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Why are cops in Minnesota so rarely charged in officer-involved deaths?

The embers of ruined businesses on Lake Street still smoldered Friday when Minneapolis police officer Derek Chauvin was charged with murder in the death of George Floyd. It came four days after Floyd died in police custody, and three days after video of Chauvin’s knee on Floyd’s neck circulated worldwide.

Derek Chauvin
Ramsey County Jail
Derek Chauvin
Depending on your perspective, third-degree murder and second-degree manslaughter charges against Chauvin took longer than they should have — or came with uncommon swiftness. 

Yet until recently, it was rare for any criminal charges to be brought against local police in the death of a civilian; Chauvin is now the third Twin Cities police officer to be charged in five years.

So why have prosecutors been reluctant to charge officers in cases like this? And what may await the other three officers — Tou Thao, Thomas Lane and J.A. Kueng — who stood by while Chauvin kept his knee on Floyd’s neck for nearly nine minutes?

A change in thinking about charging decisions

Four legal experts — two former prosecutors, one prominent defense attorney and a longtime public defender — say nothing in Minnesota state law makes it particularly difficult to charge police. A grand jury indictment is required only in first-degree murder cases; county attorneys can charge second and third-degree murder themselves. Former Ramsey County Attorney Susan Gaertner said prosecutors “have evolved in their thinking” about public expectation in these cases.

“Twenty years ago, ten years ago, no one thought about the process of bringing an officer-involved shooting to a grand jury,” she said. “It’s the way it was done. Now, I think in part because of advocacy by communities of color and their allies, there has been a new appreciation for needing transparency and for an elected county attorney to stand at a podium and say, ‘This is the decision I made.’”

Mitchell Hamline assistant law professor Bradford Colbert, a part-time public defender, said for decades county attorneys brought police cases to a grand jury to avoid charging responsibility. “If the grand jury didn’t indict, the prosecutors could say, ‘Well, the grand jury didn’t indict, what can I say?’” he said. “But they’ve always had the option of filing a criminal complaint.”

That changed, Colbert said, in 2016, when Ramsey County Attorney John Choi charged St. Anthony police officer Jeronimo Yanez with second degree manslaughter and dangerous discharge of a firearm in the death of Philando Castile. “That’s what’s brought about these prosecutions,” Colbert said. “Now the prosecutor has to make the decision. They can’t hide behind the grand jury.” (Note: These interviews were conducted before Minnesota Attorney General Keith Ellison took over the prosecution of Chauvin from Hennepin County Attorney Mike Freeman.)

What does ‘reasonable’ mean to a jury?

Jeronimo Yanez
Jeronimo Yanez
Minnesota statutes allow police the use of “reasonable” force in making an arrest. The problem: What’s reasonable in the eyes of a jury? 

Defense attorney Joe Friedberg represented police officers against a range of charges — though never murder — and says he never lost a case.

“It’s difficult to convict a police officer anywhere, though they did just convict a police officer in Minnesota,” Friedberg said, referring to Mohamed Noor, the Minneapolis cop convicted last year of third-degree murder and manslaughter in the death of Justine Damond. “I think juries probably give a real presumption of innocence to police officers. Police officers generally do not have criminal records, which makes it harder to win for a defendant. 

“Everybody’s supposed to be presumed innocent, but that’s a fiction. Jurors don’t walk into the courtroom, look at the defendant and say, ‘I bet he didn’t do it,’ which is essentially what they’re supposed to say. Police officers do generally get the benefit (of the doubt). And they are entitled to use some degree of force in restraining the person they’re arresting. And there’s a question of when they go too far, which is a lot different than someone who isn’t allowed to use any force at all.”

Added Gaertner: “You need to prove the use of force was unreasonable. That may sound pretty straightforward and not that high of a standard, but in fact it’s a high standard…It’s hard to look back and say, ‘No, that’s not reasonable.’ We weren’t there. Our life wasn’t threatened. For a jury to say that was not reasonable can be a tough standard for the prosecutor to meet.”

How the Floyd case is different

The Floyd case, though, dramatically differs from the ones against Noor and Yanez. Chauvin did not appear in danger. Floyd was handcuffed and subdued. Chauvin kept his knee on Floyd’s neck much longer than Minneapolis Police Department policy suggests. (Several major metropolitan police departments prohibit kneeling on a suspect’s neck at all because it’s too dangerous, according to CNN.) And the chilling bystander videos and audio add a compelling element.

“It’s hard not to imagine a jury won’t be impacted greatly by that video when they wrestle with the question of whether the force was reasonable,” Gaertner said.

Friedberg said he’s never seen a case with this much video evidence. “And the quality of it is really good, too,” he said. “My experience is, the video quality is usually terrible.”

Mohamed Noor
REUTERS/Adam Bettcher
Mohamed Noor
Mark Osler, a former federal prosecutor who’s now a University of St. Thomas law professor, believes the video sets this case apart. “In past cases here we’ve seen acquittals, what those have usually been rooted in is a defense that the officer feared for his life,” he said. “It’s going to be pretty hard to assert that defense convincingly in this case.”

The three other now-former officers involved in the case have yet to be charged, but they could face murder charges, said Osler, “if (prosecutors) can the show the other officers aided and abetted or conspired with Chauvin.”

But, he added, “that’s a much harder thing to show than to show that Chauvin caused the death.” 

If not murder, then what? “I don’t want to speculate because there’s a pretty wide range of things that they could be charged with — aiding and abetting an assault, and things like that,” Osler said. “And I don’t know what they did, whereas everybody who’s watching the news has a pretty good idea of what Chauvin did.”

Federal charges, DOJ investigation also possible

All four may also face federal civil rights charges even if acquitted in state court. Osler cited the Rodney King case in Los Angeles in the early 1990s. After the four officers involved were cleared of criminal charges, the Department of Justice prosecuted them for violating King’s civil rights. Two were found guilty and served prison time.

“Usually what we see is, the state will go first,” Osler said. “If they get an acquittal, then the feds will consider a charge….Potentially it would be the same charge for all of then, and something that would require more investigation of the other three than the direct actor.”

Osler hopes for one more thing: A DOJ investigation into the culture of Minneapolis P.D, a task it undertook in Ferguson in 2014 after the death of Michael Brown. It troubles Osler that so few MPD officers live in the city — eight percent, according to the Star Tribune. 

That, he believes, is telling. “I just re-read that Ferguson report,” Osler said. “What they found was something that wasn’t publicly known — that the Ferguson Police Department was funding city government through disparate arrest of African-Americans. That’s pretty damning. If there’s something like that going on in Minneapolis, we need a thorough, well-researched, well-resourced investigation.

“Part of what’s going on here, and a legitimate question to ask, is: Is the culture of the police department significantly different than the culture of Minneapolis regarding respect for diversity? I think the answer is, you’re going to find a lot of people who have chosen to live most of their life in segregated communities while policing a diverse society. If you chose to live in a diverse society, that tells you something about their respect for diversity.”

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Comments (40)

  1. Submitted by Tom Barrett on 06/01/2020 - 12:07 pm.

    Here’s a problem, Pat, with your analysis–this report on the MPD’s five-year use of the neck compression technique posted by NBC this morning.

    • Submitted by Tim Walker on 06/01/2020 - 12:39 pm.

      I agree, Tom. This throws a very big wrench into the prosecution’s efforts.

      • Submitted by Jon Kingstad on 06/01/2020 - 02:47 pm.

        “. . .big wrench in the prosecution’s efforts”? How so? If this is even admissible as evidence, it’s going to be by the defense to try to raise a “reasonable doubt.” Derek Chauvin has a right to a jury trial and to an effective defense. But he’ll have to take the stand himself and will have a lot of explaining to convince a jury he used a technique that is inherently dangerous under the circumstances.

        • Submitted by Tim Walker on 06/01/2020 - 07:34 pm.

          It takes away any prosecution argument that Chauvin went rogue and was using an expressly prohibited tactic.

          The new info could be used to show that he was NOT violating department rules, and in fact was using an approved technique.

          I think that makes a big difference.

          But juries are persuaded by their gut feelings, and in this case, I think they will be shown the death video several times, and vote based on that (I hope).

        • Submitted by Bob Barnes on 06/01/2020 - 09:07 pm.

          He has no leg to stand on. The guy was in cuffs, there was zero need for any use of force, let alone a neck restraint like that.

        • Submitted by Tom Anderson on 06/01/2020 - 09:44 pm.

          “But he’ll have to take the stand himself ”

          Not if he has a competent attorney.

      • Submitted by James Hamilton on 06/01/2020 - 02:52 pm.

        Given that we don’t know precisely what the medical examiner’s theory is on how Chauvin’s use of his knee contributed to George Floyd’s death, it’ far too early to speculate on how this information will affect the prosecution.

        The examiner has ruled out asphyxiation. The Floyd family’s attorney used the term in describing the findings of theindependent autopsy but those who conducted that examination are quoted as saying “there was “neck and back compression that led to a lack of blood flow to the brain,” according to Crump’s statement. They added that “weight on the back, handcuffs and positioning were contributory factors because they impaired the ability of Mr. Floyd’s diaphragm to function.” In short, it does not appear that either found obstruction of the airway or damage to the trachea. The two reports are consistent with one another. The independent examiners’ decision not to include any reference to the contribution of Mr. Floyd’s existing medical condition is understandable, given their client, but it does not appear to expressly rule out that condition.

        • Submitted by Russell Booth on 06/01/2020 - 10:57 pm.

          The two examiners reports of homicide are indeed consistent. George Floyd could not breathe due to the behavior of Minneapolis police.

          The evidence seems to show that it was primarily the actions of former police officer J.A. Kueng kneeling on George Floyd’s back that caused the restriction that did not allow him to breathe.

          • Submitted by Tom Anderson on 06/04/2020 - 10:06 pm.

            According to the timeline, Mr. Floyd said that he couldn’t breathe while in the squad car, with no physical pressure on him at all.

            • Submitted by Daniela Iuliano on 06/12/2020 - 12:01 pm.

              Even if this was the case, and officer Chauvin didn’t believe Mr. Flloyd. Pressure was continuously applied to the neck after Mr Flloyd’s eyes closed and he stopped moving.

  2. Submitted by Julie Stroeve on 06/01/2020 - 12:22 pm.

    great piece!

  3. Submitted by T.W. Day on 06/01/2020 - 12:31 pm.

    There is nothing about this incident that makes a decent person feel good about being a Minnesotan. Our reputation for being a “liberal state” only holds up from a long distance. Once you get into the rural areas or even the suburbs of the Cities, Minnesota becomes another red state with all of the negative connotations that implies. For most of my life, David Bowie and Pat Metheny’s “This Is Not America” has been the most hopeful anthem I could imagine, but it is America and today it is really hard to have much hope that it will ever be better. In three miserable years, the country has fallen back to the 1950s or worse.

    • Submitted by James Hamilton on 06/01/2020 - 02:38 pm.

      We’ve kidded ourselves for decades about the so-called advances in civil rights in this country. All one has to do is look to the statistics on virtually any measure to see that the disparities in outcomes for men, women, and children of color remain unconscionable. White men were threatening and killing black children when I was born and throughout the almost 70 years since then.

  4. Submitted by James Hamilton on 06/01/2020 - 12:39 pm.

    The simple and accurate answer to the question is that our manslaughter and homicide laws do not specifically address officer-involved injuries and deaths. The laws authorize the use of force and deadly force in various situations but do no make the use of unauthorized force a specific crime.
    Instead, prosecutors are limited to two degrees of intentional murder, and various forms of accidental/negligent killing. We could begin to change that by adding a violation of written departmental policies on the use of force to our assault, manslaughter, and murder statutes.

    Law enforcement agencies and their political supporters largely oppose any such effort, typically on the ground that it will make law enforcement more diffcult and law officers more exposed to criminal prosecution. That last concern is precisely the point. It’s been more than suffiently demonstrated that internal policies and training have not and will not stem the tide. See, for example, the MPD policy requiring officiers to intervene when they observe another officer using excessive force. That policy didn’t help George Floyd. Had changes along the lines I suggest been implemented, there would be no doubt about whether the remaining officers could be charged.

    • Submitted by BK Anderson on 06/02/2020 - 08:27 am.

      Yes, a new “officer-involved homicide” criminal statute has become essential. The state has to get prosecutors out of this absurd “degree” of homicide analysis for coppers.

      Debating and enacting a new law would allow Governor and Legislature to put their money where their mouth is and actually enact a crucial statewide reform. We continually live with these old statutes that bear no relation to reality, or which were enacted at a time we no longer want to glorify.

      Of course the police unions across the state (as well as their principal allies, the Repubs) will not go along and would block any such reform. But at least police reform could become an (acknowledged) partisan issue.

      As for MPD, it’s very hard to see how to get at the problem, as the reality is Boss Kroll’s union is essentially a little Dukedom and one can’t force the force to elect a union chief that would support actual reform.

      • Submitted by Paul Brandon on 06/07/2020 - 10:21 am.

        One solution is making the law clear that policepersons are civilians, subject to the same civil law as the rest of us.
        I’ve heard too many references by police to nonpolice as ‘civilians, as if they (the police) are invading troops in a foreign country.
        The only citizens who are NOT civilians are the military, who are subject to the military law code (which, BTW, allows the death penalty), not the civil code.

  5. Submitted by Pat Terry on 06/01/2020 - 02:22 pm.

    Because guys like Mike Freeman and John Choi have to work with the police. Even when they are charged, they half-a** the prosecution (Yanez) or half-a** the charges like in this case.

  6. Submitted by Rachel Kahler on 06/01/2020 - 03:20 pm.

    I wonder if the independent autopsy report will be sufficient evidence to charge at least 2 of the other officers with contributing to George Floyd’s death. That report states that the pressure on his neck, along with the pressure on his back from the other two officers, contributed to a reduced/stopped flow of blood to his brain. I don’t know if that would lessen the severity of the actions of Chauvin–it still stands that he remained on Floyd’s neck for several minutes after he stopped breathing (it’s unclear to me whether the other cops maintained pressure on his back after respiratory arrest).

  7. Submitted by Rick Notch on 06/01/2020 - 04:14 pm.

    If Justine Damond had been a woman of color and Mohamed Noor was a white officer, no charges would have been brought against him.

  8. Submitted by Bob Kraemer on 06/01/2020 - 04:14 pm.

    Hopefully, this case will demand a complete overhaul of the MDP’s culture of racist behavior and blatant abuse against Blacks. It was obvious to me that for Chauvin to act as he did in broad daylight on a busy street with numerous witnesses and cameras rolling none of that phased him! He smiled through much of his torturous act! If those cameras weren’t there we wouldn’t be having this discussion. It would be just another day for the MDP and another dead Black man with no investigation. Nothing to see here folks, just move along! This blatant racist behavior has been going on in the 3rd precinct forever! I lived in that district in the 80’s and it was well known then how Cops treated Blacks, and how racist Cops signed up for the Night/”Power Shift” so they could beat up and shoot Blacks! I heard enough stories from Cops about what they did! They were never challenged! So here we are 40 years later and has the culture really changed that much???

    • Submitted by John Dorschner on 06/02/2020 - 08:52 am.

      Excellent comment. Police union boss’s remarks supporting the four cops show how widespread the culture is.

    • Submitted by Edward Blaise on 06/02/2020 - 09:02 am.

      Any reform of the MPD is hopeless. It is damaged beyond any potential for reform or training or any other intervention. The bad cops (and who knows what % of all that is?) will say and do anything to hang on to their jobs and pensions. Their actions have bankrupted the force and their jobs are gone just like a factory with no orders would close.

      Disband it, fire every cop on the force. Reinvent it as 7 separate police units aligned with city neighborhoods and 7 separate chiefs. Allow current MPD officers to apply wherever they choose.

      Incentivize through hiring preference and housing allowances to live in the area they police.

      Bob Kroll was re-elected unopposed as MPD union chief earlier this year. His first words after this occurred have been to attack George Floyd, city and state leaders and accept ZERO blame as the face of the cops.

      Like I said: damaged beyond repair: Do not even waste time trying to fix the unfixable: fire them all, rehire only the ones who can do the job.

      • Submitted by Paul Brandon on 06/07/2020 - 10:27 am.

        The problem starts with the selection and training of police officers.
        As a former MSU,M faculty member who worked with the Law Enforcement program and has LE students in my classes, I know that the ‘culture starts before they begin their service.
        One start might be requiring that they obtain conventional college degrees (ones where the majority of students are NOT law enforcement) before beginning their police training.
        Otherwise, the fact that their training takes place on a college campus, taught be people who are nominally college faculty, is meaningless.

  9. Submitted by Tom Anderson on 06/01/2020 - 09:51 pm.

    Perhaps, in answer to the headline, the victims weren’t in the process of a crime. When suspect A shoots into a house and kills victim B, it isn’t too hard to prosecute and convict suspect A. If victim A is walking down the street and is robbed at gunpoint by suspect B, and victim A shoots and kills suspect B, it isn’t too hard to find victim A not guilty. If suspect A is arrested by suspect B and dies during the arrest procedure, it seems slightly less likely that anyone goes to jail.

    • Submitted by Edward Blaise on 06/02/2020 - 08:56 pm.

      “and dies during the arrest procedure”

      Arrest procedure? Kneeling on someone’s neck for 3 minutes after they are unresponsive and without a pulse is not exactly an “arrest procedure”.

      4 Cops, one suspect, complete control, and the suspect is restrained until death should not lead to “less likely to go to jail”.

      • Submitted by Tom Anderson on 06/02/2020 - 11:05 pm.

        Yet the person in question was indeed being placed under arrest, which raises the possibility of being killed by an officer. Unlike people not being placed under arrest.

        • Submitted by ian wade on 06/03/2020 - 01:12 pm.

          You do realize that being arrested isn’t supposed to be a death sentence, correct? Innocent people are arrested everyday. I’m always amazed that those who claim to be so patriotic don’t really understand the concept of due process.

        • Submitted by Pat Terry on 06/03/2020 - 01:36 pm.

          You are missing the point. There was no arrest procedure used here. The cops just murdered a man in the street.

          • Submitted by Tom Anderson on 06/04/2020 - 10:04 pm.

            Who was accused of a crime and was being arrested.

            • Submitted by ian wade on 06/05/2020 - 11:38 am.

              So, a kid breaks your car window and the police come, the kid freaks and they kneel on his throat and he dies. Is that okay with you?

            • Submitted by Karen Sandness on 06/06/2020 - 12:24 pm.

              The crime he was accused of was passing counterfeit money. I’ve been in stores where I’ve paid with a twenty-dollar bill, and the clerk has checked to see if it was counterfeit.

              I’m pretty sure that if I accidentally passed a counterfeit bill (I do NOT have the means to produce one, nor do I have any friends who are counterfeiters), I, as an older white woman, would not be treated the way George Floyd was.

              As I understand it, the normal procedure in such cases starts with the police questioning the suspect about where the bill came from and arresting only if the suspect cannot give a satisfactory answer.

        • Submitted by Paul Brandon on 06/07/2020 - 10:29 am.

          Arrest is not conviction.
          Under our legal code, people who are arrested are presumed to be innocent until convicted in a court of law.
          This applies to both Floyd and Chauvin.

  10. Submitted by John Dorschner on 06/02/2020 - 03:28 am.

    This is an excellent article. Look at the stats at places like the Bowling Green research center and you’ll find it’s VERY hard to convict an officer in America for something he did on duty. In my book, Verdict on Trial, I wrote about a 2016 North Miami case: Black guy is surrounded by cops while he’s trying to get an autistic adult back to a facility. Cops draw guns. Black guy knows he’s in trouble. He sits down in the middle of the street. He puts both hands up in the air. He gets shot anyway. All of this on video. Cop gets acquitted of felony charge, convicted of misdemeanor. I don’t know about Minnesota, but in Florida, official police training policy cannot be a factor in a criminal trial of an officer. Also: the George Floyd criminal prosecution is just going to be clouded by the family’s “independent” autopsy. Michael Baden gets called in any time someone wants an “expert” to differ from the official medical examiner’s report — and from every report I’ve seen of his, that’s what he does. Two autopsies are going to make it a challenge for any prosecutor who handles this case.

    • Submitted by Pat Borzi on 06/03/2020 - 04:23 pm.

      For those unaware, Mr. Dorschner is a 1988 Pulitzer Prize finalist in feature writing who spent 42 years at The Miami Herald, much of it turning out glorious copy for Tropic Magazine, before retiring in 2013. We don’t know each other and I’m not sure how he found this piece, but I’m glad he weighed in.

  11. Submitted by Jeffrey Swainhart on 06/02/2020 - 06:05 am.

    Don’t hold out hope of a DOJ investigation of the MPD, deserved though it may be. There is no Justice in Trump’s justice dept. The notorious Bob Kroll is a big Trump supporter (along with many of the cops no doubt) they’ll get the velvet glove treatment from AG Barr.

  12. Submitted by Paul Udstrand on 06/02/2020 - 08:39 am.

    I just have to say I think the author here is practicing the institutional bias/racism that they’re reporting on.

    To begin with, I don’t know how you can write an entire article about institutional bias/racism without even once naming it. And then to go with the same “explanations” that have sustained this institution for decades is simply an exercise of bias/racism pretending to be “explanation”. Any attempt to “explain” the immunity cops enjoy without reference to the institutional structure that confers that immunity is simply not a serious attempt to explore the problem.

    The primary and unique feature of these police crimes, the one that is left completely unexplored in the article- is that there is almost never any question about whether or not the officer did what they’re accused of doing. No jury walks into these trials thinking: “I bet they didn’t do it”. In almost ALL of the recent cases the crime is on video, or there is no dispute. If the question were simply whether or not cops are killing or beating people most of these case would be slam dunk prosecutions.

    There was never any question as whether or not Yanez shot and killed Philando Castile or whether or not Noor shot and killed Justine Damond, nor is there any question whether or not Chauvin kneeled on Floyd’s neck until Floyd died. The central question in all of these cases is whether or not jury’s will decide to give these cops permission to do these things.

    What makes this a systemic and institutional issue is the fact that we grant tacit approval and permission to use lethal and dangerous force in the first place. The question isn’t whether or not cops use that power within “reason”, the question is whether or not it’s reasonable to grant that power in the first place.

    I would suggest that at the end of the day, the jury reluctance to convict reflects and inherent reluctance to take responsibility for the crimes and criminals we as citizens endorse… how do we do condemn these criminals without in some way condemning ourselves?

    For instance the idea that the ONLY consideration that matters is whether or not a cop was “afraid” when they killed someone actually renders the entire process irrational, because fear itself is often irrational. The cop that shot and killed Castile was not behaving rationally, or reasonably, but he was obviously scared, so we let him get away with it. All the system does in these scenarios is paste a veneer of legality over deadly abuse of power… THAT’S why people are rioting.

    And of course there’s always the fact that these crimes always target people of color disproportionately, that’s not a coincidence, that too is a reflection of systemic racism and bias that targets people of color.

    Any attempt to examine institutional racism and police force from a perspective of legal technicalities is simply a circular exercise of the same systemic failure that produces these tragedies in the first place. We need to step back and look at the tacit assumption that it’s “reasonable” to give our law enforcement tacit approval to use deadly force in the first place, and then simply trust them to use it “reasonably”. If we’re not willing to do that, this will never end.

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