George Floyd: Unpacking the criminal charges against the former police officers

Last week, George Floyd joined dozens of others on the grim roll call of black men needlessly killed by white police officers. Pinned to the ground on his belly for nearly nine minutes, Floyd (who, incidentally, was born in North Carolina) begged for his life. He cried, “I can’t breathe,” at least sixteen times in five minutes before becoming unresponsive. Bystanders pleaded with police to get off him, to check his pulse, to stop killing him.

As captured in the horrifying cellphone video that quickly went viral, former Minneapolis police officer Derek Chauvin kept his knee pinned to Floyd’s neck for 8 minutes, 46 seconds – including nearly three minutes after Floyd stopped moving. Floyd’s death sparked global protests and civil unrest.

The autopsy reports

Two autopsies were conducted: one by the Hennepin County Medical Examiner and another by a private examiner (hired by Floyd’s family). They differ regarding the exact cause of death, but both concluded that Floyd died by homicide, with his restraint by police officers a contributing factor. The official autopsy cites “cardiopulmonary arrest complicating law enforcement subdual, restraint and neck compression.” The independent examiner concludes that Floyd died from “mechanical asphyxiation” due to sustained pressure on his neck and back. The official autopsy also mentions heart disease and drug use as “other significant conditions.”

The charges against Chauvin

Derek Chauvin, the officer who knelt on Floyd’s neck for nearly nine minutes, faces three state-level charges:

• Second-degree felony murder, which involves an unintentional death occurring during a felony (here, assault). It carries a sentence of up to 40 years.
• Third-degree murder, which involves unintentional killing committed with reckless disregard for human life and a “depraved mind.” It carries a sentence of up to 25 years, but the presumptive sentence for Chauvin would likely be 12.5 years.
• Second-degree manslaughter, which involves “culpable negligence” undertaken with knowledge that serious harm or death might result. A conviction carries a sentence of up to 10 years, but in this case, the presumptive sentence would likely be four years.

Why wasn’t first-degree murder charged?

First-degree murder carries a mandatory life sentence with no possibility of parole. (Minnesota doesn’t have the death penalty.) It requires an intent to kill and premeditation – both of which must be proven beyond a reasonable doubt.

Premeditation would likely be difficult to prove in this case. Prosecutors would have to show that Chauvin planned to kill Floyd. That planning must have taken place some appreciable amount of time beforehand. Absent some smoking-gun evidence that hasn’t yet been discovered, nothing currently indicates that Chauvin went into the arrest planning to murder Floyd.

Intent to kill?

While premeditation doesn’t seem supported by the evidence, another prong of second-degree murder (which wasn’t charged here) involves intentional killing without premeditation. Like premeditation, though, intent can be inferred from the circumstantial evidence. Intent to kill requires a belief that death will likely result.

Should intentional murder have been charged? Arguably, at some point during the 8 minutes and 46 seconds that he crushed Floyd’s neck with his knee, Chauvin must have known he was placing Floyd at a substantial risk of death. Officers are trained to use prone and neck restraints for only brief periods of time, and only when necessary to subdue active (physical) resistance. They’re trained that holding suspects in a prone position is “inherently dangerous.”

Floyd’s now-iconic pleas that he couldn’t breathe would cause a reasonable person to believe he was experiencing a medical emergency. Floyd went even further, saying, “I’m about to die,” and begging, “Don’t kill me.” Bystanders echoed his pleas. Still, Chauvin kept his knee on Floyd’s neck for nearly three full minutes after Floyd stopped moving – including two minutes after Floyd stopped breathing or speaking, and after another officer checked Floyd’s pulse and found none.

The context of the entire interaction is also relevant. From the video evidence currently available as well as the criminal complaints against the officers, Floyd didn’t actively resist arrest or otherwise threaten the officers. When they first tried to force Floyd into the squad car, Floyd said he wasn’t resisting arrest. He said he was claustrophobic and couldn’t breathe. While pinned down, Floyd said he would get into the squad car if they would let him.

Notably, however, none of the charges allege an intent to kill. The prosecutors are likely going for a slam-dunk case rather than reaching out on a limb and risking complete acquittal (or reversal on appeal). Attorney General Keith Ellison has stated that he wants the prosecution to be “watertight.” And history has shown it’s notoriously difficult to convict police officers. In Minnesota, only one officer has been convicted of homicide – and he was a black officer who shot a white woman. On a national level, the white officer who killed Eric Garner – an eerily similar case, with an unresisting black victim crying, “I can’t breathe!” – was acquitted.

What’s more, to support a conviction beyond a reasonable doubt, the evidence would have to be inconsistent with any other reasonable explanation besides an intent to kill. The criminal complaint seems to indicate that Chauvin didn’t believe Floyd’s protests. Chauvin responded, “You are talking fine.” When another officer expressed worry about “excited delirium” – an agitated state that can result in sudden death – Chauvin claimed, “That’s why we have him on his stomach.” This evidence would make it difficult to prove an intent to kill.

Felony murder

Second-degree felony murder doesn’t require intent. It covers deaths caused while committing a felony – including third-degree assault (inflicting “substantial bodily harm”), as charged here. Based on how Floyd’s death unfolded, this charge gives prosecutors another strong path to securing a conviction.

However, under Minnesota’s Sentencing Guidelines, the outcome would be the same as a conviction for third-degree murder. Second-degree felony murder and third-degree murder involving a depraved mind are ranked at the same severity level, which means they carry the same presumptive sentence – in this case, likely 12.5 years. Second-degree intentional murder, by contrast, would carry a presumptive sentence of double that – 25.5 years.

What about the other officers?

The other three officers involved in Floyd’s death have been charged with aiding and abetting two offenses: second-degree felony murder and second-degree manslaughter. Under Minnesota law, a person can be guilty of a crime by intentionally aiding in it.

What amounts to aiding? According to legal texts,* merely standing by and refusing to take action isn’t enough. Aiding requires playing a “knowing role.” It requires taking some action, however minor or passive, with the intent to further the offense. However, that action need not rise to the level of participating in the “overt act” of the underlying offense. Someone who acts as a lookout in a burglary, for example, is still playing a knowing role, despite not being physically present at the scene. Abetting is also more likely if the person fails to object to the offense or render aid to the victim.

Abettors must also share the perpetrator’s “criminal purpose.” How might the prosecution show that here?

• Tou Thao, the officer who stood watch and held back bystanders, arguably acted like a lookout. He was close enough to see what was happening to Floyd. He heard Floyd’s pleas (and those of bystanders). He failed to intervene or render aid. Together, these circumstances could indicate that he shared in Chauvin’s criminal purpose.
• J. Alexander Kueng, the rookie officer who knelt beside Chauvin on Floyd’s back, likewise did nothing to intervene or render aid. Available footage doesn’t clearly show just how forceful – or for how long – Kueng knelt on Floyd’s back. Presumably, body camera footage would shed more light on those critical details.
• Thomas Lane, the other rookie officer who held Floyd’s legs, shared in the overall purpose to pin Floyd down despite the risk of substantial harm or death. Lane twice asked Chauvin if they should roll Floyd over. Still, Lane didn’t adjust his position, render aid or take any other action to limit the harm.

Are federal charges forthcoming?

Federal authorities are investigating possible civil rights charges against the officers. Federal law makes it a serious offense to deprive someone of their constitutional rights under “color of law” (that is, while acting in an official capacity). If death results, the offender can face life in prison – or even the death penalty. Chauvin and the other officers could thus face much harsher penalties if convicted on federal charges.

As the legal proceedings unfold, they are bound to leave a mark on history. Will this be a turning point for holding police officers accountable? Only time will tell.

* 9 Minn. Prac., Criminal Law & Procedure § 45:1 (4th ed.)