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.
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?
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.”
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.”