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.
