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.”
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.
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.