The George Floyd Homicide Prosecutions
Date Posted: January 11, 2021
This is a guide to the major legal issues posed by the pending prosecutions of the four officers charged with the death of George Floyd. One set of issues was resolved on October 21st, when the trial judge dismissed the third-degree murder charge. But since future cases may raise the same issues, that charge will be briefly addressed. The trial judge also ruled that the state had established probable cause to support each of the remaining charges, thus justifying trial on those charges. But that is a relatively low standard – probable cause exists if a trial jury could reasonably convict on that charge, viewing the known facts in the light most favorable to the state. That is a far easier standard for the state to meet than the standard that must be met to convict at trial, which is proof beyond a reasonable doubt based on all facts and arguments presented by the state and the defendant.
So if the case ends up being resolved by trial rather than by guilty pleas, how likely is it that a jury would convict on each of the remaining charges? And what exactly must be proven to convict on each charge? The trial judge’s order and opinion, discussing many aspects of these issues, is 107 pages long; the summary below seeks to make this material more accessible to the general public, while also raising some issues that have not yet been addressed by the judge.
As most readers know, the principal defendant, former officer Derek Chauvin, knelt on Mr. Floyd’s neck for over nine minutes. Chauvin thus contributed more directly to Floyd’s death than did the other three defendants – former officers Thomas Lane and Alexander Kueng (who held down Floyd’s legs and back, respectively); and former officer Tou Thau (who kept the angry crowd away from the three officers holding Floyd down). At some point all four officers probably knew that Floyd had passed out and had no detectable pulse; some of them may also have noticed that he had stopped breathing. Lane, Kueng, and Thao are charged as accomplices to Chauvin, and their liability depends to a great extent on his, so Chauvin’s liability will be discussed first.
To establish Chauvin’s liability for each charged offense, the state must prove, beyond a reasonable doubt: 1) that the elements of the offense are proven; and 2) that there is no applicable affirmative defense that Chauvin could have reasonably believed to apply, justifying or excusing what would otherwise be a crime. The elements of the charged crimes will be discussed first, followed by possible affirmative defenses.
Chauvin was charged with second-degree unintentional murder (Felony Murder); third-degree murder (extreme recklessness as to the risk of death); and second-degree manslaughter (ordinary recklessness). (Intentional murder wasn’t charged, apparently for lack of evidence suggesting that any of the officers wanted Floyd to die or believed he would.)
Each of the three homicide charges requires proof that Chauvin’s actions were the factual and proximate cause of Floyd’s death. Factual causation is shown if Chauvin’s actions, of kneeling on Floyd’s neck for over nine minutes, were a “substantial causal factor” contributing to Floyd’s death. This standard can be met even if other factors (e.g., Floyd’s alleged drug use and pre-existing heart condition) were also contributing factors in his death. The state must also prove that Chauvin’s actions were the proximate cause of Floyd’s death – that his death was not the direct result of some independent, intervening person’s act or other factor that the defendant could not reasonably have foreseen. No such intervening cause seems to have been operating here (only the additional, contributing causes noted above).
Second-degree unintentional (felony) murder
This crime is defined broadly in Minnesota, so it will not be hard for the state to prove. The state need only show that Chauvin caused Floyd’s death while Chauvin was committing a felony that posed a “special danger” to human life. The applicable dangerous felony here is third-degree assault. (In many states, felony assault is not deemed to be a crime sufficiently independent of the victim’s death to qualify for felony murder, but Minnesota does not apply that rule.) Third-degree assault is defined as any assault causing substantial bodily harm. At some point while being held down Floyd lost consciousness; prior cases have held that this constitutes substantial bodily harm and poses sufficient danger to permit felony murder liability. The state does not have to prove that Chauvin intended substantial harm (although that might be provable here – police use of an “unconscious neck restraint,” cutting off blood flow to the suspect’s brain, is designed to cause loss of consciousness). Instead, under Minnesota’s unusually broad felony assault rules, the state need only show that Chauvin intentionally did an act that constituted fifth-degree (i.e., misdemeanor) assault, and that substantial bodily harm occurred as a result. Fifth-degree assault consists of intentionally doing an act that causes some degree of bodily harm (including pain, such as to Floyd’s neck or to his face against the rough pavement) or that is intended to cause fear of immediate bodily harm.
Third-degree unintentional murder
This crime consists of “caus[ing] the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” The essence of the crime is doing an act (e.g., driving into a crowd of people) that is extremely reckless as to the risk of causing death. The trial judge dismissed this charge against Chauvin on the ground that the crime cannot be committed when only one person’s life was endangered, citing two reasons: 1) the statutory text, “eminently dangerous to others” [plural]; and 2) prior cases suggesting that the crime cannot be committed where the defendant’s “animus” or “design” was directed specifically at one person. As to the first point, however, a Minnesota statute states that, absent clearly contrary legislative intent, when interpreting a statute “the singular includes the plural; and the plural, the singular.” As to the second point, the cited cases mostly involved defendants convicted of first- or second-degree intentional murder based on strong evidence of intent to kill, who appealed the trial court’s refusal to also charge the jury on third-degree murder; judges have considerable discretion to not charge on lesser offenses, especially when the evidence supporting a greater offense is strong. Moreover, several cases have upheld third-degree murder convictions where only one person’s life was endangered.
Nevertheless, the third-degree murder charge was rightly dismissed, for a different reason: when the scope of a criminal statute is unclear (as it was, given the court’s two reasons, above), the traditional “rule of lenity” requires courts to opt for a narrower rather than a broader scope.
This crime is committed when a person “causes the death of another…by the person’s culpable negligence whereby the person creates an unreasonable risk and consciously takes chances of causing death or great bodily harm to another.” The essence of this crime is (ordinary) recklessness -- awareness and disregard of a substantial risk of serious injury. A 1979 Minnesota case provides an example: defendant, with no intent to hurt anyone, fired his rifle toward a spot across a river where he had recently seen people standing, killing one of those people. At least in retrospect, it seems clear that Chauvin’s actions “create[d] an unreasonable risk” of great bodily harm to Floyd. The main difficulty for the state will be to prove that Chauvin was actually aware of that risk.
The assessment of Chauvin’s acts and beliefs depends in part on the timing of Floyd’s death. Although he was not pronounced dead until over an hour after the officers stopped holding him down, it’s possible that he died shortly after he seemed to stop breathing, six minutes after first being held down (which was 30 seconds after Lane said “I think he’s passed out,” and 30 seconds before the first of two unsuccessful attempts to detect Floyd’s pulse). Anything the officers did or learned after Floyd died is of limited relevance – a person’s reckless acts cannot “cause” death if the victim is already dead. On the other hand, the final minutes when Floyd was still alive and being held down are critically important; the longer the officers held Floyd down and the weaker his voice and movements became, the greater and more obvious the risks to his life became, and the less justification the officers could reasonably believe they had to keep forcibly holding him down. Moreover, when Floyd seemed to have stopped breathing the officers arguably violated their legal duty to administer CPR to save his life and thereby became liable for “causing” his death by omission.
Possible affirmative defenses
Even if the elements of one or more crimes discussed above are clearly established, Chauvin is not guilty if he has an affirmative defense of justification (e.g., self defense) -- or of excuse (e.g., insanity). There is no plausible claim of self defense here, nor any applicable excuse. Chauvin’s strongest affirmative defense is that Floyd was resisting arrest, and that the force the officers used was justified in order to maintain control over Floyd and complete his arrest for passing counterfeit money. Minnesota law recognizes two levels of permissible police use of force – justified “deadly” force, and lesser, “reasonable” force.
Chauvin’s acts of kneeling on Floyd’s neck until he passed out (and for several minutes after that), ignoring the pleas of Floyd and concerned onlookers, arguably constituted deadly force – force which “the actor reasonably should know creates a substantial risk of causing death or great bodily harm” (actual knowledge of that risk is not required). Under the law then applicable, such force could only be used when necessary to arrest for a felony and 1) the felony is an offense involving use or threatened use of deadly force; or 2) the officer reasonably believes the suspect will cause death or great bodily harm if his arrest is delayed. Floyd’s alleged counterfeit-passing crime was probably only a gross misdemeanor and involved no use of force. Nor did Floyd seem dangerous: he did not threaten the officers or anyone else, and his prior crimes, even if known to the officers, were almost all non-violent. Thus, deadly force to arrest was not justified in this case.
If Chauvin’s actions are not deemed to constitute deadly force, could they represent “reasonable” force? An essential element of this standard is that the officer reasonably believed the force was necessary at all times before the force ended (or Floyd died). Under Minnesota law, the state must disprove, beyond a reasonable doubt, at least one element of any proposed affirmative defense. Given that Floyd was handcuffed behind his back, was surrounded by four officers, had not attacked the officers or anyone else, steadily grew weaker, and then passed out, it seems likely that the state will be able to prove that the force was or became unnecessary. The state can also argue that Chauvin’s force was unreasonable because it was excessive (disproportionate) relative to the seriousness of the arrest crime (a gross misdemeanor property offense).
Chauvin may argue that the “neck restraint” he used on Floyd was authorized by Minneapolis police regulations, or he reasonably thought it was (it is now prohibited under a statute enacted two months later, except when deadly force is justified). But those regulations limited neck restraints to suspects who are “actively resisting,” which Floyd certainly was not after he passed out, and arguably was not after the officers ceased trying to get him into the police car.
Chauvin might also rely on a statutory provision permitting reasonable force “to restrain a person with a mental illness…from self injury.” The state would respond that no such justification applied to Mr. Floyd, especially after he passed out.
Finally, it should be noted that under Minnesota law a defendant either has a complete justification defense (not guilty of any offense) or no defense (guilty of the highest provable crime charged). (Some states recognize “imperfect” justification defenses that mitigate murder to manslaughter when a person honestly but unreasonably believed his or her use of force was justified.)
Accomplice liability of the other officers
Under subdivision 1 of Minnesota’s accomplice liability statute, Lane, Kueng, and Thao [LK&T] can be held liable for a crime committed by Chauvin if they: knew Chauvin was committing the crime; did not reasonably believe Chauvin’s use of force was justified; and intentionally (purposely or knowingly) aided Chauvin’s commission of the crime. Holding a victim down, or acting as a human shield, are classic examples of acts supporting accomplice liability.
Second-degree (felony) murder
To establish the elements of accomplice liability for this crime, the state will argue that it only needs to show that LK&T were accomplices to Chauvin’s crime of third-degree felony assault (which, as noted earlier, Chauvin committed when Floyd lost consciousness), and that Floyd died as a result of that assault. LK&T could all see what Chauvin was doing, so they probably knew he was causing bodily harm to Floyd, and eventually substantial bodily harm. They also arguably knew that their actions (holding Floyd down; keeping the crowd away) were aiding Chauvin’s assault on Floyd (an accomplice’s degree of actual aid need not be substantial). Although LK&T did not intend to cause Floyd to die, neither did Chauvin; the second-degree felony murder doctrine generally holds all of the felons liable for any resulting death without proof of intent to kill, or even recklessness as the risk of death.
LK&T may seek to invoke subdivision 2 of the accomplice statute, entitled “expansive liability,” which states that an accomplice to one crime [here: assault] “is also liable for any other crime [here: homicide] committed in pursuance of the intended crime if reasonably foreseeable by [the accomplice] as a probable consequence of the crime intended.” LK&T can argue that subdivision 2 is specifically designed for a “dual crime” scenario like this, so it should supersede the traditional accomplice felony murder rule stated in the previous paragraph. If subdivision 2 does apply, the state will have difficulty meeting its requirements. But the state can argue that, by its terms, subdivision 2 is designed to expand, not contract, accomplice liability, and applies only where a co-defendant intentionally commits a separate crime (e.g., an assault) designed to facilitate (“in pursuance of”) the accomplice’s intended crime (e.g., burglary). Minnesota courts have rarely cited subdivision 2 in unintentional homicide cases, and no case has applied it to a charge of unintentional felony murder by assault. Still, LK&T can argue that the accomplice statute’s meaning is unclear and that, under the rule of lenity (referenced above, regarding third-degree murder), subdivision 2’s requirements should be applied, and will preclude felony murder liability for LK&T.
To convict LK&T as accomplices to reckless manslaughter the state will have to show that they intentionally aided acts by Chauvin that they knew posed an unreasonable risk of causing death or great bodily harm to Floyd. Prior Minnesota cases have upheld accomplice liability for this crime. But LK&T (especially Lane and Thao, who were not in contact with Floyd’s upper body), may argue that they didn’t realize he’d stopped breathing, and thus weren’t aware of the great risk to his life.
Affirmative defenses for Lane, Kueng, and Thao
The defenses available to LK&T are similar to those for Chauvin (see previous discussion). However, LK&T may argue that, even if Chauvin’s use of force was unjustified (at least after Floyd passed out), they (especially junior officers Lane and Kueng) relied on the greater experience of senior officer Chauvin and reasonably believed it was justified force. The state will reply that all four officers received extensive training on justified use of force, and indeed, that Lane and Kueng’s training was much more recent than Chauvin’s. LK&T (or some of them) may also argue, as suggested above, that they did not realize Floyd had stopped breathing, and believed their use of force was reasonable.
Hennepin County District Court, Derek Chauvin case file (with links to co-defendant files): https://mncourts.gov/StateofMinnesotavDerekChauvin
Minnesota Statutes, Sec. 609.02(7), (7a), (8), (9)(3), 9(4), and (10) [definitions of “bodily harm,” “substantial bodily harm,” “great bodily harm,” “intentionally,” “with intent,” and “assault”]
Minnesota Statutes, Sec. 609.05 [accomplice liability]
Minnesota Statutes, Secs. 609.06(1)(a), (9), and 609.066 [police use of reasonable force to arrest or to prevent suspect from harming himself, and police use of deadly force as of May 25, 2020]
Minnesota Statutes, Sec. 609.19(2)(1) [second-degree unintentional (felony) murder]
Minnesota Statutes, Sec. 609.195(a) [third-degree (extremely-reckless) murder]
Minnesota Statutes, Sec. 609.205(1) [second-degree (reckless) manslaughter]
Minnesota Statutes, Sec. 609.223(1) [third-degree assault (substantial bodily harm)]
Minnesota Statutes, Sec. 609.224(1) [fifth-degree assault (bodily harm or fear of harm)]
Minnesota Statutes, Sec. 645.08(2) [use in statute of singular includes plural, and vice versa]
State v. Dorn, 887 N.W.2d 826 (Minn. 2016) [assault by causing harm only requires intent to do the act causing harm; the degree of assault depends on the seriousness of harm caused by defendant’s act, not the harm intended]
State v. Gorman, 532 N.W.2d 229 (Minn. App. 1995) [assault by defendant’s punch became a felony, third-degree assault, when victim lost consciousness; when victim died from head injury after falling it became second-degree felony murder]
State v. Larkin, 620 N.W.2d 335 (Minn. App. 2001) [loss of consciousness is substantial bodily harm, so defendant who causes such harm commits third-degree assault]
State v. Mytych, 194 N.W.2d 276 (Minn. 1972) [upholding third-degree murder where two shots that killed victim only endangered the victim, who was alone in a bathroom]
State v. Smith, 119 N.W.2d 838 (Minn. 1962) [defendant’s acts were factual cause of victim’s death, despite other causal factors including vulnerability of which defendant was unaware]
In re: Welfare of S.W.T., 277 N.W.2d 507 (Minn. 1979) [two defendants could both be accomplices to second-degree manslaughter where one of them (unclear which) fired toward a spot, across a river, where defendants had recently seen people standing, killing one of them]
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