A More Fitting Criminal Charge in George Floyd’s Death

The death of George Floyd at the hands of Minneapolis police officers was undeniably unjust. As many expected, prosecutors have announced the filing of criminal charges against former officer Derek Chauvin. Less expected, however, were the specific charges—third-degree murder and second-degree manslaughter.

Moreover, as of today, no additional charges have been filed against any of the other three officers involved. (The Minneapolis Police Department fired all four the day after Floyd died.)

Far from resolving the issue, these charging decisions have raised even more legal questions that require careful unpacking.

First, the wisdom of a third-degree murder charge is unclear.

Second, there is a viable option for a murder charge that prosecutors are not currently pursuing.

And third, a clear path to criminal prosecution exists for the other officers involved, if the facts warrant it.

Concerns About Third-Degree Murder Charge

Perhaps the most concerning aspect of the charges against Chauvin is not that he could have been charged with the more serious offense of unintentional second-degree murder. It is, rather, that third-degree murder is the only crime for which Chauvin, as a matter of law, cannot be convicted.

Third-degree murder in Minnesota, also known as “depraved mind murder,” may at first glance seem to be an appropriate fit. It is defined as unintentionally causing the death of another “by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”

Certainly, Chauvin’s actions were dangerous to Floyd and showed a disregard for his life. But that’s actually the problem here—Chauvin’s actions were specifically directed at a particular person. And according to the Minnesota Supreme Court, that’s not “depraved mind murder.”

As the state’s highest court stated in State v. Barnes (2006), unlike other forms of murder, “[d]epraved mind murder … cannot occur where the defendant’s actions were focused on a specific person.”

This is based on an earlier holding in State v. Wahlberg (1980), where the court explained that the statute for third-degree murder “was intended to cover cases where the reckless or wanton acts of the accused were committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.”

In fact, in Wahlberg, the court held that a jury instruction on third-degree murder was inappropriate where the evidence suggested “that all of the [accused’s] blows were directed toward the victim.”

In other words, third-degree murder is for acts such as drunk driving that causes the death of another motorist. The person did not direct his wantonly dangerous acts toward a particular motorist, but his or her acts were nonetheless without regard to the lives of other motorists generally.

This is what makes the charge of third-degree murder so inexplicable in Chauvin’s case. The video evidence clearly shows that Chauvin directed all of his dangerous actions toward a particular person—Floyd. His indifference was not with regard to human life generally, but to the life of Floyd specifically.

It’s very concerning that the most serious charge against Chauvin is one that seems clearly incapable of surviving judicial review.

Viable Murder Charge Isn’t Being Pursued

The decision to charge Chauvin with third-degree murder is even more bizarre given that, if prosecutors really wanted to pursue a more serious murder charge, they certainly have a viable option in unintentional second-degree murder.

Minnesota law defines unintentional second-degree murder as unintentionally causing the death of another while committing a felony offense—something often referred to as “felony murder.”

The argument goes like this: Chauvin’s use of forceful restraint on a handcuffed, prone, and unresponsive man suffering from clear cardiovascular distress was an unjustified use of force under state law. This was not just an excessive use of force for which he could be fired, but a crime of either first- or third-degree assault.

If Chauvin’s criminal assault played a causal role in Floyd’s death (and it appears it did), then he is guilty of felony murder, even if he did not intend for his assault to kill Floyd.

Some have questioned whether the so-called merger doctrine—which normally would prevent assault from being used as the underlying felony in a felony murder charge—would apply here, rendering this an inappropriate charge.

It’s true that this is often the case in many jurisdictions. This, however, is not the case in Minnesota.

The state Supreme Court clarified in State v. Branson (1992) that “any felony, not otherwise proscribed, which, as committed, involved special danger to human life, could serve as a predicate felony.” The relevant statute exempts exactly three felony offenses from use as a predicate offense for felony murder, none of which is assault.

Several appellate cases also have dealt with felony murder charges premised on felony assault, but did not actually challenge whether felony assault was an appropriate predicate offense. The parties and the court simply assume that it is.

In layman’s terms, then, this means that—at least in Minnesota—if the state can prove Chauvin committed felony assault against Floyd, and that Floyd died as a result, then Chauvin is guilty of unintentional second-degree murder.

While it’s possible that prosecutors could amend the charging documents to pursue this more realistic prosecution, it’s concerning that they thus far have chosen not to do so in favor of pursuing a legally untenable charge.

Criminal Charges Possible for Other Officers

Finally, although none of the other officers has been charged as of Tuesday, there is a path to prosecuting them through Minnesota’s “aiding and abetting” statute if the facts support it.

This statute makes a person criminally liable “for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”

The three other officers’ mere presence at the scene or their inaction alone would not be sufficient for aiding and abetting. Instead, they would had to have played a “knowing role” in Chauvin’s crime. But this is a fairly low bar, as interpreted by the Minnesota Supreme Court, and does not require active participation in the crime.

In State v. Parker (1969), the state Supreme Court found there was enough evidence for a jury to convict where the defendant was present and “did nothing to prevent the offenses committed or the brutal beating the victim endured.”

Why? Because, under the circumstances, “[h]e must have known of the robbery and made no effort to stop it” and “under the circumstances, his presence and acts helped to make all the crimes possible.”

There is certainly an argument to be made that the other officers recognized or should have recognized that Chauvin’s use of force was neither reasonable nor authorized, and their actions (and inactions) effectively made Chauvin’s continued assault possible.

Moreover, the Minneapolis Police Department has a policy mandating that officers intervene “when force is being inappropriately applied or is no longer required.”

This policy does not necessarily create a legal duty, but it does support an argument that the officers should have known better and intervened, which they failed to do.

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