Episode 18 - Derek Chauvin / George Floyd Update

This week on Fate of the Union, we are going to look at some updates regarding the case against Officer Derek Chauvin in the wake of body cam footage being released of the police’s confrontation with George Floyd leading up to his death. 

The real influence of this video is its impact on the charges brought against Chauvin, and the relevant likelihood of success on each count. Minnesota’s Attorney General, and former Congressman, Keith Ellison has brought the following charges against Chauvin: second degree murder via the felony murder rule, third degree murder, and second degree manslaughter.  

In the prosecution’s view, the knee was at best a contributing factor to Floyd’s death, that likely would not have resulted in Floyd’s death without the fentanyl in his system. Moreover, there was no way for Chauvin to know about the lethal dose of drugs in Floyd’s system at the time of the events. Without using hindsight, the use of non lethal force on a suspect who was resisting arrest and had other preexisting conditions, the extent of which could not have possibly been known by the officer, does not amount to an unreasonable risk of harm. For comparison, even a choke hold would have been a better case for the manslaughter charge. Instead, this case is at best a case where some may find the measures unnecessary in the circumstances given Floyd’s inability to escape, but that is still short of actions that are criminally culpable. 

If you enjoyed this episode, please subscribe on iTunes and leave a rating/review. You can also find out more about the show and its host on twitter and medium by searching fate of the union, and at franklinfotu@gmail.com. This has been the fate of the union. Thanks for listening. 

Transcript

This week on Fate of the Union, we are going to look at some updates regarding the case against Officer Derek Chauvin in the wake of body cam footage being released of the police’s confrontation with George Floyd leading up to his death.

So, we start our analysis with an overview of the video in general. The video was leaked online recently and begins with officers approaching Floyd in the driver’s seat of an SUV. My initial reaction upon seeing Floyd first appear in the video is two fold. First, Floyd appears to be a physically large person. He is wearing a tank top and you can see that he has pretty muscular arms and broad shoulders. So, the officers are dealing with a relatively strong person, which will also show become relevant later in the video. Second, Floyd indeed appears to be under the influence of some kind of drugs or alcohol. He slurs his words and seems to be slow in responding to questions and requests from the officers.

After a brief exchange, the officers get Floyd out of the car and handcuffed, and begin escorting him to the car. Upon arriving at the cop car, Floyd says numerous times that he is claustrophobic and that he either can’t breathe or is having trouble breathing. Floyd resists getting in the back of the cop car for several minutes while reiterating that he is claustrophobic. At least one officer offers to roll down the windows to give him some air and perhaps help with the issue of confinement, but to no avail. Eventually, Floyd offers to lay on the ground instead of getting in the car, so as to not be confined in the car. The video ends with an obstructed view of Floyd being led from his previous position pressed up against the cop car.

The real influence of this video is its impact on the charges brought against Chauvin, and the relevant likelihood of success on each count. Minnesota’s Attorney General, and former Congressman, Keith Ellison has brought the following charges against Chauvin: second degree murder via the felony murder rule, third degree murder, and second degree manslaughter. 

Under the second degree murder charge, the state has to prove Chauvin killed Floyd in the midst of committing a dangerous felony, aka the felony murder rule. The felony murder rule is used sometimes when dealing with a defendant who was in a shootout with the cops, and someone died as a result, even if it was not the defendant who did the killing. The dangerous felony there, shooting at the cops, was the factual cause of the death in that case. The rule is controversial in some legal academic circles, but it remains nonetheless. The prosecutor is anticipating the kneeing on Floyd’s neck to be established as a felon assault in itself leading up to the eventual death of George Floyd. This charge bring a maximum sentence of 40 years.

Third degree murder is for defendants who cause the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without the intent to actually kill the person. This charge is more for defendants who were criminally negligent or reckless but may not have committing a felony leading up to the person’s death. This charge carries a max sentence of 25 years.

The second-degree manslaughter count includes the allegations that Chauvin displayed "culpable negligence," created "an unreasonable risk" and took "a chance of causing death or great bodily harm to George Floyd." This charge is punishable by up to ten years in prison or a fine up to $20,000, or both.

The ultimate question for whether Chauvin will face a prison sentence up to 40 years, or up to 25 years, depending on the murder charges, ultimately depends on whether the court finds that the kneeling on the back of George Floyd is a felony assault in itself. If it is, then we are looking at the second degree’s 40 year max; if it isn't, then the third degree’s max of 25 years. The charges include assault in the third degree specifically, which states, “whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.” 

If the state carries either murder charge to a conviction, then the second degree manslaughter charge is basically a given as well. Prison terms run either consecutively, which means adding up the sentence for each count; or concurrently, which means that the largest sentence rules and the lower level sentences are subsumed in that charge. Here, I think it’s very likely that if multiple convictions are found then the sentencing will run concurrently since all charges stem from the same event.

However, I think the video cuts against establishing the knee in the back as an independent felony assault, primarily because of the lack of criminal intent shown in the events leading up to Floyd’s death. Chauvin, with other officers, repeatedly ask Floyd to get in the cop car and even try to make accommodations for his claustrophobia. Additionally, we discovered that the idea of laying Floyd on the ground, without the knee on him of course, actually came from Floyd himself. Moreover, Chauvin learned to stabilize a suspect with a knee during his official training. Thus, there is no intent shown on the video to cause Floyd harm leading up to Floyd first laying on the ground, and there isn’t an independent felony assault apart from authorized police conduct. 

Then, once on the ground, Floyd complains that he can’t breathe, after already making the same complaint several times when the officer attempted to load him into the cop car. Therefore, Chauvin’s “force” as an officer really begins to be employed when putting the knee in Floyd’s back. Floyd’s condition is a better case for culpable negligence in taking an unreasonable risk in the manslaughter charge, than the felony assault needed for the murder two charge or depraved indifference needed for murder three. Essentially, the debate is more about culpable negligence than it is criminal intent to harm someone, and thus, the central debate here is over the manslaughter charge and not either of the murder charges. 

Let’s talk about the manslaughter charge. Did Chauvin demonstrate culpable negligence by creating an unreasonable risk in taking a chance of causing death or great bodily harm? The weight of evidence may lean towards no. We must analyze this issue without the aid of hindsight. We cannot look at the death after the fact, and automatically attribute knowledge of that risk to Chauvin during these events. 

When putting his knee in the back of Floyd, Chauvin was following department protocols in keeping the suspect stationary on the ground. I don't think that without the knee Floyd would be a risk of escaping. He would have had to roll over to his back, sit up on his butt, get to his knees, and finally stand up. All the while being handcuffed with his hands behind his back. It would have taken at least ten seconds and all in view of four officers immediately surrounding him. Nonetheless, Chauvin was authorized by his training to employ the knee in this situation if he thought it necessary. He used his training and discretion with a measure taught to him by the force, and the measure is not in itself fatal force. Here, Floyd’s high dosage of fentanyl was critical in him dying in police custody. 

Also important is the source of information. The statements from the doctor conducting autopsy reports for Floyd’s family’s civil wrongful death suit has little relevance here. The civil case concerns a lesser burden of proof in proving completely different laws. It is easier to prove wrongful death than certainly the murder charges. Plus, the doctor retained by the family obviously has an incentive to frame the case in terms most favorable to Floyd. The same goes for Floyd’s civil rights lawyers handling the wrongful death case.

In the prosecution’s view, the knee was at best a contributing factor to Floyd’s death, that likely would not have resulted in Floyd’s death without the fentanyl in his system. Moreover, there was no way for Chauvin to know about the lethal dose of drugs in Floyd’s system at the time of the events. Without using hindsight, the use of non lethal force on a suspect who was resisting arrest and had other preexisting conditions, the extent of which could not have possibly been known by the officer, does not amount to an unreasonable risk of harm. For comparison, even a choke hold would have been a better case for the manslaughter charge. Instead, this case is at best a case where some may find the measures unnecessary in the circumstances given Floyd’s inability to escape, but that is still short of actions that are criminally culpable. 

That does it for this week. If you enjoyed this episode, please subscribe on iTunes and leave a rating/review. You can also find out more about the show and its host on twitter and medium by searching fate of the union, and at franklinfotu@gmail.com.