Prosecutors Seek to Reinstate Third-Degree Murder Charge in George Floyd Case

A recent appellate court decision throws an early dismissal into question, and all four former officers involved in the arrest and death of George Floyd could now be charged with murder.

From left to right: Derek Chauvin, J. Alexander Kueng, Thomas Lane and Tou Thao. (Hennepin County Sheriff via AP)

MINNEAPOLIS (CN) — Citing a recent state appellate court decision, prosecutors in the case against the four former Minneapolis police officers involved in the arrest of George Floyd have moved to bring back third-degree murder charges against all four defendants.

Assistant Attorney General Matthew Frank filed a motion Thursday afternoon requesting the reinstatement of a third-degree charge against former officer Derek Chauvin, which Hennepin County Judge Peter Cahill dismissed in October. He also sought leave to amend criminal complaints against Chauvin’s onetime colleagues Thomas Lane, J. Alexander Kueng and Tou Thao to add a third-degree murder charge against each.

Cahill’s dismissal of the charge against Chauvin stemmed from precedent in Minnesota holding that third-degree murder requires that a defendant’s actions be found “eminently dangerous to other persons,” with an emphasis on the plural “persons.” By holding his knee on Floyd’s neck for several minutes, the judge found, Chauvin did not endanger anybody other than Floyd.

That precedent has been thrown into question by a recent decision in another murder case against an ex-Minneapolis police officer, Mohamed Noor. The Minnesota Court of Appeals upheld Noor’s 2019 third-degree murder conviction on Monday, rejecting the argument that his 2017 fatal shooting of Justine Ruszczyk Damond did not qualify as third-degree murder because only Damond was targeted.

Frank, who is leading the prosecution, pointed to that decision in his motion.

“To prove third-degree murder here, the state must show (i) ‘Floyd’s death’; (ii) ‘that Chauvin caused Floyd’s death’; and (iii) that Chauvin’s conduct ‘was eminently dangerous to other persons and was performed without regard for human life,’” he wrote. “As this court has already ruled, probable cause exists for the first two elements. That remains true today. And now, in light of the Court of Appeals’ decision in Noor, probable cause exists for the third element, too.”

He admitted there were some differences between Noor’s case and Chauvin’s.

“As this court previously explained, Noor’s actions arguably put others at risk in addition to the victim, whereas Chauvin’s conduct only directly endangered Floyd,” he wrote. “But this distinction made no difference to the Court of Appeals.”

Frank provided sparse detail on the move to add third-degree murder to the complaints against the other three defendants, saying only that they would not be prejudiced by amendments adding the charge “including any relevant theories of liability, such as accomplice liability.”

A spokesman with Attorney General Keith Ellison’s office declined to give further detail, saying prosecutors would have more to say in the amended complaint should Cahill grant the motion to file it.

Ellison also issued a statement on the motion, vowing to pursue all avenues available to prosecutors.

“We are pursuing justice for George Floyd by every legal and ethical means available to us and we look forward to presenting the facts to a jury,” he said.

Chauvin currently faces second-degree murder and manslaughter charges while the other three ex-officers are charged with aiding and abetting second-degree murder and second-degree manslaughter.

Mitchell Hamline School of Law professor Ted Sampsell-Jones said the prosecution’s move made sense, but would probably not have an enormous impact on the case.

“It likely doesn’t have a ton of practical significance,” he wrote in an email. “Third-degree murder will not be significantly easier to prove than second-degree murder.  Nonetheless, the prosecution apparently would like to give the jury multiple options.”

Sampsell-Jones also pointed to the probability that Noor’s attorneys would not let the 2-1 Court of Appeals decision lie.

“The Supreme Court could grant review and agree with the dissenting opinion. If that were to happen, then the charges in the Floyd prosecution would be thrown out again,” he wrote. “But that would leave the prosecution in no worse position than it’s in now, so there’s no reason for them not to have the charges reinstated.”

He also opined that the decision repudiated critics of Hennepin County Attorney Mike Freeman, who came under fire from some activists in the aftermath of Floyd’s death for bringing only a third-degree murder charge against Chauvin. Some critics, he said, “went so far as to argue that prosecutors knew the charges were invalid, and suggested that prosecutors were therefore intending to lose the case on purpose.”

Freeman’s choice of the third-degree charge, Sampsell-Jones said, now looks a lot better.

“At the moment, at least, in light of the Court of Appeals opinion, the prosecutors’ decision has been vindicated. And the arguments of the critics look very much overblown,” he said.

Attorneys for Chauvin and Kueng declined to comment on the motion, and attorneys for the other two defendants did not respond to requests for comment.

Kueng’s attorney Thomas Plunkett also represents in Noor and has said he will ask the Minnesota Supreme Court to review that case.

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