George Floyd’s Death: How Should the Jury Decide the Charges against Derek Chauvin?

It all comes down to intent.

O n Monday morning, the prosecution and defense will sum up to the jury in the murder trial of fired Minneapolis police officer Derek Chauvin for allegedly causing the death of George Floyd last Memorial Day. Minneapolis is on tenterhooks, as are other major cities across the country, because it is inevitable that the radical Left will riot. If Chauvin is convicted of murder, the rioting will be portrayed as an affirmation that the nation’s police are hunting down young black men. If Chauvin is acquitted, or even if he is “merely” convicted of manslaughter (a felony carrying up to ten years’ imprisonment), the rioting will probably be more intense, because of what will be portrayed as systemically racist America’s denial that it is systemically racist.

True Justice Is Individual JusticeIt is an awful thing for the country when justice stops being justice, when it is perverted into a racialized morality play. There can be no coexistence of justice and “social justice.” The latter denies what is essential to a judicial system that aspires to actual justice in criminal cases: the unstinting principle that guilt is individual.

We don’t hold children liable for the sins of their parents, and we don’t hold members of a tribe, institution, community, nation, or race responsible for the crimes committed by their members. We hold the individual person accountable for his or her own crime, only if the state proves guilt beyond a reasonable doubt on each essential element of the offense or offenses charged.

It would be wrong to find Derek Chauvin guilty just because he was a cop, because he is white, because the deceased was a relatively young black man, or because — combining all these promiscuous considerations — Chauvin’s guilt would serve a narrative popular among progressives predominant in politics, pop culture, punditry, and the press. And as scandalous as such a guilty verdict would be, what would be even more reprehensible — what should be unacceptable in this country — would be a guilty verdict induced by jury intimidation.

As a social-justice stemwinder, George Floyd’s death at the hands — or, more specifically, at the knees — of then–officer Chauvin is easy. As a legal case, it is very hard.

The Criminal-Justice System Is for Intentional Wrongs
It is hard because Floyd should not have died, and there is no reason to believe that he would have died on that day were it not for the police encounter. Still, the police encounter was brought about by Floyd’s criminal conduct, and it turned violent because of his forceful resistance to lawful detention.

Most of all, the case is hard because Chauvin and the three other police involved in the incident, who called for an ambulance in order to get Floyd medical attention, did not intend for Floyd to die or to sustain any serious injury. The degree of force they used to restrain him after he forcibly resisted arrest appears excessive under the circumstances. Moreover, the cops failed to comply with basic police procedures for dealing with a detainee who may be having trouble breathing or who has lost consciousness. Nevertheless, Chauvin did not intend to kill Floyd.

The case is hard, then — harder than the $27 million civil-case settlement the City of Minneapolis paid to Floyd’s family — because the criminal-justice system is designed to address intentional wrongs. It is never an easy fit for accidents or blunders, regardless of how tragic or politically explosive.

That is difficult for us to accept, particularly when life is lost.

When someone suffers a nonfatal injury because of another person’s carelessness, we grasp pretty easily that this is what civil lawsuits are for. When someone dies because of another person’s carelessness, however, our angry reaction, wholly natural, is that the other person must be punished because mere money damages can in no sense compensate for the life that has been lost.

But when logic enters into the equation, the logic that undergirds the criminal-justice system, we grudgingly understand the apples-to-oranges problem. We convict and punish people, taking their liberty away, as a penalty for their malevolent intention to cause harm. We do it to make them mend their ways. We’re not trying to teach them to be more careful next time. We are trying to overcome their will to prey on society. We are discouraging others from similarly acting on their evil inclinations.

There is no point in doing this to someone who does not intend to cause death or severe injury. Such harms are grave, of course, but they are not driven by the kind of malicious behavior that the criminal-justice system exists to counter.

The Charges

(a) Murder in the Third Degree: Depraved Indifference

Chauvin faces three charges: unintentional murder in the second and third degree, and manslaughter in the second degree.

To my mind, as the evidence has played out, the easiest charge to dispense with is the third-degree murder count — the one the state fought to keep in the case even though Judge Peter Cahill saw no basis for it. It is homicide caused by reckless acts taken with a depraved indifference to human life. The classic example is the sociopath who indiscriminately shoots a gun into a crowd — not intending to kill or harm any particular person, but heedlessly creating a patent risk of death or severe injury to everyone in the vicinity of the act.

This is not that kind of case. The police acted forcibly in response to Floyd alone. They did not cause danger to anyone else. They did not even cause danger to Floyd until he resisted arrest. They called for an ambulance to get him medical attention rather than trying to drag him to detention in the station house or a jail. They used more force and administered less care than the circumstances called for, but Chauvin and his partners did not exhibit depraved indifference to human life as that term is understood in the law.

(b) Manslaughter in the Second Degree: Culpable Negligence

The next easiest charge to assess is manslaughter. This is a death unintentionally brought about due to “culpable negligence.” As I’ve already noted, the criminal law is always an uneasy fit for harms that the perpetrator does not intend to cause. Nevertheless, because of the unparalleled seriousness of death, the law makes an exception when it is caused by another person’s negligence, but only if the negligence is truly extraordinary.

For criminal liability, ordinary negligence is not enough. Indeed, Minnesota judges typically instruct juries that even gross negligence is not enough. To find a person guilty, the state must prove gross negligence coupled with an element of recklessness. The latter is defined as “conscious disregard of a substantial and unjustifiable risk of death or great bodily harm to others.”

Judge Cahill will advise the jury that there is a five-part test for whether an act meets this standard of recklessness. The state must prove beyond a reasonable doubt that (1) Chauvin’s actions created a risk; (2) the risk was substantial; (3) there was no adequate reason for taking the risk; (4) Chauvin was aware of the risk; and (5) he disregarded the risk. But the judge will admonish the jurors that the state need not prove that Chauvin intended to cause Floyd harm.

Police are permitted to use force to effect a lawful arrest and detention. It may be superior force. That is, cops are not limited to the kind of force that is being used against them: If a suspect is fighting with his fists or legs, police may use a stun gun or mace to quell them; if the suspect is endangering life, the police may use lethal force.

That said, police are never permitted to use excessive force. If a suspect is physically refusing to be put in cuffs or to comply with an order to get in a squad car, but is not aggressively attacking police, cops may not respond with lethal force. They may use only the superior force reasonably necessary to induce compliance. If a suspect stops resisting and becomes compliant, and certainly if the suspect becomes unconscious, the police must de-escalate their use of force so that it is reasonable in light of the changed conditions.

A salient, overarching law-enforcement principle is also relevant here: in my custody, in my care. If a person is in police custody, not actively resisting detention, and he becomes injured, ill, or unconscious — and especially if the person’s pulse or breathing is failing — the police are trained to take curative action and render basic medical assistance (particularly chest compressions that they learn in CPR instruction).

Viewed in line with those standards, the restraint position that Chauvin and the other police placed Floyd in clearly posed a significant risk. Holding a person in the prone position with part of the weight of three adult men pressing down on him can make breathing difficult.

There is a good argument that prosecutors have exaggerated the danger of the prone position, the amount of weight the police were applying, and the manner in which they were applying it. Chauvin never choked Floyd. The claims that he was, in effect, strangling Floyd by the neck are overblown. Still, within five minutes, Floyd stopped resisting, was obviously laboring to breathe, and lost his pulse. It was utterly irresponsible of the police, at that point, to fail to place him on his side and to render him medical assistance. Chauvin, a highly trained 19-year veteran, well knew this. The defense claim of fear that Floyd might regain consciousness and start fighting again is not reasonable — over time, that became an increasingly slim possibility that four cops could have dealt with in the unlikely event it happened.

This is why I believe it is highly likely that Chauvin will be convicted of manslaughter, and that verdict would be well justified.

(c) Murder in the Second Degree: Felony Murder

The same cannot be said for the most severe count in the case, murder in the second degree. This is also a charge of unintentional homicide. Unlike manslaughter, though, it does have a traditional criminal-intent — or mens rea — element. The theory is felony murder: a homicide that the perpetrator does not intend but commits during the course of carrying out a different offense. In this instance, that offense is criminal assault (third-degree assault under Minnesota law).

This requires prosecutors to establish that Chauvin intentionally inflicted bodily harm on Floyd. That is, the state must prove mens rea not for murder but for assault. To convict, the jury must be unanimously convinced that Chauvin’s specific purpose was to inflict physical pain, that bodily harm to Floyd was a result that Chauvin wanted to bring about.

I do not believe that the prosecutors have met this burden beyond a reasonable doubt.

There is no evidence that Chauvin wanted to hurt Floyd in a serious way, much less kill him. The police were restraining Floyd on the street because he violently resisted their lawful effort to hold him in their squad car after (a) validly detaining him for counterfeiting and (b) surmising, correctly, that he was under the influence of drugs as he sat groggily behind the wheel of his car. The police did not want to put Floyd on the street; they wanted him in their squad car. He was a big, powerful man, and he put himself on the street by fighting his way out of the squad car — despite being handcuffed from behind as four cops tried, without success, to restrain him. It was clearly reasonable, at the start, for Chauvin to believe that Floyd would hurt himself or someone else if not firmly subdued.

The police called the ambulance for Floyd, figuring that he was on drugs and needed emergency medical treatment. That is the antithesis of an intent to harm. They maintained Floyd in a prone position too long with pressure on his back and neck, as he complained that he was in pain and couldn’t breathe. But, at least at the start of his restraint on the street, the cops had reason to doubt Floyd’s sincerity: He had been making those same complaints in the squad car, when his breathing was clearly not impeded. The prosecution’s own use-of-force expert conceded that police operate on the assumption that if a person is speaking, he is obviously able to breathe (even though the state’s main medical expert explained that this assumption gives a false sense of security, since oxygen levels can drop quickly). When Floyd was saying, “I can’t breathe,” police knew he had to be breathing.

The cops could have applied the “hobble” method of hog-tying the arms and legs of a resisting suspect, and then rolling him onto his side to facilitate breathing. But the defense plausibly argues that Chauvin was concerned that this would have delayed medical treatment once the EMTs arrived. As I have previously explained, the defense is wrong to contend that, just because police refer to the hobble as the “maximum restraint technique,” Chauvin’s decision to refrain from using the hobble must have been a “de-escalation” of force. To de-escalate, as police are trained to do when a suspect’s resistance abates, the tactic employed must actually be a less severe restraint than the alternative, regardless of how the different tactics are labeled. When Chauvin opted against the hobble, he used a restraint method that was arguably more severe. That is not de-escalation. But still, it does not mean Chauvin was trying to hurt Floyd.

As already detailed, the restraint became excessive. Yet the defense succeeded in casting doubt on the prosecution’s claims that the excessiveness was unconscionably extreme.

The bystander recording, showing Chauvin with his knee on Floyd’s neck area, makes for excruciating viewing. But other video angles (particularly from the police body cameras) show less pressure. There was no bruising on Floyd’s neck and back, as there likely would have been if Chauvin had been constantly digging his knees and shins into them, as prosecutors suggest. Chauvin’s weight was shifting, and most of the time he leaned back on the balls of his feet, not pressing into Floyd. There were abrasions on Floyd’s face and shoulder, but not because Chauvin was grinding him into the hard asphalt. Instead, Floyd had pushed down for leverage, trying to give his chest room to expand breathing.

Prosecutors rely heavily on the opinion of the impressive pulmonologist Dr. Martin Tobin that even a healthy person would have succumbed under the police restraint imposed on Floyd. But that conclusion is not borne out by the testimony of forensic pathologists, for both sides, who cited as contributive causes Floyd’s significant health issues: enlarged heart, hypertension, significant arterial blockages near the heart, adrenalin rush from the altercation with and resistance to police, and a history of drug abuse, including the presence in his system of both methamphetamine (an illegal stimulant that all medical witnesses agreed is unsafe to ingest in any quantity) and fentanyl (an opiate that Floyd had ingested in an amount that could be lethal for the average person, though he had built up a tolerance to it through long-term opiate abuse).

There can be no credible doubt that the police restraint was a material cause of Floyd’s death. But there is immense reason to doubt that he would have died from the restraint alone, if it had not acted in concert with, and exacerbated, Floyd’s profound health problems. If Chauvin could plausibly have believed that the restraint techniques he and the other cops were using would not have caused serious harm to a normal person — to say nothing of a person strong enough to fight off four cops despite being cuffed behind his back — then it will be difficult for a jury to find, unanimously and beyond a reasonable doubt, that Chauvin intended to cause Floyd serious physical harm. Chauvin’s errors of judgment were inexcusable (that’s why he should be convicted of manslaughter), but it appears that his intention was to hold Floyd in check until the EMTs the police had summoned arrived to provide Floyd with medical care.

If it were not for the fraught atmosphere, and the heavy political and social pressure to convict, I do not believe that a jury would render a guilty verdict on second-degree murder. Indeed, I don’t think prosecutors would have charged it.

Don’t misunderstand me: I am not saying that such a guilty verdict would be irrational. The police did use excessive force. If the jury does convict Chauvin of second-degree felony murder on this record, the verdict will stand. But the fact that a choice is rational does not necessarily make it the right choice.

I would convict Chauvin of manslaughter, but not of murder.