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Appeals court says AG may try to reinstate third-degree murder charge against Derek Chauvin

Derek Chauvin, who was seen on a bystander video kneeling on Floyd's neck for several minutes, faces second-degree murder and manslaughter charges.

An appeals court ruled Friday that a lower court erred in dismissing a third-degree murder charge against the former Minneapolis police officer accused of killing George Floyd, clearing the way for the Minnesota attorney general's office to try to have the charge reinstated.

Derek Chauvin, who was recorded on video kneeling on Floyd's neck for several minutes, is charged with second-degree murder and manslaughter. He is scheduled to go on trial Monday. It is unclear, what, if any impact the ruling could have on the trial's start date.

"The district court has discretion to consider any additional arguments Chauvin might raise in opposition to the state's motion," the ruling said. "But the district court's decision must be consistent with this opinion."

The trial judge, Peter Cahill, of the Fourth Judicial District Court, which serves Hennepin County, dismissed a third-degree murder count in October for lack of probable cause. Cahill ruled at the time that a third-degree murder charge under Minnesota law requires proof that someone's conduct was "eminently dangerous to others," not just to Floyd.

But prosecutors had asked the Minnesota Court of Appeals to reinstate the charge in light of its decision last month to uphold a third-degree murder conviction against former Minneapolis police Officer Mohamed Noor for the 2017 fatal shooting of Justine Ruszczyk Damond, an Australian woman who had called 911 to report hearing a possible sexual assault happening. The Court of Appeals ruled in Noor's case that "third-degree murder may occur even if the death-causing act endangered only one person," according to the prosecutors' motion filed last month.

A three-judge panel said Cahill should have followed the precedent set by the appeals court last month when it affirmed Noor's third-degree murder conviction.

"This court's precedential opinion in Noor became binding authority on the date it was filed," Friday's ruling said. "The district court therefore erred by concluding that it was not bound by the principles of law set forth in Noor and by denying the state's motion to reinstate the charge of third-degree murder on that basis."

Richard Frase, a criminal law professor at the University of Minnesota, said the ruling could delay the start of Chauvin's trial.

"Unless they're hearing motions remotely over the weekend, which isn't impossible, Chauvin's lawyer has to be given a chance to raise other grounds for not reinstating the charge and the trial judge has to rule on that," Frase said.

Chauvin's attorney has the option of appealing the ruling to the Minnesota Supreme Court, Frase said, but if he decides not to appeal, Cahill will likely reinstate the third-degree charge.

A reinstated third-degree murder count could increase the prosecution's odds of getting a murder conviction, Frase said.

"The more charges there are, it kind of suggests to the jury that, 'Boy, this guy has done all kinds of bad things, he must be guilty of at least one thing,'" Frase said.

Friday's ruling has left things in limbo, Frase said.

City officials have erected security barriers around government buildings in downtown Minneapolis and the National Guard has been deployed to secure the city in anticipation of protests.

"What everybody wants right now is to not proceed with a trial when we don't know what the charges are, not have a trial where a major charge may be reversed but also not delay the trial," Frase said.

Chauvin's attorney, Eric Nelson, declined to comment. Keith Ellison, the Minnesota attorney general, said his office believes "the Court of Appeals decided this matter correctly" and that the charge of third-degree murder, "in addition to manslaughter and felony murder, reflects the gravity of the allegations" against Chauvin.

"Adding this charge is an important step forward in the path toward justice," Ellison said in a statement. "We look forward to presenting all charges to the jury in Hennepin County."

Floyd, a Black man, died May 25 after Chauvin, who is white, pressed his knee on Floyd's neck while he was handcuffed. Chauvin remained in that position for several minutes, even as Floyd said that he couldn't breathe.

Video of the incident was widely shared on social media and spurred global protests against police brutality and systemic racism.

Police were investigating whether Floyd used a counterfeit $20 bill at a nearby store.

Chauvin and the three other officers who were at the scene — J. Alexander Kueng, Thomas Lane and Tou Thao — were fired a day after Floyd's death and later arrested. The other three officers, who were charged with aiding and abetting Chauvin, are expected to go to trial in August. Prosecutors have asked the Court of Appeals to reinstate third-degree murder charges against them, too.

Chauvin had agreed to plead guilty to third-degree murder days after Floyd's death, but then-Attorney General William Barr was reported to have rejected the deal because he worried that, among other things, it would be perceived as being too lenient.