogtie position while an officer sat on top of him, and ignored his pleas for help and complaints that he could not breathe.”
The court had denied the county’s and several officer’s summary judgment motions respecting the § 1983 claims. The county and several defendant officers moved for reconsideration of, inter alia, the court’s denial of qualified immunity and denial of summary judgment respecting the § 1983 claims.
The county argued that “the uncontested cause of death was sudden cardiac arrest, not positional asphyxia.” Asserting that “the autopsy report conclusively established [that the victim] died of a sudden cardiac event, not of positional asphyxia,” the county argued that
[t]here is no testimony or evidence that policymaker Sheriff Garcia had knowledge that transporting [the victim] to the medical clinic in a prone position — hogtie or otherwise — placed him at risk for a sudden heart attack.... Causation claims that link [the victim's] sudden cardiac death to any alleged, disputed constitutional violation are wholly lacking. And there is no evidence to substantiate the claim that any policy or custom adopted or maintained with objective deliberate indifference caused sudden cardiac arrest.
The court ruled that the county’s evidence either was not dispositive or did not establish a lack of issue of material fact concerning whether positional asphyxia was the cause of death. The court denied the county’s “motion for reconsideration” and ruled that “issues of material fact exist as to whether the officer defendants are entitled to qualified immunity” and that “there [were] no meritorious issues of law to be reviewed by the court of appeals.” The court certified that defendants' interlocutory appeal was “frivolous.”
A video showed — and defendants did not dispute — that once the victim was extracted from his jail cell, his legs were crossed, shackled, and folded at the knees, he was placed face down on the gurney, and subjected to pressure that officers exerted on the victim’s chest — apparently by pressing on the victim’s back, since the victim was placed “face down” on the gurney.
The court’s determinations suggest (a) that the county’s policy and training were material causes of the “deliberate [homicidal] indifference to a serious medical need” and (b) that the disputed county/sheriff’s-department policy and training were, themselves, unconstitutional and could not justify or excuse the officers’ use of excessive force or immunize the defendants from legal liability. Compare Floyd’s medical need that at least two arresting police seemed to recognize, see supra under heading “8. The Autopsy Report’s Cause-of-Death Statement.”
The gist is this:
Because Chauvin and one or two other police committed felony assault against Floyd by applying neck and dorsal thorax compressions illegally to Floyd and consequently Floyd died, Chauvin and one or two other involved police are guilty of 2nd degree felony murder.
[Part Two endnote 10
Chauvin and the same other one or two police were guilty of 3rd degree “depraved heart” murder, because of the degree of their callous disregard, and “enhancement,” of the foreseeability that they would kill Floyd.
[Part Two endnote 11
One or two non-compression-hold-applying arresting officer(s) is/are guilty of “abetting” 2nd degree or 3rd degree murder.
[Part Two endnote 12
In Dellwo v. Pearson, 259 Minn. 452, 455-456, 107 N.W.2d 859 (Minn. Sup. Ct 1961), the court observed:
“What a man may reasonably anticipate is important, and may be decisive, in determining whether an act is negligent, but is not at all decisive in determining whether that act is the proximate cause of an injury which ensues. If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; but, if the act itself is negligent, then the person guilty of it is equally liable for all its natural and proximate consequences, whether he could have foreseen them or not. Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow."
Dellwo, 259 Minn. 455-456 [quoting Christianson v. Chicago, St. P.M. & O. Ry. Co. 67 Minn. 94, 96, 69 N.W. 640, 641 (Minn. Sup. Ct 1896) (not available online except with for-fee legal search engine)].
See, e.g., the following:
* Cracraft v. City of St. Louis Park, 279 NW 2d 801, 806-807 (Minn. Sup. Ct 1979) (dictum) (“a municipality must use due care to avoid increasing the risk of harm”);
* Blatz v. Allina Health System, 622 NW 2d 376, 389-390 (Minn. Ct of Appeals 2001), quoting 4 Minnesota Practice, CIVJIG 163 (1986) [emphasis & ellipsis added here]:
A person who has a defect or disability at the time of an accident is nevertheless entitled to damages for any aggravation of such pre-existing condition, even though the...results would not have followed if the injured person had not been subject to such pre-existing condition.
* Filler v. Soo Line Railroad Company (Minn. Ct of Appeals 2014) (unpublished opinion):
That Plaintiff may have had some preexisting condition does not shield Defendant from liability. In an action of this sort, a negligent railroad must bear the risk that its liability will be increased by reason of the actual physical condition of the individual toward whom its act is negligent.
*** The thin skull rule [eggshell skull rule] merely holds that the defendant is liable for the unforeseeable aggravation of that preexisting condition....
The eggshell-plaintiff and the aggravation theories are not inconsistent with each other or mutually exclusive. See Rowe v. Munye, 702 N.W.2d 729, 741 (Minn. 2005) ("We recognize that ...a person could have both an injury that involves aggravation of a preexisting injury and an injury that was more severe because the plaintiff was more susceptible to injury.").... Still, [the two “theories”] are distinct....:
Whether the eggshell plaintiff rule applies or the aggravation rule applies depends in the first instance on when the pain or disability for which compensation is sought arose. [Under the aggravation rule,] [w]here the prior condition resulted in pain or disability before the second injury, the tortfeasor is liable only for the additional pain and disability arising after the second injury. With respect to any pain or disability arising after the second injury, [under the eggshell-plaintiff rule,] the tortfeasor is fully responsible, even though that pain and disability is greater than the injured person would have suffered in the absence of the prior condition.
[Emphases & ellipses added here.]
* Illinois Farmers Ins. Co. v. Tapemark Co., 273 NW 2d 630, 635-636 (Minn. Sup. Ct 1978): “If the defendant is aware or should be aware of circumstances that increase the probability that the car will be stolen, that the thief is likely to operate the 636*636 car negligently, and that consequently injury or damage to a third party will result, the defendant is under a duty to act so as to prevent the theft and such injury or damage.”
* Germann v. FL Smithe Mach. Co., 395 NW 2d 922, 925 (Minn. Sup. Ct 1986):
...[I]f a manufacturer-seller should anticipate that an unwarned operator might use the machine in a particular manner so as to increase the risk of injury and the manufacturer has no reason to believe that users will comprehend that risk, a duty to warn may exist.
*** [Defendant] could have reasonably foreseen that on a machine designed for extended and heavy use, it was almost inevitable that for maintenance purposes the safety bar would be removed, and that there was a risk it might not be properly reattached. If the safety bar was not properly reattached, there would be exposure to a user-operator of increased danger of injury of the type the safety bar had been designed to prevent. This misuse was foreseeable; it was not remote; and the danger of injury to a user because of the misuse was likewise foreseeable.
* Rowe v. Munye, 702 NW 2d 729 (Minn. Sup. Ct 2005) — relation of eggshell skull (or “eggshell plaintiff”) rule and aggravation of pre-existing condition: albeit increased foreseeability, damages only for pre-existing condition’s aggravation. Since in a criminal homicide case, the matter is not damages, the effect is only that homicide-liability (basis of conviction) is enhanced by pre-existing condition’s aggravation, which increased the likelihood of death. Compare Filler v. Soo Line Railroad Company (supra this note), which (Filler) cited and relied partly on Rowe.
For criminal homicide cases (which never involve damages apportionment), the sum implication may be put thus: If the defendant knew or ought to have known that his victim was an “eggshell skull” victim and, despite knowing or having cause of knowing that the victim had an “eggshell skull” that rendered the victim specially likely to die under the assault the defendant chose to apply, the defendant must be deemed to have “enhanced” the likelihood of the victim’s death, hence rendered himself (the defendant) specially criminally liable for the victims demise. Compare infra Part Two endnotes 5-8 and text related to those endnotes. See also infra Part Two endnote 9 and related text.
In Booker, supra, one deputy sheriff began applying a carotid/jugular-vein compression-hold while the victim was standing. See Booker at 413. Apparently, the hold was an elbow-crotch choke hold. Other deputies joined the affray, handcuffed the victim behind his back, took him to the floor, and put him in a hog-tie position. Then one deputy kneeled on the victim’s back and applied “50 to 75 percent of his body weight” — ≈190 lbs. Compare Floyd’s case, where two police exerted body-weight and force of gravity on Floyd’s back while Officer Chauvin knelt on Floyd’s neck. See Booker, supra, at 413-414. Throughout, the first deputy continued applying the carotid/jugular-vein compression-hold. See id. Once the victim was put on the floor, that deputy had to apply the carotid/jugular-vein compression-hold by pulling his arm to the side of the victim or upward: since one deputy was kneeling on the victim’s back, the victim had to be lying on his chest and abdomen. Therefore, though the carotid/jugular-vein compression-hold may have begun as a “rear naked” hold, the hold-applying deputy had to be positioned above or to the side of the victim’s body and had to pull his arm-force upward or to the side. Hence, the first deputy’s carotid-compression- hold’s effect depended solely on the deputy’s arm-strength; and, if that deputy had to pull his arm upward, he would have had to exert force against gravity. But in Floyd’s case, Chauvin applied his knee-press carotid/jugular-vein compression downward. So, he exerted on Floyd’s neck much or most of his (Chauvin’s) body weight and utilized (did not have to resist) the force of gravity. Cf. Part One endnote 14 & related text and infra Part Two endnotes 6 through 8 and related text.
RE: Israeli Defense Force [hereinafter “IDF”] frequent assaultive use of carotid-occlusive knee-on-neck restraint, see again here. RE: the IDF’s violent oppression of Palestinians — very frequent violations of Palestinians’ human rights — see, e.g., this and this and this and this and this and this. What — you may ask — is the Floyd-case relevance of the IDF’s violent, human-rights-violating, oft-lethal oppression of Palestinians? The matter is not political or a point of inter-ethnic morality or any morality. The matter is notice of the foreseeability that Floyd would die from the neck/dorsal-thorax compressions applied to him. Despite American mainstream media’s and U.S. government’s pro-Israel demonization of Palestinians and the pro-Israel or anti-Palestinian view of many, perhaps most, Americans, still, likely the American majority — surely very many American police — must be aware that the IDF uses oft-lethal means of controlling Palestinians. During the 2018-2019 Gazan Palestinian Right of Return demonstrations, frequently the IDF fired live ammunition into crowds of unarmed civilian Palestinians, even at Gazan medical workers aiding injured civilians. Even U.S. mainstream media (NY Times, CNN, Washington Post......) reported such events, though they slanted reporting to favor Israel. One cannot describe the Israel/Gazan-Palestinian relationship other than as a state of belligerent occupation, even as war, in which the IDF uses the carotid/jugular-vein occluding knee-on-neck restraint as an oft-lethal weapon. Just so, when Minneapolis police attended the Israel-run “counterterrorism training” conference(s), most must have perceived the likely lethality of the carotid/jugular-vein occluding knee-to-neck restraint the Israeli-instructors taught them.
See Richman v. Sheahan (supra) and In re Estate of Booker (supra). And compare, e.g., this and this and this and this and this and this and this and this and this and this and this and this and this and this and this and this and see also this and compare also these 44 times those restraints caused the arrest-subject to lose consciousness and Los Angeles v. Lyons dissent of Justices Marshall, Brennan, Blackmun, and Stevens, at id. (dissent) footnote 3.
The ME’s autopsy report states [at its p.2]: “Viral testing (Minnesota Department of Health, postmortem nasal swab collected 5/26/2020): positive for 2019-nCoV RNA by PCR.” PCR tests prove nothing. The PCR test’s “technical” name is “RT-PCR” or “RT-qPCR” test, which is a “molecular” test (not an antibody test). PCR tests seek to detect a virus’s genetic material via nucleic acid amplification. The test involves a reverse transcription polymerase chain reaction that tests for the qualitative detection of nucleic acid of a corona virus present in upper and lower respiratory-tract specimens. Mostly, “Covid 19” is not an upper respiratory tract disease, but, rather, infests the middle and lower respiratory tracts and may infest or affect also other organs (e.g., kidneys, intestines) — though often (but not always) the Covid 19 virus (SARS-CoV-2) enters through the nose or mouth and though, eventually, cases may involve some upper respiratory tract symptom(s). But near-all PCR testing tests nose-and-sinus mucous, where other corona viruses inhabit and replicate. The most common corona virus infections are common colds. See, and compare, e.g., these sources [though neither scholarly nor encyclopedic, virtuous in being (a) not inaccurate and (b) accessible to a non-physician’s grasp]. See here and here and here and here and here. And unlike the Covid 19 virus (SARS-CoV-2), all corona virus “colds” do infect the upper respiratory tracts. PCR tests produce both false positives and false negatives — very often. PCR tests detect a very small segment of nucleic acid which is part of a virus itself. The specific “detected” virus is determined by the somewhat arbitrary choice of DNA primers used, which become the ends of the amplified fragment. The PCR test was not intended either to identify any specific virus or other specific pathogen or to be a tool of either Covid-19 diagnosis or diagnosis any other pathogen-infection. See also the other sources linked below in this endnote; and see also this video of the PCR test inventor elucidating several reasons why his invention (PCR test) cannot be reliable for diagnosis of viral infection. PCR detection is somewhat helpful only if it is appreciated as merely capable of detecting minute quantities of virus RNA — and, so, understood as merely a test of some indication of conducting further testing by other means, including clinical means. But a PCR test’s virus-RNA-detection does not actually indicate the presence of an actual infectious virus. PCR tests do not detect or identify any specific, live, infectious virus. They detect only fragments of a virus that may be a corona species. If a PCR test result is positive, the result means only that the test detected tiny shattered parts of some species of a virus that may be Covid 19 virus (“SARS-CoV-2 ”). Even if a PCR test suggests actual viruses have been present and infectious, they may be long dead, since a PCR test detects only RNA fragments, not viruses or virus antibodies. PCR positive results are unreliable, if not utterly invalid. The PCR method multiplies even a tiny fraction of viral genetic material enough to be “detected” as if an actual viral infection — though no infection is actually present. So, PCR tests cannot detect or identify the Covid 19 virus (“SARS-CoV-2”). PCR tests detect only genetic-material fragments that cannot be equated with a Covid-19 positive result. Another molecular test is a “LAMP.” A LAMP targets DNA polymerase and four to six primers. It is designed to detect six distinct sequences of the target DNA. But, alas, the Covid 19 virus shares some other corona virus DNA sequences; so, LAMP test positive results are often false. PCR test apologists insist that PCR tests are valid and reliable indices of SARS-CoV-2 infection if the test includes use of a fluorescent probe that amplifies virus-fragments nucleic acid. The assertion is false. If such amplification were heightened until virus-fragment sizes were quite macroscopic, still the result could not enable conclusive or even compelling determination whether the genetic material shards were fragments of live SARS Cov-2, long dead SARS-CoV-2, or of a corona virus other than SARS-CoV-2. See again sources cited above in this endnote and see here and here [observing sundry deficiencies of PCR testing] and here [observing the problem that PCR testing does not reliably distinguish live virus genetic material from dead virus material] and here [supporting PCR testing somewhat, but cautioning that PCR results, themselves alone, cannot be reliable bases of diagnosis and that PCR results must be treated as adjuncts of other evidence, including clinical examination results, because of, e.g., these reasons: * (a) no PCR test-result can prove “contagiousness” or “infection,” even if amplification reaches 60 cycles * (b) PCR tests cannot measure “the amount of virus in the sample” (a deficiency of other test-types, also) * (c) an PCR test may not detect live virus but gene fragments that are remnants of old infection * (d) the more the amplification, the greater the chance that the result will suggest falsely the presence of infection/contagion (“A virologist at the University of California admits that an PCR test with a Ct greater than 35 is too sensitive”), but if amplification is relatively low, false positives & false negatives will be risks * (e) a “positive” PCR result shows only the presence of traces of “the desired element,” and such showing cannot prove actual infection (either current or past infection). Recently, this endnote’s position was partly ratified by an error-acknowledgment of the World Health Organization [“WHO”], which had propagated the phony pandemic with PCR testing it had touted as sufficient proof of infection. The WHO said: Most PCR assays are indicated as an aid for diagnosis, therefore, health care providers must consider any result in combination with timing of sampling, specimen type, assay specifics, clinical observations, patient history, confirmed status of any contacts, and epidemiological information. AND Where test results do not correspond with the clinical presentation, a new specimen should be taken and retested using the same or different NAT technology. I cringe as I consider that I referenced the contemnible WHO. But the WHO’s error-acknowledgment parallels, approximately, a dying murderer’s confession that he had asserted falsely that an innocent woman committed the murder that actually he (the dying man) had committed.
2020 Minnesota Statutes § 609.19 “MURDER IN THE SECOND DEGREE,” Subdivision 2 provides: "Unintentional murders. Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years: "(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting...." The subsection (1) provision is a “felony murder” provision — a provision that treats as second degree murder a killing done while committing a felony (other than felonies the provision excludes from the provision’s effect). Above, in both its Part One and its Part Two, this article has shown amply that Chauvin’s neck-compression hold was neither justified nor excused but violated Minneapolis, Hennepin County, and Minnesota police policy, protocols, and regulations. He was fired for his conduct. His conduct violated provisions of the Minnesota statute that governs police conduct, 2020 Minnesota Statutes § 609.066 and 2020 Minnesota Statutes § 609.065. See also 2020 Minnesota Statutes § 609.06. Minneapolis effectively lost (felt compelled to settle for a vast amount) a civil wrongful death and civil rights action litigated by Floyd’s family for Chauvin’s applying the neck-compression hold to Floyd. As evidenced above in this article, police experts testified that Chauvin’s conduct was an unauthorized and protocol-violating use of deadly force. Floyd was handcuffed and helpless when Chauvin applied the compression hold. The civil suit victory is evidence that Chauvin’s conduct violated Floyd’s first amendment right of personal integrity. 2020 Minnesota Statutes § 609.221, “ASSAULT IN THE FIRST DEGREE,” Subdivision 1 provides: "Whoever assaults another and inflicts great bodily harm may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both." That provision’s sentencing terms render provision a felony statute. Chauvin inflicted great bodily harm upon Floyd. Ordinarily, death is the greatest bodily harm, therefore “great bodily harm.” Chauvin’s conduct fits § 609.221 Subdivision 1. 2020 Minnesota Statutes § 609.223, “ASSAULT IN THE THIRD DEGREE,” provides: "Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both." That provision’s sentencing terms render provision a felony statute. Ordinarily, death is the greatest bodily harm, therefore at least “substantial bodily harm.” Chauvin’s conduct fits § 609.223. Since Chauvin’s conduct was illicit — not justified or excused by law or the victim’s consent, Chauvin’s conduct was felony assault. Minnesota is among a minority of states that permit a a felony murder charge to be predicated on exactly the act that constitutes the felony that renders § 609.19 Subdivision 2 applicable. So, Chavin’s felony assault can be the predicate of the charge that he committed felony murder. Above, in both its Part One and its Part Two, this article has shown that one or two other involved policemen also committed felony murder. One or two other policemen applied to Floyd a dorsal-thorax-compression hold that aggravated greatly the lethal effect of Chauvin’s neck-compression hold — even that the dorsal-thorax-compression-hold, alone, might have killed Floyd if Chavin had not kneeled on Floyd’s neck. Those one or two other police — the dorsal-thorax-compression-applying police — are guilty of felony murder for the same reasons that make Chauvin guilty. Chauvin cannot defend on the premise that one or two other police engaged in conduct that, alone, could killed Floyd. Chauvin’s conduct surely was lethal — itself, irrespective of the conduct of other involved police. The other involved police cannot defend on the premise that Chauvin’s conduct alone, could killed Floyd. The other involved dorsal-thorax-compression-applying police’s conduct surely was lethal — itself, irrespective of Chauvin’s conduct. Above in Part One and Part Two of this article, I have referenced evidence that supports the immediately preceding paragraph’s assertions. E.g, this. I do not possess evidence that indicates whether two policemen, rather than one policeman applied the dorsal-thorax-compression hold or whether, if two, both applied essentially equal force or, instead, just one applied enough force to kill Floyd. I assert only that at least one Chauvin-“partner” applied a lethal dorsal-thorax-compression hold.
Minnesota Statutes § 609.195, “MURDER IN THE THIRD DEGREE,” subsection (a) provides: "Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years." Twice, including less than one moth ago, the Minnesota court have held that the above-quoted provision applies even where the actor “perpetrates” an act that is actually, manifestly “eminently dangerous” to only one other person and is an act that actually, manifestly is conduct “evincing a depraved mind, without regard for, actually, manifestly, just one human life. The logical reason is that the matter is the quality of the act, not the number of people actually, manifestly affected by the act. The act must evince a depraved disregard of other humans, any other humans, hence any other one human. Suppose a Nazi SS Officer sent a Jew to a Nazi concentration camp where Jews were murdered. The SS Officer’s act was an act eminently dangerous to Jews and an act evincing depraved mind, without regard for human life. The case is not affected by the fact that the SS Officer’s act was directed at, and affected, just one Jew. In Chauvin’s case, the matter is that the act was one that manifested the actor’s depraved disregard of persons whom Chauvin might arrest — a deprave disregard that evinced a depraved mind, without regard for human life. The same logic fits the conduct of the other policeman or policemen who applied the dorsal-thorax-compression hold. Further, in each such other policeman’s case, and in Chauvin’s case, the conduct’s depravity was worsened by the fact that another policeman was doing a lethal act to the same, helpless person, Floyd. “Depraved mind,” depraved heart,” "depraved mind," or "depraved indifference" murder liability is not peculiar to Minnesota. Many, if not all, other states have some such criminal law provision. See e.g., this and this and this and this and this.
This endnote pertains to the one or two police who did not apply lethal compression holds to Floyd. One involved policeman may have aided physically another policeman’s applying dorsal thorax compression to Floyd. That man is clearly guilty of felony complicity. The matter is clear — does not submit to argument. One police officer (maybe more than one) may only have stood by and watched. That police officer, too is guilty of complicity. Police bear very special fiduciary and constitutional duties that require that they not stand by an permit another police officer violate a civilian’s right(s) or impose unjustifiable, inexcusable injury on a civilian. Every police officer is required to police the police — undertake to stop another police officer’s committing a crime upon a civilian. Partly — just partly — the reason is that when a policeman acts criminally he is a criminal, not entitled to deference due the police, and properly an object of another policeman’s arrest. So, the law make a criminal accomplice the one or more police officers who stood by a did not intervene to stop Chauvin’s and the dorsal-thorax-compression-applying officer’s or officers’ criminal assault upon Floyd. See this, and compare this and this.