whole range of different issues. it could be anything. it could be a death in the family. that can cause an extreme emotional response. recall when officer lane approached the car, george floyd talked about losing his mother. he lost her in 2018. those wounds still right there on the surface. emotion. it could involve a divorce, bad financial news. mental illness, mental health issues like drug and alcohol abuse. all of those things can cause someone to not resist but just not be able to bring themselves to comply at that moment, at that time. and this is nothing new. they train for it. they plan for it. they prepare for it. they have a policy on it. right?

recognizing persons in crisis. you remember the chief testified -- he testified that they have 4,000 calls for service for persons in crisis every single year. this is nothing new. they are there on a $20 counterfeiting charge. they train for this. they know about this. george floyd certainly had his struggles. you know that. the state put in evidence of that. courtney ross testified that he struggled with an opioid addiction. you knew that. this is nothing new. the difference though on may 25, 2020, the officers just wouldn't listen to him, wouldn't look at the signs and recognize the signs of what they had prepared for. a reasonable officer in the defendant's place with all his training and all his experience,

including that 40-hour crisis intervention course and a refresher course, should have known that and recognized it. floyd was trying to get into the car. he was trying to work up the courage. he said he would count to three. he just couldn't do it. so the defendant arrives on the scene. he surveys the scene. he saunters up to the car. and he slips on his gloves. >> you can't win. you can't win. >> i'm not trying to win. >> get in the car. get in the car. >> he know it. hear me. don't do me like that. please. >> get in the car, we can talk. >> i'm claustrophobic.

i'm claustrophobic. put me in the front. >> no. get in the car. >> i'm not a bad guy. i'm not a bad guy. >> you ain't going to win. >> they don't listen. they just shove him into the car, into the tiny back seat. you saw the look on his face. you saw the look on george floyd's face when he glanced over into the car. looked like he had seen a monster looking into that car. clearly, this trained officer should have recognized that and understood that that moment and that time, what is your goal? where did this critical thinking model go? where did that go? you take in information, you assess the information, you reassess, you consider what's the goal, what's the plan. you are there for a $20 counterfeiting charge, allegedly. the chief testified they

generally don't put people in custody for that. why is it necessary to shove him in the car? they made a judgment call. they decided to shove him in the car. the predictable thing to happen happened. right? he just couldn't be in the back of that car. so they pull him out. they pull him out. watch what happens. they pull him out of the car. >> please, man. >> come on out. >> thank you. thank you. >> on the ground. >> folks, they get him out of the car. he is handcuffed. he is on his knees. he is not going anywhere. there are four officers there, four officers. what did george floyd say once they pulled him out of the car?

thank you. thank you. a reasonable officer in the defendant's position at that time should have recognized and understood he wasn't trying to escape, he wasn't trying to punch anyone, stab anyone. he wasn't trying to do that. the problem was the back of the car, just like george floyd tried to explain over and over. the problem was the back of the car. if you can give them the benefit of the doubt that they made a bad judgment call and shoved him in the back of the car, at least when he came out, it was over. he was on his knees. he was saying thank you. done. no need. it could have been over there. what did they do? they took him from this position handcuffed on his knees, they pushed him down on the ground. didn't need to. not at all.

for what? he is handcuffed. they pushed him down into what is, you now know from watching the evidence in the case, the prone recovery position. when he is down on the ground, he is initially pushed, he is literally in the prone recovery position on the side. that allows the chest to expand and provides room for the lungs to expand and take in air so they can breathe. that is a step that protects against the known danger of positional asphyxia. and they have him there. he is right there. so then what happens after? they take him incredibly out of the recovery position and prone him on the ground. for what? the prone position is a transitory position.

it's a position you use to secure someone in handcuffs. when you are done with that, you immediately roll them on their side. that's the position he was in. proning him was completely unnecessary. and this is where the excessive force begins. this is where the 9 minutes and 29 seconds start, because they didn't just lay him prone. they did not do that. they stayed on top of him with a knee on the neck and a knee on the back and the defendant's weight on mr. floyd pushing down with officer king adding to the pressure, pushing down, holding his feet, officer lane holding his feet for 9 minutes and 29 seconds. that's when the excessive force began. that's when the countdown began. we are going to pull back. you learned about policies and

procedures and tactics. you have to pull back and say, would but for the defendant's actions pushing him down, would george floyd have died that day? the drugs, you miraculously die of a drug overdose in that time? maybe it was the tailpipe. maybe it was his enlarged heart. maybe not. use your common sense. use your common sense. believe your eyes, what you saw, you saw. i want to talk to you a little bit about the law. the judge has already instructed you. it's necessary to go over this a couple of times. you learned -- you have got to go to medical school here. there's so many benefits. you got to go to medical school.

you got free parking. great lunches. fabulous pay. now you get a free law school education. the judge gave you a preview of that. we will go through that again. he is going to give you a copy of those instructions. you have them. you get to keep those and use those during your jury deliberations. he told you that you don't have to decide these issues in any order. you can do it the way you all see fit. i will be making some suggestions as to the order i think you should do things. focus your deliberations and make the conversation a little easier, a little more focused. you have these jury instructions as your guide. i think it's important for you to follow the judge's instructions to the letter. the words and the definitions that the judge gives you, they mean what the judge says they mean. know that the state is required to prove these charges beyond a

reasonable doubt. proof beyond a reasonable doubt. read this to you. proof beyond a reasonable doubt is proof as ordinarily prudent men and women would act upon in their most important affairs. a reasonable doubt is based on reason and common sense, not a fanciful doubt or beyond all possibility of doubt. reasonable doubt, it's just as the name implies. it's a doubt that's reasonable. a doubt based on reason and common sense. you are not required, nor should you, leave your common sense at the courthouse steps. as jurors, you must rely on your common sense. that's why you are here. we need you to apply that standard to these facts and to be a judge of the facts and apply those facts to the law. proof beyond a reasonable doubt, it is a high standard. it's the highest standard. it's a standard the state has met here. the state does not need to prove

its case beyond all doubt. it does not need to prove its case beyond what i will call an unreasonable doubt. not required to prove beyond an unreasonable doubt. an unreasonable doubt is the doubt not based on common sense but based on nonsense. you are not required to accept nonsense. you are not required to accept the notion that after the defendant kneeling on mr. floyd for 9 minutes and 29 seconds, in the dangerous prone position, handcuffed, restrained, pressing down on him, that after that, as he was wreathwreath in pain and that that's no force, because it's not likely to produce pain. a witness testified to that. you are not required to believe something that just flies in the face of common sense to believe that you would have to completely abandon all notion of

common sense, not likely to produce pain. you don't have to accept someone who says that. you would be better off asking the 9-year-old. you are not required to accept the proposition that the car did it. the car killed george floyd. you are not required to accept that or to consider that it is the bystanders' fault for distracting the defendant. you are not required to believe this amazing coincidence that after this 9 minute and 29 second restraint, that at that point in time, even though he was walking and talking, even though he was breathing, interacting with people, that he chose that moment to die of heart disease, die of heart disease. is that common sense or is that

nonsense? or that it was a drug overdose. you know that george floyd struggled with drug addiction and drug use. you know that. you know he had developed -- that requires a tolerance. you know what the toxicology report says in terms of the levels. you know what the testimony was about that. he didn't die of a drug overdose. that's not common sense. that's nonsense. believe your eyes. what you saw happened, happened. it happened. the defendant pressed down on george floyd so his lungs did not have the room to breathe. dr. tobin told you that. the experts who testified, you can rely on them. they said like that commercial,

they know a thing or two because they have seen a thing or two. they know a thing or two. dr. tobin knows a thing or two about how this works. looking at the charges -- this is a little different layout than you see in your printed jury instructions. they're not intended to replicate the instructions completely. it's meant to be a guide for you to look at the different elements in a particular context. the charge of murder in the second degree, murder in the third degree, manslaughter in the second degree, the judge read you what the law says those things are. the law breaks down these different charges into things called elements. first element, second element, third, fourth. each of these has to be proved beyond a reasonable doubt by the state in order for the defendant to be guilty of those charges.

those are the elements that are required. those are the only elements that are required. again, like our preconceived notions, you may have ideas from watching tv about other cases and shows and things, you might have other ideas as to what the law requires. just like -- you know how it's lunch in court and the judge tells you it's lunch, you know when it's time to go, the judge tells you it's time to go. same thing, you know what the charges are, you know what the elements are because the judge tells you. you need to follow that. talking about murder in the second degree, first, the death of george floyd must be proved. it must be proved that the defendant caused the death of george floyd. the fact that other causes may have contributed to george floyd's death does not relieve the defendant of any criminal

liability. it just does not. for murder in the second degree, the defendant at the time of causing george floyd's death was committing or attempting to commit assault in the third degree. that's a felony level assault under the laws of minnesota. assault -- showed the defendant assaulted george floyd, he intentionally applied unlawful force to mr. floyd without mr. floyd's consent resulting in bodily harm. the state has to show that. the state did show that, the assault. and that the defendant inflicted substantial body harm on george floyd and that this act took place on or about may 25, 2020 in hennepin county. as to the first element, that george floyd died, that was established. that was established by the

emergency room physician. george floyd was pronounced dead at the hennepin memorial hospital on may 25, 2020. that element is met. again, you can consider these elements any way you want to consider them. my suggestion is that you consider them in the order as listed here, murder two, murder three, manslaughter in the second degree and in order of the elements, just because there's a lot here. 38 witnesses who testified. a lot of exhibits that were offered. it's easy to talk about everything at the same time. it really is. but it will help focus your deliberations if you look at these different elements in order to have sort of a logical way to focus your deliberations. i encourage you to do it. but you can do it any way you want. second element that the defendant caused the death of

george floyd. causation. what does that mean? what does causation mean? the defendant's act or acts were substantial causal factors -- substantial causal factors in causing the death. he is criminally liable for all of the consequences of his actions that naturally occur. including those consequences brought about by intervening causes. the fact that other causes may have contributed to george floyd's death just does not relieve the defendant of criminal liability. you have to find that 9 minutes and 29 seconds of compression on his knee -- with his knee on his neck and on his back, being held down, was a substantial factor in george floyd's death. now, if there was a superseding cause, then the defendant wouldn't be criminally liable.

those come after the defendant's acts and is the sole cause of death. we don't have that here. we know how george floyd died. this is the use of force. we talk about use of force. that's been defined by the defendant witnesses who testified looking at what happened from the point the knee went to the neck and back and the unlawful restraint, the assault started. how long it lasted, 9 minutes and 29 seconds. that's what george floyd -- that's what killed george floyd. that's why he died. believe your eyes that unreasonable force, pinning him to the ground, that's what killed him. this was a homicide. you heard this from forensic pathologists, the experts.

you have heard this. the experts have weighed in. the doctor told you that mr. floyd died. dr. baker ruled this a homicide, told you the cause and manner of death, the unlawful -- the restraint by law enforcement, what they did killed him. told you that. dr. tobin -- do you remember dr. tobin? he told you specifically how it happened. he walked you through that, the asphyxia. he told you how it happened. the other doctors who testified, they told you how it didn't happen. it wasn't a sudden cardiac event. it wasn't a heart attack. it wasn't a drug overdose. it wasn't any of those things. dr. tobin came back and explained it wasn't carbon monoxide. no. you know how george floyd died.

you heard this. specifically, dr. tobin provided fairly extensive detail and was very clear that george floyd died as a result of a low level of oxygen. low level of oxygen causing a brain injury and pea arrythmia which caused his heart to stop. that didn't cause him to die from heart disease. it was the low level of oxygen. it was the asphyxia that caused him to die. we know that that happened. we know that happened because they observed during the restraint, they observed a seizure, a telltale sign of oxygen deprivation. dr. tobin told you that. even dr. fowler told you that. after mr. floyd experienced the seizure, he passed out, after

his pulse stopped, his heart stopped. that cardiopulmonary arrest, that was the result of the police restraint and neck compression. we know from dr. tobin, george floyd did not die primarily from a cardiac event as has been suggested. george floyd, he was not in perfect health. he had narrowed arteries, high blood pressure, no question about that. he was no question experiencing stress, even before the officers shoved him on the sidewalk unnecessarily, gratuitously, disproportionally. none of this caused george floyd's heart to fail. his heart failed because of the defendant's use of force, the 9:29, that deprived mr. floyd of the oxygen that he needed, that humans need to live. dr. tobin knows because he is a pulmonologist.

he is the lung doctor. he is a lung doctor. he is also a respiratory physiologist. the only person who testified who is able to calculate lung capacity, lung volume. he could do that. dr. baker couldn't do it. didn't do it. he deferred to the pulmonologist, dr. tobin. dr. fowler couldn't do it. he said he would defer to a pulmonologist. dr. tobin, who also happens to be a critical care physician, he spent years treating patients in intensive care who experienced respiratory failure. dr. tobin literally wrote the book on the subject. he was able to tell you what this looks like, what he was able to observe, what he was able to observe was oxygen deprivation, asphyxia. it was asphyxia. because under the conditions that mr. floyd was being

restrained, that the defendant put him in, that cut off his oxygen. it would have cut off oxygen of someone who was perfectly healthy, anyone. the forces used in this situation involved multiple factors. george floyd was handcuffed. he had impaired arms and chest movement. he was shoved prone on the sidewalk. the knee is pushing on his neck and back downward. the pavement forcing unyielding. it was like he was in a vice. he was being squeezed in a vice. he calculated between chauvin, the defendant, officer king pushing down on him approximately 90 pounds of force. the position and the force combined such that it was if -- it was as if george floyd's left

lung had been surgically removed. that's how much a reduction of air capacity there was here. to the point that mr. floyd was desperately trying to make space to breathe, pushing his shoulder, pushing his face against the pavement to lift up to give space to breathe. his lung capacity based on dr. tobin's calculation, income the prone position, even though you heard studies from the defense saying the prone position isn't dangerous, dr. tobin disagreed. he said that the lung capacity was reduced by 24% just by the prone position. 43% when you consider the additional pressure. dr. tobin's opinion corroborates the police training and what the police have known for 30 years. that there's a danger in the prone position. the danger is positional

asphyxia. the worst thing that can happen with positional asphyxia is death. it wasn't just the lungs. the pressing up against the neck -- remember, when you touched that -- that it reduced the capacity of airflow such that it was as if mr. floyd was breathing through a straw. shallow breaths did not produce enough oxygen, not enough oxygen could get to the lungs. that's what killed george floyd. here is what didn't. this wasn't a sudden cardiac arrhythmia. dr. thomas, dr. rich, dr. tobin, they agree, not a sudden cardiac arrhythmia. that's not how this looks. dr. baker, no medical evidence of a heart attack. we heard from dr. rich.

dr. rich treats people who have heart attacks. he found there was nothing on his -- in his review, nothing in george floyd's heart to suggest that the death originated from the heart. nothing. over the course of this case, you heard a lot of things that didn't happen and hypotheticals that don't apply. you know why george floyd died. you know how he died. you heard a lot about drugs. you heard about his struggle with addiction. there's some things -- george floyd was obviously not a perfect man. who is? no one is. you heard about drugs. you heard about drugs in the car, pills in the car. in the squad car, in his car. you heard questions about, is he chewing gum, a pill in his

mouth? none that was matters because you know what his drug level was. you know that from the toxicology report. if drugs are found in the car, they're not in george floyd's system. there's no point in talking about those. let's talk about what was in his system. the toxicology report, you heard from the doctor. what he testified was that george floyd's fentanyl -- it was well below the ratio of people who die from a fentanyl overdose. it was bethe median. george floyd's methamphetamine level, that was 94% lower than the group for driving -- population for driving under the influence. dr. rich and dr. smock, they treated patients under the influence of fentanyl and member amphetamine. they testified the drugs did not

kill george floyd. it didn't. we know he had a tolerance because he used drugs in the past. george floyd did not die the way someone who dies from a fentanyl overdose dies. his breathing, that didn't slow down. he didn't fall asleep. he didn't go into a coma. this looked nothing like a fatal fentanyl overdose. dr. tobin, the only doctor in the case who actually calculated george floyd's respiratory rate, the best doctor to do so given his training and experience, he stated that the fentanyl in george floyd's system did not depress his respiration. it didn't. he did not die of a drug overdose. that's not how he died. he didn't die of excited delirium. you heard about excited

delirium. dr. smock testified and explained to you, he didn't -- george floyd did not exhibit any of the signs of excited delirium, one of which being superhuman strength. nonsense. there's no superhuman strength. there are no superhumans. impervious to pain, nonsense. you heard him. you saw him. he was not impervious to pain. that's nonsense. this tumor, called an incidental tumor, relatively rare, maybe causes headaches, that that caused his death at that particular moment in time at that time, at that place, after the rerestraint, after the 9 minutes and 29 seconds, that tumor that causes headaches, that killed him? no. that's just a story.

dr. rich specifically testified that he looked in george floyd's medical records and he did not find references to headaches. you heard about carbon monoxide. the car killed him. dr. tobin came back and explained this car, which had a catalytic converter that was outside, that was a hybrid and there's no evidence was even on, that that did not kill him. he explained carbon monoxide saturation level -- i'm sorry, oxygen saturation level. based on his calculation of oxygen saturation level at 98%, at most it could have been a 2% carbon monoxide. same as anybody else. same as people walking around talking, breathing. this wasn't carbon monoxide. that's just a story.

it's simply wrong. you don't have to be dr. tobin to recognize this. it's probably nice to be dr. tobin, but you don't have to be dr. tobin to recognize this. you can see this with your own eyes. you can see what happened, that he couldn't breathe. he said he couldn't breathe. the defendant was on top of him, on his back, on his neck with his knees pressing down. of course, you saw how his body just sort of deflated into the ground, past the point of consciousness. there were multiple moments in time, ladies and gentlemen, multiple moments in time that things could have gone different. and george floyd would have lived. cpr. if he would have left him in the side recovery position in the first place or just placed him in the side recovery position

shortly after the restraint, he wouldn't have died. their own force witness testified that putting somebody in the side recovery position is pretty fast, pretty easy thing to do. not complicated. the professor said you just rotate him 90 degrees, quick. could have done that. relieve the pressure. could have done cpr, chest compressions. was supposed to. had a policy he was supposed to follow. a duty to provide medical aid. you are supposed to use your training, provide medical aid. even dr. fowler was critical, no one starting cpr. that should have been done. defendant knew how to do it. he had the training. he knew better. he just didn't do better. george floyd didn't have to die that day. shouldn't have died that day but for fact the defendant decided not to get up and not to let up.

george floyd died. these actions were a substantial factor in george floyd's death. these actions, make no mistake, these actions were not policing. these actions were an assault. as the judge instructed you, for second degree murder -- it's actually very simple. if you find that the defendant committed this third degree assault while committing the assault he caused george floyd's death, defendant is guilty of murder. that's the way felony murder works in minnesota. two elements. the defendant assaulted george floyd. what does that mean? assault is the intentional inflection of body harm upon

another or the attempt to do so. intentional infliction of body harm, that requires proof the defendant intentionally applied unlawful force to another person without that person's consent and the act resulted in body harm. intentional. did it on purpose. he did the thing on purpose. bodily harm, physical pain or impairment of a person's physical condition. the state does not have to prove that the defendant had an intent to kill george floyd. this was an intentional act that you see before you. he did this on purpose. that's clear. he didn't, again, trip and fall and find himself there.

this was also unlawful force. officers are only authorized by law to use reasonable force. this was not reasonable force, as i will explain. george floyd clearly did not consent to having the defendant's knee on top of him for 9 minutes and 29 seconds. when you hear someone gasping for breath, calling for their mother, begging you to get off, what -- how could you think anything else? that he did not consent to this. the state does not have to prove -- we don't have to prove about intent, we don't have to show the defendant intended to cause george floyd harm. don't have to show that. you don't need to find the defendant was trying to cause harm or had the purpose to cause harm to conclude that this was an assault. you do not. state doesn't have to show that the defendant intended to violate the law. you don't have to show that. we don't have to show that the

defendant intended to kill him. the only thing about defendant's intent we have to prove is that he applied force to george floyd on purpose. this wasn't an accident. it's pretty simple. if you are doing something that hurts somebody and you know it and you keep doing it, you are doing it on purpose. >> i can't breathe. i can't breathe. >> somebody is telling you they can't breathe and you keep doing it, you are doing it on purpose. what else is going to happen when you push somebody down on the pavement? everybody knows this. everybody knows what happens when you push somebody against the pavement. you learn this pretty early on.

we learn this pretty early on. assault in the third degree requires that the defendant inflicted substantial bodily harm on george floyd. substantial bodily harm meaning a temporary but substantial loss or impairment with a function of a bodily member or organ. the lungs, the heart. temporary loss of consciousness qualifies as substantial bodily harm. certainly, a permanent loss of consciousness would constitute substantial bodily harm. look at this point in the restraint and you see the absence of expression, the absence of muscle tension. he is unconscious. he lost consciousness. that's substantial bodily harm. he did that.

that's his knee. when you consider the charge of second degree murder, try to break it down into parts. the defendant caused george floyd's death. he did. the state proved that beyond a reasonable doubt. at the time of causing the death, the defendant committed or was attempting an assault in the third degree. that's been proved beyond a reasonable doubt. with those being proved in the venue, second degree felony murder, the defendant is guilty. going back and talking about murder in the third degree, you can see that there's some elements in common. there's some differences.

we have discussed the first element of the death of george floyd, substantial causal factor and the fifth element about the venue element, i will call it, may 25, 2020 in hennepin county. for third degree murder, the difference for third degree murder is that the defendant had to cause george floyd's death by committing an act that was imminently dangerous and performed without regard for human life. again, the state is not required for this charge either to show that the defendant intended to kill george floyd. that he committed an act that was imminently dangerous and performed without regard for human life. it must prove -- the state must prove that the act was highly likely to cause death, that the

defendant acted with a reckless disregard for human life, that this was -- he was consciously indifferent. consciously indifferent to loss of life that his actions could cause. the defendant's act was imminently dangerous to others, it was likely to cause death to mr. floyd. as if common sense in and of itself would not suffice, the dangers of prone restraint, of positional asphyxia has been known in the law enforcement community for about 30 years. this is known. if common sense wasn't enough. defendant's own use of force witness admits that. again, when we talk about danger, what is the danger, the potential danger of positional asphyxia, it's death. the medical experts who know a thing or two, dr. tobin, dr. smock, dr. rich, they agreed.

the defendant's actions created a high risk of death. the defendant consciously disregarded the loss of life that his actions could cause and did cause. he knew the risks of positional asphyxia due to this position. everybody in law enforcement knows that. he had other warnings, not just from his training. he had other warnings from people. >> he is not resisting arrest. >> he is going to pass out. >> he isn't breathing right now. you think that cool? you think that cool? what's your badge number? you think that's cool right now? you think that's cool? you are a bum for that. you are a bum for that. you get mad. stopping his breathing right now.

>> it was plain and apparent to everyone who was there what was happening. he is going unresponsive. he passed out. he is not talking. what are you doing? we know that the defendant chose not to listen to bystanders, not to these bystanders. how about to fellow officers on the scene? >> roll him on his side. >> no. >> roll him on his side. staying put where we got him. he is staying put where we got him. roll him on his side means roll him to the side recovery position. he could have listened to his own training, fellow officers. he knew better. he just didn't do better. he knew that kneeling on somebody's neck in addition to

the positional asphyxia, the pressure, is dangerous. anyone can tell you that. a 9-year-old can tell you that, did tell you that. conscious indifference. do you want to know what indifference is and sounds like? >> my stomach hurts. my neck hurts. everything hurts. water or something. please. please. i can't breathe, officer. >> stop talking. >> they going to kill me. >> takes oxygen to say that. >> come on, man. >> indifference.

leisurely picking rocks out of the tire. commenting about the smell of the man's feet who you are pressing down, grinding on as his voice slows and fades as he tells you, you are going to kill me. i can't breathe. my stomach hurts. my neck hurts. everything hurts. that takes a lot of explain to complain about it. indifference. the defendant ever listen? ever consider medical attention? no one defended that decision, the failure to give cpr, not even dr. fowler. this isn't protection. this isn't courage. it certainly, certainly is not

and was not compassion. it was the opposite. back to the instructions and the elements of third degree murder. when you are deliberating, ask yourselves, did the defendant cause the death of george floyd by an intentional act that was imminently dangerous to others? absolutely. the state proved that. did the defendant act with a mental statesiting of reckless disregard for human life, a conscious indifference to the loss of life that the eminently dangerous act could cause? yes, he did. and you will find based on that,

that the state has proved the defendant is guilty of third degree murder as charged. back to the charges, let's talk about manslaughter in the second degree. again, you can see that there's some elements in common. the first, third is in common with the other charges. what's different about manslaughter in the second degree? is that the defendant caused the death of george floyd by culpable negligence. created an unreasonable risk and consciously took a chance of causing death or great bodily harm. again, we do not need to prove that he intended to kill george floyd.

culpable negligence, intentional conduct that the defendant may not have even intended to be harmful, but that an ordinary and prudent person would recognize as involving a strong probability of injury to others. you can see exactly what was happening. the bystanders looked for themselves. it was plain to them. they took video. you saw it. it was plain to you. strong probability of injury and with the defendant, his specialized knowledge about the dangers of positional asphyxia and the common sense if you put your knee on somebody's neck, there's a strong probability of injury, he knew that, too. great bodily injury that creates a high probability of death. permanent or protracted loss or impairment of the function of a

bodily member or organ. the heart, the lungs, loss of consciousness. would an ordinary and reasonably prudent person know this was dangerous? everybody knew it was dangerous. a 9-year-old knew it was dangerous. the defendant knew what he was doing because he was right on top. he was right on top of him. his negligence goes beyond his intentional assault of mr. floyd. his negligence includes his failure to act. in your custody, means in your care. in your custody means in your care. there is a duty to provide medical assistance. that duty includes not only calling the ambulance, it means you have to use your knowledge, your training, as a first

responder. you are required to perform cpr. it's a requirement. he failed to do it. he had the training. he knew how to do it. you have seen his training records. it's exhibit 119. take a look at all of therecord, exhibit 119, you take a look at all of the services, all of the hours. he knew what to do. he just didn't do it. he knew better, he didn't do better. he wouldn't even let genevieve hansen, the off-duty firefighter do it. he wasn't going to do it himself. he wouldn't let somebody else do it, but he didn't. he had the knowledge, he had the tool, he just ignored it. so when you consider this chart that the defendant caused george floyd's death by culpable negligence where he took an unreasonable risk and consciously took a chance of causing death or great bodily harm, you will find that element has been proved beyond a

reasonable doubt that he is guilty of second-degree manslaughter. guilty of all three charges. so after all of this, you have another question you have to address. after seeing all of this, finding the assault, finding the murder was committed, the manslaughter was committed. you have another thing to consider and that is was this just okay? this was fine? is this okay because the defendant was a police officer? was this an authorized use of force? was it justified? was it justified? it was not. let's look at the instruction of the kind and degree a police officer may lawfully use in executing his duties. it's limited by what a reasonable police officer in the

same situation would believe to be necessary and force beyond that is just not reasonable. you look at the facts that a reasonable police officer in the same situation would have known at the precise moment that the officer acted with force and looking at the totality of the facts and circumstances whether these actions, the defendant's actions were objectively reasonable. was this subjectively reasonable? no. you just saw the instruction that the law does not provide an excuse for police abuse. it does not. let's -- let's start with the most basic of premises. that's very important. that restraining george floyd in this manner, on the ground, prone, handcuffed, knee on the neck, knee on the back, body

weight on top of him, start with the premise that that, in fact, was a use of force. the defense called a witness who actually testified that that was not a use of force because that is not likely to produce pain. no. no. not true. likely to produce pain? actually produced pain. the problem with terms like super human, super human strength you forget that those people don't exist. humans feel pain. human beings feel pain. human beings need to breathe. don't accept any notion to the contrary. you need to reject that testimony. you need to reject it. >> and let's discuss the standard, what would a reasonable police officer do? what would a reasonable police officer do? you don't look at this from george floyd's perspective,

okay? that's not what a reasonable victim would do. you don't look at it from a bystanders' perspective. what are reasonable bystanders? look at it from the defendant's perspective, either. look at it from the perspective of the reasonable officer and the evidence in this case has shown over and over that the defendant is not that officer because he did not act as a reasonable officer would. remember charles mcmillin? well, the defendant explained his actions. he explained the basis of his actions to charles mcmillin. you recall that. here's what he said. >> yeah, and i tried to get in the car. >> he's probably on something. >> that was his justification for using this level of force. he's a big guy.

he's a sizeable guy. he might be on something. we have to control him. control is the restraint so that's the force. his two justifications were that george floyd was big and that he might be on something. well, you know the standards. you've heard the standards many times. you know the difference between a risk and a threat. officers are authorized to use force to respond to a threat. they're not authorized to use force to respond to a risk. anybody poses a potential risk, big, small, in between. everybody is a risk. not everybody is a threat. being large, the act of being large, it's not a crime. it's not a risk. sorry -- it's not a threat. it's merely a risk. being on something.

being on something, it's not a threat. it may be a risk, but it's not a threat. and force is not authorized against someone merely because they're on something and when questioned, their force expert witness conceded that the combination of the two, being large and being on something is not a justification for the use of force. it just isn't. that's not what they get to do, right? so the defendant's entire basis, his explanation to charles mcmillin at the time, at the scene, right afterwards, after he got up off of mr. floyd, tossed him out like he was nothing is not an explanation. it's not good enough. it's not procedure.

it's not the use of force policy. it's not following the rules. we talked a lot about things that might have happened, could have happened, potentials, hypotheticals. talked about a lot of stuff that didn't happen. you need to focus what did happen. what did happen. george floyd was want a threat. he never was. he wasn't resisting. he just wasn't able to comply. they should have recognized that. they should have recognized that. they do it all the time. they had him handcuffed. they had plenty of resources. they had four officers and a fifth one off in the distance and he was handcuffed behind his back. he wasn't going anywhere. he wasn't doing anything. he didn't need to be put in a prone position. that was a temporary position to facilitate handcuffing and the defendant was on top of him, stayed on top of him, grinding his knees into him, continuing

to twist his arm, twist his wrist so it would buck up against the handcuff, a pain compliance technique without the opportunity to comply is simply the inflexion of pain, not a reasonable use of force, and it's not authorized by the minneapolis police department. effectively, they were using a maximum restraint technique, effectively remember the hobble? the rip hobble? they considered using it, thought about using it. decided not to. they didn't need to. he wasn't doing anything that was warranted, but if you'll restrain someone completely holding them down, the policy is the rip hobble. they didn't do that. the policy about applying the rip hobble is again, you have to put the person immediately in the side recovery position. why didn't they do that?

the conduct didn't warrant it. they knew it. they didn't want to have a sergeant down there and it's memorial day and they heard that comment. they talked about that so they just held him in this dangerous position against policy. a reasonable officer wouldn't do that. a reasonable officer follows the rules and follows the training and a force that carries the risk of death is deadly force and you recall, the mpd defense tactics and control guide. deadly force is just not authorized in a situation. no force when someone is passed out on the ground, unresponsive. no. you really can't even claim that mr. floyd was engaged in passive resistance. at this point remember charles mcmillin.

he kept saying get up and get in the car. get up and get in the car and george floyd said i will. i can't. he doesn't even have the opportunity. he's saying he'll get up and get in the car. he isn't given the opportunity to get in the car. that's not resistance. that's compliance. at least an attempt to comply. force must be reasonable. it must be reasonable at the point it starts, at the point it ends and all points in between. officers are required to re-assess the situation, to take in the information and react to it. the defendant didn't do it. the defense has made the argument that the crowd justified the defendant's use of force like the blame should fall on the bystanders for displaying concern over a man's life? what? that this was a distraction, that