This post is part of a series on the George Floyd issue.

As I stated in a previous post, Derek Chauvin’s attorney put forward a “Motion to Dismiss.” As we discussed, it had some very strong arguments. Now, the judge has decided, and granted the motion in part and denied the motion in part. This post breaks it down.

As we shared before, Derek Chauvin is facing three counts:

• 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

The Motion to Dismiss asked the judge to give the Defendants a “win” on all of these counts, as well as the Aiding and Abetting charges of the other officers before a trial even happens.

Standard for Motion to Dismiss

As we shared before, there is a HIGH STANDARD to meet in a Motion to Dismiss. We stated that ALL INFERENCES of the evidence are construed in a light most favorable to the prosecutor. As the Order states:

The district court must view the evidence in the light most favorable to the State, with every inference which may fairly be drawn from the evidence drawn in favor of the State (State v. Pck, 773 N.W.2d 768, 782 n.1 (Minn. 2009).

Additionally, using this extra-generous standard, it is not even necessary to show “proof beyond a reasonable doubt” at this stage. All that needs to be shown is “probable cause” which is “where facts have been submitted to the district court showing a reasonable probability that the person committed the crime.” (State v. Lopez, 778 N.W.2d 700, 70s (Minn. 2010).

If it’s not clear, “reasonable probability” is way easier than “proof beyond a reasonable doubt.” When looking at the facts, the Judge MUST construe everything in the state’s favor, and all the state has to do is get to a “reasonable probability” that all the elements of the crime are there.

Not only that, but the “facts” that must be submitted are not only “facts in evidence” or “confirmed facts” or “sworn statements.” Instead, the following are considered:

“In doing so, the court may review the complaint and the entire record, including police reports and statements of witnesses and victims — including reliable hearsay — and representations of the prosecutor.” (State v. Dunagan, 521 N.W.2d 355, 356 (Minn. 1994))

In other words, not only are all disagreements of fact are automatically given to the prosecutor and not granted to the defendant, statements of witnesses and victims — but not the defendant — are taken into consideration. Not only that, but representations OF THE PROSECUTOR — but not the defense attorney — can be considered by the Court.

In other words, this is usually just a way for defendants to pick apart blatant errors by the prosecutor in a charging document. If it’s not clear, let me make it plain: THIS IS AN EXTREMELY HIGH BAR, ESPECIALLY IN A BIG CASE LIKE THIS.

The Decision

As a result of the Judge’s 100+ page Order, available using this link, Count II has been dismissed. The other charges are going forward to trial.

Charge That Was Dismissed

This was the original charge against Derek Chauvin, before more charges were added by Keith Ellison. It is also the same charge that the Hennepin County attorney had previously prosecuted in the Justine Damond case.

This was one of the few cases in which an officer was convicted of killing a civilian. For this reason, it looked like a model for the prosecution of Derek Chauvin for the death of George Floyd. However, after a cursory look at the facts (which are ALWAYS important in a criminal case), it is clear this case was very different.

• In that case, Justine Damond called the police to report a potential rape behind her home.
  • In this case, the manager of a grocery store called 911 to report not only that George Floyd paid using a counterfeit bill and refused to return the goods, but also “he is awfully drunk and he’s not in control of himself.”
• In that case, the officer shot his gun at the woman running up to a police vehicle and killed her.
  • In this case, four officers struggled to get a handcuffed George Floyd into a police cruiser, called an ambulance because they believed he was experiencing a drug reaction, and followed their training for excited delirium, with George Floyd dying despite monitoring his position, checking his pulse, and giving him CPR in the ambulance ride to the hospital.
• In that case, the charged officer’s name was Muhammad Noor and he was a black Somali American, while the victim was Justine Damond was a photogenic white woman with dual American and Australian citizenship.
  • In this case, the three officers are white (with names like Derek, Thomas, and Alex) and Asian (Tou Thoa), and the victim is a large black man with an extended criminal record.
  • Of course, none of this should matter in a question of guilt or innocence, but there is a good chance it will be relevant later on.
  • And if the case falls apart at trial, you can bet your bottom dollar this difference between the officers and victim is going to matter in the eyes of the public (mob?).

The prosecutor also tried to compare this to the Noor and Damond incident. But as is clear from the Order, this was not convincing to the judge. The Judge writes:

The language of the third-degree murder statute explicitly requires the act causing the “death of another” must be eminently dangerous “to others.” In defining this crime, the legislature could have continued in the singular, or could have included both an actual single victim as well as others. . . . The legislature did not take those approaches, though, but instead required that the defendant’s action(s) was/were “eminently dangerous to others,” and this Court must give effect to the plain meaning of the language of the statute.

For that reason, along with many other case citations, the Judge found for Derek Chauvin. Count II was dismissed.

The judge also addressed the State’s argument that the Muhammad Noor case is analogous:

The State also relies on the Mohamed Noor case, another homicide prosecution of a Minneapolis police officer. State v. Noor, No. 27-CR-18-6859 (Henn. Cty. Dist. Ct.), appeal pending. In Noor, Noor, while seated in the passenger seat of his squad car, had fired his revolver toward the driver’s side window across his partner’s body (his partner was driving their squad, although they were parked at the time at the end of an alley, preparing to turn onto the street) toward a woman standing outside the driver’s side window who had banged on the rear of the squad before approaching the driver’s window. The bullet struck the woman, killing her. Noor faced the same three charges Chauvin faces here. By Order filed September 27, 2018, Judge Quainance denied Noor’s motion to dismiss for lack of probable cause. Id., Dk #31. At trial, the jury acquitted Noor on the unintentional second-degree murder charge but found him guilty on the third-degree murder and manslaughter charges, and he was convicted and sentenced on the third-degree murder charge.

Noor does not support a finding of probable cause for the third-degree murder charge against Chauvin here, however. First, there is no precedential appellate court opinion in Noor, and that case is presently on appeal to the Court of Appeals. Second, Noor is factually distinguishable. In Noor, the evidence indicated that a bicyclist was riding by on the street just in front of Noor and Harrity’s squad at the time of the shooting. Noor and Harrity were patrolling at the time in a residential area of South Minneapolis. For purposes of dangerous conduct performed recklessly and with heedless disregard for whether others might be killed, Noor’s actions are a better fit for the third-degree murder charge than are Chauvin’s actions toward Floyd. . . . Here, in contrast, nothing about the manner in which Chauvin pressed his knee down on Floyd’s neck for nine-plus minutes while Kueng and Lane were also kneeling on Floyd’s back and legs was eminently dangerous to anyone other than Floyd. And, nothing about that conduct can be said to have been done in heedless disregard for whether anyone other than Floyd, the person who was the specifically the target and focus of Chauvin’s actions, might be killed as a result.

In other words, the Judge said exactly what we explained in the last post. This charge is dismissed. Chauvin is “not guilty” even before trial.

The Charges That were Not Dismissed

The reasons that the charges not dismissed go forward occupy dozens of pages in the Order. But they can be summarized by the following statement by the judge:

Chauvin argues that his actions did not cause Floyd’s death and that he did not intend to inflict bodily harm on Floyd. Both of those arguments miss the mark: they are arguments for a jury’s consideration at trial. Here, however, on his motion to dismiss for lack of probable cause, this Court is required by law to view all evidence in favor of the State and to draw all reasonable inferences from that evidence in favor of the State.

In other words, it’s not that his arguments are “bad,” it’s just that they are for trial, not the Motion to Dismiss.

2nd Degree Murder – Unintentional – While Committing a Felony

The judge found that there was probable cause that Derek Chauvin was guilty of Count I – Second Degree Murder – Unintentional – While Committing A Felony.

Probable Cause for Intent to Assault Floyd

In the previous post, we detailed how the Motion to Dismiss made the point that the Complaint never claimed that Derek Chauvin INTENDED to Assault George Floyd, therefore, the element of “intent” was absent from the charging document. Therefore, no probable cause.

The judge addresses this point:

For purposes of the probable cause challenge, the issue is whether the State has alleged evidence warranting proceeding to trial on the elements of whether Chauvin’s conduct was a substantial causal factor in Floyd’s death and whether Chauvin intentionally or attempted to inflict bodily harm on Floyd or intended to cause Floyd to fear immediate bodily harm or death. In the Court’s view, the answer to both is “yes.”

Here’s why. The elements of “Assault,” the underlying felony that Chauvin is alleged to have committed against Floyd, are quite broad. They are:

1. Chauvin assaulted Floyd, defined either as “the intentional infliction of or the attempt to inflict bodily harm” upon the victim or “an act done with intent to cause [Floyd] to fear immediate bodily harm or death”; and
2. Chauvin inflicted “substantial bodily harm” on Floyd, where “substantial bodily harm” is defined as “bodily harm that involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member.”

Well, when you put it that way, then yes. Derek Chauvin did that. Why? Well…. because it was his job to do that. As a basic matter of fact, Cops BY DEFINITION intentionally inflict bodily harm on people to bring them under control. What is a police baton except for that? What is a gun except for that? What are handcuffs for except to “cause a temporary but substantial loss or impairment of the function of” a person’s hands.

“Assault,” is in the job description of Cops. That’s why Cops can arrest people, but you can’t.

Derek Chauvin’s argument is that he was within his proper authority to do what he was doing, and therefore it was not assault. This is a fair point at trial, and it should be heard. But the State disagrees. And…. well… since this is a Motion to Dismiss, we know how that one goes. Score one for the Prosecutor.

Second, as for the “bodily harm” that Derek Chauvin inflicted, it must result in “a temporary but substantial loss or impairment of the function of any bodily member.” And well…. the neck is a bodily member, and it is clear that Derek Chauvin intended to inflict an impairment of the function of Floyd’s ability to move his head and neck when he was in the MRT.

Derek Chauvin’s argument is that the neck restraint did not cause the death or the severe bodily harm to Floyd, and that it was the result of the intoxicants in his system. The State disagrees. And….. well…. since this is a Motion to Dismiss, we know how that one goes. Score yet another one for the Prosecutor. ….at this stage at least.

Probable Cause for Chauvin’s Conduct Being a Substantial Causal Factor in Floyd’s Death

Next, we noted before that there is currently no evidence that the knee on George Floyd’s neck caused his death. We even pointed out that even Benjamin Crump, the attorney for the family of George Floyd, is not alleging that Derek Chauvin caused the death of George Floyd ALONE. However, this is where Minnesota Criminal Law comes into play. As the Order explains:

The State has alleged sufficient evidence that Chauvin’s actions were a substantial causal factor in Floyd’s death. A defendant’s actions are a substantial causal factor so long as they “contributed to the death.” State v. Torkelson, 404 N.W.2d 352, 357 (Minn. App. 1987). The State is not obliged to “prove the specific mechanism of death.” Id. Nor is the State required to prove that Chauvin’s acts were “the sole cause of death.” State v. Gatson, 891 N.W.2d 134, 148 (Minn. 2011). Rather, the State need only prove that Chauvin’s actions were a contributory cause to satisfy the substantial causal factor test. See State v. Smith, 119 N.W.2d 838, 848 (Minn. 1962).

Well, when you put it that way, yes. The state has put that forward. The state has alleged that several other officers “aided and abetted” Chauvin’s murder of George Floyd, and therefore, if Derek Chauvin didn’t kill Floyd “alone,” there is still the ability to say that Derek Chauvin cooperated with this co-conspirators to kill George Floyd and “contributed” to the death. In fact, it would be possible for the state to charge the other officers, as well, as they also “contributed” to the death. But that’s just a hypothetical.

Derek Chauvin definitely disagrees with that description of what happened, but the State has claimed that it is so. And since this is a Motion to Dismiss…. …Score one for the prosecutor. ….at least at this stage.

Summary and Conclusion

With all that said, what is important is what is NOT shown in the argument of the state: The intoxicants in George Floyd’s system. The State can CLAIM that the MRT restraint was a “substantial cause” of George Floyd’s death and that Derek Chauvin “contributed” to this “substantial cause” of George Floyd’s death. But can it PROVE BEYOND A REASONABLE DOUBT that George Floyd’s own ingestion of Fentanyl and Meth was NOT the substantial cause of George Floyd’s death? Can the state PROVE BEYOND A REASONABLE DOUBT that the officers “contributed” to George Floyd’s death by waiting for the ambulance as the restrained him according to their training?

I know what I think, but what do you think?

2nd Degree Manslaughter – Culpable Negligence

The judge found that there was probable cause that Derek Chauvin was guilty of Count III – Manslaughter – 2nd Degree – Culpable Negligence Creating Unreasonable Risk.

Here, we get a disagreement in fact:

Although Chauvin claims that he “acted according to MPD policy” and “his training,” the State disputes that contention, maintaining that Chauvin and the other Defendants failed to follow MPD’s use-of-force policy, did not use proper MRT techniques, failed to consider whether to implement de-escalation tactics, failed to attempt CPR, and failed to inform emergency medical personnel that they had used a neck restraint on Floyd, and all of which the State contends their training as Minneapolis police officers required. The evidence to which Chauvin points is not to the contrary.

Technically, that is true, and the Judge is correct to point this out AT THIS TIME.

However, the facts at trial will be WAAAY more complicated. As we have already shown in this series, the officers did not use the “proper” MRT technique because they did not want to hog-tie Chauvin, putting him in greater danger. It may be true that the officers did not “inform” the EMS responders that Floyd had a neck restraint, but from the video, it seems that it is very possible that the EMS responders saw the neck restraint themselves, eliminating the need to communicate this information.

Additionally, there was talk about the exhibit, which involves a photograph of what to do with drug-affected arrestees, resisting arrest. I have shown it before, but will show it again, due to its importance in this case:

The Judge states the following:

Chauvin also relies on a photograph of three officers pinning a subject down in a prone position. Chauvin Exh. 8, p. 5. That photograph demonstrates a particular procedure for getting an uncooperative subject handcuffed when the subject is resisting handcuffing. Here, however, Floyd, had been in handcuffs for more than seven and a half minutes by the time Chauvin and the other Defendants made the decision shortly after 8:19:00 to subdue Floyd in a prone position on the street. . . . In addition, the State observes that the photograph on which Chauvin relies also shows that Chauvin’s technique while kneeling on Floyd’s neck was wrong: Chauvin placed all of his weight in his left knee that was pressing was Floyd’s neck [sic], rather than distributing his weight as the officer in this photograph did.

That is a very good observation to make in a Motion to Dismiss, where ALL factual disputes are decided in the favor of the State, and where statements from the prosecutor can be considered, but statements from the witness and the defense attorney cannot.

But think of how terrible this is for a trial, where guilt must be proven beyond a reasonable doubt. The state will have to prove BEYOND A REASONABLE DOUBT the weight distribution between Chauvin’s left and right knee — despite the Medical Examiner’s finding that there was no bruising on the neck — that Chauvin put ALL his weight on the left knee, disregarding his training to distribute the weight.

Um……. Like….. HOW ON EARTH CAN YOU PROVE THAT? I’ve seen the videos. It didn’t even look like Chauvin’s weight was on his left knee, as Floyd could still move his head. (But the judge must take the prosecutor’s word at this stage).

This looks BAD for this charge when it comes to trial. If the state must prove Chauvin’s weight distribution — with the absence of any bruising on the neck — that’s got “reasonable doubt written all over it.

And we haven’t even mentioned the intoxicants in Floyd’s system yet, either.

Aiding and Abetting

I hate to cut my treatment of the other officers’ claims so short, but the judge decided that Thao, Lane, and Kueng’s Motion to Dismiss on the charges of “aiding and abetting” the crime of Derek Chauvin can go forward. We’ve already discussed this before, especially as it relates to Thomas Lane specifically, but because this is a Motion to Dismiss…. …well, score one for the prosecutor.

The fact of the matter is that these men were DEFINITELY PRESENT, and they were DEFINITELY working in concert. After all, as Cops responding to an incident, that’s literally their job.

They may argue that the worked in concert in a responsible and appropriate manner considering the consequences, and the fact that two of them were responding to their FIRST CALL (talk about a bad first day at work, you know?), but the State has disagreed. And since this is a Motion to Dismiss… …well, you know the drill.

The charges of Aiding and Abetting go forward to trial.

Conclusion

Don’t let my obvious opinions on these charges distract you from an obvious truth: It is always a tragedy when we see someone die. It doesn’t matter if they were on drugs. It doesn’t matter if they have a criminal history. It doesn’t matter. It doesn’t matter. It doesn’t matter. It is always a tragedy when someone dies, especially right in front of our eyes.

But not every tragedy is a crime. To wrongfully convict someone for a crime is another tragedy. That’s what my opinion really is here.

As for the decision on the Motion to Dismiss: All in all, this is a fair and accurate order from the Judge. As many readers of this blog know, I do not think the officers are guilty in the least bit of these crimes.

But if you share that view, you may not agree with the OUTCOME at this stage, but THIS STAGE IS NOT “THE PROCESS.” Due process will come, and it is already on its way. This is not the time to get upset. This is the time to be patient.

But this is not the end of the story. As the Judge stated in the Order:

It is for a jury at trial, not for this Court on these pretrial motions — provided this Court finds evidence sufficient to establish probable cause — to decide, after hearing and considering all the evidence admitted at trial subjected to the normal adversarial process and hearing all parties’ arguments, if the State has proved beyond a reasonable doubt the guilt of any of these Defendants on any of the charges the State has brought against them.

That wordy legalese verbosity is boring, but do not despise it. Your rights are contained within it. Stay with the process.

Additionally, if you do believe there is injustice in our system (despite the technical “lack of a crime” in this instance), I encourage you to read my take on how to have ordinary trials and standards with special crimes for officers rather than special trials and standards for officers with ordinary crimes. That may sound technical, but it is WILDLY important. Read it here. Though our system is good (no, really, it is!), no system is ever perfect. And even a perfect system produces bad results if it is directed towards bad goals.

Do not be lulled into complacency due to how well our system has worked in the past or how much it improves in history. Don’t be driven to rage based on actual wrongs that our system can’t address. Remember that sustaining a society that is both just and free is EXTREMELY DIFFICULT and EXTREMELY IMPORTANT. It’s everyone’s job. But “everyone’s job” isn’t someone else’s job. It’s your job.

Final Warning

And when it come to “your job,” remember what the Scriptures say:

Be sober-minded; be watchful. Your adversary the devil prowls around like a roaring lion, seeking someone to devour. Resist him, firm in your faith, knowing that the same kinds of suffering are being experienced by your brotherhood throughout the world. (1 Peter 5:8-9)

The difficulties of imperfect or unjust systems are being experienced by mankind throughout the world. But that “devil” is not a cartoony man with a pitchfork and tail trying to get you to use bad words or drink alcohol or whatever. He is described elsewhere in scripture, too:

the prince of the power of the air, the spirit that is now at work in the sons of disobedience— among whom we all once lived in the passions of our flesh, carrying out the desires of the body and the mind (Ephesians 2:2-3)

That “air” is very important it is a reference to “spirit,” which also means “wind.” It is intentionally written that way to draw your attention to unseen things that you can “feel” but not see. Unseen things which move visible things in the world, despite being invisible.

The devil is no cartoon. He is is not funny, except when humor is persuasive. He is not “dumb,” except when the appearance of daftness can catch you off-guard. He is extremely intelligent. He is extremely smart. He is also “spirit.” He is unseen. He works through wants, emotions, and desires: ordinary “unseen” things that powerfully affect us.

The devil prowls. He courts. He influences. He persuades. He lies. He knows how to bring great satisfaction within the minds and hearts of those who do not know they are being led to their own annihilation. So how do you recognize him? The description of Jesus may help:

You are of your father the devil, and your will is to do your father’s desires. He was a murderer from the beginning, and does not stand in the truth, because there is no truth in him. When he lies, he speaks out of his own character, for he is a liar and the father of lies.

The devil does not devour by suddenly appearing as a big dragon, gulping people up. The devil devours through his servants: us. The devil devours when we devour ourselves in anger, hatred, cruelty, and lies, all with the appearance of self-justification. Do you see lies? Then the devil has been there. Do people like those lies? Then he has influence. Do people murder? Then the devil eats. Do people find joy or satisfaction in destroying each another? Then the devil is at work.

I’m no expert, but I’m sure the devil would like to use this whole George Floyd situation to rip friends, families, and out entire nation apart. Do not let him. Resist him.

Submit yourselves therefore to God. Resist the devil, and he will flee from you. Draw near to God, and he will draw near to you. (James 4:7-8)