May 30, 2020 – Minnesota is literally on Fire and Derek Chauvin is the cause. The former police officer arrested George Floyd, handcuffed him, later pinning him to the ground with his knee on his neck. During this time, three other officers looked on while Floyd pleaded to breathe. The scenario seems surreal, but the reality is that four officers, appearing to act in concert, allowed what appeared to be a “non-violent” black man, to be killed before them.
The charge: Third Degree Murder & Second Degree Manslaughter. So what does this mean? Before we get into how he was charged, let’s look at the types of charges that “could” be brought if the evidence supports it.
In the state of Minnesota, First Degree Murder carries with it life in prison.
That statute, Chapter 609.185 Murder in the First Degree, states:
(a) Whoever does any of the following is guilty of Murder in the First Degree and shall be sentenced to imprisonment for life. Section (1) of that statute specifies a person who: “causes the death of a human being with premeditation and with intent to effect the death of the person or of another;” Chapter 609.185
According to this First Degree Murder statute, to be charged with this crime–there needs to be some form of “premeditation and intent.” Deliberation, is the time needed to premeditate, and it does not have to be long, it can be as short as a few minutes.
All that is required for premeditation and some sort of deliberation is the time to form the “intent” to ponder the act of committing the crime, and followed by the act of doing it. A defendant can premeditate and deliberate in a matter of minutes before engaging in the criminal act.
Here Chauvin had his knee on the neck of the victim Floyd for over 8 minutes, almost 9, to which Floyd made several pleas to Chauvin that he could not breathe. During this time, it was reported that another police officer took Floyd’s pulse, and told Chauvin that there wasn’t one. Nevertheless, Chauvin kept his knee on Floyd’s neck 2 minutes and 53 seconds after Floyd became non-responsive, as appearing on the video footage. Yet, despite Chauvin having real-time, “actual notice” that Floyd was not breathing and had no pulse–Chauvin, he not only ignored what he saw and heard, but he kept his knee on Floyd’s neck. As a peace officer, it is Chauvin’s duty to assist any individual in time of need, get them medical attention if required–certainly when they stop breathing, and especially when that individual is handcuffed and in their custody. At minimum, Chauvin owed Floyd a duty of care to do him no him no harm. Yet, instead of doing NO harm, he chose instead to do harm, put him in mortal danger, and did nothing to help save his life.
Everything That Could Be Done Wrong Was…
- Chauvin ignored Floyd’s pleas when he couldn’t breath;
- He didn’t try to revive Floyd when it was brought to his attention that Floyd had no pulse;
- He did not administer CPR;
- Nor did he roll him over to see if it could help Floyd to breathe on his own.
What Chauvin did instead, was to keep his knee on Floyd’s neck, ensuring that Floyd would lose consciousness, and die.
This behavior is not only evidence of Chauvin’s willful malfeasance, but his gross and wanton indifference as to whether Floyd lived or died. It exemplifies a callous disregard for Mr. Floyd’s well-being–a human life which he is sworn to protect. By continuing his conduct, pressing on Floyd’s neck, Chauvin ensured that Floyd would not regain consciousness, and his life would be extinguished by suffocation or cardiac arrest. The facts themselves indicate that Chauvin had enough time to premeditate and form the intent to kill–more than 8 almost 9 minutes–and by all that is apparent, Chauvin acted upon that intent–depriving Floyd of air necessary to sustain his life, and thereby causing his death.
In the Search for Intent…
To be found guilty of First Degree Murder, a “unanimous” jury must find the defendant Chauvin to be guilty of the crime (if charged), beyond a reasonable doubt–and that there was “premeditation” AND “intent” to effect the death of another, and that those actions manifested in the death of the victim.
There Must be an Investigation to Determine if there is any Prior History Between the Two Men
Inquiries into premeditation must first start with investigators looking to find if there was a history between the victim Floyd and the perpetrator Chauvin, including any animus or ill will. Investigators must begin by interviewing witnesses and any old camera footage and social media posts to determine whether there was any kind of relationship between the two men. Initial reports have indicated that the two men worked some kind of security detail at the same nightclub, although it is unclear if they worked at the same time and dates. This must be investigated further by local or state detectives, and the FBI, as it is very possible that a Federal Civil Rights violation may be charged. If a federal charge is brought, this would bring federal investigators in, allow them to make determinations, as well as prevent local bias from tainting the evidence and the case. The attorney, representing the family can push for such an inquiry, as well as file a civil suit against all those involved. The FBI is currently seeking digital media footage from the public, asking the public to provide such footage, so that a determination and fill-scale investigation, and possible prosecution of a Civil Rights Violation can take place.
Questions Investigators must ask:
- Did the two men know each other, and if so, was there unresolved conflict between them?
- Was Chauvin the kind of person who was motivated by racial animus?
- Did Chauvin convey discriminatory or hate-filled dislike of African-Americans to coworkers, the public, or post hateful rhetoric on social media?
Investigators Must Determine if Floyd & Chauvin Knew Each Other or if Chauvin Was a Known Racist
If such knowledge of a relationship between the two is found, that could account for premeditation and intent to harm Floyd, although premeditation and intent can occur without any history between two parties. If it is determined that the two did not know each other previously, it must be determined whether Chauvin formed the intent and deliberated as he kept his knee on a dying man–a man of color. If that is found, he can be charged with First Degree Murder. Ultimately a jury will decide guilt of innocence on any count, but to do so, a prosecutor must bring all the charges before any jury can render a full and fair verdict. It will also be helpful to determine what is called the “mens rea”–the motivation and intent of Chauvin causing him to inflict harm on another human being–including any prejudices Chauvin may have previously exhibited toward African-Americans such as Floyd. There must also be an inquiry to determine any propensity of Chauvin, any similar instances of conduct where Chauvin may have ignored the health status of someone in his custody, and if so, examine the racial background of such persons. Further inquiry must be made to determine if, and when Chauvin has been reprimanded by his department for similar instances of egregious misconduct.
Raising the Bar of Culpability to Find First Degree Murder
Intent to do harm to Floyd, can be inferred by Chauvin’s conduct–keeping his knee on the neck of the victim, even after another officer checked for a pulse and did not find one. Not only does this make Chauvin culpable for Floyd’s murder–by virtue of intent to deprive the victim of oxygen necessary to sustain life–but with the added intention of not allowing him to regain it, which initially he could have easily provided by simply removing his knee from Floyd’s neck. The conduct of the other officers, who observed and did nothing to aid Floyd or deter Chauvin, are equally blameworthy and culpable by their inacton, which tacitly assisted Chauvin in ending Floyd’s life. As peace officers, they have a sworn an oath, and have a duty to keep the public safe–Floyd was a member of that public, yet they did nothing to help him. The three other officers can be seen as derelict in their duty, showing indifference to Floyd’s situation by allowing Chauvin to continue depriving Floyd of oxygen and not intervening. By these officers’ combined inactions–not intervening, not administering CPR, they hastened, if not greatly contributed to the death of George Floyd.
Where This All May Lead…
It is possible that the facts may lead to a determination that the elements of premeditation and intent are satisfied by the evidence, so that Chauvin could be charged with First Degree Murder. The prosecutor would need to add that charge if the facts and evidence support it, and if the District Attorney’s office has the will and the impetus to do so.
On the issue of Second Degree Murder under Minnesota law:
Second Degree Murder, is unlike First Degree Murder–as Second Degree Murder does “NOT” require premeditation and deliberation, but does still requires intent to kill.
609.19 Murder in the Second Degree:
“Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation;”
It is apparent, a motivated prosecutor could charge the ex-officer Chauvin with Second Degree Murder, and have a good case based upon Chauvin’s actions:
- keeping his knee on the victim’s neck for over 8 minutes;
- where the victim told him before he died that he could not breathe;
- that it was foreseeable that death could result in a matter of minutes if a person is not allowed to breathe, the impediment to breathing is not removed, or no medical assistance is readily obtained.
A jury most likely will find Chauvin’s conduct, callous, wanton, willful, and unreasonable when he disregarded repeated pleas of the victim that he could not breathe, falling unconscious while having his neck compressed and his hands bound in handcuffs. Chauvin is clearly culpable of murder, as he had superior knowledge of Floyd’s situation, heard his pleas for help, yet chose instead to compress his neck until he died. These act that cumulatively exemplify an intent to do the acts that, could and did end the life of George Floyd.
Why Did Prosecutor Charge Lesser Crimes?
As with every District Attorney’s office around that nation, Minnesota District Attorneys, and the prosecutors who work for them, regularly work closely with law enforcement officers as they bring cases to trial. That dependency relationship may be a reason why the lesser charges–third degree murder and second degree manslaughter were filed against the now former officer Chauvin. Other reasons include the initial Medical Examiner’s report, which initially did not find a causal relation between Chauvin’s conduct & Floyd’s death. However, an independent medical examiner hired by the Floyd family, found evidence of asphyxia (suffocation), resultant from the sustained pressure on his carotid artery, depriving oxygen to Mr. Floyd’s brain, and creating a lack of oxygenated blood to his heart–causing Mr. Floyd’s heart to stop, and his eventual death.
Reconciling Two Medical Reports as Cause of Death
Because of the disparate medical examiner findings, there needs to be a reconciliation of these findings between the two medical reports. It appears necessary that a state or federal medical examiner should weigh-in and make their own independent findings, address any discrepancies in either report, and factually report the actual cause of death.
As for the charges filed to date, it appears that the District Attorney’s office based their charges on the initial medical examiner’s report, as well as the video footage without enabling the audio. Taking this into consideration, and potential police bias by the prosecution, this could explain why the lesser offense, Murder in the Third Degree was charged.
Murder in the third degree consists of the following:
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.” MN Stat § 609.195 (2019)
The charge of Murder in the Third Degree only requires intent to engage in an extremely dangerous act that causes death, and done by someone with a depraved mind–that is, having no regard for human life.
The prosecution has charged Chauvin with Third Degree. All that is required for this charge, is to prove that the defendant Chauvin, acted without regard for human life, in an extremely dangers manner, which could only be done by someone with a depraved mind.
This charge does NOT require intent or any deliberation as Murder One or Murder Two.
Murder in the Third Degree simply requires someone to do a grossly perverse and dangerous act, and not care about the person, with the result being “death of another.” Fitting for Chauvin–but certainly NOT fitting enough.
Clearly, a charge of Murder in the Third Degree is an “easy” charge for a Prosecutor to prove in this case. Additionally, this lesser charge would lessen the burden on the Police Department itself, which in turn could blame Chauvin for his own grossly perverse and demented conduct, thereby lessening the culpability of the police department for keeping such an individual on the force for eighteen years. It would also lessen the culpability of the police force and any culture within the department allowing or cultivating racial hostility and violence of its officers. The result, lessen the burden on the department while simultaneously lessening the time Chauvin could spend in prison, if and when he is found guilty of murdering Floyd.
Another lesser charge filed against Chauvin:
609.205 Manslaughter in the Second Degree:
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another;
Clearly under the Minnesota Manslaughter criminal statute, the prosecutor charges Chauvin with criminal negligence–death resulting from the negligence of an police officer. However, it is not reasonable to believe this is negligent homicide, as no reasonable person would keep his knee pressed at someone’s neck for an extended period of time, that could possibly render them unconscious and lead to death. Especially where the facts are clear: Chauvin was told by Floyd that he could not breathe, Chauvin ignored these pleas, watched Floyd die, and did nothing about to help him. This is not criminal negligence, this is intentional homicide. There is not an issue of “risk” as required by the statute, it is an issue that is outcome-determinative. It’s about a trained officer, who knows that if you prevent or don’t assist someone when they stop breathing, after an extended period of time, without intervention, the situation will result in death.
Chauvin should be charged with First, Second, and Third Degree Murder
It is for a jury to decide after seeing, hearing, and weighing ALL the evidence, the reports of investigators, the medical reports, the personnel file of the officers charged, if and when the others are charged, to determine if there is any history of animus between the parties, and the aggravating factors that Chauvin knew Floyd, that Chauvin observed that Floyd could not breathe and did nothing about it, where Chauvin had a duty as a police officer to assist Floyd, yet he did nothing to assist him or mitigate the situation, but allowed it to progress to the point of death and beyond.
Under Minnesota criminal law: First Degree Murder in MN requires “premeditation with an intent to kill”. Second Degree murder requires an “intent” to kill but without premeditation. Third Degree Murder does NOT require any deliberation or any “specific intent” it just requires reckless disregard for human life–a “depraved mind” and engaging in an act eminently dangerous to others. Second Degree Manslaughter should not be on the table, as this case is far more than criminal negligence–it is about murder.
If found guilty under Third Degree Murder, the penalty would be up to 25 years in prison. MN Stat § 609.195 (2019). Manslaughter in the Second Degree amounts to Criminal Negligence, and unreasonable risk, that causes death or great bodily harm. Maximum ten years in prison, $20,000 fine, or both.
FEDERAL CRIMES ON THE HORIZON
Because there may be some Federal Crimes committed here, the United States Department of Justice can weigh-in, as well as the FBI. Violations of Federal statutory law–Civil Rights Laws, can be imposed upon violators, if the evidence obtained supports the imposition of the Civil Rights statutes. Severe penalties, up to and including death can be imposed upon a defendant, where Police Misconduct occurs, and the Civil Rights of the Victim are Violated, which results in the death of the victim.
See, 18 U.S.C. s 242, Deprivation of Rights Under Color of Law includes making it a crime for:
someone acting under color of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. It is not necessary that the offense be motivated by racial bias or by any other animus.
Under 18 U.S.C. s 242: police, prosecutors, judges, and public officials act deemed to be under “color of law”
Notably, Section 242 does not criminalize any particular type of abusive conduct, but incorporates by reference the rights defined by the Constitution, federal statutes, and case law. It is does not even require a motivation of racial bias or animus–just the fact that the victim’s right to life–was violated by a public official.
Many of the Section 242 cases filed by federal prosecutors involve physical or sexual assaults. But the Department of Justice has also prosecuted public officials for thefts, false arrests, evidence-planting, and failing to protect someone in custody from constitutional violations committed by others.
Aggravating Factors Weigh-In to Ratchet Up the Penalty
Even though a violation of the statute is “technically” a misdemeanor, unless prosecutors prove one of the statutory aggravating factors such as a bodily injury, use of a dangerous weapon, kidnapping, aggravated sexual abuse, death resulting, or attempt to kill, in which case there are graduated penalties up to and including life in prison or death.
It all comes down to what a jury will find. But potentially, if the defendant is found guilty, he could not only get up to 25 years under Minnesota law in state prison–but he could get up to life in prison or the death penalty under the Federal Civil Rights statute. The question that everyone should be asking, is what will the three other officers who did nothing to stop Chauvin from extinguishing the life of Mr. Floyd–will they be deemed “accomplices” and charged…what will the charges against them be…..? We will need to wait and find out.
CIVIL RIGHTS VIOLATIONS CAN BE SERIOUS & DEADLY…
IF YOU HAVE EVER WITNESSED ANY OF THE FOLLOWING, YOU MAY HAVE WITNESSED A FEDERAL CIVIL RIGHTS VIOLATION–IF SO, CONTACT THE FBI:
A Civil Rights violation includes any of the following:
- Hate crimes;
- Excessive force or other Constitutional violations by persons acting as law enforcement officials or public officials;
- Human trafficking and involuntary servitude;
- Force, threats, or physical obstruction to interfere with access to reproductive health care services;
- Force or threats to interfere with the exercise of religious beliefs and destruction, defacing, or damage of religious property; or,
- Force or threats to interfere with the right to vote based on race, color, national origin, or religion.
If you have witnessed any of the above, contact your regional FBI field office immediately: incidents of force, intimidation, and violence should never be ignored.
~This article will be updated as the case and evidence unfolds. Additional complementary articles on “Accessory Crimes” and “Qualified Immunity” will appear in upcoming Articles.~
Copyright 2020, Mary Kay Elloian, MBA, JD, Esq. All Rights Reserved.
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