Law & the Courts

New Floyd Murder Charges Will Be Tough to Prove and May Imperil Good Cops

Minnesota Attorney General Keith Ellison announces upgraded charges against former Minneapolis police officer Derek Chauvin and charges against three other former police officers involved in the death of George Floyd, in St. Paul, Minn., June 3, 2020. (Eric Miller/Reuters)
In a politically charged case, it is more important, not less, to get the charges right.

Prosecutors in Minnesota have filed an amended complaint against Derek Chauvin for the killing of George Floyd, adding a second-degree “felony murder” charge. This dangerously flawed theory could be used to portray any police restraint of a resistant suspect as criminal assault.

The amended complaint against Chauvin also re-alleges the two homicide charges originally filed last week: third-degree “depraved indifference” murder and second-degree manslaughter, both of which better fit the facts of the case while posing no risk of criminalizing the legitimate use of force by good cops.

Separately, the other three fired Minneapolis police officers involved in the killing have been charged, after a week of demands by the Floyd family, as well as intense anti-police rhetoric (and worse) by Black Lives Matter activists and protesters.

Tou Thao, J. Alexander Kueng, and Thomas Lane are charged with aiding and abetting both second-degree murder (the new charge against Chauvin) and manslaughter. Weirdly, under the circumstances, the three are not charged with the “depraved indifference” murder count; nor are they accused of committing manslaughter as principals — they are charged only as aiders and abettors, a theory that does not jibe with a negligence charge such as second-degree manslaughter (which is negligent homicide under Minnesota law).

Felony Murder: Criminalizing Police Restraint of Suspects

The second-degree murder charge is now the main charge against all four officers. Essentially, the theory is that they committed a felony assault when they subdued a suspect who was resisting arrest. During the course of carrying out that “crime,” prosecutors allege, Floyd’s death resulted.

While the point may be subtle, this is saliently different from the theory of third-degree murder — i.e., depraved-indifference murder. In the latter, prosecutors would concede that it was lawful in principle for the police to subdue Floyd, but argue (correctly) that their manner of doing so was recklessly indifferent to human life, causing his death. By contrast, the new “felony murder” count, spearheaded by Keith Ellison, the radical leftist state attorney general, puts police on notice that they can be charged with a crime — felony assault — for doing their job, which routinely involves physically restraining suspects who resist lawful commands.

Any experienced law-enforcement officer will tell you that it is common for suspects to resist arrest by lying on the ground, claiming to be ill, waving arms to avoid being cuffed, and refusing to be placed in a squad car. Cops, of course, may not use excessive force when that happens. They must, however, be permitted to use sufficiently superior force to detain and transport uncooperative arrestees. In Minnesota, thanks to its election of the new breed of progressive prosecutor who rails against the justice system’s purported institutional racism, police officers who use force in arresting dangerous criminals now run the risk that they will be the ones who face criminal charges.

There was confusion about second-degree murder in the media speculation leading up to Ellison’s announcement of charges late Wednesday afternoon. When word first leaked that Chauvin would be charged with second-degree murder, it was widely assumed that this meant intentional murder. This seemed a reach. There is immense evidence that the police were reckless in their handling of Mr. Floyd, but scant evidence that they intended to cause his death — as in, specifically formulated that purpose and acted to bring it about.

Most of the coverage did not note that Minnesota’s second-degree murder statute prescribes alternative theories of murder: intentional murder and felony murder. The new charges in the case reflect the latter theory. The complaints filed against all four officers concede that Floyd’s death was unintentional. Instead, they charge that Chauvin, with the other cops as accomplices, committed the felony of third-degree assault by physically restraining Floyd when he refused to cooperate in being taken into custody. Death is said to have resulted from this purportedly criminal act of assault.

Defense lawyers will certainly note that the new theory may have led to some sleight-of-hand by Ellison in drafting the charges. In the original complaint, prosecutors more forthrightly acknowledged that Floyd, while he did not threaten the cops, was uncooperative. For example, the original complaint states, “Mr. Floyd actively resisted being handcuffed”; in the amended complaint, that allegation has mysteriously vanished — we are now told simply that “Officer Lane handcuffed Mr. Floyd.”

Why the change? Because Ellison has changed the direction of the prosecution since taking it over. Originally, prosecutors were not concerned about accurately describing Floyd’s resistance, since their theory was that, no matter what Floyd may have done, the recklessly excessive manner in which he was restrained — with his ability to breathe impeded — established depraved indifference. But now, Ellison is alleging that the arrest and accompanying restraint of Floyd was felony assault from the start. To pull that off, he realized he needs to soft-pedal Floyd’s resistance. Otherwise, physical restraint by the cops may appear to have been reasonable, at least at the start; Ellison wants it to look unreasonable through and through, to the point of assault.

Competent defense lawyers will make mincemeat of this legerdemain, showing the jury how prosecutors massaged facts to make them fit their evolving theories. A case that prosecutors should win will suffer.

Aiding and Abetting

Let’s move to the charges against Thao, Kueng, and Lane. Before we get to aiding and abetting, I would expect defense counsel to move to dismiss the complaint against Thao. He is barely mentioned and not alleged to have taken any active role in the physical restraint of Floyd. If there is a case against him, Ellison has failed to allege it in the four corners of the charging document.

In any event, to prove that an accomplice has aided and abetted a crime, prosecutors must prove beyond a reasonable doubt that (1) the principal offender committed the charged offense; (2) the accomplice knew what the principal was trying to do; and (3) the accomplice joined himself to that objective by committing some act intended to bring it about. As you can probably discern, in an aiding and abetting case, the key is identifying the crime the principal was trying to commit. Therefore, it is difficult to apply aiding and abetting if what the principal did was unintentional.

That is problematic for the murder count and, I believe, fatal to the manslaughter count.

To convict on the second-degree felony-murder charge, the jury would have to be convinced that, in restraining a resisting defendant, Chauvin committed felony assault. Jurors would further have to conclude beyond a reasonable doubt that the three alleged accomplices understood Chauvin was doing that — i.e., they grasped that the objective was assault Floyd, not make a legitimate arrest — and acted purposely to help Chauvin accomplish that objective.

This could be tough but not impossible. Remember, jurors just have to decide the case. They do not have to grapple with the wisdom vel non of a policy that will make cops reluctant to subdue an uncooperative suspect. They merely have to weigh the manner in which Floyd, specifically, was subdued. The jury could rationally conclude that, whatever the accomplices may have been thinking when the confrontation started, it eventually evolved into such excessive force that it became a criminal assault.

To my mind, the challenge for prosecutors involves the accomplices’ intent and actions. Unlike the allegations about Chauvin, nothing in the complaint suggests that Lane and Kueng intended to commit a criminal assault. Likewise, their actions would probably not be deemed excessive were they not in conjunction with Chauvin’s unorthodox choke hold.

Again, there is no evidence in the complaint that Thao did anything improper. There is, moreover, evidence that Lane told Chauvin he was “worried” that the manner in which Floyd was being restrained — prone, with Chauvin pressuring his neck — could trigger excited delirium, a condition of agitation that can trigger heart or respiratory failure in some cases. Due to this worry, Lane suggested rolling Floyd over on his side — a suggestion Chauvin rebuffed. This evidence will make it difficult for prosecutors to establish that the alleged accomplices had it in their minds to assault Floyd. (And even with respect to Chauvin’s rebuffing Lane’s suggestion, counsel will contend that the complaint shows Chauvin, too, wanted to avoid excited delirium — he just thought, however foolishly, that it was better to keep Floyd on his stomach.)

The Manslaughter Charge

On manslaughter, to apply the concept of aiding and abetting is peculiar. Under Minnesota law, second-degree manslaughter is “culpable negligence creating an unreasonable risk.” By definition, a bad outcome caused by negligence does not happen intentionally; it happens because of carelessness that created a risk the actor did not foresee but should have.

See the problem? Aiding and abetting requires proof that the accomplice understood the principal’s conscious criminal objective. In a negligence case, the bad thing that happens is unintentional — i.e., it is nobody’s conscious objective. That’s why the prosecutors’ theory is, to my mind, a non sequitur.

Do not misunderstand. I think it would make sense to charge the accomplices with manslaughter as principals, rather than as aiders and abettors.

Let’s leave out Thao, as to whom I don’t see any evidence at the moment. It would be rational to allege that Kueng and Lane, even though not as culpable as Chauvin, acted negligently in physically assisting the patently dangerous method of restraint that, intolerably, continued to be applied to Floyd until he died. That is, they should be charged for their own careless actions, not for the manner in which their own actions may have facilitated whatever they may have thought Chauvin was trying to do.

In addition, though it would be a tough case (which may be why prosecutors didn’t charge it), it would make logical sense to me to charge the accomplices with the same third-degree depraved-indifference charge that is lodged against Chauvin. The leap from culpable negligence to reckless depravity is not that far — as opposed to leaping from aiding and abetting to negligence, or turning a lawful arrest into a crime, neither of which makes sense.

It is virtually never a good thing to have an ideological agitator as the prosecutor in a case where the mob is baying for blood, and where nothing less than the most severe charges will satisfy them . . . even if such charges do not line up with the facts of the case. Attorney General Ellison’s criminal complaint, however, suggests that he is not up to the job that needs doing here.

In some ways, he has overcharged the case, which increases the risk of acquittal for a killing that is already ripping the country apart. Moreover, Ellison’s theory of prosecution signals to police that they could face assault charges whenever they physically restrain a suspect, and thus will encourage criminals to resist arrest. And on top of all that, the attorney general has failed to bring charges against the accomplices that both fit the facts as alleged and would be a worthy condemnation of atrocious policing — apparently because “manslaughter” and “third-degree murder” don’t sound harsh enough for the regnant political narrative.

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