Derek Chauvin’s Charges, Explained

The news that Minnesota Attorney General Keith Ellison elevated the charge against Derek Chauvin to second degree murder for the death of George Floyd brought mixed reactions. For some it was satisfactory; for others it seemed still not to be enough. Still others worry that Ellison is overcharging and risks acquittal. Before one forms an opinion, it is important to understand the charging options.

The law differs from state to state. Minnesota has three categories of murder: 1st, 2nd, and 3rd degree. Most states have similar 1st degree statutes; they typically require premeditation and intent to kill. 2nd degree does not generally require premeditation, but the actual elements of what it does require differ widely. 3rd degree murder is unusual; Minnesota is one of only a handful of states who have such a category.

The initial charge against Chauvin was 3rd degree:

609.195 MURDER IN THE THIRD DEGREE.

(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.

This seemed appropriate, under the circumstances. Chauvin caused the death of George Floyd by perpetrating an eminently dangerous act–kneeling on his neck for 9 minutes–and evinced a depraved mind, with no regard for human life by ignoring the man’s pleas and not stopping even when the man lost consciousness and became unresponsive.  Nevertheless, an angry public hearing the words “third degree” felt the charge was not severe enough for Chauvin’s actions.

Perhaps it was this outcry that moved AG Ellison to add a charge of 2nd degree:

609.19 MURDER IN THE SECOND DEGREE.

Subdivision 1. Intentional murder; drive-by shootings.

Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or

(2) causes the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision 1e, under circumstances other than those described in section 609.185, paragraph (a), clause (3).

Subd. 2. Unintentional murders.

Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:

(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting; or

(2) causes the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim, when the perpetrator is restrained under an order for protection and the victim is a person designated to receive protection under the order.

The original charges have not been dismissed, so Chauvin is now charged with 2nd and 3rd degree murder and 2nd degree manslaughter (the manslaughter charge entails causing the death of another by “culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”) What he actually goes to trial for will be determined by the grand jury.

Note that the 2nd degree murder statute is divided into intentional and unintentional murder. Intentional 2nd degree murder includes drive-by shootings and intentionally causing the death of another, but without premeditation (such as a crime of passion). But subdivision two of the 2nd degree murder statute covers unintentional murder. When news broke yesterday that Ellison was going with 2nd degree, many assumed Chauvin would be charged with subdivision 1, section 1, which would require the state to prove he intended to cause Floyd’s death.

Many thought it was a set up for failure; proving intent to kill seemed a pretty steep climb. Some considered the decision not to play it safe as capitulating to mob; other, more conspiracy-minded people suspected Ellison was intentionally aiming too high to sabotage the case (though opinions varied as to whether he would do so for Chauvin’s benefit, or to stir up further unrest for the benefit of Antifa.)

As it turns out, Ellison had no plans of trying to establish intent; he was going with subsection 2, unintentional murder.

From NPR:

The charge against Chauvin is categorized as “Second Degree Murder – Unintentional – While Committing A Felony.”

Discussing that charge, Ellison said, “According to Minnesota law, you have to have premeditation and deliberation to charge first-degree murder. Second-degree murder, you have to intend for death to be the result. For second-degree felony murder, you have to intend the felony and then death be the result — without necessarily having it be the intent.”

When asked about the felony in question, he said, “We would contend that George Floyd was assaulted, so that would be the underlying felony.”

This type of charge is more often known as felony murder. It is used when someone commits a felony, and in the course of that felony, a person is killed. In most states, it is subject to the same penalty as first degree murder.

In this case, analyzing the charge requires a look at what constitutes a felony assault in Minnesota. It is pretty straight forward: 

609.221 ASSAULT IN THE FIRST DEGREE.

Subdivision 1. Great bodily harm.

Whoever assaults another and inflicts great bodily harm may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both.

Elsewhere in the code, “great bodily harm” is defined as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” No matter how obvious it may seem to you or me that kneeling on a person’s neck fits this definition, it will likely require expert testimony to establish; chances are the defense will find an expert who will opine just the opposite. One can imagine that the official autopsy report, showing no harm to Floyd’s neck and making no finding of asphyxiation will be part of that defense. The murky and vague findings as to cause of death will no doubt be one of the most contentious points of dispute.

Police organizations and unions are likely to object to the notion that their actions in effectuating an arrest can constitute felony assault; even if it is generally agreed upon that the knee on the neck method is not an acceptable practice, arrests are frequently not gentle. Even with less egregious actions than Chauvin’s, arrestees often get hurt.

That’s the point, though, isn’t it? We are in the current state of chaos because a great many of us are tired of law enforcement hurting or killing people with seeming impunity. Actions that would surely result in criminal charges for the average citizen are acceptable when performed in uniform and badge. Force is sometimes needed to get a bad guy under control and off the streets, and most of us agree that there are indeed bad guys who should not be left to walk among us.

If successful, AG Ellison’s election to charge Derek Chauvin in this manner could set a precedent that an arrest gone wrong can be felony assault. Rest assured the defense will use that fact to its advantage: convict this man, and the officer you call to save you from a violent intruder may be too scared of catching a murder charge to arrest him. The National Review is already on it. 

Do the bare facts, without regard for the profession of the perpetrator, fit the charge of 2nd degree felony murder? Yes, probably so. Was it the right charging decision in this case, given the totality of the circumstances?

We will have to ask the jury, if the case makes it that far.