A good friend of mine texted me about two months ago. No particular reason, just to catch up on things like we do every so often. I had one of those guilt-ridden moments this morning when I realized I never called him back. I started to reply and noticed the date was March 12 and thought of how different our world is now. I hadn’t heard of COVID-19 back then, and certainly didn’t think my Court would ever be shut down because of a Pandemic, but here we are. I texted him, “Lots of things have changed since your text…others remain exactly the same. Call me when you can.”

What’s changed? Videoconferencing, facemasks, and shelter-in-place orders. What’s the same? The horrifically weakening cries of “I can’t breathe” fell on the deaf ears of Police.

George Floyd in 2020. Eric Garner in 2014. The killing recurs.

For this month’s column, we’ll discuss the major issues that will likely confront future Minnesota jurors in the Murder case against Police Officer Derek Chauvin.

2nd degree murder requires that the prosecution prove that Officer Chauvin caused Mr. Floyd’s Death while intentionally inflicting “substantial bodily harm.” There is no requirement that Chauvin intended to kill Mr. Floyd; only that he intentionally inflicted “substantial bodily harm,” thereby causing Mr. Floyd’s death. How will jurors know if Officer Chauvin’s intent was to cause “substantial bodily harm?”

George Floyd tells them better than anyone: “I can’t breathe” nearly 20 times, “please” nearly 10, and “you’re gonna kill me” 3. After his words stopped, jurors will hear the sound of his descendingly softer, muffled cries. Most powerfully, they will see and hear 173 seconds of deafening silence.

Jurors will consider the words of the bystanders, too: “Let him breathe” about 10 times; “show me his pulse” nearly a dozen; “you got him down, at least let him breathe,” “you’re stopping his breathing,” and “he’s not moving” among others. In addition to the literal words, jurors will also consider the increasingly concerned and panicked tone in their delivery.

If Jurors think the act itself – the body-weighted knee to the neck – is a dangerous act capable of inflicting substantial bodily harm, they’d be right in line with Officer Chauvin’s training: “Police are trained that this type of restraint with a subject in a prone position is inherently dangerous,” according to the official Criminal Complaint (See below). And let us not leave our common sense at the door, either. Jurors don’t not need a police manual to tell them that a body-weighted knee to the neck is “inherently dangerous,” if even only for one second, let alone 526.

Officer Chauvin’s defense? Minnesota law authorizes officers to use deadly force in three situations: 1) to protect the officer from death or great bodily harm; 2) to arrest or capture a person the officer reasonably believes committed a felony involving deadly force; or 3) to arrest or capture a person the officer reasonably believes committed a non-deadly felony and will cause death or great bodily harm if the apprehension is delayed. The degree of force an officer may lawfully use in effecting an arrest in these circumstances is limited by – and here’s the key – what a “reasonable peace officer” in the same situation would believe is necessary. If it’s not necessary, the killing is not legally justified.

Mr. Floyd was unarmed, handcuffed, and held down by 3 officers. He was already “captured.” He couldn’t move. He couldn’t escape. He couldn’t even breathe. And yet, even when he became still and lifeless, Officer Chauvin’s body-weighted-knee remained.

Since the law on self-defense singularly focuses on whether it was necessary at the time of the killing to use deadly force for the three reasons quoted above, the question for jurors thus becomes who was Mr. Floyd threatening with “death or great bodily harm” for the 173 seconds he was unresponsive? The bystanders begging to let him up? The female identifying herself as a firefighter demanding to check him for a pulse? The officers on top of him?

These future jurors have no idea how powerful and long-lasting their answers to these questions will be: They have the final say-so about what a “reasonable peace officer” in the same circumstances views as a “necessary act” in cases like this. Their verdict will reverberate from police academies to city halls, squad cars to courtrooms, and legislative chambers to ballot boxes for generations to come.

This article first appeared on June 11, 2020 in a monthly column I have the privilege of writing for The Dallas Examiner.

For Further Reference

In the article, I only discussed the highest charge Officer Chauvin faces – 2nd degree murder. He is also charged with 3rd degree murder and 2nd degree manslaughter. The punishment ranges are not more than 40, 25 or 10 years, respectively. The 3 other Minneapolis Police Officers – Tou Thao, J. Alexander Keung and Thomas Kiernan Lane – have also been fired. They stand charged with aiding and abetting Officer Derek Chauvin. For them, the State must prove that they knew their alleged accomplice (Chauvin) was going to commit the crime and intended their presence and actions would further the commission of that crime. Recently, I had the privilege sharing my thoughts on this case on Law & Crime Now with Jesse Weber (See below). We also discussed Ahmaud Arbery, Breonna Taylor and Martin Gugino, the man so many saw on video pushed down by police in Buffalo.

Here is the Amended Criminal Complaint against Derek Chauvin:

Finally, join me on L&C Now with Jesse Webber on the Law and Crime Network.