Law & the Courts

Why Did It Take So Long to Arrest Derek Chauvin?

Police officers stand outside the Florida home of former Minneapolis police officer Derek Chauvin, who was recorded with his knee on the neck of African-American man George Floyd, Orlando, Fla., May 29, 2020. (Scott Audette/Reuters)
The claim that the prosecutor had to wait to authorize an arrest until the investigators nailed down all the evidence is nonsense.

Rich and I were still recording The McCarthy Report this afternoon when news broke that former Minneapolis police officer Derek Chauvin had been arrested for the murder of George Floyd. The homicide occurred on Monday. Today is Friday. That’s why, before we heard the news, I spent several podcast minutes grousing about the fact that Chauvin had not yet been arrested.

As of this writing, the charging documents are not publicly available. Hennepin County attorney Mike Freeman announced that Chauvin is being charged with third-degree murder — sometimes called “depraved heart” or “depraved indifference” homicide. Under Minnesota law, third-degree murder occurs when a person, without intent to effect the death of a person, nevertheless causes death by an act that is “eminently dangerous to others” and “evince[es] a depraved mind, without regard for human life.”

The penalty is imprisonment for up to 25 years.

This is probably the appropriate charge. It is always dicey to make assessments when we do not know what evidence investigators have, but second-degree murder, which provides for up to 40 years’ imprisonment, must have been considered. That is a “crime of passion” type of homicide — not premeditated, but nonetheless intentional, out of an intense emotional impulse. From what we know of the incident, this appears more elongated and depraved than instantaneous and impulsive. Obviously, I am assuming first-degree murder and its potential life sentence were not on the table because there is no apparent proof of premeditation. (Minnesota does not have capital punishment.)

As I told Rich, I believe Chauvin should have been arrested days ago, if not immediately. The claim that the prosecutor had to wait to authorize an arrest until the investigators nailed down all the evidence is nonsense — notwithstanding that County Attorney Freeman repeated it in his press conference this afternoon.

It is standard practice for police who witness a violent crime, or who are reliably informed of facts that would support arrest for one, to place a person in custody. That virtually never means the case is ready, there and then, to go to trial.

The proof standard for an arrest on a complaint is probable cause that a crime has been committed. Probable cause is also the standard for indictment, but there’s an important difference. Complaints often get dismissed; indictment is that beginning of the formal process that leads to trial and a determination of guilt. Prosecutors thus do not indict unless they believe a rational jury could find guilt beyond a reasonable doubt, a standard more demanding than probable cause.

In the typical street-crime case, then, a person is arrested on a complaint and either detained or granted bail. Within a certain statutory period of time (usually, within ten to 30 days, depending on whether the person remains in custody), the prosecutor must make the decision whether to indict.

It is in that interim that the investigation proceeds. Investigators tighten up the proof from the low standard that justifies arrest to the higher standard needed to prevail at trial. But it is the norm for a violent-crime suspect to be placed under arrest immediately, notwithstanding that the case may not yet be ready for indictment. This prevents flight, destruction of evidence, intimidation of witnesses, and danger to the community.

It should go without saying that there is never any excuse for rioting and violence. Peaceful protest, however, is the American way. To the extent peaceful protesters are disturbed that Chauvin was not arrested, they are right to be.

Since race, regrettably, is the full-field explanation for all phenomena for many progressives, the controversy becomes a black–white thing because the victim was black and the perp is white. And since the regnant political narrative — however divorced from reality — is that police are on the hunt for African-American men, the controversy is swallowed by that narrative, too.

Nevertheless, I don’t look at this as a racial issue, or a “cops against black men” issue. It is a matter of equal protection under the law. Any civilian, regardless of race, who did what Chauvin did would have been placed under arrest. The police officer was not — even after he and his three colleagues were fired because their actions were so indefensible.

To be sure, police necessarily get a measure of consideration that the rest of us do not. When police get involved in an altercation, it is presumptively because they are doing their duty to keep the peace, not because they are causing the confrontation. Police use force under the color of law, so, other things being equal, a police use of force enjoys a presumption of legitimacy that a similar use of force by you or me would not.

All that said, it is well known that police may not use excessive force. It is obvious, and was in real time, that Chauvin’s use of force on Floyd was excessive. And this was not a situation in which, after excessive force, everyone dusted off and went on their way. Mr. Floyd died.

Investigators did not need to be sure that they could make a third-degree murder charge stick to know that some kind of prosecutable homicide happened in the killing of George Floyd. This was not a fleeting incident, or a situation in which Floyd was resisting — he was pleading for his life. At the very least, this was a negligent homicide; more likely, it was something worse. Obviously, it was a crime. When a violent crime has clearly happened, the person who committed it should be placed under arrest, immediately.

I doubt it will be fatal to the case, but the prosecution is going to take some hits over the delay. Chauvin’s lawyers will contend that he was not arrested because investigators recognized that there was insufficient evidence; they will add that he was only charged because Minneapolis was burning and the mob had to be satisfied. I do not believe that claim will overcome the evidence of guilt. But the claim would not be available if Chauvin had been arrested promptly, as he should have been.

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