George Floyd

Some of the Charges Stemming From George Floyd's Death Should Trouble Criminal Justice Reformers

The criminal complaints against Derek Chauvin and three other officers rely on expansive liability principles that reformers usually oppose.

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Activists who were outraged by George Floyd's death welcomed the criminal charges against Derek Chauvin and three other former Minneapolis police officers who were involved in that horrifying incident. But some of those charges raise issues that would trouble many of the same criminal justice reformers if the context were different.

The second-degree manslaughter charge against Chauvin, the officer who kneeled on Floyd's neck for nearly nine minutes, seems to easily fits the facts of the case. It alleges that Chauvin caused Floyd's death "by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another." That offense carries a maximum penalty of 10 years in prison.

The second-degree murder charge against Chauvin that Minnesota Attorney General Keith Ellison filed on June 3, by contrast, relies on the "felony murder" doctrine, a legal principle that criminal justice reformers have long criticized. That count, which carries a maximum penalty of 40 years in prison, alleges that Chauvin caused Floyd's death without intending to do so "while committing or attempting to commit a felony offense"—namely, third-degree assault.

Critics of felony murder laws argue that they unjustly punish defendants who were peripherally involved in crimes that resulted in someone's death, often in cases where they neither intended nor anticipated that outcome. Someone who participates in a burglary as a driver or a lookout, for example, could be convicted of murder if the burglar unexpectedly encounters the property owner and kills him during the ensuing struggle. A defendant's involvement can be even more limited: In Florida, Lauren Krisai notes, a man received a life sentence because he lent his car to a friend, who used it to commit a home burglary in which the owner's 18-year-old daughter was killed.

That case is a far cry from Chauvin's, since he is charged with committing the assault that killed Floyd. But the felony murder charge against him means prosecutors do not have to prove the homicide was intentional, which would be required if he had been charged under the first subdivision of Minnesota's second-degree murder statute.

That maneuver, notes Ted Sampsell-Jones, a professor at Mitchell Hamline School of Law in St. Paul, relies not only on the "highly controversial" felony murder doctrine but "a particularly weird form of it." In a recent article at The Dispatch, Sampsell-Jones says "nearly all" jurisdictions that allow felony murder charges follow the "independent felony" rule, which says "the underlying felony—known as the predicate felony—must be separate from the act causing death." That "generally means that assault and battery cannot serve as the predicate felonies for felony murder."

Under the independent felony rule, an arsonist who sets a fire that unintentionally kills someone could be charged with felony murder, while a barroom brawler who hits someone and accidentally kills him could not. But Minnesota is "one of just a couple jurisdictions that has rejected the independent felony rule, and it therefore allows assault to serve as a predicate," Sampsell-Jones writes. The upshot is that Chauvin can be convicted of second-degree murder, which otherwise requires proof of intent, even if he killed Floyd without meaning to do so. The elements are very similar to the allegations underlying the manslaughter charge, which carries a substantially lighter penalty, except that prosecutors have to prove Chauvin intended to commit an assault.

Chauvin also faces a third-degree murder charge, which 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." That charge, Harvard law professor Laurence Tribe and Minnesota criminal defense attorney Albert Turner Goins have argued, is not appropriate in this case, because Minnesota courts have restricted it to "reckless or wanton acts" committed "without special regard to their effect on any particular person."

Sampsell-Jones expects Chauvin's lawyers to raise that argument, but he thinks the case law is not as clear as Tribe and Goins imply. "There is definitely some [Minnesota] case law saying that," he writes in an email, but there is also "case law to the contrary." He notes that former Minneapolis police officer Mohamed Noor, who last year was sentenced to more than 12 years in prison for killing Justine Damond after she called 911 to report a possible assault in the alley behind her house, was convicted of third-degree murder, "even though he pointed a gun at someone's chest and pulled the trigger."

In terms of the sentence Chauvin is apt to receive, the distinction between second-degree and third-degree murder may not matter. Although the maximum statutory penalty is higher for second-degree murder (40 vs. 25 years), the presumptive penalty for felony (unintentional) murder under Minnesota's sentencing guidelines is the same: 150 months, which is the sentence that Noor received.

The aiding and abetting charges against the three other officers who participated in Floyd's arrest—J.A. Kueng, Thomas Lane, and Tou Thao—likewise are not as straightforward as they might seem. Kueng and Lane both helped restrain Floyd, although Lane repeatedly suggested that he should be rolled from his stomach to his side, presumably to reduce the risk of suffocation. Chauvin rejected those suggestions. Thao, meanwhile, not only failed to intervence but physically prevented bystanders from doing so.

Does that mean Kueng, Lane, and Thao "intentionally aided" Chauvin in the commission of second-degree manslaughter or second-degree murder, as the criminal complaints against them allege? Those charges, Sampsell-Jones notes in another Dispatch article, are "legally valid under Minnesota law" but "rely on some fringe doctrines of accomplice liability." Those doctrines, "which have long been criticized by progressive reformers, create expansive strict liability for minor participants in group crimes."

Accomplices are "criminally liable" for the offense committed by the person they assisted, meaning that Kueng, Lane, and Thao theoretically could receive the same penalty as Chauvin, even though they had much less culpability in Floyd's death. "Giving accomplices the same sentence is in fact the presumptive norm," Sampsell-Jones says in an email, "though minimal role in the offense can be the basis for a downward departure."

While these three officers' inaction during Chauvin's assault on Floyd was reprehensible, it is not enough to convict them as accomplices. "In general the failure to act is not a crime," Sampsell-Jones writes. "As the Minnesota Supreme Court has stated, mere presence at the scene of a crime and passive acquiescence are insufficient."

Assuming that the cases against the three alleged accomplices go to trial, prosecutors would have to show that they took actions that facilitated Chauvin's crimes and that they intended to do so. Two principles of accomplice liability would make the prosecution's task easier.

Under "the natural and probable consequences doctrine," the officers could be convicted if they aided Chauvin's assault and Floyd's death was a reasonably foreseeable consequence. And under the felony murder doctrine, they could be convicted if they intentionally aided the assault, even if they did not intend or expect to cause Floyd's death. Under Minnesota law, Sampsell-Jones says, "an intent to commit or aid a misdemeanor assault is sufficient" to make a defendant guilty of murder. He adds that "Minnesota may be the only American jurisdiction where a simple misdemeanor assault can get bootstrapped all the way up to murder."

Sampsell-Jones worries that reformers, in their understandable zeal to see justice for Floyd, are compromising principles of justice they otherwise are keen to defend. Some have even argued that Chauvin should have been charged with first-degree murder, which requires premeditation as well as intent.

"An irony of this case is that the expansive liability doctrines, which progressive lawyers and academics have sought to reform for years, are now necessary to a high-profile prosecution that is demanded by progressive activists and pursued by a progressive attorney general," Sampsell-Jones writes. "But in a system devoted to the rule of law, the desire for retribution must be checked. Just because we want to convict these guys doesn't mean it's a good idea to abandon existing limitations on first-degree murder or accomplice liability—any more than it would be a good idea to abandon the beyond a reasonable doubt standard."

Criminal justice reform "should mean abolishing fringy doctrines of expansive liability—such as Minnesota's assault-felony-murder doctrine," Sampsell-Jones says. "The cause of criminal justice reform is more important than the result in this case. Locking a few more humans in cages will not create the systematic reform we need. Justice for George should mean much more than just sending these four cops to prison."

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  1. How will these charges ever get to trial when there is no chance of impaneling an impartial jury?

    1. Let him who is without sin among you levy the first criminal charge.

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  2. “In general the failure to act is not a crime,” Sampsell-Jones writes.

    Were they actively preventing others from intervening? Does that count as more than just a failure to act?

    In any case, leave it to someone like Ellison to turn a perpetrator into an sympathetic victim of overzealous prosecution.

    1. It’s already been decided that police officers are under no obligation to help anyone at any time.

    2. Yep.
      Ellison jumping in was bad news from the jump.
      It’ll be a miracle if he doesn’t f it up

    3. They acted – they held Floyd down. Acccessories to murder.

  3. Wasn’t the cause of death related to fentanyl-induced asphyxiation?

    1. I thought Floyd just held his breath too long while throwing a tantrum.

      1. Congress needs to ban “time outs” for black children.
        #ICantPlay

  4. This is a good article, I skimmed it and will read it in detail shortly. There are a lot of problems with this whole process, one of which is the fact that we’ve now seen several cases where prosecutors charged officers only after noisy public outcry. The production of criminal charges based on the screeching of protesters should give anyone concerned with criminal justice reform and due process pause. In one recent case, a prosecutor publicly announced her charges were entirely based on public outcry. I expect the defendant’s lawyer had (or will have) a field day with that.

    1. It’s funny, because every time the subject of due process and criminal justice reform kicks in, I like to remind people that those reforms and due process ideals will apply to cops accused of crimes in the line of professional duty.

    2. “The production of criminal charges based on the screeching of protesters should give anyone concerned with criminal justice reform and due process pause.”

      No, no, no the liberaltarians think the cool kids are finally on their side, and good intentions are all that matter now

    3. But then…what good is outcry if it doesn’t have some tangible consequences? On the one hand justice is supposed to be blind — and apparently deaf as well! But then if we don’t get justice, are we supposed to shut up, for fear of improperly influencing the process?

    4. Chauvin deserves it of course, but for the other three I almost get the impression that they are political prisoners because their arrests were so delayed.

  5. Off Topic

    I highly suggest this article of interviews with 10 activated National Guardsmen.

    https://www.politico.com/news/2020/06/09/national-guard-protests-309932

    Quoting the article:
    And in the case of Guardsmen involved in the Lafayette incident, some felt used.

    “As a military officer, what I saw was more or less really f—ed up,” said one D.C. Guardsman who was deployed to Lafayette Square last Monday and who, like some others, spoke on condition of anonymity to speak freely. The official line from the White House that the protesters had turned violent, he said, is false.

    “The crowd was loud but peaceful, and at no point did I feel in danger, and I was standing right there in the front of the line,” he said. “A lot of us are still struggling to process this, but in a lot of ways, I believe I saw civil rights being violated in order for a photo op.

    “I’m here to support and defend the Constitution of the United States and what I just saw goes against my oath and to see everyone try to cover up what really happened,” the Guardsman continued. “What I saw was just absolutely wrong.”

    One of the Guardsmen at the scene said the White House isn’t being truthful.

    “I’ve been tear gassed before. I was there the night before when we got tear gassed, there was tear gas there” on Monday evening, he said. He added that he and some of his soldiers felt the effects of the tear gas from their colleagues because they didn’t have masks on.

    1. https://twitter.com/NathanBacaTV/status/1268676543469019138

      Gas casings found in Lafayette Square after the photo op by local CBS reporter.

      1. This is no time to revisit Waco and the Branch Davidians.

    2. Reason has already covered this. It wasn’t “tear gas”. It was a gaseous substance designed to cause tears. Very different.

      1. I thought the interviews with NG who were there and at other incidents were very poignant.

      2. It was paint balls filled with capsaicin rather than gas grenades full of 2-chlorobenzalmalononitrile.

        I know you’re trying to be cute, but it’s like the difference between a bean bag round and plastic bullets.

        Anyone who pretends that getting shot with bean bags and pepper balls is just as bad as plastic bullets and tear gas is full of shit.

        1. “It was paint balls filled with capsaicin rather than gas grenades full of 2-chlorobenzalmalononitrile.”

          That’s what the Park Police claim.

          The capsaicin in those paint balls is a powder, not a gas or aerosol liquid.

          Of course the Park police saying that doesn’t make it true.

          1. The mob saying it was peaceful doesn’t make it true

            1. This is also true. One side lying doesn’t prove the other side is telling the truth.

              News photos/video from before the violence started shows the park police in gas masks and there are accounts of people finding spent tear gas canisters in the area after. Photos of the spent canisters have been posted on line.

  6. The saying “Hoisted with his own petard” comes to mind.

    Until they reform the laws for everyone, I am not going to complain that LEOs are, in some cases, being held to the same standard that they hold non-LEOs to.

    It doesn’t seem that they are treating the LEOs more harshly than anyone else in a similar situation would be treated.

    Imagine if some rando killed a cop by putting his knee on his neck for 9 minutes while 3 of this friends, helped getget him on the ground, and prevented anyone from helping….is there any doubt they would all be facing accomplice and felony murder charges??

    Yes I want reform, but until that happens, I also want equal treatment of draconian policies. The sooner that the LEOs and the tough on crime politicians start to actually feel the pain of their policies, the sooner reform might actually happen.

    1. Right? If this was going to be the first case where felony murder is abolished and there would never be another one, then ok. Otherwise, cry me a river.

      1. Felony murder is entirely just. If you go commit a felony that can forseably result in someone’s death and someone does it, you are guilty of murder. Cry my a fucking river for people who engage in armed robbery and one of their cohorts winds up murdering someone. Everyone involved in that situation deserves to go down for murder.

        1. I don’t see why they deserve that. Robbery is robbery, murder is murder. Just because you’re involved, that doesn’t mean it couldn’t turn on someone else’s decision.

          I also don’t get why (separately from the felony murder issue) in tort law liability is distributed proportionally, while criminal liability seems to multiply. If 10 people each take 1/10 of the part in killing one person, why are they just as criminally liable as if each one of them killed a separate victim on hir own, instead of just being 1/10 liable.

          Lawyers have sure made the world complicated.

          1. Robbery with a gun creates the risk that someone might get killed. If you are part of creating that risk and someone does get killed, you are responsible for it. There is nothing complicated about it. If you don’t want to be charged with murder, don’t go out committing crimes that create the risk of death.

            1. No John, as usual you are wrong. Felony murder is entirely unjust.

              Only the person who did the killing is responsible. You don’t punish the collective for actions of just one person.

              There really is nothing complicated about it. You prosecute people for the crimes they commit, not for what their associates do that is outside of your control.

              The guy who is a lookout for a robbery should not be culpable if one of the guys inside goes nuts and kills someone.

              Just like they shouldn’t charge the drug dealer for murder if his junkie buyer ODs

              Just because you want to dole out collective punishment doesn’t make it right.

              Personal responsibility means you are responsible for YOUR actions and yours alone.

        2. The problem is cases when people didn’t know they were driving someone to an armed robbery. Like the borrowing the car one. Or one in Texas where the brother was asked to drive to the store. One brother then went inside pulled a gun and killed the clerk. The one in the car was convicted of murder despite having no priors. He was just giving brother a ride. I know it would be hard to “know” that he was “just” giving brother a ride, but it’s hard to say the kid deserves a murder charge.

          1. Thats why we have juries, no?

            1. And advocates, and right to competent legal council. It’s not perfect because sometimes juries are biased and some Public Defenders are useless morons, but we do have these for a reason. Sometimes there’s a guy who’s innocently caught up in his partner’s crimes-didn’t know he was carrying, or whatever. And sometimes you helped plan it out all the way and perfectly understood, “We’ll shoot anyone who resists” and you’re guilty even if you don’t pull the trigger yourself.

          2. It’s like civil asset forfeiture. We can’t take the chance that the guilty will get away with their loot, so let’s create a law that can screw the innocent.

        3. Doubly so when it’s YOUR action that caused the death, as in this case.

  7. Under “the natural and probable consequences doctrine,” the officers could be convicted if they aided Chauvin’s assault and Floyd’s death was a reasonably foreseeable consequence.

    Oops. “We’ve used or witnessed the knee-on-the-neck technique dozens of times, and no one ever died.”

  8. I have ZERO problems with charging all members of a burglary gang with murder when any of them kill someone. If those other members want some mercy, how about they turn in the killer, maybe take the victim to a hospital, try to do something good to show they had not intended any deaths? Sorry, otherwise you contributed and I have zero sympathy.

    1. I also would not be bothered by first degree murder charges, although I expect that would result in an acquittal. At what point does the rush to subdue and restrain turn excessive? I’d say long before those 9 minutes are up, and especially once they had already checked for a pulse and found none. *That* is depraved and has turned into premeditation. “Nope buddy, not gonna let you up now, you’re staying down until you stop resisting my choking you to death.”

      1. If you look at the fact that Chauvin had some kind of long running beef with Floyd, I would not put first degree murder out of the question. If they had some standing conflict, it is entirely possible that the cop did that with the intent to murder Floyd.

  9. One cop is seen asking the killer to turn Floyd on his side, but the officer did not force the issue.

    IMO that establishes that he thought death could or would occur if things continued, and warned his cop buddies but the murderer decided not to listen.

    The officer then interferes with the general public trying to stop the murder because the public was warning the killer what was happening.

    This is intent. Everybody knew what was happening. The cops not only didn’t care, they actively prevented peaceful help and suggestions.

    I think there is more than enough for a 1st degree, pre-meditated murder charge and conviction due to the mass of people telling the cop to stop and the cops actively working to stop people from helping.

    I understand not wanting to overcharge, but as Nap points out, no juror will find these thugs innocent, they know it and will probably plea. Go for 1st and press hard and these thugs will plea for 2nd and feel lucky if they don’t die in prison.

    https://www.foxnews.com/media/judge-napolitano-george-floyd-chauvin-murder-case

    1. Yes, too many opportunities to stop, none taken, some absolutely rejected (finding no pulse, turning him over, keeping the crowd away). That is intent, depraved, or whatever they want to call it. Passive innocence does not apply. Following orders does not apply.

      1. Intent and premeditation are not the same thing, and that’s where the hinge between 1D and 2D lies.

        I might agree he had intent (though I think something like depraved indifference is more accurate), but I haven’t seen a lick of evidence to show that he planned and perpetrated the murder before his knee was on that neck.

        1. Premeditation can happen 2 minutes before the murder. There were 8+ minutes at play during which, multiple people tried to intervene but were rebuked by an armed and armored cop.

          Because of this, I think Nap has a point.

          No jury will find this man innocent of whatever the prosecution charges unless the jury is seeded with cops (which would be an unimaginable blunder). Because of this, charge the max and let them beg for 2nd and mock them while they squirm.

  10. You mean a lynch mob might get things wrong? Who could have seen that coming?

    Meanwhile, it appears that the cop and Floyd had a long history together and this was the result of a personal beef between the two and likely had nothing to do with race.

    https://www.cbsnews.com/news/george-floyd-derek-chauvin-nightclub-bumped-heads/

    Not that this excuses Chauvin. It does not. In fact, it makes it more likely he is guilty of first degree murder. But, this was not a case of a racist cop murdering a black man. Cauvin is married to a Hmong. This was just another asshole cop doing what assholes do. But hey, why let the facts get in the way of the narrative?

    1. I’ve tried telling people that the problem with racist cops is not the first word, but the invisible second word: government. Racism by itself is no more harmful than fraud by itself. Absent theft or any other real harm, fraud wastes a little time at worst. Trying to eat at a lunch counter or order a cake where you are not wanted only wastes a little time at worst.

      What turns it evil is the government mandating it, a la slavery or Jim Crow segregation or affirmative action, or enabling it through employees with a vendetta. Whether or not this cop was racist, he was power mad, he was a control freak, and government gave him free rein to harass the public. That is the wrong.

      1. If you don’t like police having the power to screw with people, then repeal some laws and give them less power to do that. No one seems to understand that for some reason.

        1. The laws exist. We stopped enforcing them when SCOTUS created qualified immunity to support the War on Drugs.

          Title 18 sections 242 and 241 of the us federal code will do the job.

          We don’t need new laws. We need to impose them.

    2. Yeah it does look like this was personal. But what’s the Hmong angle?

        1. Not sure that proves he’s not racist when it comes to black people if that’s the point. I’m not saying he is racist because I don’t know one way or the other. I’m just not sure an Asian wife is relevant.

  11. This is what keeps the lawyers in business. I have a Ph.D. in biochemistry, yet I’m reading some of Jacob’s passages several times before giving up on trying to make sense of the distinctions. Not his fault, not the fault of the people describing them that he quotes, but lawyers have sure made themselves a great scheme for employment.

    1. Think of it as learning the differences between -ane, -ene, -yne, and the rest of IUPAC nomenclature. I hated O. Chem. (Talk about a course of study not friendly to the hard of hearing.)

      The gradations Sullum has been laying out (quite well, IMO, though IANAL) make sense when you understand the definitions of the terms, particularly the required mental state elements.

  12. Thanks for the article Jacob. I understand the outrage but I’m uncomfortable with what kinda looks like good old fashioned mob justice.

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    2. Once the trial is moved out of Minneapolis, due to publicity and bias, and the opinionated jurors from the suburbs are stricken from the panel, the mob’s efforts may have in fact, backfired.

      1. They will also get federal charges for civil rights violations. The mob won’t rest without a conviction.

  13. There are two types of people in this world. The type who wants to be left alone and the type who won’t leave people alone.
    It’s pretty rare that the first type gets charged with murder.

    1. Unless they disobey a cop…

  14. “In Florida, Lauren Krisai notes, a man received a life sentence because he lent his car to a friend, who used it to commit a home burglary in which the owner’s 18-year-old daughter was killed.”

    So if someone in D.C. rides Metro to and from a murder, Metro is culpable?

  15. This is one of those huge ironies in life. Utilizing the same system that you claim to abhor against your opponent. It’s literally using what you claim to be the problem to fight those perpetrating the problem. It is such a huge fallacy. It’s the same as using racism to fight racism. Using unlawful searches and seizures to fight those who commit unlawful searches and seizures. It’s like those who fight Trump’s horrible behavior by acting horrible themselves.

    1. Sometimes it’s just best to give someone a dose of their own medicine.

      It’s not like the Constitution is in effect or the US Government is legitimate. If it were, we would not be having this conversation.

  16. The State’s entire case ignores that Floyd was violently resisting being placed in the patrol car, that, once he was put on the ground (the safest place for him to be, given his state of intoxication, which was readily apparent), Chauvin called for EMS Code 2 (urgent but not emergency response, Chauvin waited two minutes then upgraded the EMA call to Code 3, and waited another two minutes for the ambulance to arrive. The fact that Floyd was obviously under the influence of something doesn’t make it readily apparent that he had any other underlying health problems, which he did, and which are what killed him.
    I’m aware that the video looks bad, but video almost always looks bad until the underlying facts come out.

    1. So are you saying that if you had put your knee on Floyd’s neck you would not be prosecuted?

      It took DAYS to charge Chauvin. The fix is and was in.

      The issue here is not just the murder. It is the cover up.

      Whether or not Chauvin is guilty of murder, the police ARE guilty of conspiracy which is even worse IMO.

      1. The fix is definitely in. The firings and the criminal charges are transparent attempts to placate the mob. Particularly the ridiculous escalation of charges by AG Keith Ellison.

        1. Yep. Ellison is complicit and has a plan to get these cops acquitted.

          Maybe not on his watch but certainly on appeal due to ‘prosecutorial misconduct’ that will be an ‘error’ made by a ‘low level staffer’.

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