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Experts say upgraded charge against officer in George Floyd's death fits

Prosecutors don't have to prove intent to kill, just intent to commit felony assault, legal scholars say.
Police officer Derek Chauvin kneels on the neck of George Floyd in a still from video.
Minnesota police Officer Derek Chauvin, who was fired later, kneels on the neck of George Floyd in a still from video on Monday, May 25, 2020.Darnella Frazier / via AFP - Getty Images

As the murder charge against former Minneapolis police Officer Derek Chauvin was upgraded from third-degree murder to "unintentional" second-degree murder, there are reasonable questions about what allegations are appropriate in the death of George Floyd.

Experts interviewed after the initial third-degree case was made public last week said Wednesday that the second-degree charge appears to be appropriate, with no need to prove any intent to kill Floyd.

The upgraded charge comes with a maximum sentence of 40 years, compared to 25 years for third-degree murder.

Image: Former Minneapolis police Officer Derek Chauvin
Former Minneapolis police Officer Derek Chauvin in a jail photo.Hennepin County Jail

Floyd, 46, died May 25 after Chauvin, responding to a report that someone had passed counterfeit money at a market, detained him by pushing his knee into his neck for 8 minutes, 46 seconds.

Since then, state and local prosecutors have faced increasing pressure to upgrade the case against Chauvin, who was fired the day after Floyd's death, while also holding the three other officers who stood by culpable.

The three, Tou Thao, Thomas Lane and J. Alexander Kueng, who were also fired, were charged Wednesday with abetting murder in the second degree. Conviction would mean that they were equally legally responsible for Floyd's death and would face the statutory 40-year maximum sentence.

Experts say third-degree murder was appropriate, but Minnesota Attorney General Keith Ellison argued Wednesday that the second-degree charge could easily apply in Chauvin's case. The upgraded case includes the allegation that Chauvin committed "assault in the third degree," which led to death.

University of Minnesota law professor Susanna Blumenthal agreed.

"Second-degree felony murder does not require proof of intent to kill," she said by email. "What the prosecutor would need to establish is that the officer caused death while committing or attempting to commit a felony offense, which has been charged in this case as assault in the third degree."

Ellison said the top count against Chauvin, unintentional second-degree murder, means a suspect is believed to have caused death without intending to do so during the commission of a felony crime.

"The felony would be, we contend, that George Floyd was assaulted, so that would be the underlying felony," Ellison said.

Richard Frase, a criminal law professor at the University of Minnesota Law School, said that while the second-degree murder upgrade comes with a longer recommended sentence, it is easier to prove.

"Second-degree felony murder is an even lower standard than third-degree murder," he said.

It does not require proof of intent to kill but rather proof of intent to assault someone. That intent triggers a cascade that, if death results, means the assailant can be culpable of murder, Frase said.

"The only intent you have to show is an intent to cause bodily harm," he said. "They don't have to show extreme recklessness as to death."

He used a bar fight as an example. If someone takes an unprovoked swing at another person, that could be misdemeanor assault. If the victim falls and is injured, that could be felony assault. If the person ends up dying, that could be second-degree murder — without the intent to commit murder.

"Officer Chauvin, with his knee on Floyd's neck, that could be assault right there," Frase said.

Previously filed charges, including third-degree murder and second-degree manslaughter, still stood against Chauvin on Wednesday. The third-degree filing alleges that Chauvin "caused the death of George Floyd by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life."

The second-degree manslaughter count includes the allegations that Chauvin displayed "culpable negligence," created "an unreasonable risk" and took "a chance of causing death or great bodily harm to George Floyd."

If convicted on all charges, Chauvin would be sentenced only on the top count of unintentional second-degree murder.

Full coverage of George Floyd's death and protests around the country

Officers responding to a forgery-in-progress call confronted Floyd on the afternoon of May 25 as he sat in a parked Mercedes-Benz SUV on a Minneapolis street. Police claim that he resisted their orders and appeared to be in medical distress after he was handcuffed.

Witness cellphone video recorded Chauvin atop Floyd as Floyd faced the ground. Chauvin kept his knee on Floyd's neck, even after a colleague suggested that he be rolled onto his side.

"No, staying put where we got him," Chauvin said, according to the complaint.

After the initial third-degree murder charge was filed, the attorney for Floyd's family, Benjamin Crump, called on prosecutors to charge Chauvin with first-degree murder, which requires evidence of intent to kill and some degree of premeditation.

"We expected a first-degree murder charge," Crump and the family said in a statement last week. "We want a first-degree murder charge."