The killing of Floyd George has drawn an avalanche of commentary due to the subsequent and continuing protests throughout not only the country but the world. Few of these analysts have tried to analyze the arrest itself or draw legal conclusions from the known facts about that arrest.
Let’s take a deep dive into the circumstances surrounding the arrest and the legal conclusions which follow. \
Cup Foods is a convenience store in Minneapolis owned by Mahmoud Abumayyaleh. His teenage relatives worked in the store. On Monday, May 25, 2020, George Floyd, a regular customer at Cup Foods, entered the store.
At the time Floyd entered the store, Abumayyaleh’s nephew was working the cash register. Floyd purchased cigarets and paid with a $20 bill. Floyd then exited the store, walked across the street and sat in his vehicle. There is no allegation that Floyd ran out of the store or otherwise caused a problem in the store. The teenagers did not ask Floyd to remain in the store.
By the time Floyd was already in his automobile, the teenagers became concerned that the $20 bill Floyd used to pay for the cigarets was counterfeit. They exited the store and walked to Floyd’s automobile. When they reached Floyd’s car, the right-hand side passenger door was open. One of the teenagers approached this open door “in an effort to retrieve the cigarets.” Floyd, having already paid, declined.
The teenagers then returned to the store and called 911.
The teenagers did not call the US Secret Service, the agency tasked with investigating cases of counterfeit currency. There is a US Secret Service field office in Minneapolis.
The 911 call was improper. There was no “emergency” of any kind. Abumayyaleh, the store owner, claims that it was store policy to call 911 in counterfeit currency cases.
Floyd remained in his automobile and until the police arrive, had no contact with any other person. A prudent counterfeiter would not remain on the scene after passing a fake bill. Floyd’s presence on the scene is indicative of innocence and suggests that he did not know that the bill was fake, if indeed it was. To this day, no one knows if the bill was fake. The Minneapolis Police Department refuses to give out any information on this key issue. Perhaps they do not know either and are waiting for the Secret Service to determine the bill’s authenticity. If the police to this day do not know, how can one expect Floyd to know?
Two police officers responded to the scene. They walked past the store and then across the street where they found Floyd peacefully sitting in his automobile. This was not a vehicle stop. They tried to get Floyd to exit the vehicle. Floyd declined and one of the officers pulled his own firearm. Floyd then exited the vehicle and the firearm was re-holstered. Handcuffs were put on Floyd, who then peacefully walked to a wall and sat down at the officers’ direction.
At this point, another police car arrived, carrying Officer Derek Chauvin, a training officer for one of the other responding officers. Floyd and Chauvin knew each other; they were co-workers at the El Nuevo Rodeo nightclub in Minneapolis.
Chauvin placed Floyd under arrest. At this point, and throughout the encounter, there is no evidence that any police officer conducted an investigation to see if a crime had been committed. Chauvin and the others walked Floyd to one of the two police cars on the scene and ordered him to get into the vehicle. Floyd claimed that he was “claustrophobic” and refused.
The officers then tried to push Floyd into the car. Chauvin pulled Floyd out of the car. Chauvin and two other officers pinned Floyd to the ground. A fourth officer stood watch between the three officers, the pinned Floyd on the ground, and a small crowd that had formed and began filming. What follows is well-known: Chauvin kneeled on Floyd’s neck. Floyd complained that he could not breathe. Chauvin ignored Floyd’s complaints and kept his weight on Floyd’s neck. Paramedics were called, but by the time they arrived, Floyd was lifeless.
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In Minnesota, knowingly passing false currency in small amounts, as here, is a misdemeanor. At the time of the arrest and thereafter, there was no investigation into whether the bill was counterfeit. Had Floyd simply stolen merchandise, my analysis would be different, because then there would be probable cause for the arrest. But in this case, there was no probable cause. Maybe the teenagers were correct and the bill was counterfeit: who knows? People make mistakes concerning counterfeit currency all the time. Before making the arrest, the police did not even examine the bill.
The officers were investigating a misdemeanor. Deadly force may not be used to halt a fleeing misdemeanant. But they treated Floyd as if they were trying to arrest not an alleged misdemeanant, but someone who had just committed a dangerous felony.
As a practical matter, Floyd should not have refused the officers’ command; as a legal matter, were the officers justified in making the arrest? If an arrest is unlawful, does a citizen have the right to resist?
At the time the officers approached Floyd’s vehicle, was there probable cause for his arrest? Certainly not. The officers had not even taken the time to examine the $20 bill. At best, they were permitted to keep Floyd in the area while they identified him and investigated whether there were grounds to arrest him for misdemeanor theft.
There was no felony to justify the use of deadly force—unholstering a gun was thus improper. What about handcuffs? I think the answer to this question could go either way. Handcuffs certainly escalate the situation, but the officers may feel they are necessary for their own protection and to insure that the suspect remains during an initial investigation. Floyd was a big, strong man. I do not believe that a court will substitute its after-the fact analysis and prohibit the use of handcuffs.
As of today, there is no proof that Floyd committed any crime. We do not even know if the teenagers were correct in their guess that the $20 bill was counterfeit; the officers certainly did not know. At best, the crime here is misdemeanor retail theft. A summons, that is a ticket should have been issued to Floyd and the matter left at that. Instead, full post-felony police deadly force rained down on Floyd as if he had committed a violent act.
The officers were only entitled to keep Floyd at the scene while they investigated the alleged misdemeanor. They did not have to let Floyd walk away—a crime may have been committed. To establish probable cause, at a minimum the officers should have examined the currency. They did not.
What is clear is that the officers had no probable cause to arrest Floyd. Without probable cause, was Floyd privileged, from a legal and not practical point of view, to refuse what were illegal police orders? Such illegal police orders are best sorted out, not on the street, but in a courtroom. Unfortunately, economically disadvantaged defendants rarely have the opportunity to engage judges in theoretical legal analysis. They are treated differently.
And did the officers lose qualified immunity because they were making an illegal arrest?
This analysis demonstrates, in part, the reasons for the frustration felt by the black community and explains in large part the nationwide reaction. Here a non-violent, unarmed man was killed where there may well have been no crime. Even when black people are only suspected of committing crimes, they are treated as a population under occupation, with violence the order of the day.
When police commands are not obeyed immediately, the police are trained to use force. This is in itself a problem, because the force used is all too often disproportional to the original reason for the police intervention.
Police commands are not laws. But to let a policeman’s command become equivalent to a criminal statute “comes dangerously near making our government one of men rather than of laws.” Gregory v. Chicago, 394 US 111 (1969)
A possible reason for the escalation in this case is because Chauvin took the opportunity to turn the situation into a training exercise for the new officer, demonstrating ways to subdue an arrestee. The problem with Chauvin’s decision is that, as the senior officer on the scene, he failed to conduct any investigation at all.
The only question for purposes of examining the constitutionality of the arrest is: Did Chauvin have probable cause to believe that a violation had occurred? See, *Draper v. Reynolds,*369 F.3d 1270 (11th Cir. 2004) . In the absence of any investigation, there was no probable cause and hence no immunity. No crime, no probable cause to arrest—no immunity.
Any lawyer knows how a misdemeanor retail theft case like this plays out: time served if the individual could not make bail and either probation or watch the movie and an order not to return to the store.
A misdemeanor case should not end with a body in the street.
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Note: For many years I practiced federal criminal defense law. I am not an expert in Minnesota state law.