This post is one of a series. This post explains the Motion to Dismiss the charges (link here) against Derek Chauvin, filed on August 28, 2020. The links the to full case documents, including attachments can be accessed here.

In short, there is a very good chance of success on the Motion to Dismiss. This is explained below.

The Charges Against Chauvin

As I have written before, the charges against Derek Chauvin came down quickly. In the prosecution of complicated cases, “quick” is not a good thing. At the time, Chauvin was charged with two crimes, Minnesota Attorney General Keith Ellison came on the case, there was an amendment to these charges on June 3, 2020:

• Count I – Second Degree Murder – Unintentional – While Committing A Felony
• Count II – Murder – 3rd Degree – Perpetrating Eminently Dangerous Act and Evincing Depraved Mind
• Count III – Manslaughter – 2nd Degree – Culpable Negligence Creating Unreasonable Risk

What the Motion is Trying to Do

A Motion to Dismiss is used to protect defendants from being wrongly accused of crimes. In short, it gives the defendant a solid “win” before the trial even happens.

As was explained in the earlier post on the Motion to Dismiss of officer Thomas Lane, a Motion to Dismiss is a high standard to meet. The idea is that even if you take ALL the evidence and give every benefit of the doubt to the prosecution, it will STILL be impossible to prove the defendant’s guilt beyond a reasonable doubt.

Even with this high bar, I believe it is possible that Derek Chauvin’s Motion to Dismiss just might meet this standard on ALL THREE charges. That’s because the arguments are quite strong. There are four arguments that apply to all three of the charges.

Argument 1: Derek Chauvin Did Not Assault George Floyd

The first argument claims that Chauvin cannot be guilty of Count I – Second Degree Murder – Unintentional – While Committing A Felony. This argument is slightly technical, but it is worth explaining, because it is a strong legal argument.

Some background is necessary. How can someone be guilty of a crime they didn’t intend to commit? Isn’t intent always an element of a crime?

Yes, that is true. But this criminal statute is designed for people who are doing very dangerous things on purpose (like burglary, robbery, prison escapes, arson, kidnapping, etc.), and accidentally kill people in the process. By charging Derek Chauvin with this, they are claiming that Derek Chauvin did not intend to kill George Floyd, but he did intend to assault George Floyd. That’s where the intent is in this “unintentional” crime.

But that is the failure the Motion to Dismiss points out: The criminal complaint against Derek Chauvin never claims he intended to assault George Floyd.

While it is not necessary to show that Derek Chauvin INTENDED to kill George Floyd, it is necessary to show that Derek Chauvin INTENDED to assault him. There are no “accidental” criminal assaults. You only get to charge with “unintentional” murder if you prove an “intentional” dangerous crime. But the complaint NEVER claims that Derek Chauvin intended to assault George Floyd, much less does it offer any evidence of this fact.

While leaving out “intent” from a complaint of assault may seem like a minor point, in criminal court, this is a DEADLY mistake to the prosecution. Is it possible for the prosecution to amend the complaint? Maybe. That’s a complicated question of Minnesota criminal law. (For the record, in high-profile cases like this, you don’t want to have “complicated questions of Minnesota criminal law” before the prosecution is even allowed to proceed to trial.)

Instead of saying the very simple sentence “Officer Chauvin intended to cause great bodily harm to George Floyd,” the complaint goes a completely different direction. It merely says what we’ve all seen on video: It gives the time-stamps, and repeat the fact that the officers do not change positions. Never does the complaint even CLAIM that Derek Chauvin “intended” for his actions to harm George Floyd at all.

By leaving this MAJOR detail out, the entire case of assault collapses. When the case of “assault” collapses, the case of Second Degree Unintentional Homicide collapses, because there is no underlying crime that leads to a homicide. As the Motion to Dismiss says:

The Amended Complaint’s probable cause statement describes the officers’ struggle with Mr. Floyd, noting that “officers made several attempts to get Mr. Floyd into the back seat of their squad car.” The probable cause statement goes on to say that Mr. Chauvin “placed his left knee in the area of Mr. Floyd’s head and neck.” At no point does the Amended Complaint allege that Mr. Chauvin possessed the intent to inflict bodily harm upon Mr. Floyd. Frankly, the facts demonstrate the exact opposite. Mr. Floyd was struggling in and around the squad at a busy Minneapolis intersection. He was handcuffed and acting erratically. Continued struggle posed a risk of injury to Mr. Floyd and, potentially, to officers. The decision to use MRT allowed officers to restrain Mr. Floyd without injury until EMS arrived on scene. Mr. Chauvin, who arrived at the scene as officers were already struggling with Mr. Floyd, checked to ensure that EMS had been called. In the belief that EMS arrival was imminent, he asked if other officers felt a hobble was necessary. The decision not to use a hobble would permit officers to transfer Mr. Floyd into the ambulance more quickly. Mr. Chauvin demonstrated a concern for Mr. Floyd’s well-being—not an intent to inflict harm.

In reading the complaint again and again, I still cannot find where they claim that Derek Chauvin intended to inflect great bodily harm on George Floyd. All they say is that George Floyd DID have great bodily harm and that Derek Chauvin had his knee on Floyd’s neck. But it never connects these two facts with the key element of “intent.”

Even if you do not believe the detail of Mr. Chauvin being concerned about Mr. Floyd’s well-being, it is enough to notice that in such a high profile case, the Complaint NEVER claims that Derek Chauvin INTENDED to cause great bodily harm to George Floyd. That is a legal choke, flub, mistake, brain-fart, and boon-doggle of the highest order on the biggest stage.

Derek Chauvin may win this one before he even arrives at the trial.

Argument 2: The Prosecution Charged the Wrong Crime

This second argument is even more technical than the first one, but it is also quite legally strong. It involves Count II – Murder – 3rd Degree – Perpetrating Eminently Dangerous Act and Evincing Depraved Mind

The Motion to Dismiss with its citations explain it quite clearly:

Count II of the Amended Complaint charges Mr. Chauvin with Third Degree Murder— Perpetrating Eminently Dangerous Act and Evincing Depraved Mind, in violation of Minn. Stat. § 609.195(a). Under Minnesota law, however, “[d]epraved mind murder cannot occur where the defendant’s actions were focused on a specific person.” State v. Barnes, 713 N.W.2d 325, 331 (Minn. 2006) (citing State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980)); see 10 Minn. Prac., Jury Instr. Guides—Criminal, 11.38 (6th ed.) (“the defendant’s intentional act, which caused the death… may not be directed at the particular person whose death occurred”) (emphasis added).

As the Minnesota Supreme Court has explained, “We have made clear that the statute covers only acts committed without special regard to the effect on any particular person or persons.” State v. Zumberge, 888 N.W.2d 688, 698 (Minn. 2017). “[T]he act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.” Id. (appellant’s claims that he shot “toward” not “at” the decedent precludes a thirddegree murder instruction) (citation omitted). Third degree murder is reserved to cover cases where the act was “reckless or wanton,” such as firing a gun into a bus or driving a vehicle into a crowd. Wahlberg, 296 N.W.2d at 417. That is simply not the case here.

This might be confusing as to why “he was targeting Floyd and not a general crowd” is a useful legal argument. But when you realize the reason for Minnesota Code Sec. 609.195, it makes more sense.

This law is on the books so that someone can be put in prison for decades even if they had no intent to kill anyone in particular. Normally, this would not be a good thing to do. If someone falls asleep at the wheel, this might cause great danger to a large number of people. But even though lots of people could get killed when a driver decides to keep driving instead of pulling over and taking a nap, this is not an act that “evidences a depraved mind.”

The key here isn’t the danger or the fact that someone has died. The key is that someone’s action evidences something really, REALLY terrible. In other words, this is a crime that is designed for bad actions of a general nature, not directed at anyone in particular. It is something like leaving a bomb for no one in particular, burning a building full of people you do not know, or shooting a gun into a crowd.

That is the purpose of the law. The strange statement of “depraved mind murder cannot occur where the defendant’s actions were focused on a specific person” is the difference between a sleepy driver saying “I didn’t mean to kill those pedestrians” and an arsonist who burned down a church saying “I didn’t mean to kill those particular parishioners.” There is a moral difference between these two people, and the law recognizes it.

That’s the strength of this legal argument. This particular law is for only SOME types of bad acts, and this alleged act is not one of them. The argument is that by charging Derek Chauvin with depraved mind murder, he is simply charged with the wrong statute.

This is a strong argument, and it may very well dismiss this particular charge before we even get to a trial.

Argument 3: Derek Chauvin Was Not Negligent

This argument is rather straightforward, and involves the evidence I have been detailing in this series for long time. It has a significant effect on Count III – Manslaughter – 2nd Degree – Culpable Negligence Creating Unreasonable Risk.

The argument is that Derek Chauvin was not “negligent.” He did neither “created an unreasonable risk,” nor did he “consciously take chances of causing death or great bodily harm.”

This is an extremely strong argument, and it exposes bad coverage and outright lies that many of spread about this situation.

There are three elements to Court III. The state must show that Mr. Chauvin acted (1) in an objectively, grossly negligent manner and (2) in a subjectively reckless manner and (3) that Mr. Chauvin intended the natural and probable consequence of his actions.

In other words: 1) the actions must have been grossly negligent for any normal person, 2) the actions must have been grossly negligent for a person in Derek Chauvin’s position, 3) Derek Chauvin must have had the final result in his mind when he was doing what he was doing.

1) Lack of Objective Negligence

The key piece of evidence that will absolutely sink the prosecution is the following photo of how Minneapolis police officers are trained to subdue individuals who are handcuffed and experiencing drug reactions:

This is the picture that the Motion to Dismiss uses to compare Derek Chauvin’s actions:

Here is the importance of these pictures: Regardless of any personal opinions about this tactic, it is difficult to argue that he is doing something different from the training. If he is following training, he is not negligent. If he is not negligent, then one of the ways to be guilty of “Manslaughter – Culpable Negligence Creating Unreasonable Risk” is gone.

As the Motion to Dismiss says:

Mr. Chauvin acted according to MPD policy, his training, and within his duties as a licensed peace officer of the State of Minnesota. If one compares the Defensive tactics training video with the training material photo, and the positioning of Mr. Chauvin, supra, it is clear that Mr. Chauvin did exactly as he was trained to do. The State has offered no evidence beyond its bald assertions to indicate otherwise. There was simply no “gross deviation from the standard of care” on the part of Mr. Chauvin. Mr. Chauvin, therefore, was not objectively, grossly negligent in his interactions with Mr. Floyd.

2) Lack of Subjective Negligence

The second element is the subjective negligence. It requires a defendant to show “an actual conscious disregard of the risk created by one’s conduct.” However, we do not have any evidence that Derek Chauvin did this.

The argument is that the risks of the Maximum Restraint Technique (MRT) being used was ignored by the officers. As the Motion to Dismiss states:

Second, there is no evidence that Mr. Chauvin actually and consciously disregarded the risks associated with MRT. As noted above, the facts demonstrate the exact opposite. Mr. Floyd was struggling in and around the squad at a busy Minneapolis intersection. He was handcuffed and acting erratically. Continued struggle posed a risk of injury to Mr. Floyd and, potentially, to officers. The decision to use MRT allowed officers to restrain Mr. Floyd without injury until EMS arrived on scene. Mr. Chauvin, who arrived at the scene as officers were already struggling with Mr. Floyd, checked to ensure that EMS had been called. In the belief that EMS arrival was imminent, he asked if other officers felt a hobble was necessary. Officers decided that a hobble was unnecessary and would delay the transfer of Mr. Floyd to the ambulance. Throughout his interaction with Mr. Floyd, Mr. Chauvin exuded a calm and professional demeanor. Further, he demonstrated a concern for Mr. Floyd’s well-being and an awareness of the potential risks associated with MRT.

In other words, you cannot claim that someone ignored the risks of the MRT when the officers adjust their actions on MRT to reduce risk. Regardless of what you think of the situation, it is hard to argue otherwise.

3) Lack of Intent

In light of the facts and arguments above, it is also difficult for the state to show that Derek Chauvin had injury to George Floyd in his mind as the intended result of his actions.

After all, how do you convincingly argue that the individuals “intend” for general harm to come to George Floyd when they are waiting for an ambulance and following their training to save his life as he experiences the effects of drug intoxication?

As the Motion to Dismiss states:

Ultimately, the State has not offered evidence that Mr. Chauvin actually and consciously disregarded the risks posed by his actions such that they could be described as subjectively reckless. Nor, for the same reason, can the State show that Mr. Chauvin intended “the natural and probable consequences of [his] actions.” Johnson, 616 N.W.2d at 726. Mr. Floyd’s death was neither a natural nor a probable consequence of Mr. Chauvin’s use of MPD-authorized restraint techniques, and Mr. Chauvin certainly did not intend such a consequence.

Even if one of these arguments in this section is unconvincing, the defense must only succeed on one of them to throw out this count.

Therefore, there is a strong chance that the defense will win and this final count will be thrown out before we even get to a trial.

Argument 4: Derek Chauvin Did Not Kill George Floyd

The final argument covers all three of the previous charges, giving extra weight to them all. It is also the strongest case from the evidence that Derek Chauvin is innocent. The fact of the matter is, there is currently no good evidence that can go to court that Derek Chauvin killed George Floyd.

This may seem crazy for the casual observer, until you start looking closely at the evidence. What most people fail to realize is that there is currently no medical evidence that Derek Chauvin’s knee caused George Floyd’s death. (I have repeatedly stated in this series for months, including here and here)

This is key, and I don’t think it can be stated strongly enough: Neither the Hennepin County medical examiner nor the secondary medical examiner hired by George Floyd’s family claimed that George Floyd died because of Derek Chauvin’s knee. And yet, the knee is the only relevant point of contact that Derek Chauvin had with George Floyd as he died.

First Autopsy

The official and first autopsy of George Floyd said that the general police restraint (which is authorized by Minneapolis police training, see here and here for proof) combined with the fentanyl and meth in George Floyd’s system (remember, George Floyd is claiming he couldn’t breathe before he was ever restrained, see here for proof) is what caused George Floyd’s heart and lungs to stop (i.e. “cardio-pulmonary arrest”). The autopsy notes that there was no bruising on George Floyd’s neck. It notes that George Floyd’s lungs were two-to-three times their normal weight. This is heavily suggestive that George Floyd’s drug use was contributing to his inability to breathe. Additionally, the medical examiner noted that based on the videos he had seen, it was clear that Chauvin’s knee was on the side of his neck, which would not have caused asphyxiation. Therefore, there is no evidence that Derek Chauvin caused George Floyd’s death.

Second Autopsy

Additionally, the second autopsy claimed that the general police restraint is what killed George Floyd. That is why the lawsuit for wrongful death that attorney Benjamin Crump is bringing claims that general police training is to blame, and not Derek Chauvin alone.

This is another ENORMOUS Elephant-in-the-Court-Room that the media coverage is ignoring: NOT EVEN BENJAMIN CRUMP IS CLAIMING DEREK CHAUVIN (ALONE) KILLED GEORGE FLOYD. (See the complaint filed in federal court if you don’t believe me.) Instead, it states:

207. As a result of Chauvin, Lane, and Kueng’s unjustified, excessive, illegal, and deadly use of force, Mr. Floyd died.

What It All Means

It is a national scandal that few are paying attention to the lack of evidence that Derek Chauvin killed George Floyd. However, this lack of attention is not shared by the lawyers. Instead, when you read the case documents (as I have), it is clear that this is a key problem of evidence for the prosecution and the key argument of the defense.

George Floyd had a lethal amount of fentanyl in his system at the time of his arrest. In fact, the Hennepin County medical examiner said that had his body been found alone, the death would have been ruled an overdose. As the Motion to Dismiss says:

By May 25, 2020, Mr. Floyd had been addicted to opiates for years. (See Ex. 22 at Bates 6910). It is clear from the evidence that Mr. Floyd was under the influence of narcotics when he encountered the officers and that he most likely died from an opioid overdose. As the Hennepin County Medical Examiner told prosecutors, “If [Mr. Floyd] were found dead at home alone and no other apparent causes,” it would have been “acceptable” to label his death an overdose. (Ex. 6 at Bates 22935-36). His body contained a lethal dose of fentanyl—11 ng/ml—as well as methamphetamine, at the time of his death. The Hennepin County Medical Examiner told prosecutors that overdose deaths from fentanyl “have been certified” with levels as low as 3 ng/ml. (Id.). A study based on a cluster of twelve fentanyl overdoses in Connecticut, published by the Centers of Disease Control, showed that fentanyl levels as low as 0.5/ml had resulted in overdose. The two patients in the study who later died had fentanyl levels of 11 ng/ml (the same level as Mr. Floyd) and 13 ng/ml. Both of the two decedents in the study arrived at the hospital in cardiac arrest, which was also the cause of Mr. Floyd’s death.

That is an EXTREMELY strong piece of evidence for the defense.

In normal situations, this would have kept the charges from ever being brought in the first place. Now, the prosecution in Minneapolis must overcome this hurdle on an international stage. And if they fail, it is not unlikely that riots will be the result. Such are the times.

As the Motion to Dismiss says:

Put simply, Mr. Floyd could not breathe because he had ingested a lethal dose of fentanyl and, possibly, a speedball. Combined with sickle cell trait, his pre-existing heart conditions, Mr. Floyd’s use of fentanyl and methamphetamine most likely killed him. In fact, “respiratory failure is particularly likely with speedballs because the effects of stimulants wear off far more quickly than the effects of opioids.” (Ex. 17 at 24). Adding fentanyl and methamphetamine to Mr. Floyd’s existing health issues was tantamount to lighting a fuse on a bomb.

If this claim of evidence is found persuasive by a judge or a jury, then Derek Chauvin will be declared innocent of all three charges against him. Derek Chauvin cannot be guilty of ANY crime in the death of George Floyd if Derek Chauvin wasn’t the one who ACTUALLY killed George Floyd.

Conclusion

This is a very VERY strong Motion to Dismiss. Even though a Motion to Dismiss is a high bar, and even though this is a high profile case, it is quite possible that the entire case collapses on ALL counts, before we even reach a trial. Additionally, if there was no murder, neither can the other officers be guilty of “aiding and abetting” a murder if no murder occurred. This document could be the end.

Let’s also notice the pickle the prosecution is in: Not even the personal attorney for the George Floyd Family is trying to argue that Derek Chauvin ALONE killed George Floyd according to the civil standard: “more likely than not.” Even so, the local prosecutor is going to be forced to prove that Derek Chauvin ALONE killed George Floyd, and he must prove it “beyond a reasonable doubt.”

Good luck.