Christopher BergMinneapolis, MN – Hennepin County Attorney Mike Freeman announced criminal charges against former-Minneapolis Police Officer Derek Chauvin on Friday, but the charging documents appear to suggest the state may have trouble proving their case.
The video of George Floyd’s death was disturbing and horrifying, and we expected the charging documents to clearly lay out how Chauvin committed the crime of murder; it didn’t.
Charging documents generally only contain enough information to articulate probable cause, and do not include most of the evidence. However, they should clearly lay out how the defendant’s actions meet the elements of the crimes they’re charged with.
The charges against Chauvin are anything but clear.
Chauvin was charged with third-degree murder and second-degree manslaughter.
Third-Degree Murder
Third-degree murder requires that Chauvin caused “the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
In order to secure a murder conviction, prosecutors must prove that Chauvin caused Floyd’s death.
The charging documents state, “The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation,” and “Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease.”
The charging documents also state, “The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death.”
The supposition in the charging documents is that restraining Floyd aggravated his medical conditions, resulting in his death, and that Floyd would still be alive if he weren’t restrained.
There are a few issues with this.
First, the restraint was initially (prior to kneeling on an unconscious man’s neck) reasonable and lawful. Floyd was lawfully arrested for trying to pass a counterfeit $20 bill, and lawfully restrained in handcuffs.
According to the charging documents, Floyd repeatedly and intentionally threw himself on the ground and resisted efforts to place him in the patrol car, saying he was claustrophobic.
While standing outside of the patrol car, Floyd said that he couldn’t breathe, indicating the onset of the medical episode which resulted in his death.
This occurred prior to the unreasonable restraint.
The charging documents state that officers were able to get Floyd at least partially in the vehicle. Then, for reasons which aren’t clear, Chauvin pulled Floyd out of the car, and three officers restrained his legs and body and put a knee on his neck.
The officers restrained him on the ground for a total of 8 minutes and 46 seconds. Two minutes and 53 seconds of this time came after Floyd was non-responsive.
If Floyd’s medical episode started when he was reasonably and legally restrained, then officers likely did not cause the onset of his medical episode through later unreasonable restraint.
This will make it very difficult for the state to prove that officers caused Floyd’s death.
There is a strong case that officers were in breach of a duty to provide aid, but that isn’t an element of the murder charge.
Furthermore, the prosecutor would need to prove that the restraint which killed Floyd was “eminently dangerous.” The charging document is supposed to lay out this element of the crime, but the closest thing in the document is a statement saying that police are trained that having a knee on a subject’s neck with a subject in a prone position is inherently dangerous.
Also, making general statements about how police are trained is not relevant to how Chauvin was trained. The court must look at the training of the individual officer, not how other officers are generally trained.
Except the autopsy suggests no damage being caused from the knee on Floyd’s neck, which means that kneeling on his neck was no more harmful in this instance than any other restraint.
Prior to trial, the state will need more evidence that restraining Floyd was eminently dangerous.
Even though Chauvin appeared to show a disregard for Floyd’s life after he was unresponsive, Floyd’s restraint prior to being held on the ground appears reasonable.
Second-Degree Manslaughter
Second-degree manslaughter requires that prosecutors prove that Chauvin caused Floyd’s death by “culpable negligence,” creating an unreasonable risk and taking a chance of causing death or great bodily harm to Floyd.
“Culpable Negligence” means acts which are grossly negligent, combined with recklessness. Failure to care for an unconscious person in custody may constitute gross negligence.
Recklessness means that the officer consciously decided to take an unjustifiable risk. The state will need to prove that Chauvin not only took an unjustifiable risk, but that Chauvin actually knew it was an unjustifiable risk.
The charging document may be trying to meet this element with the statement that “police are trained” that kneeling on a prone suspect’s neck is dangerous. The statement about “police” suggests that the prosecutor currently has no evidence that Chauvin was actually trained this way.
According to the charging documents, while the officers were holding Floyd down, now-former Officer Lane asked Chauvin, “should we roll him on his side?”
Chauvin responded, “No, staying put where we got him.”
Lane stated, “I am worried about excited delirium or whatever.”
Chauvin responded, “That’s why we have him on his stomach.”
Excited delirium is a life-threatening medical episode where people can react violently. People experiencing excited delirium need to be restrained so that they can get medical attention as soon as possible – not restrained for the sake of being restrained.
Chauvin demonstrated a total lack of reason by continuing to restrain an unresponsive person, but his statements suggest he thought he was reacting appropriately to excited delirium.
He was wrong, but he didn’t appear to know he was wrong.
If the state can’t prove that Chauvin was aware of the risk, then they can’t prove recklessness.
Even if they can prove that Chauvin knew the risk, they may not actually be able prove that it was an unreasonable risk, because the medical examiner’s preliminary report suggests that Chauvin’s knee didn’t directly harm Floyd.
And, again, even if they can prove it was an unreasonable risk, they need to prove that he actually caused Floyd’s death.
Additional evidence may come to light at trial which will do a better job meeting the elements of the crimes, but at the moment, there’s reason to be concerned that the case may have been rushed.
Charging Chauvin starts a timer for his right to a speedy trial, so there may be a limited amount of time to gather additional evidence.