In recent weeks, attorneys representing former Minneapolis police officers charged in George Floyd’s death have argued that charges against him should be dismissed, sketching out a legal strategy that alleges that Floyd was intoxicated, overdosed and contributed to his own death.
Blaming the victim of a police killing because of his alleged drug use is controversial, but it’s not without precedent. In the trial of former St. Anthony police officer Jeronimo Yanez, defense attorney Earl Gray argued that Philando Castile would still be alive were he not high on marijuana when Yanez pulled him over. Gray is now defending Thomas Lane, one of the officers charged in the Floyd case.
Some advocates argue that the specter of drug use is used to justify excessive force against people of color all the way from the initial encounters with police to the courts.
Drugs have been used to stigmatize victims and desensitize communities to excessive use of force by police, said Kassandra Frederique, executive director of the Drug Policy Alliance, a nonprofit that advocates for decriminalizing drugs.
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“George Floyd is in the tradition of how the drug war is used to kill Black people,” Frederique said. “It’s not surprising that we’re seeing law enforcement attorneys use whatever drug is involved...as a reason why this person is dangerous, why this person needed undue force, why this person being dead might not be the worst thing for the world.”
‘It’s hardly character assassination’
In court filings, Gray has argued that Floyd’s arrest would have been part of his “ongoing cycle of chemical dysfunction, violence, theft,” and that “he was an addict, a distributor of drugs, and evident danger to the community.”
“While attempting to avoid his arrest, all by himself, Mr. Floyd overdosed on Fentanyl,” Gray wrote in a recent filing. “Given his intoxication level, breathing would have been difficult at best. Mr. Floyd’s intentional failure to obey commands, coupled with his overdosing, contributed to his own death.”
An autopsy by the Hennepin County Medical Examiner found Floyd had fentanyl and meth in his system at the time of his death. Gray surmised that a white dot in Floyd’s mouth that can be seen on body camera video is a fentanyl pill.
Gray said in an interview with MPR News that he included details about Floyd’s criminal record and addiction because he says that’s what led Floyd to resist the officers. Floyd’s history makes the officers’ account more credible, he added.
“People that get into trouble with the law and get stopped for committing a crime or suspected of committing a crime, unfortunately a substantial amount of those individuals have been using drugs,” Gray said. “It’s hardly character assassination. What I’m doing is defending an innocent individual.”
Attorney Eric Nelson, who is representing Derek Chauvin, wrote in a motion to dismiss charges that Floyd had “been addicted to opiates for years,” but said in a footnote that the reference wasn’t an attempt to “assail Mr. Floyd’s character” but to provide evidence about fentanyl’s role in Floyd’s death.
In a previous filing, prosecutors pointed out that the medical examiner report found that Floyd’s death resulted from “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” Gray said in a recent motion to dismiss the charges that the “autopsy reports confirm no damage done to Mr. Floyd’s neck.”
Prosecutors have argued that Minneapolis police training required Lane to consider whether “Floyd’s self-identified claustrophobia and anxiety, his assertion that he had been shot before and was ‘scared,’ and the ‘influence of drug or alcohol use’” were a factor in whether he was complying with orders before they used a neck restraint on him.
An alternative narrative
Lane is charged with aiding and abetting murder and manslaughter along with former officers J. Alexander Kueng and Tou Thao. Former officer Derek Chauvin is charged with murder and manslaughter after he kneeled on the neck of Floyd, a Black man in handcuffs, for about nine minutes.
St. Paul attorney Paul Applebaum, who is following the case but isn’t directly involved, doesn’t think Lane’s motion to dismiss charges has much chance to succeed. But that the motion did advance alternative narratives about what happened to Floyd.
“For months now, for these officers, it’s just been an avalanche of bad publicity,” Applebaum said. “It got a lot of information out there and video that was not available to the public. So there are a lot of people now who are saying, ‘You know what, I don’t think we knew the whole story.’”
Because the former police officers are the defendants in this case, everything that’s normally true in a criminal case is turned on its head. That’s why the victim’s drug use will likely become an issue at trial, especially if prosecutors repeatedly point to Floyd’s statements that he “can’t breathe” throughout the encounter, even before Chauvin kneeled on his neck, Applebaum said.
“That makes it fair game,” Applebaum said. “If they’re going to emphasize the fact that he kept repeating this on the cellphone video, the defense is entitled to say, ‘Well no, the alternative explanation for your complaint is he had taken fentanyl and his breathing was being suppressed.’”
‘Drug war propaganda’
Drugs have often been used after the fact to justify police violence, said Frederique of the Drug Policy Alliance. She noted that even as Floyd was on the ground with Chauvin’s knee on his neck, officer Tou Thao can be heard on bystander video saying, "This is why you don't do drugs, kids.”
“We all saw the tape of the officer with his knee on the neck of George Floyd,” Frederique said. “It’s as if they would like to go back in time and use whatever was in his system as the reason for his death. He died because this person had their knee on his neck.”
In 2016, Yanez, then a St. Anthony police officer, shot and killed Philando Castile during a traffic stop. Marijuana was later found in Castile’s car and an autopsy found traces of marijuana in his system at the time of his death. Yanez told investigators that he smelled burnt marijuana when approaching Castile’s car and immediately thought he was going to die.
Even at closing arguments in the case, Gray told jurors that Castile wouldn’t have died if he hadn’t gotten “stoned” while armed with a gun and decided to “ignore” Yanez’s commands. A jury found Yanez not guilty of second-degree manslaughter and felony weapons charges.
Tying a person killed by police to drugs has been an effective strategy with jurors, including jurors of color, in court cases across the country, Frederique said.
“Drug war propaganda works across race — it doesn’t work on white people more than it works on people of color,” Frederique said. “It sets up the circumstances where we believe the worst in each other.”
Castile’s mother, Valerie, said listening to attorneys blame marijuana for her son’s death at court was ridiculous. She said she’s been in touch with George Floyd’s family members as the trial approaches, and they’ve talked about how quickly the situations escalated. Both cases started with police questioning and ended with a man being killed.
“You already had the handcuffs on the man, so what was the reason why you did what you did?” Castile said, referring to the Floyd case. “There are a bunch of excuses flying around, but there was no reason for you to put your knee on that man’s neck for that amount of time — that was intentional.”
The motions to dismiss will be decided after all parties file briefs. Other motions, including a change of venue and objections to a joint trial, will be argued at an omnibus court hearing Friday morning in Minneapolis.