Did Prosecutors Undercharge the Cop Who Killed George Floyd?

The answer hinges on Derek Chauvin's state of mind as he kneeled on Floyd's neck for nearly nine minutes.

Derek Chauvin, the former Minneapolis police officer who was arrested on Friday in connection with the death of George Floyd, faces two charges as a result of that incident: third-degree murder and second-degree manslaughter. Floyd's family argues that Chauvin should have been charged with first-degree murder. The distinction hinges on Chauvin's state of mind as he pinned Floyd to the ground with a knee on his neck, which he continued to do even as Floyd complained that he could not breathe, even after Floyd stopped speaking or moving, and even after another officer reported that he could not detect a pulse.

The May 25 incident, which sparked protests across the country, began when someone called 911 to report that a man had used a counterfeit $20 bill for a purchase at Cup Foods, a restaurant on Chicago Avenue. Shortly after 8 p.m., Officers Thomas Lane and J.A. Kueng arrived at the restaurant, where employees reported that the customer who had made the purchase was sitting in a car parked nearby on 38th Street. Lane and Kueng found Floyd sitting in the driver's seat and ordered him, then pulled him, out of the car. According to the criminal complaint against Chauvin, which is based largely on body camera video of the incident, Floyd "actively resisted being handcuffed" but "once handcuffed…became compliant and walked with Officer Lane to the sidewalk and sat on the ground at Officer Lane's direction."

The complaint says Lane asked for Floyd's name and identification, asked if he was "on anything," and informed him that he was under arrest for passing a counterfeit bill, a misdemeanor when the offense involves merchandise worth no more than $1,000. When Lane and Kueng stood Floyd up and tried to walk him toward their squad car, the complaint says, he "stiffened up, fell to the ground, and told the officers he was claustrophobic." At this point Chauvin and Officer Tou Thoa arrived at the scene in a separate squad car.

According to the complaint, the officers repeatedly tried to get Floyd into Lane and Kueng's car. The complaint says Floyd "did not voluntarily get in the car and struggled with the officers by intentionally falling down, saying he was not going in the car, and refusing to stand still." While standing outside the car, Floyd "began saying and repeating that he could not breathe." About five minutes after Lane and Kueng intially tried to put Floyd in their car, Chauvin pulled Floyd "out of the passenger side of the squad car." Floyd "went to the ground face down and still handcuffed." As Kueng held Floyd's back and Lane held his legs, Chauvin "placed his left knee in the area of Mr. Floyd's head and neck."

Chauvin kept his knee on Floyd's neck for nearly nine minutes. "I can't breathe," Floyd repeatedly said. "Please," he pleaded more than once. "Mama," he cried out. CNN legal analyst Elie Honig, a former state and federal prosecutor, notes that Floyd also can be heard saying "don't kill me" and "I'm about to die" in video of the incident, although the complaint omits those statements. It also does not mention that bystanders, worried about Floyd, urged the officers to get off of him.

Chauvin and the other two officers nevertheless "stayed in their positions," although Lane twice suggested that they roll Floyd off his stomach and onto his side. "I am worried about excited delirium or whatever," Lane said at one point. Chauvin rejected Lane's suggestions.

About five minutes after the officers pinned Floyd to the ground, he stopped moving. A minute later, "the video appears to show Mr. Floyd ceasing to breathe or speak." Kueng checked Floyd's right wrist for a pulse and said, "I couldn't find one." Still, "none of the officers moved from their positions." About two minutes later, Chauvin finally removed his knee from Floyd's neck. An ambulance arrived and took Floyd to the Hennepin County Medical Center, where he was pronounced dead.

The third-degree murder charge against Chauvin, which is punishable by up to 25 years in prison, alleges that he caused Floyd's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life," but "without intent to effect the death of any person." The lesser charge of second-degree manslaughter, which is punishable by up to 10 years in prison, alleges that Chauvin killed Floyd through "culpable negligence" that created "an unreasonable risk" of "death or great bodily harm."

Both of those charges seem well-supported by the facts revealed in the video. What about first-degree murder, the charge that Benjamin Crump, the attorney representing Floyd's family, thinks should have been brought? That charge, which carries a mandatory life sentence, requires that Chauvin acted "with premeditation" and "with intent" to kill Floyd. "We now have the audio from the police body cam, and we hear where one officer says, 'He doesn't have a pulse, maybe we should turn him on his side,'" Crump said today on Face the Nation. "But yet, Officer Chauvin says, 'No, we're going to keep him in this position.' That's intent."

That claim seems plausible given the repeated pleas from Floyd, the repeated exhortations by witnesses, and Lane's repeated suggestions that Floyd should not be left on his stomach—any of which, if heeded, could have prevented Floyd's death. But do Chauvin's actions suggest "premeditation"? That element does not require a carefully laid plan to kill someone, but it does mean that the defendant "consider[ed], plan[ned] or prepare[d] for, or determine[d] to commit, the act…prior to its commission."

Second-degree murder, which is punishable by up to 40 years in prison, seems like a better fit. That charge requires that the defendant "cause[d] the death of a human being with intent to effect the death of that person or another, but without premeditation." Yet even that charge requires an intent that Chauvin surely will deny.

Prosecutors may yet revise the charges against Chauvin. They may also file charges against Kueng and/or Lane, who were complicit in keeping Floyd pinned to the ground on his stomach despite all the warning signs. All four Minneapolis officers who were involved in the incident were fired the day after Floyd's death.

"The defendant had his knee on Mr. Floyd's neck for 8 minutes and 46 seconds in total," the criminal complaint notes. "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."

Some of the details in the complaint could be useful to the officers' lawyers. The complaint claims that Floyd was uncooperative and that he began complaining about difficulty breathing even before he was pinned to the ground, which might have led the officers to discount his subsequent complaints. "You are talking fine," one of them said while Floyd was still moving.

The report also notes—gratuitously, in Honig's view—that Floyd was "over six feet tall and weigh[ed] more than 200 pounds." While that information might be relevant in understanding why the officers had trouble getting Floyd into the patrol car, it has no real bearing on what they did once they had him pinned. In particular, it does not explain Chauvin's decision to keep kneeling on Floyd's neck.

Honig also faults the prosecutors' description of what caused Floyd's death, which is based on preliminary autopsy results. "The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation," the complaint says. "Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death."

Honig notes that "the lack of 'physical findings' by no means rules out the possibility that the victim died of traumatic asphyxia or strangulation." And he questions the reference to intoxication as a factor that may have contributed to Floyd's death. "In my 14 years as a prosecutor (or my 45 years of life), I've never heard of a 'potential intoxicant,'" he writes. "Did Floyd have intoxicants in his system or not? A basic toxicology test should answer that question conclusively, and there is no excuse for prosecutors to not know the answer, or to state it ambiguously, four days after Floyd's death."

Contrary to Honig's assertion, toxicology results often are not available for weeks after an autopsy. At this point, the speculation that Floyd was under the influence of a drug seems to be based on little more than the officers' suspicions. In any event, as Honig points out, that question is irrelevant to Chauvin's culpability. Regardless of Floyd's preexisting medical conditions or any drug he may or may not have taken, the relevant question in the causal analysis is whether he would still be alive but for Chauvin's actions, and the answer to that seems clear.

Addendum: Harvard law professor Laurence Tribe and Minnesota attorney Albert Turner Goins, writing in The Boston Globe, argue that the third-degree murder charge against Chauvin is inappropriate because case law limits that charge to "reckless or wanton acts…without special regard to their effect on any particular person," such as "shooting aimlessly into a crowd." They say a second-degree murder charge, under a provision dealing with a defendant who causes someone's death "while committing or attempting to commit a felony offense" (in this case, the assault on Floyd) makes more sense. That provision does not require proof of an intent to kill.