Chauvin Charged, But Is It Legally Sufficient?

George Floyd’s family retained Ben Crump as their lawyer, who issued the sort of statement one would expect.

The arrest of former Minneapolis police officer Derek Chauvin for the brutal killing of George Floyd is a welcome but overdue step on the road to justice,” the statement reads. “We expected a first-degree murder charge. We want a first-degree murder charge. And we want to see the other officers arrested. We call on authorities to revise the charges to reflect the true culpability of this officer.

For obvious reasons, murder in the first degree sounds so much more serious, so much more like real murder, that it’s the go-to cry to inflame passions. Crump’s been around the block a few times and knows how to play the crowd. To be fair, that’s his job, to represent the family of George Floyd, and even though he almost certainly knows there’s no basis for an intentional murder charge, he’s doing what best serves his clients’ interest.

Former police officer Derek Chauvin was charged with Murder 3, a not-insignificant charge even if it lacks the panache of Murder 1, with a potential sentence of 25 years in prison. Unlike intentional murder, the mens rea under Minnesota Statutes § 609.195 requires only a “depraved mind.”


(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.

Yet, the complaint filed by the Hennepin County Attorney made almost no effort to assert that the elements of the charge were met, that Chauvin was “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”

While the video clearly showed Chauvin’s knee on Floyd’s neck, which was naturally assumed, for obvious reasons, to have been the cause of death, that alone does not suffice to meet the element that it was an “act eminently dangerous.” It’s hardly an undangerous immobilization technique, but it’s also not an uncommon restraint, and is a permissible use of force in Minneapolis. That it’s only supposed to be used to restrain someone actively resisting gives rise to a departmental violation, but doesn’t elevate a lawful use of force to an eminently dangerous act.

The example used to explain the distinction is usually firing a bullet into a crowd of people, without any intent to kill anyone in particular. While not certain to kill, shooting into a crowd is so highly likely to kill that it’s eminently dangerous. But here, the allegation in the complaint was bizarrely short of the mark.

The defendant had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous.

In drafting a complaint, prosecutors track the statutory language. While “inherently dangerous” sounds bad, it’s not the same as “eminently dangerous.” For non-lawyers, this may seem like a semantic argument, but it’s not, and there’s no explanation for the failure to use the statutory language unless it’s to draw a distinction between the two. If the words “inherently dangerous” are used rather than “eminently dangerous,” there must be a reason. If so, then the complaint fails to suffice. If not, then why not?

Then there’s the next prong, the “depraved mind” element. This relates not to whether others feel the conduct was so horrible as to be “depraved,” but whether the perpetrator recognized the extreme risk of harm to others and, despite this recognition, engaged in the conduct anyway. Again, the example of shooting into a crowd of people serves to clarify, as the depravity is shown by engaging in conduct so extremely likely to cause death, so obviously likely to kill, without concern that death will be the outcome. That’s what’s meant by depravity.

There is an arguable factual basis for depravity, It’s not that the neck restraint was used at all, which may well have been the wrong technique under the circumstances but doesn’t rise to the level of “eminently dangerous.” As was explained by resident police training expert, Greg Prickett:

The knee would be putting pressure on the carotid artery and jugular vein, along with the vagus nerve and the brachial plexus nerve (at C5-C6). That’s what the sleeper hold/lateral vascular neck restraint/South Dallas snot lock hold uses to knock someone out, and if not released, to kill them. Floyd passed out, but the officer never released the pressure.

Thus, the failure to release the neck restraint for two minutes, 53 second, after Floyd became non-responsive might suffice to establish depravity. Yet, while the fact of this occurring is set forth in the complaint, it failed to take the next step of alleging that this was the depraved conduct, distinguishing it from conduct that failed to establish depravity. It’s not an argument that this isn’t close enough, but that there is no reason why the complaint made no attempt to include the direct allegation to establish the necessary element.

Finally, there’s the causal connection with death. That it looks obvious to everyone watching the video that the neck restraint caused Floyd’s death, that doesn’t constitute proof. That’s where the medical examiner comes in.

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.

The absence of “physical findings” supporting “traumatic asphyxia or strangulation” doesn’t preclude the diagnosis that Chauvin caused Floyd’s death, but it doesn’t prove it either. As the burden is on the prosecution to establish probable cause for the arrest, it must not only prove a crime was committed, but that the defendants committed the crime.

This allegation is striking as it studiously avoids making a connection between Chauvin’s neck restraint and Floyd’s death, not only failing to establish the cause of death but affirmatively introducing other factors which would undermine culpability.

What the Hennepin County Attorney was thinking as it drafted this Murder 3 complaint isn’t clear, although there are numerous possibilities, some rather cynical but not unlikely given that riots were/are destroying Minneapolis and hope that a murder charge might calm the city. But as legally silly as Crump’s call for first degree murder was, this Murder 3 complaint might very well fail a challenge to its legal sufficiency.

16 thoughts on “Chauvin Charged, But Is It Legally Sufficient?

  1. Jerry

    As not a lawyer, not a cop, not a Minneapolitan I should keep my layman’s trap shut, I would think inherently vs eminently comes down to Minneapolis police not wanting to lose the use of their esteemed knee holds.

    As not a prosecutor I should keep my trap shut, but I might think it depraved of mind to use even merely an inherently dangerous choke hold on this person long after a handcuffing was available.

    As a layman from Los Angeles I’d like to warn Minneapolis the second round of riots will be worse than the first. Just ask LA whatr happened after Rodney King’s cops were acquitted.

    Finally, I am very saddened I always thought of Minneapolis as a place fit for a Mary Richards and surely there would be no racist abusive police brutality force.

    1. SHG Post author

      It was certain that someone would say this, so it’s just as well to get it out of the way up front. Thank you for being the sacrificial lamb.

      1. Jerry

        I had thought I had learned my lesson ago, so I try not to make legal, medical, physics claims on the Internet (the fourth classic blunder), but that first paragraph doesn’t seem to be a legal pronouncement more than a statement of cynicism triggered by your blog post. And the second paragraph tried to follow your reasoning above.

        I understand I got it wrong, but don’t really have a clue as to how, and considering juries are made of laymen too, what would happen in a courtroom to fix the problem

        1. SHG Post author

          At trial, the judge will give you instructions on the law right before you retire to deliberate, which is supposed to prepare you to render a verdict in accordance with the law. It doesn’t mean you can’t vote that words mean whatever you feel they mean, and you could choose to decide that a banana is a Chevy, but the hope is that you follow the instructions and don’t indulge in guilt meanng whatever you feel it means, regardless of whether the evidence suffices to prove the elements of the offense.

    2. Skink

      When I went to law school to learn to be a lawyer, all we had was a rudimentary form of the World Wide Web. It would have been way more efficient to learn lawyerin’ if I had access to the Internet of today. I think law school would have been unnecessary. I could have learned all the law I needed by conversing online with other people who don’t know lawyerin’. Maybe I might have invented a whole new way of doing it!

  2. James

    Thanks for the explanation Scott. From what you know, what would be the highest charge that would have the most legally sound chance of conviction?

    1. SHG Post author

      I don’t make charging decisions, and when you qualify it with “from what [I] know,” nothing I could offer would be remotely meaningful.

      1. John Barleycorn

        But what if Larry Tribe, yes that Larry Tribe, needs your love and some hugs esteemed one?

        [Ed. Note: Link deleted, because rules apply to you too.]

        1. John Barleycorn

          Yeah, yeah… not like he was tagging up the editorial pages of that newspaper you read everyday or anything. But even if he is keeping this on the lowdown, in the opinion pages of the Massachusetts fish wrapper, I figure you ought to know about it just incase you start answering James Bennet’s phone calls.

          P.S. You, Elie, and James should go have some beers this week.

  3. Greg Prickett

    I’ll point out that in many departments, the LVNR hold is prohibited unless deadly force would be justified. I have no clue whether that is the case in Minneapolis or not.

    1. SHG Post author

      Under the Minneapolis use of force regs (see link in post), it’s permitted for active resistance.

  4. B. McLeod

    More detritus of rioting and burning to demand prosecutions. The County Prosecutor has been pushed into a decision before medical facts were fully developed. I think part of what we are seeing with the framing of the charge is that the prosecutor is trying to avoid allegations of bias by starting out with statements hewing closely to provable facts. As further facts are developed, amendments will likely be forthcoming.

  5. Casual Lurker

    In my few spare moments, as a (more or less) technical aside, while I have no idea what the training of cops in Minneapolis consists of, what I do know is continuing to restrict someone’s breathing for two minutes and 53 seconds after they’ve lost consciousness is unreasonable.

    There’s a rule-of-thumb that medical examiners and most homicide detectives are aware of: The “Coroners’ Rule of Three”: 3 minutes without air, 3 days without water, and 3 weeks without food.

    Admittedly, it’s a generalization, with some exceptions and plenty of caveats. You won’t find it in any textbook that I’m aware of. But those who deal with determining the cause of death have all heard it, and when circumstances warrant, it’s always in the back of their minds.

    I realize there are those that would argue the cop had 7 seconds to spare. But it doesn’t quite work that way. Without going into some fancy statistical analysis, consider how the LD50* for most drugs is computed. I believe similar methods would apply.

    The bottom line is that even for patients that, for certain classes of drugs, would seem to be able to tolerate doses approaching (or even exceeding) the LD50 level, drug manufacturers, various Govt. authorities, and our Insurers, all encourage us to prescribe comfortably below that level, by as large a margin as possible, within the limits of good clinical practice. In the above cited instance, in my not so humble opinion, 7 seconds was inadequate margin.

    Also, for what it’s worth, on May 28, after seeing the M.E.’s report, Ben Crump announced that a private pathologist was being retained to perform a second autopsy and full re-examination of George Floyd’s remains. In line with that, a day later on May 29, according to the New York Post…

    “Former New York City chief medical examiner Dr. Michael Baden will conduct an independent autopsy on George Floyd…”

    *Lethal Dose 50 percent of the time.

    1. SHG Post author

      Medical malpractice is estimated to cause 251,454 U.S. deaths annually. What distinguishes malpractice from murder when one would have reason to rely on physicians having sufficient medical competence to know that their actions could kill people? I’m unaware of anyone (except you) raising that Chauvin had 7 second to spare, but what does some generic rule contribute to cause of death in the absence of an ME’s conclusion?

      Baden’s hiring is of dubious worth. As ME gun for hire, he rarely disappoints his customers.

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