National Review  April 1, 202George Floyd forcibly resisted arrest. He did not verbally threaten the arresting officers, but he used significant force against them to try to prevent being taken into custody. He did not merely refuse to comply with their directives.

That was the upshot of Wednesday, the third day of the Derek Chauvin trial, in which the fired officer is charged with two counts of murdering Floyd, as well as with a count of negligently causing his death (manslaughter).

Though prosecutors tried some misdirection, the video and audio recordings are clear: Floyd, at six-foot, four-inches and 223 pounds (according to the autopsy report), was so determined not to be placed in the back of the squad car that, even though he was handcuffed, four grown men — police officers trained in the use of force, and pushing and pulling for all they were worth — could not get him to take a seated position.

This does not mean the officers’ prolonged restraint of Floyd later on, as his life faded, was justified. That is the central issue the jury will have to resolve. But the latest evidence helps better explain what preceded the infamous and grim video footage of Floyd under Chauvin’s knee.

Notably, Floyd’s now-famous statements that he could not breathe and that police were killing him, as well as his cries for his mother, were not just reactions — as prosecutors and political activists have framed it — to his being placed in a neck hold by Chauvin after police put him in a dangerous prone position on the street. In reality, Floyd began calling for his mother, and crying out that he could not breathe and was going to die, while police were trying to get him to sit in the back of the squad car. Those claims may have been sincere, but if so, they were spurred by what Floyd maintained were his “claustrophobia” and anxiety over being taken into custody, not by the neck hold in which Chauvin subsequently placed him.

What’s more, it was not the idea of the arresting officers to place Floyd in a prone position on the street. Rather, after propelling his way out of the squad-car rear seat that four cops unsuccessfully struggled to place him in, Floyd insisted that he preferred to lie down on the street. The police restrained him in the position in which he put himself, which was not the position they wanted him in (they wanted him in the car). Reasonably convinced that Floyd was high on drugs (a conclusion supported by his erratic behavior, the accounts of witnesses, and later toxicology tests), the police called for paramedics to take him to a hospital, rather than continuing to try to thrust him in the squad car and take him into police custody.

That is, the police accused of murdering Floyd actually summoned medical help out of concern over his condition.

Furthermore, unlike the state’s preferred evidence, which is peppered with the barbs of bystanders who were not participants in the officers’ initial interactions with Floyd, the recorded evidence introduced Wednesday showed that police were worried about both Floyd’s medical condition and the possibility that, under the influence of drugs, he could suddenly come to and again become aggressively resistant — under circumstances where they’d already been unable to control him.

That was the bottom line of Wednesday’s presentation of evidence. Unlike the first two days of trial, which focused on recordings of the last nine minutes and 29 seconds of Floyd’s encounter with the police (i.e., the part when he was lying on the street), prosecutors introduced the proof of what happened before that encounter because they had to, not because they wanted to. Had they withheld it, Chauvin’s lawyer Eric Nelson would have anxiously presented it during the defense case.

Mindful that Wednesday’s evidence would hurt their case, prosecutors tried to dilute its impact by presenting it through witnesses highly sympathetic to Floyd.

The best example of this was Charles McMillian, a 61-year-old who described himself as a “nosy” neighborhood elder. He wandered over to watch as police were trying to put Floyd in the squad car. Though McMillian was not acquainted with Floyd, he intervened and tried to help the situation. Without going into personal detail, he said he has had encounters with police and believes, once a person is in handcuffs, he is under arrest and there is no point doing anything other than cooperating because “you can’t win.” So, as police were trying to get Floyd to sit in the back of the squad car, and Floyd was refusing to cooperate, McMillian pleaded with him, from about ten feet away, to submit because “you can’t win.” Floyd, who was already complaining that he could not breathe, responded, “I’m not trying to win.”

At that point in the testimony, while the video was playing for the jury, McMillian got deeply upset and began to weep. Prosecutor Erin Eldridge repeatedly asked him if he was all right, reassured him that she knew it was difficult to testify, and brought him water, while McMillian grabbed liberally from a box of handkerchiefs, blew his nose, dabbed his eyes, and had great difficulty composing himself.

It was riveting . . . except that it riveted one’s attention away from was what was going on in the video. In this recording, while it was difficult to see the individual players, it was obvious that Floyd was struggling wildly with the police, and that the squad car was rocking violently.

As the video played and McMillian broke down, Eldridge asked the witness, “Can you explain what you’re feeling at this moment?” The question was irrelevant and absurdly prejudicial, but Chauvin’s counsel did not object, plainly not wanting to appear heartless in front of the jury. This is the state’s approach to the jury: Decide the case based on the nine minutes and 29 seconds we have emphasized; as for everything else, go with how you feel, and don’t worry so much about what you see.

Nevertheless, there were no Floyd sympathizers to put on the stand for the police-controlled recordings (from surveillance and body-worn cameras). They had to be admitted through a police administrative officer who had no direct involvement in the investigation. The jury watched these recordings without interruption or witness narration. They more clearly showed Floyd forcibly resisting arrest. The recordings also undermined the claim by off-duty firefighter Genevieve Hansen (an eyewitness who testified Monday) that she believed the cops were pressing their full body weights on Floyd. (On cross-examination, Hansen ultimately admitted that she had exaggerated the number of police; that from her vantage point, she couldn’t see two of them at all from the shoulders down; and that she only saw Chauvin for about four minutes from a partially obstructed view). Police surveillance video showed that the cops were not pressing body weight heavily on Floyd; were communicating with each other about his well-being as they waited for the ambulance they’d called; and were concerned about his drug use, fearing he could suddenly revive and start resisting again.

The other significant testimony on Wednesday centered on Floyd’s passing of a counterfeit $20 to purchase cigarettes while he was patently high on drugs at Cup Foods. Again, the prosecutors presented this evidence that casts Floyd in a bad light through a sympathetic witness — indeed, a remorseful one: 19-year-old Christopher Martin, the Cup Foods cashier who, given the tragedy that ensued, now deeply regrets that he reported the phony money to his manager. (He says, under store policy, the loss would have come out of his pocket.)

The prosecutors’ position on the counterfeiting arrest has been not only disingenuous but unfairly prejudicial. They have suggested that it is not certain Floyd passed a counterfeit bill, and that even if he did, it was not a serious offense. To the contrary, Martin’s testimony made it abundantly clear that the bill was fake, (Martin himself recognized it immediately, and Floyd and his companions had at least one other fake bill in the car). More to the point, an arrest is either lawful or it is not. If it is a lawful arrest, the police have the discretion to take the suspect into custody — even if it later turns out that the case is dismissed without charges.

The state has not dared to claim that the police had no legal basis to arrest Floyd for passing counterfeit U.S. currency — which is a crime under both state and federal law. Moreover, in the course of arresting Floyd, the police would have found illegal drugs in his possession. That would have been another basis for arresting him — and could have been a serious issue in light of Floyd’s extensive criminal history and the likelihood that he was the driver of the car in which he was seated in the driver’s seat when arrested.

No one is saying these are the crimes of the century. But the police clearly had a lawful basis to arrest Floyd and take him into custody. Once police exercised that lawful prerogative, Floyd’s duty was to submit peacefully; resisting arrest was an additional crime.

Yet, prosecutors have indicated to the jury that the arrest of Floyd and effort to take him into custody was a gross overreaction that should be considered in assessing whether the police use of force was excessive. That is wrong, the prosecutors well know it is wrong, and Judge Peter Cahill should not let them do it. Excessive force is a matter of whether police used materially more force than was necessary to effect a lawful arrest. The question for the jury is not whether the arrest itself was excessive.

To be sure, none of this would excuse Chauvin’s placing Floyd in a continuous neck hold for several minutes after he was subdued, unresponsive, and appeared to have no pulse. Even if they were worried in good faith that Floyd could revive and become aggressive, the police could have held him in a more comfortable breathing position. Prosecutors have been adamant that their use-of-force experts will testify that Chauvin’s neck hold was against police training under the circumstances.

That said, Wednesday’s evidence puts a different light on Floyd’s complaints about not being able to breathe, about how he came to be restrained in a prone position on the street, and about whether the police exhibited depraved indifference to his life. The case is more complicated than prosecutors would have it.