All officers in George Floyd murder now to face charges, with Derek Chauvin’s charge raised to second-degree murder

Senator Amy Klobuchar tweeted this out:

And the Minnesota Star-Tribune article says this:

Attorney General Keith Ellison plans to elevate charges against the former Minneapolis police officer who knelt on George Floyd’s neck while adding charges of aiding and abetting murder against the other three officers at the scene, according to multiple law enforcement sources familiar with the case.

Ellison is expected to provide an update this afternoon on the state’s investigation into Floyd’s death. According to sources, former officer Derek Chauvin, recorded on video kneeling on Floyd’s neck as he begged for air on May 25, will now be charged with second-degree murder.

The other three officers at the scene — Tou Thao, J. Alexander Kueng and Thomas Lane — will also be charged with aiding and abetting second-degree murder, according to the sources, who spoke on conditions of anonymity. Chauvin was arrested last Friday and charged with third-degree murder and manslaughter.

Thao was recorded watching as Chauvin continued to press on Floyd’s neck with his knee. Kueng was one of the first officers on the scene and helped pin Floyd down. Lane was detailed in earlier charges as pointing a gun at Floyd before handcuffing, and later asked whether officers should roll Floyd on his side as he was restrained.

I was keen on all the cops being charged from the outset, and now it’s happened. So far, at least with respect to Floyd’s death, justice has been done.  We can speculate that justice may be sidetracked if the officers get off, for the video itself pretty much tells the tale.

The defense, of course, has to make the prosecution prove its case, and in the case of second-degree murder in Minnesota they have to prove one of these violations beyond a reasonable doubt for Derek Chauvin:

I suspect that Subdivision 1, point (1) is the relevant statute here, though they’d have to prove that Chauvin intended to cause the death of Floyd. As for the other three officers, charged with “aiding and abetting” Chauvin, I wasn’t able to find the statue (the server was down, probably busy), but they certainly stood by and heard Floyd cry “I can’t breathe”, and also stood by while Chauvin kept his knee on Floyd’s neck after the man became unresponsive.

A badge should not provide immunity against criminal acts. We’ll see what the defense has to say, but so far there’s no reason to assert that justice isn’t being done for Floyd. Whether it’s being done by police forces across the U.S. is another matter.

99 Comments

  1. Randall Schenck
    Posted June 3, 2020 at 2:17 pm | Permalink

    Here is another question for all on this. What do you think would have been done if a person had not gotten this on video? I suspect none of the cops would be charged with much of anything. That is what goes through the minds of all black people everywhere.

    • Posted June 3, 2020 at 2:28 pm | Permalink

      I understand that body cams were worn by the perps, but their recordings are not released to the public. Incredibly, this did not deter them.

      • Randall Schenck
        Posted June 3, 2020 at 2:32 pm | Permalink

        I thought I’d heard they did not have their body cameras on, but I could be wrong on that.

        • Posted June 3, 2020 at 2:35 pm | Permalink

          I think they were on. The video hasn’t been released yet.

        • Posted June 3, 2020 at 2:36 pm | Permalink

          I’m not sure it will add much to what we’ve seen. What went before they held him down really isn’t germane. What they did was wrong by every standard.

        • GBJames
          Posted June 3, 2020 at 3:03 pm | Permalink

          Seems to me that any cop involved in an incident with his body cam turned off should be summarily fired, whatever else happens.

      • Posted June 3, 2020 at 2:41 pm | Permalink

        Which fits with unintentional. They effed up badly but thought they were OK.

        Which says a whole lot about the MPD culture.

    • Posted June 3, 2020 at 2:34 pm | Permalink

      I think this is the sad truth, Randall.

      The main video, shot by the bystander, showing Floyd’s face, is so horrible that it has evoked this reaction in the USA and the world. Watching a man’s life be slowly squeezed out of him by indifferent cops (“depraved indifference to human life” as defined in the third degree murder code in MN) was just excruciating and infuriating.

      I don’t think such an act has ever been so clearly captured (in the USA) on film before.

    • jay salhi
      Posted June 4, 2020 at 1:06 am | Permalink

      You would still have a dead body. What you would get is something similar to officer Mohamed Noor’s killing of Justine Damond. A long investigation (8 months in that case) followed by a trial (resulting in conviction in that case).

      The interests of justice might better be served if there had been no cell phone video. Excessive publicity and trial by media and public opinion does the prosecution no favors.

      • sugould
        Posted June 4, 2020 at 1:01 pm | Permalink

        Cell phones and video is all that have saves some people’s lives.

  2. darrelle
    Posted June 3, 2020 at 2:27 pm | Permalink

    I don’t know anything about the law but I wonder if Sbd. 2 item 1 might be applicable.

    • Posted June 3, 2020 at 5:52 pm | Permalink

      That’s what I’m thinking. The felony in question would be assault. Resulting in unintentional death. Strictly another lay person’s POV.

    • jay salhi
      Posted June 4, 2020 at 4:38 am | Permalink

      Correct. They will not prosecute under subdivision 1. Why suffer the burden of having to prove intent (a very difficult burden to meet) when there is no need to under subdivision 2?

    • Posted June 4, 2020 at 1:20 pm | Permalink

      What felony offense was Chauvin committing apart from causing Floyd’s death? This section would apply where, say, someone accidentally shoots someone while committing an armed robbery. I don’t see an equivalence. The whole issue hinges on the illegality of Chauvin’s use of excessive force.

      • darrelle
        Posted June 4, 2020 at 2:00 pm | Permalink

        I don’t know the law, so I can only make informed (to one degree or another) speculations / rationalizations. With that in mind, it seems to me that some sort of felony assault type charge could be made. Floyd was already restrained before they got on top of him on the ground. He was restrained before he even got to the ground. There is no reason for them to have used the submission tactics they did. I’ve heard from one source that even by the MN police rules they were not authorized to use the tactics they did. That such tactics are authorized in order to restrain a person but once restrained they are not.

        It seems clear to me that these officers did assault Floyd, by any reasonable (though not necessarily legal) meaning of the term. Of course, police are allowed to assault people in certain specified circumstances. They need to be able to in order to perform their function. This event, and all like it, hinges on whether or not circumstances obtained that allow assault by the police. It doesn’t look to me as if they did. There are a lot of law enforcement persons that have said as much, by the way.

        Some things I think are clear. 1) Any reasonable law enforcement rules would allow assault of a person by police only when necessary and as necessary to restrain them for a valid legal reason and only until they have been restrained. 2) Floyd never offered any significant resistance and in any case was restrained nearly 10 minutes before he ended up on the ground with 3 officers on top of him for nearly 9 minutes. 3) By any reasonable meaning of the word assault the police assaulted Floyd. It seems very plausible to me that legal case could be made to that effect. They were way out of line and they were no doubt fully aware of it. Being used to getting away with it isn’t the same as not being aware of it being against the law. Feeling that you should be able to get away with it also isn’t the same as not being aware of it being against the law.

        • Posted June 4, 2020 at 2:19 pm | Permalink

          I don’t think there is any doubt that the police assaulted Floyd. The question is how to get a second degree murder conviction out of it. Like you, I claim no legal expertise, but given my layman’s understanding, I’d wager that Chauvin will get manslaughter.

  3. Posted June 3, 2020 at 2:29 pm | Permalink

    They will have to prove, beyond a reasonable doubt, to a jury of 12, that Chauvin intended to kill Floyd.

    Do people think that they have the horses for that?

    I do not. I think reasonable doubt of intent is virtually certain here.

    I think they better have the fall-back charge of third degree for the jury to consider.

    To our legal experts (Ken K., Brujo feo), can they try him for 2nd degree and, if they fail to get a conviction, subsequently try him for 3rd degree? Seems like double-jeopardy.

    • Posted June 3, 2020 at 2:44 pm | Permalink

      I don’t see how they can prove intent either. The video shows extreme callous indifference. Chauvin is crouched there with his hand in his pocket like he’s shooting the breeze with his buddies, and seeming not to care that it is all being recorded. It’s like he expects to get away with it. Perplexing and disgusting.

      If he goes to prison, even for third degree murder, he may not ever get out. (Not that that is right.)

      • Posted June 3, 2020 at 2:46 pm | Permalink

        Indeed. But see Ken’s comment at 5. Subd. 2 may come into play.

        Beyond “getting away with it,” I think the cops thought they were doing the right thing. Which says a lot about the culture of the MPD. And is particularly abhorrent after Floyd becomes unresponsive.

        • jay salhi
          Posted June 4, 2020 at 5:25 am | Permalink

          Chauvin has been charged under Subdivision 2. Second degree murder – unintentional – while attempting to commit a felony. The complaint is available online.

          • Posted June 4, 2020 at 8:30 am | Permalink

            You still have to have intent to commit a felony. That isn’t there and the result will be (I predict) identical to the Noor case; as there were identical charges as well: Guilty on M3 and manslaughter.

    • Ken Kukec
      Posted June 3, 2020 at 2:44 pm | Permalink

      As long as either the prosecution or the defense requests it (and one of them almost certainly will), juries in criminal cases are routinely instructed regarding all crimes that qualify as “lesser-included offenses” of the crime charged.

      I don’t know the specifics of Minnesota state law, but I assume that third-degree murder (and probably some other less serious crimes) are considered lesser-included offenses upon which the jury can return a verdict if it finds the defendant not guilty of the primary offense of second-degree murder.

      • Posted June 3, 2020 at 2:47 pm | Permalink

        Thanks Ken, I was figuring this was the case; but had no idea, really.

        • Ken Kukec
          Posted June 3, 2020 at 2:55 pm | Permalink

          Here is a set of jury instructions given in another, recent MN second-degree murder case. The lesser-included offenses are set out at pages 5-6.

          • Posted June 3, 2020 at 3:01 pm | Permalink

            Thanks!

          • Posted June 3, 2020 at 3:05 pm | Permalink

            Yes, that case was so unfortunate, all the way around.

            It was … disturbing … that the first cop conviction for killing an unarmed person was on an African American cop.

            And I think, as in this case, the killing was a terrible mistake.

            “Noor was convicted of third-degree murder and second-degree manslaughter.”

            I expect that this case will have the same outcome for Chauvin. In fact, I’ll be amazed if it does not.

            • Posted June 3, 2020 at 3:05 pm | Permalink

              first cop conviction in Minnesota, I should have said

      • jay salhi
        Posted June 4, 2020 at 1:12 am | Permalink

        The third degree murder charge does not fit the crime. Second degree murder does. I doubt they go to trial with the third degree charge still there. Under Minnesota case law, third degree murder is not applicable where the defendant’s actions are directed at a particular person. Chauvin’s knee to the neck was clearly directed at a particular person.

        • Posted June 4, 2020 at 8:31 am | Permalink

          Re: The Noor case.

        • Ken Kukec
          Posted June 4, 2020 at 12:12 pm | Permalink

          The third-degree murder charge is a lesser-included offense of second-degree murder. As such, it need not be charged separately; the jury will still be instructed it can return a verdict on it if the jury finds insufficient evidence to convict on the primary offense of second-degree murder.

    • darrelle
      Posted June 3, 2020 at 2:50 pm | Permalink

      I am ignorant of the law but, it looks like Subd. 2 item 1 does not require intent to kill. It seems to merely require that the victim died during the course of the killer committing or attempting to commit a felony.

      Also, I think they have also charged him, additionally, with manslaughter.

      • Posted June 3, 2020 at 3:00 pm | Permalink

        See Ken’s comment at 5: Yes, Subd., 2 may come into play.

        Seems to me that Subd. 2 , Item 1 implies intent to commit a felony as well. Intent is still needed. Still think that will be hard to prove; but maybe easier than under Subd. 1?

        As long as the M3 charge can be considered by the jury at the same time (Ken’s comment above) then the M2 charge seems reasonably safe to bring against Chauvin.

        I think the manslaughter is an included lesser charge in the original M3 charge (rather than the additional attempted felony). I think. I’m no lawyer.

        • darrelle
          Posted June 3, 2020 at 3:24 pm | Permalink

          Yes, I think intent does need to be proved for criminal charges in general, but I think it is highly plausible that all of the officers there were aware that they were breaking the rules. I personally have no doubt at all about that. At least one of them exhibited anxiety and doubt as the minutes kept rolling by. It is completely implausible to me that Chauvin was unaware that he was breaking the law. That he was habituated to doing so because he routinely got away with it isn’t the same as not being aware of it.

          But then again, I ain’t a legal expert. And I agree, my view is unlikely to be shared by the entire jury. To me murder 2 per subd. 2 item 1 seems like a pretty precise fit for this crime based on the evidence I’ve seen, primarily the videos.

          • Posted June 3, 2020 at 3:40 pm | Permalink

            Now there’s also notice from the officials that one of the cops asked, “should we put him on his side?” when Floyd said he couldn’t breathe; but they did nothing about it. And that cop did nothing further.

            So, yes, at least one of the cops seems to have understood they were doing wrong.

            This is the kind of detail the body cams may reveal (assuming they have audio).

            • Ken Kukec
              Posted June 3, 2020 at 7:44 pm | Permalink

              It will be interesting to watch whether any of the three newly charged cops will be willing to cross “the blue line” to testify against the others. I suspect there may have been some interesting, and potentially incriminating, conversations among those involved after-the-fact.

              Police love to recruit snitches from among criminal suspects, but they hate snitches in their own ranks.

        • jay salhi
          Posted June 4, 2020 at 4:48 am | Permalink

          “Seems to me that Subd. 2 , Item 1 implies intent to commit a felony as well. Intent is still needed. Still think that will be hard to prove; but maybe easier than under Subd. 1?”

          Correct but under Subd. 2 they just need to prove intent to commit a felony (e.g., felony assault) not intent to kill. It is a much easier burden of proof.

          • jay salhi
            Posted June 4, 2020 at 5:06 am | Permalink

            I have now read the complaint. It does not mention the underlying felony. Felony assault is just a guess on my part. The prosecution will have to identify the appropriate felony by reference to the relevant statute and then prove an intent to commit such felony.

    • Leigh
      Posted June 3, 2020 at 3:17 pm | Permalink

      Before I retired, I had job that allowed me to physically restrain people. Employees had to undergo training and follow specific guidelines. Every training I ever attended emphasized the dangers inherent in applying restraint, specifically the danger that a restrained person would suffocate. When I saw the video, there was doubt in my mind that I was watching the deliberate murder of Mr. Floyd.

      I beg to disagree that it will be hard to prove intent. Get real!

      • Posted June 4, 2020 at 6:25 am | Permalink

        “…there was doubt in my mind that I was watching the deliberate murder of Mr. Floyd.”

        From the rest of your comment, don’t you mean “…there was NO doubt…”?

    • alexander
      Posted June 3, 2020 at 5:44 pm | Permalink

      Much will depend on what will be found out about the possible relationship between Chauvin and Floyd. Both worked a few years ago as bouncers in a nightclub, although at different times. I saw the interview on CNN with the owner of theis nightclub, who told about the difference in style between Floyd and Chauvin. She also told about the difference in style between those two men, Floyd was polite, gentle, generally liked, and dealt correctly with troublemakers, while Chauvin was brutal, caused trouble with black customers, and called the police, who marched in with six at a time for insignificant problems. She did not appear anymore in interviews, probably because she will be a witness. It is very well possible that the two men met socially at the same nightclub, and possibly did not get along, and that Chauvin when arresting him in his car quickly realized who his prey was. Floyd was tall, and had the body built of a wrestler, quite the contrary of the shriveled Chauvin.

      • eric
        Posted June 3, 2020 at 8:56 pm | Permalink

        That’s interesting and something I hadn’t heard, so thanks for your post.

        If they knew each other and disliked each other, that could certainly help explain the AG’s decision to for murder 2.

        • jay salhi
          Posted June 4, 2020 at 2:05 am | Permalink

          “If they knew each other and disliked each other, that could certainly help explain the AG’s decision to for murder 2.”

          No, it wouldn’t. Murder 2 is the appropriate charge regardless of whether they knew each other.

          It might be relevant in the context of a murder 1 charge but you’d have to show a lot more than Chauvin disliking Floyd.

    • jay salhi
      Posted June 4, 2020 at 1:21 am | Permalink

      “They will have to prove, beyond a reasonable doubt, to a jury of 12, that Chauvin intended to kill Floyd.”

      Only if the charge were first degree murder, which it isn’t. For second degree murder, they only need to show intent to commit felony assault, which assault resulted in death. Second degree murder is the appropriate charge.

      Third degree murder is not appropriate in light of Minnesota case law. It is a bit a mystery why that charge was brought in the first place. I doubt it will still be there when they go to trial.

    • jay salhi
      Posted June 4, 2020 at 4:41 am | Permalink

      No,they won’t. JC was wrong in assuming they would prosecute under subdivision 1, which requires intent. They will use subdivision 2, which does not require intent.

      I agree that intent would be very difficult to prove. Fortunately, it is not required.

  4. Posted June 3, 2020 at 2:31 pm | Permalink

    One small step in the right direction. That earlier 3rd degree murder charge seemed a joke. Maybe done as placeholder to hold the man? I don’t know, but it sure pissed off a lot of people.

    • Posted June 3, 2020 at 2:35 pm | Permalink

      The more they up the charge the harder it is to prove. Murder 3 looked a lot more provable than murder 2. (I don’t think the cop actually intended to kill Floyd, and suspect that could not be proved beyond reasonable doubt.)

      Let me ask (I’m unfamiliar with the US system), if the jury are unconvinced by murder 2, can they convict for a lesser charge such as murder 3 or manslaughter, or is it all-or-nothing?

  5. Ken Kukec
    Posted June 3, 2020 at 2:35 pm | Permalink

    Seems a condign outcome as far as it goes.

    I haven’t been able to find the new criminal complaint online yet, but my guess is that the second-degree murder charge against Chauvin was brought under section (1) of Subdivision 2 — that Chauvin killed Floyd in the course of committing the felony offense of aggravated battery, without intending to effect Floyd’s death.

    • Posted June 3, 2020 at 2:39 pm | Permalink

      That’s the only possibility of success here, I think. (With Chauvin.)

      The aiding and abetting seems straightforward.

      I wonder that the cop on Floyd’s chest isn’t being charged with murder.

  6. Posted June 3, 2020 at 2:35 pm | Permalink

    So I had been wondering thru all of this: Where do we go from here? There needs to be deep and fundamental reform in our criminal justice system which ‘racializes’ police arrests, brutality, and sentencing. Now how do we begin to fix that?

    • Posted June 3, 2020 at 2:39 pm | Permalink

      As a first step, I think CAPA systems should be applied to police departments and closely tracked by outside auditors.

    • Randall Schenck
      Posted June 3, 2020 at 2:42 pm | Permalink

      I have heard discussions about overhauling the police training throughout the country. Currently they are trained similar to the military with lots of offensive stuff. They are being trained for the wrong thing. The police are to Protect and Serve the people. Not treat them as the enemy. You add to that the normal racism we still have throughout the country and you have nothing but trouble. Another big thing I heard them talk about is community policing.

      • Posted June 3, 2020 at 2:44 pm | Permalink

        +1

      • Posted June 3, 2020 at 3:46 pm | Permalink

        Training is key. In cases where a police or fire department approaches a building that might have hazardous material (chemical or radiological) they tread very, very carefully. If no lives are in immediate danger they cool the f**k down, assess and manage.

        Police need to prioritize life. Asking questions later to victims or criminals who are till breathing is a good starting point.

        Police should not be trained to think they are heroes, though they can do heroic tbings. They are first to protect order when chaos can be reasonably anticipated.

        • ritaprangle
          Posted June 4, 2020 at 9:54 am | Permalink

          Training by itself won’t help. Every police department should have a citizen review board to investigate and adjudicate complaints.
          And, get rid of the military equipment. The police department in my town of 40,000 has a tank!

          • GBJames
            Posted June 4, 2020 at 9:59 am | Permalink

            Absolutely. When you equip and train police to look and act like military they behave like an occupying force in a foreign land.

    • Posted June 3, 2020 at 2:43 pm | Permalink

      I also think having police officers who live in the areas they patrol will be helpful. Though for big city PDs, this will be hard to enforce 100%.

      People in Mpls. have recognized this, I think, and I’m already hearing suggestions of other paths to making the cops familiar with the neighborhoods and vice versa.

      • Posted June 3, 2020 at 4:03 pm | Permalink

        1. Community policing.
        2. Decriminalize non-violent drug related crimes. Especially crack cocaine.
        3. I was wondering about a massive increase in recruitment of African Americans into our police.
        4. Of course de-militarized training.

      • jay salhi
        Posted June 4, 2020 at 1:31 am | Permalink

        “I also think having police officers who live in the areas they patrol will be helpful.”

        Black and Hispanic cops are more likely to use deadly force against black suspects than white cops.

      • Posted June 4, 2020 at 4:47 am | Permalink

        Cop arrests drug dealer. Cop arrives home in the evening and finds his entire family has ben shot to death in revenge.

        • Posted June 4, 2020 at 8:57 am | Permalink

          That’s a possible outcome. Do you have any examples in the US or UK?

          I don’t recall such events; but then I don’t usually follow news very closely.

          • Posted June 4, 2020 at 10:02 am | Permalink

            No, I just thought of it off the top of my head.

            During the Troubles in Northern Ireland, police officers were sometimes targeted and attacked at home by the IRA. But I don’t think the communities they served being their own or not was significant in those cases.

    • Ken Phelps
      Posted June 3, 2020 at 4:59 pm | Permalink

      Esper’s use of the phrase “the battlespace” doesn’t exactly set a good top-down tone.

    • Roo
      Posted June 3, 2020 at 10:24 pm | Permalink

      On the topic of where we’re headed – I think there is a deep disconnect when it comes to people’s feelings about law enforcement. The NYTimes recently ran an “opposing opinion” piece by Tom Cotton who says the following:

      According to a recent poll, 58 percent of registered voters, including nearly half of Democrats and 37 percent of African-Americans, would support cities’ calling in the military to “address protests and demonstrations” that are in “response to the death of George Floyd.”

      On the one hand people talk about wanting reform and gentler, less military-like law enforcement, on the other hand, a lot of people want to send in the actual military when they feel crime is a personal threat.

      So, my guess is that the middle ground most people will grudgingly agree to over time will be increased tracking and surveillance, as well as non-human barriers to crime such as better security systems, gates, barriers, etc. Agreeing to be id’ed, either officially or via recognition software, when in certain spaces, for example. People want low crime rates paired with gentle policing, but they also don’t want to pay a ton more to make it happen. As a logical conclusion, technological security checks all the boxes, so my guess is that this is how things progress. Dystopian? I don’t know. It kinda sounds the way on paper, but then, one goes through fairly extensive security at airports, amusement parks, even pumpkin patches these days, so maybe in fifty years it will be just another annoyance.

      • jay salhi
        Posted June 4, 2020 at 1:33 am | Permalink

        A better example would be the attitudes of law abiding citizens of high crime neighborhoods. They tend to want more policing.

        • Roo
          Posted June 4, 2020 at 7:42 am | Permalink

          I think they speak to the same point. My general point is that people seem not to practice what they preach when it counts for them, personally. If you truly believe that aggressive tactics are destructive, your first instinct is not to up the ante on aggression as soon as crime is a personal threat. As long as that is the case, the odds of the reform that people say they want happening are low, I think, because when push comes to shove, they don’t seem to believe that these reforms would actually work. If you like the concept of something until it affects you personally, you like it very much in theory, not practice.

          I do think gentler policing is possible if there are enormous resources spent on it. Ratio matters a lot. The fewer people you have trying to enforce the law, the more they are going to use aggression to accomplish that. This can be offset by sheer numbers – a much larger presence – but people will not want to do that. For financial reasons and because at this point, people are so angry they are talking about defunding and removing the police, so going in the opposite direction would have little support.

          Technology, on the other hand, can act as a substitute ratio, in the absence of a real person. So, my feeling is that this trend is inevitable, because it’s the least objectionable solution to all parties involved. Not the most liked, of course, but the least objectionable.

          • jay salhi
            Posted June 4, 2020 at 8:03 am | Permalink

            This will go in cycles. The police will withdraw and do less policing, crime rates will go up. Cities that do nothing about rising crime will experience rapid flight to the suburbs depriving them of their tax base which will further exacerbate crime and other social problems. This will create demands for more aggressive policing.

  7. DrBrydon
    Posted June 3, 2020 at 2:52 pm | Permalink

    Not sure that the aiding and abetting will stick. My understanding is that that requires active participation and encouragement. I was talking to a lawyer friend. There’s no law that requires you to come to the assistance of another person, so it sounds like the most they could be done for is some sort of professional misconduct, but they’ve already been fired. I think this is theatrics.

    • Ken Kukec
      Posted June 3, 2020 at 3:16 pm | Permalink

      This appears to be the standard jury instruction on “aiding and abetting” given in Minnesota criminal trial courts:

      Under subdivision 1 of the accomplice-liability statute, “[a] person is 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.”

      Such a person “is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.”

      The phrase “intentionally aids” in subdivision 1 of the accomplice-liability statute “includes two important and necessary principles: (1) that the defendant knew that his alleged accomplices were going to commit a crime, and (2) that the defendant intended his presence or actions to further the commission of that crime.”

      A jury may infer the requisite state of mind for accomplice liability “through circumstantial evidence, including the defendant’s presence at the scene of the crime, a close association with the principal offender before and after the crime, a lack of objection or surprise under the circumstances, and flight from the scene of the crime with the principal offender.”

      There is no duty on the part of a member of the general public to come to the assistance of another. Some jurisdictions, however, impose such a requirement where an individual stands in a “special relationship” to the victim (a doctor at the scene of an accident, for example, or a parent and child). I do not know if Minnesota imposes such a “special relationship” obligation on a police officer with regard to an arrestee.

      • Posted June 3, 2020 at 3:58 pm | Permalink

        You would know better than I, but my understanding is that no one, including police officers (Castle Rock v. Gonzales), has a legal obligation to assist. But they may have a professional obligation, in which case they can be fired, which of course has already happened. Unless the other three egged Chauvin on, I think the case against them will be hard to prosecute. But what do I know?

      • eric
        Posted June 3, 2020 at 9:15 pm | Permalink

        So, three thoughts about that.

        First, seems to me (as a legally ignorant and uneducated layperson) that the fact that none of the three reported the crime to other officers might reasonably be considered ‘conspires with,’ since as police officers that’s a job requirement. Not reporting a crime your buddy does while he’s standing next to you is conspiring with your buddy to let him get away with it.

        Second, the fact that one of them asked if they should roll the victim on his side, and got no/negative replies seems relevant. It shows one of the officers was aware of the danger of suffocation and looking for the group to make a decision. Arguably, the collective decision the group made was to not roll him on his side.

        Third, I’m interested in body cam recordings or lack thereof. If they all turned theirs off to talk amongst themselves either before, during, or after, then that’s pretty conspiratorial.

        • eric
          Posted June 3, 2020 at 9:20 pm | Permalink

          And now a fourth, having read darrelle’s post. Given two of the other officers were actively holding Floyd down, that would seem to me to be ‘aiding’ Chauvin in a pretty cut and dried sense. They held Floyd down while Chauvin killed him.

      • jay salhi
        Posted June 4, 2020 at 8:10 am | Permalink

        “The phrase “intentionally aids” in subdivision 1 of the accomplice-liability statute “includes two important and necessary principles: (1) that the defendant knew that his alleged accomplices were going to commit a crime, and (2) that the defendant intended his presence or actions to further the commission of that crime.””

        Boy oh boy that is no slam dunk. It is a tough burden of proof. Here’s the aiding and abetting statute:

        609.05 LIABILITY FOR CRIMES OF ANOTHER.

        §Subdivision 1. Aiding, abetting; liability. A person is 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.

        Subd. 2. Expansive liability. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.

        Subd. 3. Abandonment of criminal purpose. A person who intentionally aids, advises, hires, counsels, or conspires with or otherwise procures another to commit a crime and thereafter abandons that purpose and makes a reasonable effort to prevent the commission of the crime prior to its commission is not liable if the crime is thereafter committed.

        Subd. 4. Circumstances of conviction. A person liable under this section may be charged with and convicted of the crime although the person who directly committed it has not been convicted, or has been convicted of some other degree of the crime or of some other crime based on the same act, or if the person is a juvenile who has not been found delinquent for the act.

        Subd. 5. Definition. For purposes of this section, a crime also includes an act committed by a juvenile that would be a crime if committed by an adult.

        • Ken Kukec
          Posted June 4, 2020 at 12:32 pm | Permalink

          Section 1 doesn’t mean that the accomplice had to know a crime was going to be committed in advance of the incident, only that he or she knew in advance of the crime being completed. If you walk into an apartment with someone and, to your surprise, your companion starts to stab the occupant, then asks you to hold the occupant down while he finishes the job and you do it, you’re an accomplice.

          Seems to me that there’s sufficient evidence in this case from which a rational jury could find that, at some point, the other officers knew that Chauvin was committing an aggravated battery on Floyd yet continued to assist him.

    • darrelle
      Posted June 3, 2020 at 3:46 pm | Permalink

      No. It’s not theatrics. They’ll have their day in court. In the same system that everyone else is subject to in matters of justice.

      One of the other officers on the scene was on Floyd’s back while Chauvin was on his neck. Ever had someone put their weight on your back while you are lying face down with your arms behind your back? It makes it difficult to breath. For a short period of time it is nothing to note, unless maybe you are claustrophobic. But over time it becomes a serious problem and by itself will cause death if it continues long enough because you are running an oxygen deficit due to compression of the chest area restricting breathing. You get weaker as time goes on and as you get weaker the less air you are capable of breathing in, which makes you weaker, and so on.

      Meanwhile Chauvin is on Floyd’s neck.

      Meanwhile another officer was helping to hold Floyd down in some way. Holding his legs I guess.

      Meanwhile another officer was standing guard against onlookers who began taking an interest.

      Yeah. No theatrics in charging these people.

      • Posted June 4, 2020 at 8:35 am | Permalink

        Yes, I am surprised that the cop on his chest isn’t also under a murder charge. This may change.

      • sugould
        Posted June 4, 2020 at 12:58 pm | Permalink

        +1

    • jay salhi
      Posted June 4, 2020 at 1:37 am | Permalink

      This is the problem with trial by media and trial by the court of public opinion, it often creates unrealistic expectations. It usually does not serve the interests of justice.

      • Posted June 4, 2020 at 8:35 am | Permalink

        + a large number.

        In this case, there was no choice about charging the other officers. Will they be convicted? Who knows.

  8. Posted June 3, 2020 at 2:54 pm | Permalink

    Let me say that, as a resident of the “Twin Cities” of Minneapolis & St. Paul for most of my life, that I know Keith Ellison pretty well. I think he is: Smart, level-headed, knows the law well, understands local politics, knows Minneapolis very well. He was 5th District (basically the city of Minneapolis) Congressman recently for 6 terms.

    I have confidence in him.

    He’s just been handed the hottest legal potato in memory in Minnesota. I think he’s the right person for the job.

    • jay salhi
      Posted June 4, 2020 at 2:38 am | Permalink

      Others who vouch for Keith being a stand up guy include: Louis Farakhan, Antifa, Vice Lords Gang Leader Sharif Willis.

      The women who called 911 on Keith have a different view.

      • Posted June 4, 2020 at 8:40 am | Permalink

        Not sure what your point is.

        That I don’t know him? Do you live in Minnesota?

  9. Posted June 3, 2020 at 4:10 pm | Permalink

    Please look up Washington State I-940 on Wiki. It apparently is the only state in the U.S. that has legally addressed training of officers and how abuses are handled. I can’t imagine it’s perfect, but certainly a framework from which other states could start.

    I have no legal expertise but think all three officers who used their bodies to exert pressure on George Floyd’s neck and back, ostensibly to hold him down, should be charged with murder. The one who watched and did nothing should also be charged but, I am not sure with what.

    I haven’t lived in Minneapolis/St. Paul area but have been there many, many times visiting very dear friends. I have always admired the diversity of population and the more metropolitan ambiance. One of the best food cities. I hate to see this horrible underbelly of Minneapolis/St. Paul, even knowing that all U.S. cities, beloved or not, have them. May we change this.

    • Mark R.
      Posted June 3, 2020 at 9:08 pm | Permalink

      “May we change this”
      I think this is another generational fix. The young people understand, many of the old, not so much. (My folks, Trump supporters, can’t seem to wrap their head around why people are pissed off.) I guess that’s a cult mentality thang.

  10. rickflick
    Posted June 3, 2020 at 8:17 pm | Permalink

    I would like to know if Chauvin past record of abuse (a number of prior situations) can be mentioned to the jury at trial. If so, I would think assumption of total neglect or intent to commit murder would be much easier to show.

    • jay salhi
      Posted June 4, 2020 at 1:42 am | Permalink

      A past record of abuse of other people would not be relevant to showing intent to commit murder. You would have to show intent to kill this particular victim.

      Chauvin has not been charged with first degree murder so the prosecution does not have to prove intent.

    • Ken Kukec
      Posted June 4, 2020 at 12:55 pm | Permalink

      Under Minnesota Rule of Evidence 404(b) — which is modeled on its federal counterpart — a defendant’s prior bad acts are inadmissible simply to attack his or her character or merely to show a general propensity to commit crime.

      Such prior bad acts may nonetheless be admissible for a variety of other purposes — the most relevant of which here would appear to be to show the “absence of mistake or accident” regarding the charged incident. In other words, if Chauvin has a history of abusing detainees, the prosecution may be able to introduce evidence of that prior misconduct to rebut an implied or express defense that the death of George Floyd was all a tragic accident.

      • rickflick
        Posted June 4, 2020 at 2:01 pm | Permalink

        Sounds like that could become important. John Oliver pointed out that in many places, police histories can be scrubbed (legally) by the department, and often are. I hope Chauvin’s record can be recovered.

  11. Roo
    Posted June 3, 2020 at 9:16 pm | Permalink

    As with everything – seemingly everything – in this country, there will of course be two narratives. Two autopsies, two interpretations, two everythings. Parallel lines and never shall the twain meet.

    I think the key intuition probably comes down to whether or not you think people would act so casually, knowing they were murdering someone, and also knowing they were being filmed. Approximately half of the country will say no, the fact that they knew they were being filmed is itself exculpatory, because they were not trying to hide their actions at all and therefore likely thought this was a routine restraint, and that the cries of “I can’t breathe” were a ruse to escape. Approximately half of the country will see the unbearable arrogance and privilege of someone sneeringly thinking they can get away with murder, so assured of this fact that the camera is no deterrent.

    • eric
      Posted June 3, 2020 at 9:29 pm | Permalink

      …and therefore likely thought this was a routine restraint

      If I were on the jury, I would never buy ‘routine restraint’. They already had him cuffed hands behind his back and face down on the ground – there is simply no credible risk of flight. Heck, most people probably can’t even get up on their own from that position. Certainly, “kneeling on the neck” is not a technique of restraint that is taught or routine.

      Moreover, it simply makes no sense to maintain that position for 8+ minutes. Routine is (AIUI) putting him in the patrol car once you’ve got him cuffed.

      • Roo
        Posted June 3, 2020 at 10:12 pm | Permalink

        If you Google “neck restraint”, it looks like they are indeed taught in places, or at least were prior to this.

        • Posted June 4, 2020 at 8:46 am | Permalink

          It’s in the MPD manual: But only until restraint is achieved, which was very early in the incident. After that, not allowed.

          MPD has a pretty bad record on neck restraint.

    • jay salhi
      Posted June 4, 2020 at 1:49 am | Permalink

      ” Approximately half of the country will say no, the fact that they knew they were being filmed is itself exculpatory, because they were not trying to hide their actions”

      It would be exculpatory if the charge were first degree murder but that is not the charge. First degree murder is not the appropriate charge because it would be nearly impossible (absent additional evidence) to prove beyond a reasonable doubt that Chauvin intentionally tried to murder Floyd on a public street in the presence of three other officers and other witnesses.

      • Roo
        Posted June 4, 2020 at 7:45 am | Permalink

        Apologies, that wasn’t very clear. I didn’t mean legally, more in the sense that some people will see this as cold blooded murder and some will see it as incompetence or the result of poor training.

  12. Jon Gallant
    Posted June 3, 2020 at 10:15 pm | Permalink

    The knee-on-the-neck tactic seems in the same category of methods as the stranglehold.
    The latter is applied to white as well as black arrestees, such as a developmentally disabled young man in Maryland whose offense was not paying for a movie ticket: see

    https://www.washingtonpost.com/opinions/three-officers-killed-a-man-with-down-syndrome-finally-a-reckoning/2018/04/28/5400bd40-49a7-11e8-827e-190efaf1f1ee_story.html

    I wonder, in light of these cases, whether there is widespread police training in the restraint of arrested suspects by preventing them from breathing, one way or another.

  13. jay salhi
    Posted June 4, 2020 at 4:34 am | Permalink

    “I suspect that Subdivision 1, point (1) is the relevant statute here.”

    No, definitely not. Chauvin will be prosecuted under Subdivision 2.

    • Posted June 4, 2020 at 8:52 am | Permalink

      Yes; but it will fail, just as in the Noor case. The will still have to prove beyond a reasonable doubt that Chauvin intended to commit a felony on Floyd (and accidentally killed him in the process).

      And I predict the result will be the same as the Noor case: Acquitted on M2, guilty on M3.

      M3 is unintentional homicide with “depraved disregard for human life”. I think the facts fit that definition.

      I think the cops genuinely thought they were in the right in what they were doing. This makes any sort of intent really hard to prove (beyond a reasonable doubt, to a jury of 12 strangers).

      But this also pretty well defines the problem: The cops have a very wrong idea about what is right in these cases. This must be corrected.


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