Updated: Mar 29
The death of George Floyd on 25th May 2020 quickly became a worldwide news story. Mobile phone camera footage of a police officer, kneeling on Mr Floyd’s neck for around 8 minutes and 46 seconds, went viral. As we said in the overview (Part 1), it led to protests, not just in Minneapolis and across the United States, but around the world. The incident led to a variety of social justice, policing, and racial issues of various kinds being raised and discussed. All of these issues are, of course, natural and valid. However, as the trial of the police officer accused of Mr Floyd’s killing begins, our focus – as lawyers – must be on the legal issues in the trial itself.
As we saw in Part 1, the accused – Derek Chauvin – faces three charges. These are:
· Second degree murder
· Third degree murder, and
· Second degree manslaughter.
All of these charges are based on offences contained in the Minnesota Statutes. In other words, they are statutory offences. This is unlike the offences of murder and manslaughter under English law, which are common law offences. Let us look at how the Minnesota Statutes define each of the three charges that Derek Chauvin currently faces.
Second Degree Murder
Section 609.19 of the Minnesota Statutes are subdivided into ‘intentional murder’ and ‘unintentional murder’. It provides:
“Subdivision 1. Intentional murder; drive-by shootings.
Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or
(2) causes the death of a human being while committing or attempting to commit a drive-by shooting in violation of section 609.66, subdivision 1e, under circumstances other than those described in section 609.185, paragraph (a), clause (3).
Subdivision 2. Unintentional murders.
Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting; or
(2) causes the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim, when the perpetrator is restrained under an order for protection and the victim is a person designated to receive protection under the order. As used in this clause, "order for protection" includes an order for protection issued under chapter 518B; a harassment restraining order issued under section 609.748; a court order setting conditions of pretrial release or conditions of a criminal sentence or juvenile court disposition; a restraining order issued in a marriage dissolution action; and any order issued by a court of another state or of the United States that is similar to any of these orders.”
We have highlighted, in bold, the part of this Statute which appears, to us, to be the aspect of second degree murder that the prosecution might try to rely on. However, we wait to see how the prosecution will put its case  in relation to the allegation of second degree murder.
What is clear is that in order to prove this, the prosecution will have to prove that Derek Chauvin intentionally killed George Floyd. We assume that the prosecution may try to argue that the length of time that Derek Chauvin had his knee on the neck of the victim, George Floyd, showed the necessary intention to kill. However, we will have to wait to see how the prosecution puts its case.
Third Degree Murder
Section 609.195 of the Statutes provides:
“(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.
(b) Whoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule I or II, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years or to payment of a fine of not more than $40,000, or both.”
Again, we have highlighted, in bold, the aspect of the section which the prosecution might seek to rely on. Here, the defendant does not have to have the intent to effect (cause) the death. However, we have underlined the part of the section which the defence may suggest applies - namely, that it deals with the situation where an accused causes the death of someone by doing an act eminently dangerous to others.
Second Degree Manslaughter
Minnesota Statutes 609.205 define second degree manslaughter as follows:
“A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; or
(2) by shooting another with a firearm or other dangerous weapon as a result of negligently believing the other to be a deer or other animal; or
(3) by setting a spring gun, pit fall, deadfall, snare, or other like dangerous weapon or device; or
(4) by negligently or intentionally permitting any animal, known by the person to have vicious propensities or to have caused great or substantial bodily harm in the past, to run uncontrolled off the owner's premises, or negligently failing to keep it properly confined; or
(5) by committing or attempting to commit a violation of section 609.378 (neglect or endangerment of a child), and murder in the first, second, or third degree is not committed thereby.
If proven by a preponderance of the evidence, it shall be an affirmative defense to criminal liability under clause (4) that the victim provoked the animal to cause the victim's death.”
Again, we have highlighted, in bold, what we believe the part of the section the prosecution may rely on will be – namely, that Derek Chauvin was ‘culpably negligent’, that he created ‘an unreasonable risk’ and ‘consciously took chances of causing death or great bodily harm’ to the victim, George Floyd. We anticipate that the prosecution will suggest that
· The length of time that Derek Chauvin had his knee on the victim’s neck, and
· The fact that the victim was apparently saying the words ‘I can’t breathe’
is significant evidence that Derek Chauvin was ‘culpably negligent’, took an unreasonable risk and consciously took the chance of causing, at the very least, ‘great bodily harm’ to the victim. Again, we will have to see how the prosecution puts its case.
We now have at least a basic outline of what the charges Derek Chauvin faces are and what the prosecution must prove in relation to each of the charges. Of course, the definitions in the Statutes have more legal depth than we need to go into right now. These include issues, for example, such as the following:
· eminently dangerous to others
· culpable  negligence
· unreasonable risk
· great bodily harm
among others. However, that may change as the trial begins to unfold.
 ‘to put your case’ - to say how, and in what way, you claim the evidence establishes the criminal offence.
 ‘culpable’ – the ordinary meaning of this word is ‘deserving to be blamed’
© Cambridge Legal English Academy 2021