Excessive Force

Derek Chauvin's Murder Trial Will Be All About 'Reasonableness'

And that means breaking through the "blue wall of silence."


Derek Chauvin, the now-former Minneapolis police officer who pressed George Floyd's head into the pavement with his knee until Floyd died, has now been charged by Minnesota prosecutors with third-degree murder and second-degree manslaughter. 

The speed with which Chauvin was fired and charged is a promising sign that Minnesota officials have a real desire—whether sincere or political—to hold him accountable for Floyd's death. After all, recent history has shown that it's all too easy for prosecutors who want to shield police from consequences for misconduct to do so, either by outright refusing to prosecute, as the Department of Justice did in the case of Eric Garner's killer, or by presenting a weak case to a grand jury in order to obtain a non-indictment, as happened in the killing of Michael Brown. 

But given the rarity of police prosecutions (and the even greater rarity of convictions), it's fair to wonder how much these charges really mean. Though it's true that excessive force prosecutions are rare, comparatively speaking, they do happen often enough that we can make some educated guesses about how this one will proceed. 

There Will Probably Be a Trial

In a legal system where more than 95 percent of criminal cases are disposed of by negotiated guilty pleas, it might seem like there won't actually be a trial of Derek Chauvin. But chances are, there will be. Unlike most criminal cases, a police brutality case does not rise and fall on whether the government can prove that the defendant committed a particular act. There's really no dispute about what the officer did, or whether he was the one who did it. The question is instead whether the force was justified. 

This makes taking your chances with a jury a much more appealing prospect to a police officer than it is to your average criminal defendant. Add to that the fact that jurors are generally inclined to give greater credence to police testimony than that of other witnesses, as well as the politically-charged atmosphere around issues of police violence, and a charged officer's incentive to take a plea is greatly reduced.

The Trial Will Be All About "Reasonableness"

The facts of George Floyd's death and the offenses that Chauvin has been charged with give the ex-cop a number of possible defenses to present at his trial. 

Unlike in a case where a police officer shoots someone with a gun, the facts at hand will allow Chauvin to argue that he had no reason to think that he was putting Floyd's life in danger. The choice of charges reflect an awareness of this fact by the prosecutors—neither third-degree murder nor second-degree manslaughter require proof that the defendant consciously intended to cause death (a necessary element of Minnesota first- and second-degree murder, as well as first-degree manslaughter). Third-degree murder requires that the defendant have acted with "a depraved mind without regard for human life," whereas second-degree manslaughter applies to acts with "culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another."  

There are a number of ways Chauvin might try to defend these charges. It's possible that he will present medical evidence to try to show that drugs or preexisting conditions, rather than his use of force, caused Floyd's death. That would negate the "causation" element of all homicide crimes, which requires the prosecution to show that the defendant's acts were the cause of the victim's death.

It seems more likely, however, that his defense will attack the state-of-mind elements of the offenses charged by arguing that no reasonable officer would have known that pinning George Floyd's head down with his knee would create a serious risk of death. That would negate the "culpable negligence" element of manslaughter and the "depraved mind" indifference element of third-degree murder. 

Chauvin also might offer a justification defense, which instead argues that even if his acts otherwise meet the definition of a criminal offense, he is not guilty of that crime because another provision of the law authorized him to do what he did. In this case, that provision would be either Minnesota Statute 609.06, which authorizes police officers to use "reasonable force" when they "reasonably believe" that they are "effecting a lawful arrest," or Minnesota Statute 609.066, which authorizes police to use deadly force when necessary to protect himself or another from death or serious injury, or to prevent the escape of a person who the officer "reasonably believes … will cause death or great bodily harm if the person's apprehension is delayed."

This legal framework defines the battleground on which the trial will be fought. The prosecution will argue that no reasonable officer would have failed to appreciate the danger of compressional asphyxia posed by kneeling on the head of a man who repeatedly complains of difficulty breathing; the defense will argue that it was reasonable to believe that Floyd was exaggerating his symptoms and was in no danger. The prosecution will argue that there was no reason to think Floyd was dangerous; the defense will counter that his behavior would have put a reasonable officer in fear of being assaulted if Chauvin had lifted his knee. The jury's ultimate job will be to decide whose position is the reasonable one. 

Other Officers May Testify Against Chauvin

But the jury's consideration of "reasonableness" might be guided by the 1989 case of Graham v. Connor, in which the Supreme Court held that the reasonableness of a police officer's use of force must be evaluated "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." It also instructed that "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Although Graham technically only applies to determining whether a police use of force was reasonable under the constitution, as opposed to under Minnesota law, the states have widely embraced it for interpreting what "reasonableness" requires under their own law, so it is likely that the judge will give the jury an instruction that closely mirrors the language of Graham.

Graham's mandate that reasonableness be evaluated through "the perspective of a reasonable officer on the scene" often makes juries reluctant to criticize an officer's decisions after the fact. They reason (at the prompting of defense counsel) that even if the cop's actions appear unreasonable or excessive to them, they weren't there and don't have a policeman's training or experience. 

This pattern means that, often, the most persuasive evidence a prosecutor can offer in an excessive force trial is the testimony of another officer who was present on the scene that he knew at the time that his colleague's actions were unreasonable and unjustified. Such testimony has the unique power to negate the "you're not cops, you don't understand" argument that Graham invites police defendants to make. 

However, such testimony is rarely obtained easily. As two cops testified in a recent federal excessive force trial in nearby St. Paul, there is enormous peer pressure for officers to remain silent about their knowledge of colleagues' misconduct, and officers who speak up often face harassment and retaliation at work. Overcoming this "blue wall of silence" often requires prosecutors to cut favorable plea deals with officers whose involvement in an incident might expose them to criminal liability themselves in exchange for testimony.

The criminal complaint filed against Chauvin suggests that the prosecutors in Minneapolis might be thinking along these lines. The probable cause narrative goes out of its way to note that another one of the fired officers, Thomas Lane, expressed concern about continuing to restrain Floyd face-down and suggested rolling him over, only for his suggestion to be shot down by Chauvin. The inclusion of this detail in the complaint could well be a hint that prosecutors have their eye on Lane as a possible cooperating witness. Don't be surprised if he turns up on the stand during a trial. 

There's No Predicting Which Way the Jury Will Go

The odds are stacked against any criminal defendant in our justice system. But even when they're on trial for murder, cops enjoy advantages not conferred onto others in the same position, as is true in so many other parts of the law. Add that to the fact that it only takes one juror to secure an acquittal, and conviction is anything but a safe bet. The result is that even in the rare case in which egregious, obvious misconduct is caught on video and vigorously prosecuted, accountability is a coin toss at best. And that's a real shame.