June 7, 2020 – As the epicenter of the George Floyd killing, the state of Minnesota has a lot to deal with: systemic racism, and police brutality. But what about the law itself?
The charges against Derek Chauvin, the former officer whose knee-in-the-neck maneuver is literally the killing tactic heard round the world. Without a doubt, this is an embarrassing moment for the United States, removing any legitimacy for it to point fingers at other nations. Now those nations are pointing back at the US as it devolves into a brutal and barbaric dictatorial culture–with an administration apparently, hell-bent on killing its own. It speaks volumes when a nation takes aim at its own citizenry, even those who “peaceably” assemble to protest the unnecessary and inexcusable killing of man in police custody–who posed no threat to police or anyone else–yet was mercilessly killed while in their care.
Protestors of the Status Quo are Demanding Answers.
Where is justice for George Floyd? What does Minnesota law say about Intentional Killing, of someone in police custody–by the police? Why did an officer use deadly force on an handcuffed, unarmed man?
We do know that the Murder charge for George Floyd’s killer, ex-officer Derek Chauvin has been “upgraded” in severity from Murder in the Third Degree, to Murder in the Second–with the potential to reach First Degree Murder if facts relative to premeditation are uncovered.
Yet, the most serious charge currently filed against Chauvin, is the Second Degree Murder charge, which under Minnesota can be found in,
Section 609.19 Murder in the Second Degree, which states as follows:
Subdivision 1. Intentional murder:
Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation;
Looking at the facts presented and the clear meaning of the statute, Chauvin could be found guilty if it is determined that he had the “intent” to cause death, without the need to premeditate the killing. Under the Minnesota Second Degree Murder statute, the perpetrator can be sentenced up to 40 years in prison. For the prosecution, this would require them to prove that Chauvin did in fact have the “intent” to cause the death of Floyd, and that death result as a consequence of that intent.
To find ‘intent’ a thorough analysis must be made of Chauvin’s actions that include: his verbal and nonverbal interactions with Floyd, causing him to handcuff Floyd and place him on stomach causing compression to his chest, applying unmitigated compression to his neck with his knee, ignoring pleas by decedent to let him breathe, ignoring decedent’s statements that he is going to die, ignoring the pleas of onlookers to allow Floyd to breathe, dismissing information that Floyd had no pulse, continuing to compress Floyd’s neck as he lay unconscious without a pulse, unrelenting effort to prevent Floyd from regaining consciousness, while also withholding resuscitation efforts or CPR. It is not only foreseeable that if someone does all the above for almost 9 minutes (8 minutes and 46 seconds), that death is pretty much guaranteed.
Intent to Kill
It would be quite a stretch for Chauvin to say he didn’t have the intent to kill Floyd–as his actions clearly speak louder than any words. Moreover, it is also common knowledge that prolonged deprivation of oxygen causes death. Surely this fact is within the common knowledge of police officers who are trained in restraint. Nevertheless, it is common knowledge of both adults and children alike that, choking and not breathing for an extended period of time–deprivation of oxygen causes death.
As outlined in our previous article, “Minnesota’s on Fire” Chauvin has previously charged with multiple charges including Third Degree Murder and Second Degree Manslaughter. Those charges are explained in full, as seen in article below:
Three Additional Former Officers Charged ‘Accessories’ in the Killing of George Floyd
For purposes of charging Accessory Liability of the three former officers were present and participated to some degree with Chauvin in the arrest and restraint of George Floyd–but it was Chauvin who literally squeezed the life out of Floyd. Most troubling, none of the officers attempted to assist Floyd as he lay dying. To assess what charges may be appropriate for the three ex-officers to be charged, we must look to the Minnesota statutes on ‘Accessories’ to killings for guidance on the statutory requirements of the charge.
609.205 Manslaughter in the Second Degree which provides as follows;
A person who causes the death of another by any of the following means 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:
(1) 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;
It would appear to most reasonable onlookers, that Chauvin’s conduct created a extremely dangerous situation with an unreasonable risk of harm that was perpetuated with the assistance of his three coworkers. At the “bare minimum” Chauvin’s actions were made possible by the deference the three officers showed toward him while he was engaged in snuffing out the life of Floyd. When the three officer’s failed to mitigate the situation, they made it possible for Chauvin to kill Floyd. In the alternative, had they exercised good judgement and tried to rescue Floyd before he died, they may have been able to absolve themselves of being “accessories” to murder or manslaughter.
Yet, the facts remain: none of the three went to Floyd’s rescue, and none of them interfered with Chauvin’s unrelenting chokehold on Floyd. Such conduct suggests that the three former officers exhibited a detached indifference as to whether Floyd lived or died. Moreover, their continued engagement with Chauvin, while continuing to ignore pleas of the crowd to let Floyd breathe, ignoring repeated pleas by Floyd himself that he couldn’t breathe–pleading for his life, their failure to mitigate Chauvin’s actions, and their failure to give Floyd CPR when it they identified that he wasn’t breathing, allowing Chauvin to continue his chokehold on Floyd after it was determined that Floyd had no pulse–shows grave indifference to the plight of George Floyd, making them all culpable in his killing.
At minimum, the three now former police officers engaged in culpable negligence, if not murder: as they did nothing to intervene to save the life of George Floyd, and did nothing to stop Chauvin from killing him. Not only did the three former officers have real-time actual knowledge that Floyd was in distress, they actively participated in his apprehension and arrest. From all appearances, their conduct satisfies the elements of the statute: aiding and abetting in the death of George Floyd.
Three Former Officers Were Charged with Aiding and Abetting Second-Degree Murder, and Aiding and Abetting Second-Degree Manslaughter
Under Minnesota law, to charge someone an accessory to a crime, the following section controls:
Section 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.
How Did the Accomplice Statute Get Triggered?
- When they did not object Chauvin to continue his deadly chokehold while Floyd pleaded that he could not breathe and that he was dying;
- Where the three kept crowds away that pleaded for officers intervene or allow bystanders to intervene were prevented from doing so;
- Where the three did not try to resuscitate Floyd, after it was determine that Floyd had no pulse;
- When they did not physically restrain Chauvin from choking Floyd or administer emergency medical assistance when Floyd became unconscious, had no pulse, made no attempt to revive him or apply CPR, and continued to allow Chauvin to choke him even after he had no pulse and was likely deceased. Total time time to react, was 8 minutes and 46 seconds.
By the conduct of the three former officers, they made intentional choice–assisted Chauvin in the killing of Floyd, and by all appearance, contributed to the death of George Floyd.
SWORN DUTY TO PROTECT & SERVE…?
Peace officers are police officers. They have a ‘sworn duty’ an ‘oath‘ as officers to protect and serve–but none of that was done for George Floyd.
‘Law Enforcement Oath of Honor’
“On my honor,
I will never betray my badge,
my integrity, my character,
or the public trust.
I will always have the courage
to hold myself and others
accountable for our actions.
I will always uphold the Constitution,
the community,
and the agency I serve,
so help me God.”
Because police are ‘sworn’ public servants, we expect them to act with integrity and intervene when members of the public they are in peril. We believe that officers enter the profession to help those in their communities who need assistance–to give them aid and protection. Yet, not only did that not happen for George Floyd–the officers conduct actually put him in mortal danger. Just by watching the video, without knowing all the words that were spoken, the three officers appear to be complicit in aiding Chauvin, to engage in an unnecessary and heinous crime – the killing of George Floyd.
Perhaps a new police oath is in order–where integrity and good-will is key?
A new oath for officers is only a first step in restoring confidence and ethics in policing. But is just a step, weeding out bad apples and negotiating better contracts with the police union is mission critical. Even more critical, the US Supreme Court’s current precedent is long overdue for a major overhaul. Current precedent absolves police of extreme wrongdoing, the Doctrine of “Qualified Immunity“keeps it going. For far too long, bad precedent has been the rule and the roadmap for bad cops to abuse their power to traumatize victims and even kill them with impunity. Not only has it excused extreme wrongdoing–even killings, it has excused and perpetuated the stealing of hundreds of thousands of dollars and killings without rebuke. The Qualified Immunity has got to be overhauled if we are to get back to ethics in policing and serving the public good. We will discuss this concept and its real-life application in upcoming articles.
To Learn more about Accomplice Liability…
When Did the Accomplice Statute Get Triggered?
The statute was triggered when we first learned the victim’s air supply was being cut off and the other officers present, did nothing to help Floyd. They continued in the role of accomplices when they heard the victim plead for breathe, when they heard him cry out that he could not breathe and was going to die, when they kept everyone away who wanted to help Floyd.and ultimately when Floyd stopped breathing and they did nothing to help him regain consciousness or breathing.
Subdivision 2. Expansive liability: A person liable under subdivision 1 [above] 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.
A prosecutor will need to show that it was reasonably foreseeable that if a person is in a choke hold, by whatever means–here a knee on the neck, that it is foreseeable that if it continues for an extended length of time, here almost 9 minutes, with the person restrained begging for air–and saying he’s going to die, and losing consciousness and a pulse, that death is a foreseeable consequence of those actions. Such would make the Expansive liability provision actionable for the three officers complicit in the death of George Floyd.
The following provision of “abandonment” does not apply, as none of the three officers took any action, substantial or not, to abandon Chauvin and take reasonable steps to prevent the commission of killing of Floyd. Therefore, abandonment of criminal purpose should not be a defense by any of the three charged with accomplice liability.
Subdivision 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.
The following section evinces that even if Chauvin is not found guilty of the crime, that does not mean that accomplices would not found guilty.
Subdivision 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,
Under accomplice liability, accessories can be found culpable on the same or lesser or different crime as the principal actor depending on the evidence presented at trial and their level of “culpability” in ending Floyd’s life.
When deadly force is authorized by statute:
Section 609.066 Authorized Use of Deadly Force By Peace Officers:
Subdivision 1. Deadly force defined:
For the purposes of this section, “deadly force” means 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. The intentional discharge of a firearm, other than a firearm loaded with less lethal munitions and used by a peace officer within the scope of official duties, in the direction of another person, or at a vehicle in which another person is believed to be, constitutes deadly force. “Less lethal munitions” means projectiles which are designed to stun, temporarily incapacitate, or cause temporary discomfort to a person. “Peace officer” has the meaning given in section 626.84, subdivision 1.
Subdivision 2. Use of deadly force:
Notwithstanding the provisions of section 609.06 or 609.065, the use of deadly force by a peace officer in the line of duty is justified only when necessary:
(1) to protect the peace officer or another from apparent death or great bodily harm; [Fact: George Floyd was handcuffed, had no weapon, and did not resist arrest];
(2) to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony involving the use or threatened use of deadly force;
[Fact: George Floyd did not threaten anyone with deadly force and it is unclear that he committed a felony–he was accused of passing a counterfeit $20 bill but there was no evidence that it was counterfeit, and if it was, that George Floyd had procured it by wrongdoing];
(3) to effect the arrest or capture, or prevent the escape, of a person whom the officer knows or has reasonable grounds to believe has committed or attempted to commit a felony if the officer reasonably believes that the person will cause death or great bodily harm if the person’s apprehension is delayed.
[Fact: George Floyd was already apprehended, in handcuffs, did not resist arrest, did not have a weapon, nor did he threatened anyone with bodily harm so there could be no reasonable belief that he was going to harm anyone];
Minnesota statute on when a Taking of Life of Another is Justified:
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.
The terms of the statute did not authorize an intentional taking of life by any police officer, as there was no threat posed by George Floyd.
The Statute below circumscribes the conditions that must be present where force is authorized:
609.06 Authorized Use of Force.
Subdivision 1. When authorized: Except as otherwise provided in subdivision 2, reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist:
(1) when used by a public officer or one assisting a public officer under the public officer’s direction:
(a) in effecting a lawful arrest; or
(b) in the execution of legal process; or
(c) in enforcing an order of the court; or
(d) in executing any other duty imposed upon the public officer by law; or
(2) when used by a person not a public officer in arresting another in the cases and in the manner provided by law and delivering the other to an officer competent to receive the other into custody; or
(3) when used by any person in resisting or aiding another to resist an offense against the person; or
(4) when used by any person in lawful possession of real or personal property, or by another assisting the person in lawful possession, in resisting a trespass upon or other unlawful interference with such property; or
(5) when used by any person to prevent the escape, or to retake following the escape, of a person lawfully held on a charge or conviction of a crime.
Culpability or Excuse ?
As can be ascertained by reading the statutes, there was no statutory right of any of the former officers to use deadly force upon Floyd under the situation that presented, and as such all officers are culpable in his killing. A jury will decide which punishment will be given to each according to his involved in bringing about Floyd’s death. In the meantime, it is up to the public to encourage a conversation, and the US Supreme Court to overturn bad precedent. Maybe then, police officers, their unions and their Chiefs will finally listen.
Copyright 2020. Mary Kay Elloian, MBA, JD, Esq.
All Rights Reserved.
~~~
Watch for upcoming articles on ‘Qualified Immunity‘, What it is, How it Works, and What, if anything the US Supreme Court is going to do about it.
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