New Floyd Murder Charges Will Be Tough to Prove and May Imperil Good Cops

Eric Miller/Reuters

In a politically charged case, it is more important, not less, to get the charges right.

Prosecutors in Minnesota have filed an amended complaint against Derek Chauvin for the killing of George Floyd, adding a second-degree “felony murder” charge. This dangerously flawed theory could be used to portray any police restraint of a resistant suspect as criminal assault.

The amended complaint against Chauvin also re-alleges the two homicide charges originally filed last week: third-degree “depraved indifference” murder and second-degree manslaughter, both of which better fit the facts of the case while posing no risk of criminalizing the legitimate use of force by good cops.

Separately, the other three fired Minneapolis police officers involved in the killing have been charged, after a week of demands by the Floyd family, as well as intense anti-police rhetoric (and worse) by Black Lives Matter activists and protesters.

Tou Thao, J. Alexander Kueng, and Thomas Lane are charged with aiding and abetting both second-degree murder (the new charge against Chauvin) and manslaughter. Weirdly, under the circumstances, the three are not charged with the “depraved indifference” murder count; nor are they accused of committing manslaughter as principals — they are charged only as aiders and abettors, a theory that does not jibe with a negligence charge such as second-degree manslaughter (which is negligent homicide under Minnesota law).

Felony Murder: Criminalizing Police Restraint of Suspects

The second-degree murder charge is now the main charge against all four officers. Essentially, the theory is that they committed a felony assault when they subdued a suspect who was resisting arrest. During the course of carrying out that “crime,” prosecutors allege, Floyd’s death resulted.

While the point may be subtle, this is saliently different from the theory of third-degree murder — i.e., depraved-indifference murder. In the latter, prosecutors would concede that it was lawful in principle for the police to subdue Floyd, but argue (correctly) that their manner of doing so was recklessly indifferent to human life, causing his death. By contrast, the new “felony murder” count, spearheaded by Keith Ellison, the radical leftist state attorney general, puts police on notice that they can be charged with a crime — felony assault — for doing their job, which routinely involves physically restraining suspects who resist lawful commands.

Any experienced law-enforcement officer will tell you that it is common for suspects to resist arrest by lying on the ground, claiming to be ill, waving arms to avoid being cuffed, and refusing to be placed in a squad car. Cops, of course, may not use excessive force when that happens. They must, however, be permitted to use sufficiently superior force to detain and transport uncooperative arrestees. In Minnesota, thanks to its election of the new breed of progressive prosecutor who rails against the justice system’s purported institutional racism, police officers who use force in arresting dangerous criminals now run the risk that they will be the ones who face criminal charges.

Read the rest from Andrew C. McCarthy HERE.

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