8 minutes and 46 seconds that changed the nation?

On May 25th, 2020, at approximately 2025 hours, George Floyd, an African-American citizen, was killed by Officer Derek Chauvin of the Minneapolis Police Department. The incident was captured on multiple cell phone videos and body-worn cameras and widely distributed. The images are disturbing: Officer Chauvin with his knee pressed on the back of the neck of Mr. Floyd while Mr. Floyd moans and complains that he can’t breathe, begging the officers for relief.

In an incredibly swift and judicious action, the Minneapolis Police Department fired Derek Chauvin and three other officers who were at the scene the very next day. This wouldn’t be enough to mollify the public though, as rioting, looting, and burning would commence that night and for the next several nights, turning downtown Minneapolis into a war zone, protestors even capturing and burning the MPD 3rd precinct where the four officers were assigned. Protests and riots would spread across the country in cities large and small. The protestors’ demands? The arrest and charging of the four officers involved.

The clear video and facts of this case are indisputable. Or are they?

On May 29, 2020, four days after the killing, former Officer Derek Chauvin was finally arrested by the BCA—the Minnesota Bureau of Criminal Apprehension, an agency with which fans of novelist John Sandford will be very familiar. The BCA is a state police force, tasked with investigating the actions of the officers involved. In addition to the BCA, the FBI and the Justice Department are running parallel investigations into potential federal charges under the “color of law” statutes.

The charges filed against Chauvin are: 1) Murder – 3rd degree, and, 2) Manslaughter – 2nd degree. The charges were filed by Michelle Frascone, a Special Agent with the BCA, and Amy Sweasy, a prosecuting attorney for the State of Minnesota.

Upon filing the charges, the public erupted in anger once again, insisting that the charges were too lenient, in what would seem at first glance to be a rather humorous flip of the normal complaint that prosecutors tend to overcharge suspects.

Was the charging appropriate? Let’s take a look at the specific Minnesota statutes involved here.

609.195 MURDER IN THE THIRD DEGREE.

(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.

At first glance, this seems a completely appropriate charge. I had to look up what “evincing a depraved mind” means because I’ve never heard that term, however, it’s apparently a fairly common term in several Midwest states. Here is what it means, according to the Minnesota Supreme Court: “The phrase “evincing a depraved mind, regardless of human life” as used in these instructions means conduct demonstrating an indifference to the life of others, that is not only disregard for the safety of another but a lack of regard for the life of another.”

There is little doubt that Officer Chauvin’s actions showed a complete indifference to Mr. Floyd’s life, as we’ll see a little later, so after some review, this charge seems completely appropriate. As a prosecuting attorney, you definitely want to charge as high as possible. This gives you maximum flexibility, lending strength to your negotiating platform for plea bargains, and giving juries and judges maximum flexibility during sentencing. When the arresting officer and the prosecutor decide on charges, even though this charge seems to fit the crime, they definitely want to take a look at the next higher charge to see if that one might possibly fit. So, let’s take a look at the statute for Murder – 2nd degree.

609.19 MURDER IN THE SECOND DEGREE.

Subdivision 1. Intentional murder; drive-by shootings.

Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or

(2) causes the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision 1e, under circumstances other than those described in section 609.185, paragraph (a), clause (3).

Under subsection (1) we see that the key word “intent” comes into play once you charge murder in the 2nd degree (as well as murder 1st degree.) Subsection 2 doesn’t apply here, obviously, nor does Subdivision 2 which deals with protection orders and other felonies, but you can read them HERE if you’d like.

So, the question becomes, did Officer Chauvin intend to murder George Floyd?

Despite the outrage of the public, despite mayors, governors, and dozens of other elected officials calling this murder, implying or outright stating that this was blatant, intentional murder, objectively this seems absolutely ridiculous. In order to believe that Chauvin intended to murder Floyd, you would have to think that a cop—someone who ABSOLUTELY, DESPERATELY, under all possible circumstances wants to avoid the inside of a prison, where really bad things tend to happen to cops, decided, with multiple cameras rolling, in broad daylight, “Fuck it. I’m just going to go ahead and murder this dude right now.” This seems so completely implausible that it’s laughable, yet that is what “intent” would require. Even if you’re somehow allowing emotion to cloud your judgement and you think that’s exactly what happened, as a prosecutor, you still have to PROVE this in a court of law. You have to prove that Officer Chauvin thought exactly that, that his full intention was to murder. A defense attorney would have a field day with this charge, and the prosecutors know it, so it would seem that Murder – 3rd degree is absolutely the appropriate charge.

Now, prosecutors like to stack charges, and they like to be comprehensive and thorough, so they also tacked on the charge of Manslaughter – 2nd degree. Let’s take a look at that statute:

609.205 MANSLAUGHTER IN THE SECOND DEGREE.

A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:

(1) 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; 

Culpable negligence. Negligence that is deserving of blame. Negligence that creates an unreasonable risk and consciously takes chances of causing death to another. Yeah. I think this is pretty clear, and the video would seem to indicate that Officer Chauvin definitely acted in this manner. So, Manslaughter – 2nd degree seems like a good charge, particularly if Murder – 3rd degree doesn’t end up holding up. By charging both, prosecutors can hope for a conviction on Manslaughter if the defense gets an acquittal on Murder. Could they have charged Manslaughter – 1st degree? Let’s take a look at that charge.

609.20 MANSLAUGHTER IN THE FIRST DEGREE.

Whoever does any of the following is guilty of manslaughter in the first degree and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both:

(1) intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation;

(2) violates section 609.224 and causes the death of another or causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable, and murder in the first or second degree was not committed thereby;

(3) intentionally causes the death of another person because the actor is coerced by threats made by someone other than the actor’s coconspirator and which cause the actor reasonably to believe that the act performed by the actor is the only means of preventing imminent death to the actor or another;

(4) proximately causes the death of another, without intent to cause death by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule III, IV, or V; or

(5) causes the death of another in committing or attempting to commit a violation of section 609.377 (malicious punishment of a child), and murder in the first, second, or third degree is not committed thereby.

As used in this section, a “person of ordinary self-control” does not include a person under the influence of intoxicants or a controlled substance.

None of these sections would seem to apply to this scenario save section (1). You might be able to argue that Mr. Floyd’s actions provoked Officer Chauvin in such a way that it caused him to retaliate by maliciously killing him. However, this is a slippery slope for the prosecution. This argument would require the prosecution to shine Mr. Floyd in a negative light, something that would be detrimental to the prosecution and favorable to the defense, so this seems like a poor prosecutorial strategy. Which means that Manslaughter – 1st degree would be a poor choice of charges, which means that it seems they charged appropriately here as well.

Let’s go back to the statement above that shining Mr. Floyd in a negative light is detrimental to the prosecution. This seems really obvious, right? The prosecution should be attempting to downplay his criminal background, his crimes at this scene, his efforts to resist arrest. The defense will want to bring all of these things up; it will be their job to paint Mr. Floyd in as poor a light as possible, to vilify him in subtle ways that may turn jury opinion to the favor of the defendant. This is super clear to everybody, right? Apparently it’s not that clear to the Minnesota Prosecutor’s Office.

Let’s take a look at the Probably Cause charging document for the arrest warrant for Officer Chauvin.

This document was likely prepared as a coordinated effort between the prosecutor, Amy Sweasy, and the BCA agent, Michelle Frascone. They should be stating the facts of the case and establishing probable cause for the issuance of an arrest warrant for Chauvin. That’s it. This document does not need to be lengthy. Extraneous information is not necessary. It needs only to establish probable cause.

So, what does it say? Let’s pull a couple passages from the document. You can read the entire thing HERE if you choose.

BWC (this is body worn camera) video obtained by the Minnesota Bureau of Criminal Apprehension shows that the officers approached the car, Lane on the driver’s side and Kueng on the passenger side. Three people were in the car; George Floyd was in the driver’s seat, a known adult male was in the passenger seat and a known adult female was sitting in the backseat. As Officer Lane began speaking with Mr. Floyd, he pulled his gun out and pointed it at Mr. Floyd’s open window and directed Mr. Floyd to show his hands. When Mr. Floyd put his hands in the steering wheel, Lane put his gun back in its holster.

Here, prosecutors are laying out the facts of the case. They’re using footage not yet available to the public to establish their PC. At this point in the document, Officer Chauvin hasn’t even arrived onscene. So, why are they describing actions taken by other officers prior to his arrival? Why are they outlining that another officer, Officer Lane, drew his gun and pointed it in the direction of Mr. Floyd, in a document to establish probable cause for the arrest of Officer Chauvin? This is extraneous information. It’s irrelevant to the probable cause. The only purpose that I can ascertain for its inclusion would be to shine the light that Mr. Floyd was a dangerous subject, whose very presence, or the nature of his crime, or actions in the vehicle caused enough alarm in Officer Lane that he felt the need to draw his weapon. This is a bizarre inclusion in a probable cause statement. It would seem to be something the defense would draw attention to during trial, actions they would be trying to get included in their evidence, actions that the prosecution might object to on the grounds of relevance since the defendant wasn’t even present at the scene at this point. Why is it included in the probable cause document?

Let’s look at another section.

Once handcuffed, Mr. Floyd became compliant and walked with Officer Lane to the sidewalk and sat on the ground at Officer Lane’s direction. In a conversation that lasted just under two minutes, Officer Lang asked Mr. Floyd for his name and identification. Officer Lane asked Mr. Lloyd if he was “on anything” and explained that he was arresting Mr. Lloyd for passing counterfeit currency.

Officers Kueng and Lane stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car (MPD 320) at 8:14 p.m. Mr. Floyd stiffened up, fell to the ground, and told the officers he was claustrophobic.

MPD Officers Derek Chauvin (the defendant) and Tou Thoa then arrived in a separate squad car.

The officers made several attempts to get Mr. Floyd in the backseat of squad 320 from the driver’s side.

Mr. Floyd did not voluntarily get in the car and struggled with the officers by intentionally falling down, saying he was not going in the car, and refusing to stand still. Mr. Floyd is over six feet tall and weighs more than 200 pounds.

In the first paragraph, the state points out that Officer Lane asked Mr. Floyd (sic for the original) if he was “on anything.” Again, the defendant, Officer Chauvin is not even on the scene at this point. Why is the prosecution establishing a basis for the defense to argue that Mr. Floyd may have been acting under the influence of drugs? This is such a bizarre inclusion in a probable cause document that is supposed to be concise and brief. In the last paragraph, the prosecution points out Mr. Floyd’s resistance to being placed into the patrol car. This is not that unusual as they’re establishing a basis for him being proned out on the ground where the incident occurred. What is odd though, is that they describe him as “over six feet tall and weighs more than 200 pounds.” Why are they including this line? Once again it seems like they’re trying to establish a basis that the officers’ actions were appropriate, that they were dealing with a large, strong, bull of a man, and that they had no choice but to elevate to the level of force they used. This is such an odd description to put in the PC document. It seems like a point the defense would want to make at trial, not something the prosecution would want to point out, and certainly not something necessary for the establishment of probable cause for Chauvin’s arrest.

The rest of the PC document is very telling. It describes how Chauvin refused to turn Mr. Floyd onto his side, even when Officer Lang suggested they should do just that. It describes how he kept his knee on his neck through multiple pleas that he was suffering. This plea is not too terribly unusual, by the way. Defendants often complain they can’t breathe, even when they can clearly breathe. However, positional asphyxiation is incredibly dangerous, and I suspect that Mr. Floyd could breathe just fine, however, he could feel the asphyxiation building, and that was the feeling he was trying to describe when he used the term, “I can’t breathe.”

The most sickening part of the PC document is this paragraph:

BWC video shows Mr. Floyd continue to move and breathe. At 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, “want to roll him on his side.” Kueng checked Mr. Floyd’s right wrist for a pulse and said, “I couldn’t find one.” None of the officers moved from their positions. At 8:27:24, the defendant removed his knee from Mr. Floyd’s neck. An ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.

At 8:24:24, BWC video shows that Mr. Floyd stopped moving. At this point, how does Chauvin keep applying a neck hold to him? The suspect had quit resisting many minutes earlier. The neck hold should have been released at the latest when the resisting ended. De-escalation as the suspect de-escalates is just as critical, lawful, and important, as appropriate escalation is. Officer Lane again asks to roll him on his side. Apparently, this again doesn’t happen. Officer Kueng checks for a pulse and can’t find one. What do the officers do at this point?

“None of the officers moved from their positions.”

WHAT? They can’t find a pulse and Chauvin (I’m done using the title Officer Chauvin here, he doesn’t deserve it) continues to use the knee to neck hold??? Nobody starts CPR? Nobody takes responsibility for a suspect in their custody who doesn’t have a pulse?

At 8:27:24, exactly three minutes after he stops moving, Derek Chauvin finally removes his knee from Mr. Floyd’s neck. Why? Because an ambulance has arrived and it’s time to roll him onto a gurney.

This video, and the statements in the PC document that describe video not yet released, is sickening. It’s so disturbing. As a former cop, I’m appalled and saddened. As a human, I’m disheartened and repugnated. The actions of Chauvin in particular, and the other officers in general, are vile, abhorrent, and so unworthy of the badge that so many officers take so much pride in.

So, what will happen to Derek Chauvin? You’re not going to like this…

I don’t think he will be convicted of either of the crimes to which he’s charged. There are many reasons for this, and I’ll outline a few:

For starters, as I have shown in the PC document, it really seems that the fix is in here. The statements made by the prosecution in that warrant application are bizarre, and I’m struggling to find a beneficent reason behind their inclusion. Additionally, neck holds are authorized uses of force in the Minneapolis Police Department. This will change obviously, and probably like next week, but as of this moment, they are completely legal holds. From that point of view, Chauvin did nothing wrong by applying the hold. Where he went wrong was the length of time he applied it, and his wanton disregard for the life of Mr. Floyd. But this is going to be so difficult to prove. Once the defense is granted a change of venue, away from the jury pool immersed in this scene, once they go through a rigorous voir dire process, where they will weed through jury members who might have any knowledge of the incident, once enough time has passed for people to forget, years down the road, they will be able to argue so many points in their favor. They will be able to include Mr. Floyd’s criminal record, his history of resisting arrest, his size, his demeanor. By the time they’re done, they will make him look worse than Hannibal Lector. They will make it seem as if extraordinary measures were necessary for the safety of the police officers and the public. They will villainize Mr. Floyd and elevate Chauvin to the status of guardian hero. They will point out Chauvin’s commendations and his awards. They will exemplify his nineteen years of service to the community.

Here is the second to last paragraph in the Probable Cause document, in my opinion, the biggest smoking gun for my theory that the prosecutor really doesn’t want to try this case and is simply acceding to public pressure:

The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. The full report of the ME is pending but the ME has made the following preliminary findings. The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. 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.

What?? Why is this paragraph in a document whose sole purpose is to establish probable cause for the arrest of the officer? THIS IS THE OPPOSITE OF PROBABLE CAUSE! THIS SAYS THAT IT REALLY WASN’T CHAUVIN’S FAULT AT ALL! Once again, this seems like ammunition for the defense. It feels like the prosecution is trying to help them make their case! I have NEVER seen a statement like this in a probable cause document. With this statement in the PC document, I’m kind of surprised the judge even approved the warrant!

The prosecution is always facing an uphill battle when they charge a police officer. When they start that battle in what seems to be a completely half-hearted, almost seditious manner with the most simple and basic of documents, it feels like they will completely blow the prosecution, intentionally or apathetically.

Don’t be surprised if Derek Chauvin ends up being convicted of some lessor charge. Something like Assault in the third degree, or Misconduct of a Public Officer. When this happens, get ready for cities to burn again. Because if this happens, they should burn. We need change, and there’s another article coming sometime soon that will describe what I think needs to happen to effect that change.

Let’s hope George Floyd’s death has meaning. Let’s hope his 8 minutes and 46 seconds of suffering results in meaningful change. Let’s hope America can finally rise to the challenges of racism and brutality. Let’s hope police departments can throw aside the heavy net cast upon them by the tiny percentage of officers who give all the good ones such a bad name. Let’s hope Derek Chauvin gets a fair trial followed by swift and appropriate justice. Let’s hope this never happens again.