Editor’s note: This op-ed has been updated to reflect breaking news. On Sunday night, Minnesota Attorney General Keith Ellison took the lead in prosecutions related to George Floyd’s death.
Unless prosecutors in Minnesota file more serious charges against the police officer accused of killing George Floyd, they’re at risk of compounding public outrage by letting that former officer escape a charge of murder.
Millions of us watched the Memorial Day video of the white officer, Derek Chauvin, grinding his knee into the neck of Floyd, an immobilized Black man. We saw Floyd call out for his mother and say, “I can’t breathe,” until he was beyond saving. The echoes of past extrajudicial executions and centuries of slavery and slaughter, of lynching and officially sanctioned violence, rang out across the land.
It took several excruciating days before the county’s chief prosecutor, Michael Freeman, finally saw fit to file criminal charges against Chauvin, and then only for second-degree manslaughter, an offense punishable by up to 10 years in prison but usually resulting in a much lighter sentence, as well as something Minnesota calls third-degree murder, a crime punishable by up to 25 years but applicable only where someone unintentionally causes death by “reckless or wanton acts … without special regard to their effect on any particular person” — like shooting aimlessly into a crowd.
No one remotely familiar with Minnesota law would regard either of those charges as the right ones to bring in this case — a case where, even if intent cannot be proven, a second-degree felony murder charge, punishable by 40 years in prison, is manifestly justified. Under a quirk in Minnesota law, second-degree murder can be charged where an assault — such as the first-degree assault evident from Chauvin’s placement of his knee on Floyd’s neck for nearly nine minutes — unintentionally results in death.
More critically, anyone steeped in Minnesota law would recognize that the third-degree murder charge would likely be summarily dismissed for the ironic reason that Chauvin clearly aimed his acts at Floyd. Such a miscarriage of justice would surely trigger still more chaos and violence from coast to coast as people across the political spectrum come to see American justice as unworthy of the name.
One of us (Albert Goins) is a criminal law practitioner with decades of experience in criminal defense and the civil prosecution of police misconduct in Minnesota. The other (Laurence Tribe) is a legal scholar, teacher, and advocate with a half-century of experience in interpreting legal texts and applying constitutional principles to their enforcement. Both of us are baffled by what’s going on in this explosive case — one that has reopened the deepest wounds imaginable in our nation’s four-century-long struggle with race and that has triggered violent riots throughout the country.
Perhaps the Hennepin County prosecutor has simply made a gross filing error. Maybe he meant second-degree murder when he said third-degree murder. But somehow that seems unlikely. There is just too much well-settled precedent in Minnesota dealing with the inapplicability of third-degree murder charges where “all the blows were directed towards the victim.”
Besides, it seems a bit too convenient for this “error” to have come atop a coroner’s report that goes out of its way to note that Floyd’s death may have resulted not from asphyxiation alone but from a cessation of his ability to breathe compounded by various preexisting medical conditions. The idea that with a somewhat healthier victim, Chauvin’s knee might have had to remain in place a bit longer to cause death doesn’t seem particularly well calculated to exonerate Chauvin of second-degree murder.
Even if none of this proves the fix is in, hopefully we might be excused for finding the combined weight of suspicious circumstances a bit too heavy to bear in the face of so long and dismal a history of racially charged police abuse, papered over by an equally long and a no less dismal history of prosecutors and juries letting white police officers get away with murder, sometimes literally, when their victims are Black.
The first urgently needed step was for Minnesota Governor Tim Walz to invoke that state’s process for designating the state Attorney General Keith Ellison to take the lead on the case, which happened Sunday night. Now Ellison and the local county prosecutor must file second-degree murder charges; one can pray too for federal coordination and vigorous action, as would be expected from a Justice Department more steadfastly committed to equal justice under the law than this one has reliably been.
Justice demands nothing less, and civil peace in America demands at least this much.
Laurence H. Tribe, the Carl M. Loeb university professor and professor of constitutional law at Harvard Law School, was senior counselor for Access to Justice in the Obama administration. Albert Turner Goins is a lawyer in Minnesota, practicing in both criminal and civil rights litigation. His great uncle was one of the first Black police officers in Saint Paul in the 1920s.