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Monday, December 14, 2020

JESSE AND JAMES’ TRUMPED UP CONVERSATION.

  


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On a sunny serene day, with a charm of hummingbirds dancing in the air, buzzing bees sipping nectar through a meadow of flowers, and the doting wind exhaling the sweet scent of evergreen across the park, a young man slumped under a tree in the shadowy edges of the park.   Sluggish in appearance, with a handkerchief in his hand, the young man sat slumped over a large boulder with his head facing down.  If misery loves company, this young man was, at the very least, acquainted with misery.  Another young man, named James, observing this melancholic display and feeling a sense of kindredness, slowly walked up to this young man.  The below, captures their conversation.

 

James:  What’s your name young man?

 

Jesse:  My name is Jesse.  Jesse MorĂ³n.

 

James:  Nice to meet you Jesse.  My name is James Dimwiddie.  Is something troubling you?  

 

Jesse:   Yes, something is bothering me? 

 

James:   What’s bothering you?

 

Jesse:   The presidential election was stolen.

 

James: Stolen.  Really? Who stole the election?

 

Jesse:  The democrats stole the election for Biden. 

 

James:  Really, in all the states? 

 

Jesse:   No, only in the five swing states which Trump lost.  Then, they hid their collusion against Trump by intentionally losing several seats in the house and senate. 

 

James:  Fascinating.  So, the Democrats stole the election in one direction, and only in five swing states  Trump lost, whilst contemporaneously aborting wins in the house and senate. 

 

Jesse:   Precisely!

 

James: Wow.  This must have been a very sophisticated plan involving mainly high ranking officials of the democratic party.

 

Jesse:   No, actually the majority of the conspirators are low level workers.

 

James: Low level workers?

 

Jesse:   Yes, it appears low level workers like drivers and ballot counters carried out this deviant scheme almost exclusively?

 

James: How many of them were there?

 

Jesse:   The details are unclear.  We estimate anywhere from hundreds to thousands across these five swing states.  

 

James:  How did these low level workers hide their deviant scheme.

 

Jesse:   They didn’t.  They accomplished it in bright daylight. 

 

James: In bright daylight you say.  Well, I suppose it does make sense for them to throw their lives away.  I’d imagine several of them have been caught by now.

 

Jesse:    No, we haven’t caught anyone yet.  Not a single one.  They’re like ninjas. 

 

James:  We haven’t caught anyone? Then how do we know they stole the election?

 

Jesse:  We do.

 

James:  How?

 

Jesse:   We just do!

 

James:  Yes, that makes sense. You seem pretty adamant.  And, I’ve always been taught that adamancy and evidence are kind of the same thing. 

 

Jesse:   Exactly!  Plus President Trump says the democrats stole the election and that there was                                                                                 _            massive fraud.  So it must be true! 

 

James:  I agree. Trump represents the barometer of truth.  Everything he says is true.  Mexico will build and pay for our border wall any day from now.  Trump should file a lawsuit about this election forthwith!

 

Jesse:  He did.

 

James:  Oh, good. How is his lawsuit going?

 

Jesse:   They aren’t going too well.

 

James: They?  What. They????  Just how many lawsuits has he filed?

 

Jesse:    Honestly, I lost track at fifty.

 

James:  Fifty!  Fifty lawsuits?!!  Well, I suppose lawsuits are like caroling: the more the merrier.

 

Jesse:  Yes, fifty lawsuits at the very least.  Well, not just Trump, some of his allies also filed lawsuits. Allies like certain electors, a state here and there, certain voters, etc.  They are all working diligently to get this fraudulent election overturned on.  And, yes, the more the merrier.

 

James: Well, we will surely win in court then?  

 

Jesse:   Yes, we will.  Although, we’re losing so far.

 

James:  Losing?  How many cases have we lost?

 

Jesse:  All of them.

 

James:  All of them!  We’ve lost fifty lawsuits!

 

Jesse:  Yes, fifty, at the very least.

 

James:  Have we been close to winning any of them?

 

Jesse:  No, the majority of cases have been outright rejected within days, sometimes within hours.

 

James:  Rejected within days?  Well, these must all be liberal and radical left judges then, right?

 

Jesse:  You would think so, but no; many of them are conservative judges, even judges which Trump appointed himself?

 

James:  What?! Trump’s own appointees are throwing out his lawsuits?

 

Jesse:  Yes, all of them, and quite quickly I might add.  

 

James:  How can the courts sanction fraud in an election?

 

Jesse:  Woah.  Woah.  Woah.  You should be careful with that word you use there, “fraud.”  That word is tricky.  I think it’s ok if me and you say it, and I think its ok if the President and his allies tell us it occurred, but I don’t think it’s a word or theory that the President should use in his lawsuits.  

 

James:  Well, why do you say that?

 

Jesse:  Simple, the President’s election lawsuits don’t use that word.

 

James:  You’re kidding??!!!

 

Jesse:  No, in fact, in one of the cases, Trump’s primary lawyer.  Eh, I forget his name, the one who sweats hair spray.

 

James:  Oh, you mean Rudy Giuliani?

 

Jesse:  Yes, him.  Thanks.  Yes, in one of the cases, Rudy Giuliani told the judge, and I quote, “this is not a fraud case.”

 

James:  Wait, so Trump and his primary lawyers tell us, the public, that fraud occurred but don’t say the same thing in court.

 

Jesse:   Oh no, they wouldn’t dare say it in court.  They don’t even like using the word “fraud” and “court” in the same sentence. 

 

James:  Oh ok.  Of course.  That makes sense.  Why would they, right?  What about his allies?  Are they telling the court fraud occurred.

 

Jesse:  Yes, some of them are doing so, some of the time.  And they submitted affidavits too.

 

James:  Wow, affidavits.  And they still lost?!

 

Jesse:   Yes, well apparently the courts are saying their cases are all based on speculation and conjecture rather than evidence.  Apparently, in one of the cases, the closest thing to alleging fraud in the affidavit was a statement saying, “I believe some of these workers were changing votes that had been cast for Trump to Biden.”

 

James:  Wow!  That’s crazy!  I thought beliefs WERE evidence!

 

Jesse:   Exactly, they are!  Santa Clause existed until I stopped believing in him. 

 

James:  Yes, well you better believe in him again soon given the upcoming holidays.  

 

Jesse:  Yes, I plan to believe in Santa again.  I will ask him for a gift in the form of overturning this election to make Trump the winner.

 

James:  You shouldn’t need to do all that.  We should take this fight to the Supreme Court.  We have six republican justices and, of those six, three are Trump appointees, so we can’t lose.  We just need to get this to the Supreme Court!

 

Jesse:  No can do.  We lost already.

 

James: We already lost in the Supreme Court?! 

 

Jesse:  Yes, unanimously.  

 

James:  Wow!  How could the Supreme Court allow this frau…..wait, they did allege fraud to the Supreme Court, right?

 

Jesse:  No, of course not.  Don’t be silly.  I told you, they don’t even like writing—I won’t even say that word—let’s just call that word “it” anywhere near the court.  The case to the Supreme Court was about voter irregularity tantamount to unconstitutionality in the swing states which Trump lost due to those states not complying with their own laws.  

 

James: Wow, that sounds deep.

 

Jesse:  Yes, it is. Voter irregularity is very deep.  We’ve left the shallow end of the pool my friend.

 

James:  Wow.  Oh ok, what is the irregularity?

 

Jesse:  Easy.  The irregularity is that Trump received less votes than Biden.

 

James:  Wait, didn’t almost every single poll, including conservative polls, predict that Biden would win the popular vote, i.e., that he would receive more votes than Trump?

 

Jesse:  Yes, they did!  And, get this, when the final votes were tallied, he did receive more votes! 

 

James:  That doesn’t sound right to me.  If all the polls predicted Biden would win the popular vote, then surely that means he should have lost the popular vote, right. 

 

Jesse:  Exactly!  It doesn’t make sense.  The fraud…err…voter irregularity speaks for itself.

 

James:  Damn these ninja low-level workers.  I wish I could can catch one of them to prove our speculation about massive voter fraud. 

 

Jesse:  You don’t need to.  Don’t forget, my friend.  Our belief and speculation is all the evidence you need!

 

James:  You’re right, I almost forgot that very thing.  Which states should I believe voter irregularity occurred in for Trump to win?  I want to make sure I’m believing correctly to make it so.  

 

Jesse:  You must believe voter irregularity occurred in Wisconsin, Pennsylvania, Georgia, Arizona, and Michigan.  

 

James:  Aren’t Georgia and Arizona generally Republican states.

 

Jesse:  Yes, they are.  They both have Republican governors, and Georgia also has a Republican Secretary of State.

 

James:  Wow, these ninja low-level ballot workers really are something to manage to infiltrate two of our strongholds undetectably in broad daylight.  Are you sure these low level workers aren’t CIA or something.  I mean, this is like beyond James Bond level stuff.  

 

Jesse:  Well, they didn’t infiltrate Georgia or Arizona on their own.  The Republicans governors and secretary of states were in on it too.

 

James:  The Republican governors and secretaries of state were in on it too you say.  Hmm.  How do you know?

 

Jesse:   I know because I believe it.

 

James:  Oh, you believe it.  You should have lead off with that.  Then it must be true! 

 

Jesse:  Yes, in some ways its even deeper than that.  I really take that phrase from Rene Descartes, “I think therefore I am,” to heart.  Whatever I think must be true.

 

James:  Wow, yes, I forgot about that phrase, “I think, therefore I am.”  Yes, whatever you think must be true!

 

Jesse:  Precisely, my friend.  How can you not believe what you think?  It’s so obvious.  It’s like two plus two equals five. 

 

James: Yes, yes, yes, well…wait a minute.  I thought two plus two equals four.

 

Jesse:  Does it?  Well, that doesn’t matter.  All that matters is what you believe!

 

James: Oh yes, of course.  How could I have been so obtuse.

 

Jesse:  Yes, you need to expand your imagination a bit more my friend if you are really going to believe that Trump actually won this election.  You need to be more like me.  For instance, I believe that a bunch of dead people voted and that these dead votes are what changed the outcome of the election.

 

James:  Fascinating.  Did dead people actually vote?

 

Jesse:  Surely, in a nation of 340 million people, of course at least one ballot of an otherwise dead person must have been cast here and there possibly.

 

James:  True, there have probably been dead people voting here and there in America since 1776.  What would make this 2020 election any different.   

 

Jesse:  Precisely!

 

James:  Is there any evidence that these dead people voted exclusively for Biden or that even a majority of them voted for Biden?

 

Jesse:  Yes, of course there is evidence.  It’s simple.  I believe that they did.  

 

James:  Wow!  That’s amazing.  Then of course they did!

 

James: And, is there any evidence that these dead votes weren’t somehow caught along the way?

 

Jesse:  Again, yes, it is what I believe!

 

James:  Incredible!  And is there any evidence that this sea, well probably more like an ocean, of dead people, who of course voted exclusively for Biden, did so in sufficient number to overturn the votes in even one, let alone in all five of these swing states?

 

Jesse:  Yes and Yes!  I believe that they did!  So, they must have. 

 

James:  Wow!  Thank you!  That’s all I needed to hear.  Any other evidence I should know about?

 

Jesse:   Yes, as long as I have an imagination, and I have a great one, then there will always be evidence!

 

James:  Wow, I wish I had imagination like yours!  What else have you imagined?

 

Jesse:  You should grab your popcorn for this one.  Well, I imagine that this company named Dominion, which was founded in Canada in 2002 and makes voting machines and software, conspired with communists from across the globe, even dead communists like Hugo Chavez, so that the Dominion voting machines in these five swing states—and these five swing states exclusively—electronically switched Trump votes to Biden votes using an algorithm.  

 

James:  Wow!  Amazing!  You do have quite the imagination!  Wait, electronic?  I thought there were paper ballots. 

 

Jesse:  There are paper ballots, but these Dominion Voting Machines count and electronically tabulate the paper ballots.  

 

James:  Got it. These commies sure are duplicitous.  Lucky for us, this should be easily verifiable.  Since electronic tabulations distort the paper ballots,  the actual paper ballots won’t match the electronic tabulations.  We simply need to do hand counts of the paper ballots!  We’ll catch these jokers red handed. 

 

Jesse:    No.  No, there is no need.  The paper ballots and the Dominion voting tabulations match to a tee.

 

James: What?  Really???!!!

 

Jesse:   Yes, multiple recounts have been done, including a hand recount of over five million votes in Georgia, and they match each and every time.

 

James: Oh, well, if the hand recounts match the electronic voting tabulations, wouldn’t that mean that the Dominion algorithm stuff and changing votes theory is a bunch of hogwash.

 

Jesse:  Not if I don’t believe it to be hogwash. 

 

James:  Wow, yes, then it can’t be hogwash.  It must be true!  

 

Jesse:  Exactly!  Don’t let a little thing like logic hold you back my friend.  

 

James:  I’m sorry.  Yes, you’re right.

 

Jesse:    Right.  Eschew logic.  For instance, like they’re trying to say that Trump only led in some of these swing states on election night because these swing states counted in person votes first, which favored Trump, before counting mail in ballots, which weighed heavily for Biden.

 

James:  Well, that makes logical sense.  I recall Trump telling Republicans not to use mail in ballots.  So,  I suppose that could be the reason.  

 

Jesse:  No!  No!  No!  Haven’t you been listening at all?!!  You’re letting logic hold you back again.  Logic is not your friend.  Logic is like the terminator:  It can’t be bartered with.  It can’t be reasoned with.  And, it absolutely will not stop, until you are dead or, at the very least, your dreams are dead.  Therefore, the best thing to do is to choose reject logic and believe the illogical.

 

James: Thank you!  Yes, that would certainly make me feel better.

 

Jesse:   Yes, whenever reason and logic pops up about this election,  just disregard it if you don’t like what it means or otherwise implicates.  Just keep saying fraud and voter irregularity.  Keep on saying it and saying it until you believe it.

 

James: Yes!  Yes!  If I keep on saying it, then I’ll have to believe it.  Otherwise, I’ll sound like moron.  Obviously, I don’t want to sound like a moron.  And, since I don’t want to sound like a moron, then I should disregard any thoughts that suggest my thinking is moronic.  Therefore, my thinking must the opposite of moronic.  My thinking must be true.  Which means, whatever these obviously radical left outsiders say contrary to my non-moronic thinking, regardless of how logical or reasonable, it must be rejected.  I should just keep saying and believing voter irregularity and voter fraud cost Trump the election!

 

Jesse:  By George, I think you’ve got it!  And, here I almost thought we were going to need to have a discussion about the pitfalls of that dreadful word “accountability.”

 

James: No, no need to even think about accountability.  

 

Jesse:  Good.  I hate how that word makes me feel.  But, yeah, that about sums it up my friend.  I’m sitting here all frustrated because less and less of the world is believing what I’m thinking.  It’s so obvious the democrats fraudulently stole the election.  But the rest of the world is letting logic and reason get in the way.  They think if Trump really believed fraud occurred then he would have alleged it in his lawsuits.  They think that all of the judges, including Republican judges and Trump’s own appointees, rejecting his 50+ lawsuits means there is and was likely no evidence of massive voter fraud or voter irregularity.  They think that the polls predicting Biden would win the popular vote mean that it makes sense that Biden won the popular vote; and that I shouldn’t draw a negative inference from him winning the popular vote.  They think that multiple hand recounts where the paper ballot voting tally matched with Dominion’s voting numbers means that there was likely no algorithm in Dominion’s voting machines or software which switched Trump votes to Biden.  They think it is highly unlikely that a massive voter conspiracy the likes of which the world has never seen, such as here, involving hundreds if not thousands of low level workers across multiple swing states, workers who presumably never even knew each other, could occur in broad daylight without any any of these workers being caught, without any of these workers’ plans being intercepted, without any coordination amongst these workers, and without any paper or electronic trail whatsoever.  They think it is unlikely that Trump could overturn one, let alone all five of the swing states, particularly where he losing by tens of thousands to hundreds of thousands of votes and where he keeps losing recount after recount.  I can keep going on and on.  They even think the fact that Trump’s attorney general says that he has found no evidence of voter fraud or irregularity sufficient to overturn the election means that I should stop believing Trump lost the election due to massive voter fraud and irregularity…as though my belief isn’t enough evidence as it is.  Suffice to say, now, it is beginning to look like Biden may actually be sworn in on January the 20th.

 

James:  That’s terrible.  Devastating.  Well, I believe in what you think, is there some way I can help.

 

Jesse:   Yes, there is actually.  And since you believe, then I know it will be so.

 

James:  Yes, yes,  I believe, tell me.

 

Jesse:    Thanks.  Yes, I’ve thought about this long and hard, and I don’t see any other way around it.  But, could you use your wish to Santa Clause to get this election overturned.  The thought of me having to use my Santa wish on this election makes me sad.  

 

James:  Why does it make you sad?

 

Jesse:    Well, other than from parents or being born privileged or with a silver spoon,  I don’t think it’s appropriate to expect handouts from anyone, even Santa Clause, for things that you cannot achieve on your own merit.  The idea of asking for charity from Santa irks me.    

 

James:  Ahh, yes.  That is tricky, isn’t it.  Don’t worry, I’ll take care of it.  I’ll just choose to believe it is appropriate to expect handouts.

 

Jesse:  That’s some good thinking!  We fraudulent election proponents do come in all shapes and sizes don't we, so it does make sense for you to think that.

 

James: Yes, of course.  Like you said, things make sense when we want them to make sense.  I’ll ask Santa for the wish and keep our man Trump in office as he lawfully ought to be.  No need to worry. 

 

Jesse:  Thank you! Democracy is saved! 2021 here we come! 

 

With glee spreading across his face, Jesse leapt from the boulder in frabjous delight.  James echoed his excitement and they both chortled with joy.  All concerns about the horrors of a Joe Biden presidency subsided as the melodic chirping and buzzing of the birds and bees slowly matched the cadence of jingle bells.  For when one has sown the seeds of abject belief irrespective of evidence into the deepest crevices of his bosom, he can live happily choosing to believe whatever he wants.

 

                     The End. 

 

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Sunday, May 31, 2020

THIS MUST STOP: An Analysis Why The Law Has Failed George Floyd



Derek Chauvin, right, and an image from a protest.

Updated on June 2, 2020


A picture is worth a thousand words.  A video of a black man begging for his life while an officer buries his knee in the unarmed nonresistant black man’s neck until the black man dies while onlookers beseech for reprieve provides no words.  The act defaces all sense of rightness and hearkens to the systemic racism which exists and continues to exist in this country; a story seen too many times—an unarmed black man killed by police. Despite the video’s vivid vitriol, Derek Chauvin, the murderous officer, has merely been charged with murder in the third degree and manslaughter in the second degree for the death of George Floyd. Further, his comrades who, in derogation of their duties to protect and serve, acquiesced to the murderous officer’s viciousness currently face no charges.  This can’t be true, but it is: an incongruence between what things are and what they ought to be.  Like an apple which falls from a tree, one cannot understand the reason the apple fell without understanding the rules of gravity.  Similarly, one cannot understand the reason the murderous officer and his compatriot’s face little or no criminal charges without understanding the rule of law. This writing serves to set forth the applicable rules of law which enable injustice.  Unlike the immutable rules of God, the people have the power to change the rules of law.  This power must be exercised or injustice will continue.



With such visceral video which has tugged at the strings of those with even the most brutish of hearts, a charge of first degree murder rings most laudable.  Alas, the murderous officer faces no first degree, let alone second degree murder charge.  Indeed, as will be discussed in greater detail below, doubtless the third degree murder charge survives. Also, while the crime of murder exists throughout the nation (and indeed the world), each state may define murder differently.  These divergences directly impact the viability of murder charges across the various jurisdictions—meaning what constitutes murder in one state may not constitute murder in another.  Here, Minnesota law controls. 



Minnesota law disables any potential for a first degree murder charge. In relevant part, in Minnesota, first degree murder requires a person (in this case an officer) to cause the death of a human being with (1) premeditation” and (2) with intent to effect the death of the person.  Here, neither element can be established. “Premeditation” means “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.”[1] Further premeditation and intent to kill cannot occur contemporaneously.[2] Instead, a person “must have formed the intent to kill, and then must have had “some appreciable time” in order to “consider, plan or prepare for, or determine to commit” the killing.[3]   Here, there is likely insufficient evidence of planning or preparation, let alone “some appreciable time.”  The death resulted from an arrest stemming from an alleged forgery.  



Additionally, while a closer call than the premeditation, there are evidentiary hurdles with the second requirement: intent to effect the death of that person or another. While callous, depraved, and ill-spirited, a knee to the neck, even over the span of eight minutes, may be insufficient to infer an intent to kill based on Minnesota law. In Minnesota, while intent to kill can be inferred by the nature of the killing, the cases which inferred intent typically involved gunshots, and, on more rare occasions, severe bludgeoning to the head, particularly with the use of a blunt force object.[4]The killing in this case—a knee to the neck—lacks the certainty of gunshot or repeated strikes to the head with fists, legs, and a metal object.  Here, the evidence certainly shows depravity and a reckless disregard for Mr. Floyd’s life.  Reckless disregard, however, does not equal intent to kill. For example, if a person blindly shot a bullet into a building filled with patrons, the evidence demonstrates the person acted in reckless disregard of the lives of others (a foreseeable consequence is the bullet striking someone and killing him or her) but that does not mean the person shot the bullet with the intention of killing another person. Now, this is not to say that the murderous officer had no intent to kill Mr. Floyd. Rather, this analysis merely delves into whether the video serves as sufficient evidence, alone, to support that proposition.  Nor does this analysis foreclose the possibility that the state may amend the complaint to include a charge of first degree murder based upon additional evidence. Rather, this analysis simply posits realistic hurdles standing in the way of such a charge or, if charged, a conviction. 



Second degree murder fares no better than first degree murder.  In relevant part, second degree murder requires a person to cause the death of a human being with intent to effect the death of that person or another, but without premeditation.[5]Here, for the same reasons as the first degree murder charge, the intent-to-kill requirement excises the viability of a second degree murder charge in Minnesota. As stated above, states may impose varying requirements for murder.  For instance, second degree murder in California has no requirement of an ‘intent to kill.’ Rather, In California, second degree murder simply means an unlawful killing with malice that doesn't meet the definition first degree murder.[6] Malice can be either express or implied. Express malice requires an intent to kill, but implied malice only requires an intent to do some act, the natural consequences of which are dangerous to human life.[7] Patently, the natural consequences of callously digging a knee into the neck of another person for over eight minutes while the person begs for air is death or grave bodily harm. The murderous officer’s actions personify California second degree murder. Thus, if this murderous officer committed this offense in California, second degree murder charges likely awaited him.  



Now, the prosecutor could have brought second degree felony murder charge against the murderous officer, but elected not to do so.  Second-degree felony murder occurs when one causes the death of another, “without intent to effect the death,” while committing or attempting to commit a felony offense.[8]  While in most other jurisdictions the predicate offense for felony murder cannot be assault, i.e., murder by nature is an assault, Minnesota rejects any such limitation.  In 1996 the Minnesota Supreme Court concluded  second-degree assault can serve as a predicate offense for felony murder because it is “a crime against the person.”[9]  Intent is an essential element of the definition of assault.[10]  Thus, as long as a defendant intended to assault an individual, and the assault resulted in death, second degree felony murder applies.[11]  Here, the murderous officer’s knee hold which ultimately killed Mr. Floyd arguably constitutes assault of the highest order--indeed, the Minnesota Supreme Court has already determined that  “bare hands” can administer assault of the highest order  “for example by choking.”[12]  Here, the murderous officer essentially choked Mr. Floyd to death by pressing on his neck for over eight minutes.  Thus, the prosecutor’s refusal to charge the murderous officer with second degree felony murder raises concerns.  As compared to the third degree murder charge, discussed below, second degree felony murder at stands least some chance of resulting in conviction.  



The nature of policing may bar the application of  second degree felony murder predicated on assault.  The law authorizes police to commit assaults.[13]  Thus, the question becomes what standard applies when an officer commits assault, and when does an officer’s assault turn criminal.  Minnesota's assault statutes abscond any answers to these questions.  With no answer in the assault statutes, one must search elsewhere.  Minnesota statute Section 609.43 may provide the answer.  In relevant part, Section 609.43 of the Minnesota statute criminalizes the actions of public officers who intentionally and unlawfully injure another in the other's person, property, or rights.[14].  In relevant part, Section 609.43 also criminalizes actions of public officers who knowingly take actions which exceed their authority or are forbidden by law to be done in a certain capacity.[15] The juxtaposition of Minnesota’s assault laws with Section 609.43 potentially creates stark results.  Where bodily injury occurs, as with the murderous officer here, assault is a general-intent crime which merely requires the defendant commit a prohibited physical act which results in bodily harm upon another.[16]  This means  there is no requirement that a defendant intend to injure the other person.  Conversely, Section 609.43 criminalizes the actions of officers where the officer intends to injure another person and does so unlawfully.[17]  On a core level, these statutes seemingly conflict: Section 609.43 specifically requires an officer formulate an intent to injure whereas Minnesota’s assault statutes impose no such requirement.  



In Minnesota, when two criminal statutes, one general and one specific, conflict because they have the same elements but differing penalties, the more specific statute governs over the more general statute, unless the legislature clearly intends for the general statute to control.[18]  The prosecutor’s decision to forego charging the murderous officer with second degree felony murder may derive from the application of Section 609.43.  The prosecutor may have determined Section 609.43 overrides Minnesota’s general assault statutes.  The prosecutor may have further determined the murderous officer’s knee on neck hold, while callous and depraved, was insufficient evidence of an intent to injure Mr. Floyd.  Indeed, Minnesota characterizes neck restraints as “non-deadly” force.[19]  If the prosecutor analyzed the case in such a manner, then the prosecutor seemingly focused solely on Section 609.43’s intent to injure requirement and ignored the latter provision of Section 609.43 which criminalizes public officers who knowingly take actions which exceed their authority or are forbidden by law to be performed in a certain capacity.  While the murderous officer may ultimately be acquitted of second degree felony murder, second degree felony murder at least has some chance of resulting on conviction.  As will be demonstrated below, the third degree murder charge has almost no chance of success.  The prosecutor’s failure to charge the murderous officer with second degree felony murder will likely lead to a miscarriage of justice.



The prosecutor charged the murderous officer with third degree murder.  In relevant part, a person is guilty of third degree murder if he or she, 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.[20]  Determinatively, third degree murder in Minnesota “excludes a situation where the animus of defendant is directed toward one person only.”[21] Indeed, in 1979 and again in 2003, the Minnesota Supreme Court affirmed the trial court’s refusal to submit third degree murder instructions to the jury where there was “no rational basis for a conclusion that [the defendant’s] actions were eminently dangerous to more than one person as is required for an instruction of third-degree murder.”[22]  Glaringly, Minnesota law seemingly precludes the imposition of third degree murder for this exact type of case—a case where a defendant directs his animus toward one person.  Like the 1979 and 2003 Minnesota Supreme Court opinions, there appears to be “no rational basis for a conclusion that [the defendant’s] actions were eminently dangerous to more than one person as is required for an instruction of third-degree murder.”  Specifically, the officer burying his knee into Mr. Floyd’s neck endangered no one other than Mr. Floyd.  It is unclear how the prosecutor can circumvent this impediment. 



 Nevertheless, if prosecutors can navigate around this fatal impediment (which seems doubtful), third degree murder may represent a viable charge. While there may be some kerfuffle regarding whether the officer perpetrated an eminently dangerous act by utilizing a knee-on-neck-hold—a hold unauthorized by his own department but which may have been authorized in other police precincts, this argument obfuscates the issue.  While a knee on the neck may pose no eminent danger in the abstract, where an officer drives his knee into a compliant suspect’s neck for over eight minutes without abatement while the suspect begs for air, the abstract becomes reality.  An argument that the knee on neck hold was not eminently dangerous strains the credulity of the credulous. Finally, the officer unequivocally acted with depravity evinced by his utter disregard for Mr. Floyd’s safety.  Thus, apart from the insurmountable requirement that the defendant’s action must be dangerous to more than one person, which alone disposes of the third degree murder charge, third degree murder works.



As to manslaughter, the actions cannot constitute to first degree manslaughter.  Nor did the prosecutor charge the murderous officer with first degree manslaughter.  In relevant part, a person commits first degree manslaughter if he or she “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.” Here, as described above evidentiary hurdles obstruct the ability to establish any intent  to kill. Further, this situation cannot constitute a heat of passion.  Nor is there evidence Mr. Floyd or anyone less provoked this murderous officer.  



Finally, the prosecutor also charged the officer with second degree manslaughter.  This charge fits.  In relevant part, a person commits second degree manslaughter through a 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” is “gross negligence coupled with the element of recklessness.”[23]  



Here, using a knee on neck hold for over eight minutes without abatement certainly displays gross negligence, recklessness, and creates an unreasonable risk.  Further, ignoring the pleas of Mr. Floyd and the onlookers certainly supports both the culpability and consciousness requirements necessary for a second degree manslaughter charge.[24]  In terms of potential problems,  the state performed autopsy report which purportedly revealed no signs of traumatic asphyxia or strangulation may pose some issue.  The defense attorneys may argue against causation.  For the state to prove culpable-negligence manslaughter it must prove beyond a reasonable doubt that the acts of the officer were the proximate cause of Mr. Floyd’s death.[25]  The defense may argue Mr. Floyd died from an unforeseeable underlying comorbidity which may have been exacerbated by the knee on neck hold. Even if that argument were true, the distinction likely creates no difference. The Minnesota Supreme Court has recognized that a defendant “causes” death, for proximate-cause purposes, if “the defendant's acts were a substantial factor in causing the death.”[26]  Whether Mr. Floyd died solely due to knee hold induced asphyxia or whether the knee hold exacerbated an underlying condition, the officer’s callous action remain a substantial factor in causing the death. Of the two charges against the murderous officer, second degree manslaughter has the best chance of resulting in conviction. 



The world lay witness to George Floyd’s execution.  The officer’s heinous actions speak for themselves. Yet, as described above, the murderous officer has merely been charged with a disposable third degree murder claim and second degree manslaughter. The third degree murder charge faces doom since the officer’s actions only endangered George Floyd. Regrettably, it appears at best this heinous act elicits a second degree manslaughter conviction; a conviction which carries a maximum ten year sentence, although guidelines recommend merely 3.5 to 5 years.[27] Again, how can this be: an incongruence between what things are and what they ought to be. While we march and protest against the results of systemic racism—the death of another black man, we cannot neglect the soil which fosters these results. The law favors law enforcement in ways which cultivate brutality.  Repeatedly we march to impending disappointment when a brutalizing officer receives no criminal charges, the criminal charges are dismissed, or the criminal charges result in a conviction which pales in comparison to the gravity of the offense. [28]



Emmett Till’s death inspired a civil rights movement which ultimately led to the enactment of the Civil Rights Act.  George Floyd may be today’s Emmett Till: a death so visceral, horrific and reflective of the infirmaries of the legal system that it invokes a movement which inspires policing laws which account for structural and racial inequality.  The truism rings true: All lives matter.  But black lives are the lives historically put at stake.  That’s why black lives matter.  We have the power to make change. We have no option but to make the change or else more lives will be lost without justice.  The law has failed George Floyd.  Let’s work to stop the law from continuing to fail others. 







[1] Minn.Stat. § 609.18 (2014)
[2] State v. Palmer, 803 N.W.2d 727, 734 (Minn.2011)
[3] Id 
[4] State v. Gillam, 629 N.W.2d 440, 445 (Minn. 2001)(gunshots); See State v. Ferguson, 729 N.W.2d 604, 617 (Minn. App. 2007), review denied (Minn. June 19, 2007)(determining evidence sufficient to support second degree murder when defendant/appellant purportedly gunned down decedent); State v. Wilson,  2008 WL 570280, Minn.App., Mar. 04, 2008 (determining sufficient evidence of intent to kill when defendant/ appellant beat the decedent to death “with punches, kicks, and a metal rod.”)(unpublished)
[5] Minn.Stat. § 609.19
[6] Cal. Penal Code §§ 187(a), 188, 189
[7] Id
[8] Minn.Stat. § 609.19
[9] State v. Cole, 542 N.W.2d 43, 53 (Minn.1996)
[10] Minn.Stat. § 609.02, subd. 10  
[11] State v. Gorman, 532 N.W.2d 229, 233 (Minn.App.1995) (stating that to establish felony murder, state must prove defendant intended to assault victim), aff'd on other grounds, 546 N.W.2d 5 (Minn.1996); State v. Werman, 388 N.W.2d 748, 750 (Minn.App.1986) (stating conviction for felony murder with underlying felony of second-degree assault requires finding of intent to assault), review denied (Minn. Aug. 13, 1986). (1998);
[12] State v. Ortiz, App.2001, 626 N.W.2d 445, review denied
[13] Minn.Stat. § 609.06. (authorizing the use of force) 
[14] Minn.Stat. § 609.43
[15] Id.
[16] State v. Dorn, 875 N.W.2d 357, 359 (Minn. App. 2016); State v. Wilson, App 2012, 814 N.W.2d 60, 64
[17]  State v. Shane, 883 N.W.2d 606, 610 (Minn. App. 2016)
[18] State v. Kalvig, 296 Minn. 395, 398, 209 N.W.2d 678, 680 (1973)
[19] https://kstp.com/news/police-training-expert-speak-on-fatal-minneapolis-incident-may-26-2020/5741911 (last visited June 2, 2020)
[20] Minn.Stat. § 609.195
[21] Stiles v. State, 664 N.W.2d 315, 321(Minn.2003)
[22]  State v. Stewart, 276 N.W.2d 51, 54 (Minn.1979); see also Stiles v. State, 664 N.W.2d 315, 321(Minn.2003)
[23] State v. Beilke, 267 Minn. 526, 534, 127 N.W.2d 516, 521 (1964); see also State v. Grover, 437 N.W.2d 60, 63 (Minn.1989)
[24] The actions may also align with Section 609.43 which criminalizes actions of public officers who knowingly take actions which exceed their authority or are forbidden by law to be done in a certain capacity.  Here, the murderous officer knowingly exceeded his authority when he ignored the protestations of Mr. Floyd and others and also performed an act forbidden by law to be done in a certain capacity: unauthorized knee on neck hold.
[25] State v. Schaub, 231 Minn. 512, 517, 44 N.W.2d 61, 64 (1950)
[26] State v. Smith, 835 N.W.2d 1, 4–6 (Minn. 2013)
[27] https://www.kare11.com/article/news/local/george-floyd/what-is-third-degree-murder-and-second-degree-manslaughter-in-minnesota/89-605c84d4-dfc2-4bb9-a09b-4a0063c079ad (last visited on May 31, 2020)
[28] This paper does not discuss the legal doctrine of qualified immunity which further increases the difficulty of charging law enforcement with criminality.