Tuesday Talk*: The Floyd Settlement

It was, to be blunt, astounding.

The City of Minneapolis agreed on Friday to pay $27 million to the family of George Floyd, the Black man whose death set off months of protests after a video showed a white police officer kneeling on his neck.

On the one hand, there is a strong likelihood that this suit would have been dismissed on the basis of qualified immunity, as the use of common restraint techniques, permitted under departmental policy, seems highly likely to fall below a clearly established violation of constitutional rights, if, indeed, it’s a violation of constitutional rights at all. That it resulted in death isn’t the test, a detail that many will find unacceptable but is nonetheless the law.

On the other hand, the amount of money agreed upon is, well, breathtaking. As any lawyer who handles wrongful death cases will tell you, there is no rational basis for this huge number. Future earnings? Pain and suffering? Loss of consortium? Contrary to popular belief, the damages aren’t just random numbers plucked from the sky. At least they didn’t used to be.

Mayor Jacob Frey called the agreement a milestone for Minneapolis’s future. Ben Crump, the civil rights lawyer who is among those representing Mr. Floyd’s family, said it could set an example for other communities.

“After the eyes of the world rested on Minneapolis in its darkest hour, now the city can be a beacon of hope and light and change for cities across America and across the globe,” he said.

The attorneys typically get a third of the settlement. I would see a beacon of hope and light too if I were Ben Crump.

But what about the timing of the announcement of the settlement in the midst of jury selection in the Derek Chauvin prosecution?

Eric Nelson, the attorney for former officer Derek Chauvin, said he was “gravely concerned” about the timing of the settlement, which came Friday in the middle of jury selection for the case.

“The fact that this came in the exact middle of jury selection, it’s perplexing to me, your honor,” Mr. Nelson told Judge Cahill on Monday morning.

Perplexing isn’t the way I would have put it. While the settlement has nothing, absolutely nothing, to do with the criminal case or the evidence against Chauvin, that doesn’t mean it won’t have a significant impact on the potential jurors.

The woman, who told the court that she lives in the Third Precinct area that was damaged by rioting, said she turned on the radio on Friday and inadvertently heard news of the $27 million settlement with Mr. Floyd’s family.

“When I heard that I almost gasped,” the woman said. “I would like to think of myself as somebody who tries to be impartial but I’ve just been exposed to so much information and when that happened it leaned me so far to one side over the other that I couldn’t say under oath that I would be able to take that out of my mind.” She was dismissed by the judge.

This potential juror was honest about it. Many are not. They may believe they are. They may want to be. But they aren’t. And then there are the jurors who want to be on the jury, who want to make sure justice is served, whichever flavor of justice they prefer. They may lie about it. Jurors do that sometimes.

But what’s Judge Peter Cahill to do about it?

Judge Peter Cahill, who is hearing the case, said jury selection would continue in the wake of the settlement, but said he would consider the motion to delay the start of the trial, which is currently set for March 29.

Delay? Maybe the jurors will forget all about it? To be fair, Eric Nelson didn’t contend that the announcement of this settlement was deliberate, a nifty move designed to prejudice the jury against Chauvin by creating the appearance of an admission that George Floyd was murdered while Derek Chauvin happened to be on trial for murdering him.

“I wish people would—city officials would stop talking about this case so much, but at the same time I don’t find any evil intent that they intended to tamper with this criminal case,” Judge Cahill said. “It’s unfortunate, and I wish they hadn’t done it, but I don’t sense any evil intent in the timing.”

If wishes were horses…but I digress. Was the timing of this announcement done with “evil intent,” or did it merely happen to coincide with jury selection in Chauvin’s case? Judge Cahill’s “sense” is both meaningful, since he’s the judge, and meaningless since being a judge gives you no magic ability to “sense” facts that either are or are not based on evidence. Does it raise enough of an issue that it was designed to infuse bias into the trial and deprive Chauvin of a fair jury?

Whether Chauvin is guilty or not is what trials are for. If a jury returns a verdict of guilty, then he is because that’s the system we use to decide such matters. As of now, he is not guilty, because every defendant is innocent until proven guilty. But the jury’s verdict is to be based on evidence rather than influence.

Did Minneapolis just put its thumb on the scales? Even if it wasn’t deliberate, was it sufficient given the timing to deprive Chauvin of a fair and impartial jury? What should Judge Cahill do now, when scuttling the trial could well cause riots that would burn down a city, but proceeding means he’s sold his soul to the mob?

*Tuesday Talk rules apply.

22 thoughts on “Tuesday Talk*: The Floyd Settlement

  1. Sandra Shreve

    “I want to tell you, Justice Kavanaugh and Justice Gorsuch, you have unleashed a whirlwind, and you will pay the price,” “You won’t know what hit you if you go forward with these awful decisions.” Chuck Schumer

    Four Democrat senators sent a letter to the SCOTUS threatening – in so many words – to pack the Court as it was set to hear a challenge to New York City’s restrictions on how gun owners who have residential permits can transport their guns.

    Now we have the threat of real violence and destruction should there not be a guilty verdict in a case where a police officer is on trial.

    We have reached a point where threats of institutional injury to the highest court and physical injury to an entire city can be leveled without any fear of consequence, each time amidst an ongoing legal case that may not be resolved in the way that is desired. That, I think, is the absolute worst to befall a society literally built on the concepts of justice and fairness and on trust in the rule of law. The damage to social cohesion cannot be overstated.

    1. KeyserSoze

      I agree with Ms. Shreve.

      Speaking as an ordinary person and not a lawyer, there are so many things wrong with this situation that I cannot even believe that charges were even brought much less allowed to continue to trial. It appears that the mob is the ruler in MN, not the law.

  2. Quinn Martindale

    I have to agree with you on this one. There were a couple minor deadlines coming up in the civil case, but it’s tough to come up with an explanation for the timing. Looking at the docket, there was a hearing set for this Friday on the individual defendants’ motion to stay proceedings until the end of the criminal case. The lawsuit was filed July 15 and the court had repeatedly granted joint stipulations to stay proceedings with the last agreed date being April 1. The city council has another meeting on the 26th, so they had at least one more chance to approve a settlement before April 1 if that was really a concern.

    Local reporting on the exact timing is hard to follow, but the local NBC station reporting suggests that the City made an offer of judgment before jury selection started last Tuesday. Additionally, the city of Minneapolis is reportedly self-insured and the settlement amount exceeds what was in that account (in part due to the fact that they paid out $20,000,000 for Mohamed Noor‘s killing of Justine Damond in 2019.

    1. David

      Scott asks a question. Quinn replies “I have to agree.” You agree with a question? Damn, you are always good for a laugh. Quinn. At your expense.

  3. Skink

    The city can only leverage the criminal trial outcome if the settlement was its money. Starting with what seems a given: the city is in the Minnesota League of Cities risk pool. Coverage is probably limited to something like $5M for this sort of claim. It would be dopey, but not exactly impossible, that the city doesn’t have an excess policy. It would be dopey because those policies are relatively cheap and a $100M excess policy wouldn’t be unnormal.

    I’m doing some guessin’, but it’s educated guessin’. The excess insurer drives the settlement bus, but how $27M is the number is a real head scratcher. I’ve seen the video, read the Complaint, read the reports and the ME findings. Based on that, I’d defend the case. But I obviously don’t know everything.

    If the city is paying, what does it get with a conviction? It seems not much, other than to put the whole thing to bed. The timing is strange, but it could just be stupidness by those writing the check. But the city has another interest–wouldn’t it be better if the officer couldn’t get a fair trial in Minneapolis? Would there be riots in Duluth?

    1. Grant

      You’re thinking of winning the case.

      They’re thinking of the riot damages when they win the case.

      In that lens, $27 million is cheap.

  4. B. McLeod

    Like the case in Louisville, the big number is to try to buy the peace of the city if the jury doesn’t convict Chauvin.

    1. Pedantic Grammar Police

      If that was the plan, they screwed up the timing. They should have announced the settlement on acquittal day.

    2. Angrychiatty

      There are a hell of a lot of people out there who aren’t getting a cut, and I don’t see why they would be dissuaded from rioting just because of this payment.

  5. B. McLeod

    Recognizing that this may impact the jury, it will likely be a lesser problem than the leaked plea discussions on the murder 3. With that charge now reinstated, I think the ordinary juror will have a very rough time trying to disregard all the press reports that Chauvin was ready to plead to that charge. I can’t see how the defendant is going to get a fair trial. It is really looking to come down to a question of which screw job will hit its mark.

  6. Elpey P.

    The judge keeps saying “evil intent” instead of “righteous intent.” Or even just garden variety intent.

    These are the same city officials who tried shaming their residents for calling the police if their homes are broken into in the middle of the night. Maybe they thought they were paying protection money, when they really just upped the ante.

  7. Hunting Guy

    Some unknown guy on an internet comments board. (Comment disappeared in short order.)

    “Damn, his family hit the lottery.”

  8. TSU

    Frey is an attorney who practiced civil rights law. Hard to see how he couldn’t see this as impacting jury selection.

  9. Jay

    A continuance or a change of venue will both be reviewed for abuse of discretion. If I’m the judge I’m thinking of a few things:
    1. this cop can’t get a fair trial anywhere in the USA right now if he can’t get one here
    2. if this cop gets acquitted this city and many others will burn
    3. no matter how long I wait, 1 and 2 won’t change

    and so I’m just ripping the bandaid off. The city’s behavior is awful, but when I defended a cop killer in my little county the same shit happened and I’m not holding my breath that the appellate courts reverse. The city will literally go out of its way to put its thumb on the scale any time it is interested in the outcome. As a trial lawyer- the only thing you can do is stop wishing it away and deal with it at face value. Sometimes a guy needs to be convicted and go away for a few years so an appellate court can right all the wrongs when the community has moved on.

    That’s just how shit goes when you do big cases.

    1. Miles

      Look who’s a cynic today when it happens to be a cop on trial? Many of us have had big cases, Jay. We don’t quit on our clients because “That’s just how shit goes when you do big cases.”

  10. Scott Jacobs

    Better to pay 27 million now, than to have 100s of millions in damage done to the city after the riots when it got dismissed due to QI.

  11. Keith Lynch

    “… there is no rational basis for this huge number.” How about the amount necessary to prevent Minneapolis cops from murdering those they’re sworn to protect and serve? The $20 million that Justine Damond’s family was awarded wasn’t enough. Will the $27 million that George Floyd’s family was awarded be enough? If the cops don’t murder anyone else, then yes. If they do kill again, double it to $54 million for the next victim’s family. Keep doubling it each time until they either stop killing or the whole city police force is laid off because the city government is bankrupt.
    “If a jury returns a verdict of guilty, then he is because that’s the system we use to decide such matters.” If that’s taken literally, then wrongful conviction is impossible by definition, and there’s no point in appeals.

    1. Sgt. Schultz

      Just when you wonder, what would a flaming nutjob have to say about this, you show up.

    2. DaveL

      Keith, exactly whom do you imagine is paying these settlements? I’ll give you a hint: it isn’t the police. There are several cities in the United States right now that serve as illustrations that bankrupting the city is no cure for violence, by the police or anyone else.

  12. Joseph Masters

    Surprised the State of Minnesota did not fast-track the tax-fraud trial against the Chauvins–at least those indictments have an even chance of conviction…if convicting a cop and having the conviction stick is even possible. Amon Goethe could probably walk under current circumstances.

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