As mentioned in previous posts, former Minneapolis police officer Derek Chauvin was charged, tried, convicted and sentenced in Minnesota state trial court for the May 2020 killing of George Floyd and he has been criminally charged in Minnesota federal court for that same killing. The other three former police officers who were so involved (Thomas Lane, J. Alexander Kueng and Tou Thao) also face state and federal criminal charges with their state trial scheduled for March 2022 while their request for prohibition of video or audio coverage of the trial is still pending.
There have been recent developments in these cases.
Minnesota Supreme Court OverturnsThird-Degree Murder Conviction of Mohammed Noor.
Former Minneapolis police Officer Mohammed Noor, after trial in state court, was convicted of third-degree murder and second-degree manslaughter for the July 15, 2017, killing of Justine Ruszczyk Damond, and on September 15, 2021, the Minnesota Supreme Court unanimously reversed the third-degree murder conviction and remanded the case for re-sentencing on the manslaughter charge.
The Supreme Court held that the third-degree murder statute required a “depraved mind” or a “generalized indifference to human life” and that requirement cannot be satisfied when a defendant’s conduct is aimed at a single person, as was the case with Noor.
Upon remand to the trial court, Noor will be re-sentenced for his conviction for second-degree manslaughter, which is expected to be four years, which given his imprisonment so far for 28 ½ months means he could be eligible for supervised release in 3.5 months.
This decision raises the question of whether it will affect Chauvin’s sentence of 22 ½ years for the second-degree murder of George Floyd. Although the jury also had found Chauvin guilty for third-degree murder and second-degree manslaughter, the 22 ½ year sentence was only based on conviction for second-degree murder. Therefore, the Noor decision does not directly impact Chauvin’s sentence. Perhaps Chauvin’s attorney will argue on appeal that the third-degree murder charge against Chauvin unfairly impacted the entire case against him and thus calls for complete reversal by the appellate court, but Susan Gaertner, former Ramsey County Attorney, thinks that is highly unlikely. This blogger, a retired attorney without criminal law experience, concurs in that reaction.
Chauvin and the Other Three Defendants Plead to Federal Criminal Charges.
In May 2021, Chauvin and the three other officers were criminally charged in federal court with allegedly using the “color of the law” to deprive Mr. Floyd of his constitutional rights to be “free from the use of unreasonable force” in his May 2020 arrest, and on September 14, 2021, all four entered not guilty pleas in federal court.
The pending motions of the other three officers to be tried separately from Chauvin have not yet been acted upon.
On September 16, Chauvin was arraigned on a separate charge in federal court for alleged use of excessive force in the September 2017 arrest of a 14-year-old boy, and Chauvin entered a not guilty plea to this charge.
On June 30, 2021, the Minnesota Court of Appeals reversed Judge Cahill’s denial of the State’s motion to add a third-degree murder aiding and abetting charge against former MPD officers, J. Alexander Kueng, Thomas Lane and Tou Thao. Their trial is now scheduled for March 2022.
Before looking at this Court of Appeals decision, we will examine a summary of the complicated background for this issue.
Background for Appellate Decision
“Murder in the Third Degree: in the Minnesota Statutes (section 609.195) is defined as “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.”
The original superseding criminal complaint of June 3, 2020, against Derek Chauvin included a third-degree murder charge while not so charging the other three former officers of aiding and abetting that charge in their original complaints of June 3.
On August 28, 2020, Chauvin moved to dismiss the complaint, including the third-degree murder charge. On October 21, 2020, Judge Cahill granted Chauvin’s motion to dismiss the third-degree murder charge while denying the balance of the motion. According to the Judge, such a charge can be sustained only when “the defendant’s actions . . . were not specifically directed at the particular person whose death occurred.” 
On February 4, 2021, the State moved for leave to reinstate the third-degree charges against the former officers. The basis for this motion was the Court of Appeals’ February 4th 2-1 decision upholding a third-degree murder charge against Mohammed Noor for the 2017 killing of an Australian woman in south Minneapolis.
On February 11, Judge Cahill denied this motion to add the third-degree murder charges. According to the Judge, the majority opinion in its recent Noor case “is not persuasive in this Court’s view because it departs from the Minnesota Supreme Court’s long adherence to the no-particular person requirement embedded in the depraved mind element [of the crime].” In addition, said Judge Cahill, the dissent in the Noor case was correct.
On February 22, the State appealed that decision to the Court of Appeals. On March 1 the Court of Appeals heard arguments on that appeal, and on March 5 that court reversed Judge Cahill’s decision. As a result, on March 11, Judge Cahill reinstituted the third-degree murder charge against Chauvin. The Judge said he was “duty bound” to accept the appellate court’s ruling and interpretation of the statute.
The Court of Appeals on June 30, 2021, said that its previous decision on the third-degree murder charge in the Chauvin case requires Judge Cahill to reverse his previous denial of the charge of aiding and abetting such a crime by these three former officers and to hear additional arguments from the parties.
Judge Cahill will be duty-bound to follow this decision and order.
On June 9, the Minnesota Supreme Court heard arguments about the scope of Minnesota’s third-degree murder statute, which provides as follows:
”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.” (Minn. Stat. sec. 609.195 (a).)
These arguments were in the appeal of Mohamed Noor, a former Minneapolis policeman, for his conviction of that crime for the killing in 2017 of Justine Damond in south Minneapolis and sentenced for same to 12.5 years in prison. The central issue of this appeal was whether this statute applied to a defendant whose actions were directed at only one, specific person.
Noor’s attorney, Caitlinrose Fisher, argued that the statute’s language as well as case law “requires that a defendant’s actions must be directed at more than one person” and that this law was meant only for such indiscriminate killings.
The prosecutor for Hennepin County, Jean Burdorf, however, argued that nearly all killings by police officers are directed at a specific person and if this statute is interpreted not to apply to such killings, then there could be no such prosecutions under this statute. Noor’s attorney basically agreed, saying, “’It would be very hard to imagine’ that an officer’s “split-second reaction to a perceived threat” would count as a ‘depraved-mind murder.”
Fisher, however, added that other charges, such as manslaughter, could be appropriate in some such cases and that Noor was not contesting his conviction for second-degree manslaughter and urged the Supreme Court to remand the case to the trial court for resentencing on that count with a likely sentence of four years.
The Supreme Court’s decision in this case is directly on point to Derek Chauvin’s conviction for third-degree murder of George Floyd even though his actions were directed at only one individual, namely George Floyd. 
On May 29, Minneapolis’ Hennepin County Attorney, Mike Freeman, issued the first criminal Complaint over the May 25th death of George Floyd. It stated there was probable cause that former Minneapolis Policeman Derek Michael Chauvin had caused the death of George Floyd in a manner that constituted Third Degree Murder and Second Degree Manslaughter under Minnesota law.
On June 3 the above complaint was superseded by a second criminal Complaint against Chauvin that was issued by Minnesota Attorney General Keith Ellison, who had been appointed only two days earlier by Minnesota Governor Tim Walz to assume overall responsibility for the case. This pleading added the charge of second degree murder.
As noted in a prior post, on June 8 Chauvin had his initial hearing in this case and his bail was increased to $1,250,000 without conditions and $1 million with conditions; his next hearing is scheduled for June 29, when he is expected to enter his plea to the charges.
COUNT I: Second Degree Murder (Unintentional While Committing a Felony).
The Complaint alleges In violation of Minnesota Statute 609.19.2(1), “on or about May 25, 2020, in Hennepin County, Minnesota, . . . Chauvin, caused the death of a human being, George Floyd, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force of violence or a drive-by shooting, namely assault in the third degree.”
Section 609.19.2(1) od Minnesota Statutes states, “Whoever does . . . the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years: causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.”
“Assault” is defined in Minnesota Statutes section 609.02.10 as “(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.” And “assault in the third degree” is defined in section 609.223.1 as “Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.”
‘Bodily harm” is defined in Minnesota Statutes 609.02.7 as “physical pain or injury, illness, or any impairment of physical condition,” while ”substantial bodily harm” in section 609.02.8 is defined as “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.”
Thus, the key factual issues for this Count are (1) whether Chauvin’s placing of his knee on Floyd’s neck and not removing that hold was done with intent to cause Floyd to fear immediate bodily harm or death or with intent to inflict or attempt to inflict bodily harm on Floyd; (2) whether Chauvin’s placing of his knee on Floyd’s neck and not removing that hold caused Floyd substantial bodily harm; and (3) whether Chauin’s placing his knee on Floyd’s neck and not removing that hold caused Floyd’s death.
COUNT II: Third Degree Murder (Perpetrating Eminently Dangerous Act and Evincing Depraved Mind)
The Complaint alleges,“In violation of Minnesota Statute 609.195(a),on or about May 25, 2020, in Hennepin County, . . . Chauvin caused the death of another, George Floyd, by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
That statute states, “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.”
Thus, the key factual issues for this Count are (1) was Chauvin’s placing his knee on Floyd’s neck and not removing that hold an eminently dangerous act; (2) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold evince a depraved mind; and (3) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold cause Floyd’s death.
The Complaint alleges, In violation of Minnesota Statute 609.205(1), “on or about May 25, 2020, in Hennepin County, Minnesota, . . . [Chauvin] caused the death of another, George Floyd, by his culpable negligence, creating an unreasonable risk and consciously took the chances of causing death or great bodiliy harm to another, George Floyd.”
That statute states, “A person who causes the death of another 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] 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.” “Great bodily harm’ is defined as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” (Minn. Stat. sec. 609.02.8.)
Thus, the key fact issues on this Count are (1) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold create an unreasonable risk of causing death or great bodily harm to Floyd; (2) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold consciously take the chances of causing death or great bodily harm to Floyd; and (3) did Chauvin’s placing his knee on Floyd’s neck and not removing that hold cause Floyd’s death.
Statement of Probable Cause
“On May 25, 2020, someone called 911 and reported that a man bought merchandise from a Cup Foods at 3759 Chicago Avenue in Minneapolis, Hennepin County, Minnesota with counterfeit $20 bill. At 8:08 p.m., Minneapolis Police Department (MPD) Officers Thomas Lane and J.A. Kueng arrived with their bodyworn cameras (BWCs) activated and running. The officers learned from store personnel that the man who passed the counterfeit $20 was parked in a car around the corner from the store on 38th Street.”
“BWC video obtained by the Minnesota Bureau of Criminal Apprehension shows that the Officers approached the car, Lane on the driver’s side and Kueng on the passenger side. Three people were in the car; George Floyd was in the driver’s seat, a known adult male was in the passenger seat and a known adult female in the backseat. As Officer Lane began speaking with Mr. Floyd, he pulled his gun out and pointed it at Mr. Floyd’s open window and directed Mr. Floyd to show his hands. When Mr. Floyd put his hands on the steering wheel, Lane put his gun back in its holster.”
“While Officer Kueng was speaking with the front seat passenger, Officer Lane ordered Mr. Floyd out of the car, put his hands on Mr. Floyd and pulled him out of the car. Officer Lane handcuffed Mr. Floyd.”
“Once handcuffed, Mr. Floyd walked with Officer Lane to the sidewalk and sat on the ground at Officer Lane’s direction. When Mr. Floyd sat down he said, “thank you man” and was calm. In a conversation that lasted just under two minutes, Officer Lane asked Mr. Floyd for his name and identification. Officer Lane asked Mr. Floyd if he was “on anything”and noted there was foam at the edges of his mouth. Officer Lane explained that he was arresting Mr. Floyd for passing counterfeit currency.”
“At 8:14 p.m., MPD Officers Kueng and Lane stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”
“MPD Officers Derek Chauvin (the defendant) and Tou Thao then arrived in a separate squad car.”
“The officers made several attempts to get Mr. Floyd in the backseat of their squad car by pushing him from the driver’s side. As the officers were trying to force Mr. Floyd in the backseat, Mr. Floyd repeatedly said that he could not breathe. Mr. Floyd did not voluntarily sit in the backseat and the officers physically struggled to try to get him in the backseat.”
“[Chauvin] went to the passenger side and tried to get Mr. Floyd into the car from that side and Lane and Kueng assisted.”“[Chauvin] pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed. Kueng held Mr. Floyd’s back and Lane held hie legs . [Chauvin] placed his left knee in the area of Mr. Floyd’s head and neck. Mr. Floyd said, ‘I can’t breathe’ multiple times and repeatedly said ‘Mama’ and ‘please,’ as well. At one point, Mr. Floyd said ‘I’m about to die.’ [Chauvin] and the other two officers stayed in their positions.”
“One of the officers said, ‘You are talking fine’ to Mr. Floyd as he contintued to move back and forth. Lane asked, ‘should we roll him on his side?’ and [Chauvin] said, ‘ No, staying put where we got him.’ Officer Lane said, ‘I am worried about delirium or whatever.’ [Chauvin] said, ‘That’s why we have him on his stomach.’ [Chauvin] and Kueng held Mr. Floyd’s right hand up. None of the three officers changed their positions.”
“While Mr. Floyd showed slight movements, his movements and sounds decreased until at 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, ‘want to roll him on his side.’ Kueng checked Mr.Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”
“At 8:27:24, [Chauvin] removed his knee from Mr. Floyd’s neck. An ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”
“The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. While the ME did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease, and toxicology testing revealed the presence of fentanyl and evidence pf recent methamphetamine use. The ME opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions, and the presence of the drugs contributed to his death. The ME listed the cause of death as ‘ [c]ardiopulmonary arrest complicating law enforcement subdural, restraint, and neck compression,’ and concluded the manner of death was homicide.”
[Chauvin] and Officers [Lane] and Kueng subdued Mr. Floyd prone to the ground in this manner for nearly 9 minutes. During this time, Mr. Floyd repeatedly stated he could not breathe and his physical condition continued to deteriorate such that force was no longer necessary to control him. [Chauvin] had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous. Officer Chauvin’s restraint of Mr. Floyd in this manner for a prolonged period was a substantial causal factor in Mr. Floyd’s losing consciousness, constituting substantial bodily harm, and Mr. Floyd’s death as well.”
“[Chauvin] is in custody.”
Analysis of Second Complaint Against Chauvin
In addition to the previously stated factual issues under the Minnesota criminal statutes xfor the three counts of the Complaint, others are raised by the Minneapolis Police Department Policy and Procedures Manual, which at the time recognized both a “choke hold” and “neck restraint” as permissible under certain circumstances.
The Manual stated that a “Choke Hold’ is a “deadly force option” by “applying direct pressure on a person’s trachea or airway (front of the neck), blocking or obstructing the airway.” (Manual sec. 5-311(I).)
“Deadly force” is defined in the Manual, quoting Minn. Stat. sec. 609.066, subd. 2, as “Force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing death or great bodily harm.” (Manual sec. 5-302.)
“Neck restraint,” on the other hand, is stated in the Manual as a “non-deadly force option” and is defined as “compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints.” In addition, the Manual “authorizes two types of neck restraints: Conscious Neck Restraint and Unconscious Neck Restraint.”
“The “Conscious Neck Restraint:The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure.” It “may be used against a subject who is actively resisting.”
The “Unconscious Neck Restraint:The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure.” It “shall only be applied in the following circumstances:
1. On a subject who is exhibiting active aggression, or;
2. For life saving purposes, or;
3. On a subject who is exhibiting active resistance in order to gain control of the subject; and if lesser attempts at control have been or would likely be ineffective.”
These provisions raise the factual issues of whether or not Chauvin was applying “direct pressure” on Mr. Floyd’s “trachea or airway” and thus using a “chokehold.” The other requirement for chokehold seems established: he at least reasonably should have known that this procedure created a “substantial risk of causing death or great bodily harm,” especially after the warnings by bystanders and by Lane and Kueng.
If, however, Chauvin was not applying direct pressure on Mr. Floyd’s trachea or airway and was not applying a “chokehold,” he was applying a “neck restraint.” But the Complaint definitely suggests that Mr. Floyd was not “actively resisting” and thus it was not a”conscious neck restraint.” In addition, the facts alleged in the Complaint strongly suggest that Mr. Floyd was not “exhibiting active aggression . . . [or] resistance. . . and that it was not used for “life saving purposes.” And thus it was not a valid “unconscious neck restraint.” Moreover, had Chauvin received “training from the MPD Training about neck restraints”? If not, then his use of a neck restraint was not authorized.
Criminologists who have seen the videotape of Chauvin’s treatment of Floyd say that Chauvin’s “knee restraint not only puts dangerous pressure on the back of the neck, but that Mr. Floyd was kept lying on his stomach for too long. Both positions. . .run the risk of cutting off someone’s oxygen supply.”
A professor at the University of South Carolina School of Law who studies policing. Seth W. Stoughton, said. “Keeping Mr. Floyd in the facedown position with his hands cuffed behind his back is probably what killed him.” About 20 years ago police training started emphasizing avoiding that prone position. Moreover, Stoughton offered, applying the knee to the back of the neck rather than to the sides risks killing or seriously injuring someone by cutting off the air supply or damaging the cervical spine and other delicate bones in the neck. No department permits such a technique in ordinary circumstances.
Mylan Masson, who directed a law enforcement training course at Hennepin Technical College in Minnesota, said she stopped teaching the knee restraint technique to new police officers after the Eric Garner case in 2014.
These criminologist also said that the fact that Mr. Chauvin kept applying pressure when Mr. Floyd was no longer struggling made it appear to be a case of an officer trying to punish a suspect for doing something the police did not like. Philip M. Stinson, a former police officer and now a criminal justice professor at Bowling State University, said it was “a form of ‘street justice,’ . . . bullying [to teach] someone a lesson—next time you will think twice about what you do.”
As a New York Times journalist observed, “For police trainers and criminologists, the episode appears to be a textbook case of why many police departments around the country have sought to ban outright or at least limit the use of chokeholds or other neck restraints in recent years: The practices have led too often to high-profile deaths.”
An immense debt of gratitude is owed by everyone to the 17-year-old woman who was at the scene and pulled out her cell phone to video record this police encounter.The next day she said, “I started recording as soon as I heard him trying to fight for his life. The world needed to see what I was seeing.” She added, “Stuff like this happens in silence too many times. She hopes her video can in some way bring about “peace and equality. We are tired of police killing us.” Later her attorney said, “She had no idea she would witness and document one of the most important and high-profile police murders in American history. If it wasn’t for her bravery, presence of mind, and steady hand, and her willingness to post the video on Facebook and share her trauma with the world, all four of those police officers would still be on the streets, possibly terrorizing other members of the community.”
Her example should be remembered by everyone should we ever be in a similar situation. Get out your cell phone and video the encounter. Indeed, Minneapolis Police Chief Medaria Arradondo encouraged others to do the same when confronted with such a scene involving officers’ actions. “Record. Record, absolutely. Record, call. Call a friend. Yell out. Call 911. We need a supervisor to the scene. Absolutely. I need to know that. We need to know that. So the community plays a vital role and did two weeks ago.”
Without that video in the George Floyd case, just imagine how difficult it would be to mount such a prosecution.
However, there still will be challenges for the prosecution in this case.
Former Ramsey County Attorney Susan Gaertner said the prosecution needed to be “painstakingly thorough” with this case and that such cases “are way more complicated and the burden on the prosecution is higher than I think the public understands.” Of the same opinion was Thomas Heffelfinger, former U.S. Attorney for Minnesota, who said, “It’s not a slam dunk and these cases never are. These cases are hard to prove and we have to make sure we do it correctly.”
Those comments are perfectly understandable in cases where the policeman has to make split-second decisions when his or her life is at stake. But that is not this case here. So I wonder about these assessments by Gaertner and Heffelfinger even though they are both capable attorneys whom I know and who have significant criminal law experience that I do not share.
Another Minnesota attorney, Stephen Grego, saw the following challenges. First, inflammatory statements from elected officials in Minneapolis may have created substantial pretrial prejudice, leading to a change of venue from Hennepin County, which in turn could decrease minority juror representation. Second, causation will be a contested issue with the defense emphasizing the medical examiner’s findings of “fentanyl intoxication” and “recent methamphetamine use” to argue that Chauvin did not cause the death. Third, Minnesota law gives police officers broad discretion to use force when making an arrest. Fourth, can a person with a “depraved mind” direct his or her actions against a specific individual?