The Daily Signal - Why Third-Degree Murder May Be the Wrong Charge Against Derek Chauvin

Episode Date: June 3, 2020

Derek Chauvin, the officer who arrested George Floyd and proceeded to press his knee into Floyd’s neck for over eight minutes, has been arrested and charged with third-degree murder and second-degree manslaughter. Some legal experts are raising questions as to whether or not these are the most appropriate charges to be brought against Chauvin.  Amy Swearer, a legal fellow in the Heritage Foundation's Meese Center for Legal and Judicial Studies, joins The Daily Signal podcast to discuss the legal implications of Chauvin’s use of force against Floyd and whether or not the charges that have been brought against him are the correct charges for the crime committed.  We also cover these stories: President Donald Trump has been critical of how New York has handled the riots and unrest following the death of George Floyd.  Sen. Chuck Schumer of New York is asking the inspector general of the Department of Defense to look into law enforcement's treatment of protestors by the White House.  President Trump is receiving criticism from religious leaders after visiting St. John Episcopal Church and St. John Paul II National Shrine in Washington, D.C.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Wednesday, June 3rd. I'm Rachel Del Judas. And I'm Virginia Allen. Many are wondering what actions are being taken against the police officers involved in the death of George Floyd. Today I talk with Amy Swearer, Heritage Foundation Legal Fellow, about Derek Chauvin's arrest and the charges of third-degree murder and second-degree manslaughter that have been brought against him. Don't forget, if you enjoy this podcast, please be sure to leave review or a five-star rating on Apple Podcasts and encourage others to subscribe. Now on to our top news. President Donald Trump has been critical of how New York has handled the riots and unrest in their city following the death of George Floyd.

On Tuesday, Trump tweeted, New York City put on an 11 p.m. curfew last night. No wonder they ripped the place apart. Should be 7 p.m. Call up the National Guard. Save NYC. Trump also tweeted, Yesterday was a bad day for the Cuomo brothers. New York was lost to the looters, thugs, radical left, and all other forms of low life and scum. The governor refuses to accept my offer of a dominating national guard.

NYC was ripped to pieces. Likewise, Frato's ratings are down 50%. Frato from the Godfather refers to CNN's Chris Cuomo. Governor Andrew Cuomo also had harsh words for New York City mayor, Bill de Blasio on how he has handled things. Here's what Cuomo had to say via the hill. First, the NYPD and the mayor did not do their job last night. I believe that.

Second, you have 38,000 NYPD people. It is the largest police department in the United States of America. Use 38,000 people and protect property. Use the police, protect property and people. Look at the videos. It was a disgrace. I believe that. I believe the mayor underestimates the scope of the problem.

I think he underestimates the duration of the problem. And I don't think they've used enough police to address the situation because it's inarguable, but that it was not addressed last night. On Tuesday, Speaker of the House Nancy Pelosi stood in the Capitol building, clutching a Bible and calling upon the president to act as the, quote, healer in chief. In a video posted by ABC's this week on Twitter, Pelosi read and spoke from the book of Ecclesiastes about, quote, a time to heal. Pelosi also referenced the acts of previous presidents who have faced moments of racism in America's history. President Obama said after the murder of

Eric Gardner, Garner, right now, unfortunately, we are seeing too many instances where people just do not have confidence that folks are being treated fairly. In some cases there may be misperceptions, but in some cases that's a reality. And it is incumbent upon all of us as Americans, regardless of race, religion, region, faith, that we recognize

this is an American problem and not just a black problem or a brown problem or a Native American problem. This is an American problem when anybody in this country is not being treated equally on of the law, that is a problem. Senator Chuck Schumer of New York is asking the Inspector General of the Department of Defense

to look into how protesters by the White House were treated on Monday by law enforcement. During a Senate floor speech Tuesday, Schumer said via the Hill, Secretary of Defense Mark Esper, General Mark Millie, should not allow the U.S. military to come within a country mile of these ugly stunts. The administration is using the military as a tool to intimidate American citizens, and the Department of Defense IG must immediately launch an investigation into how the U.S. military was used and whether it was consistent with the laws of our nation. Judd Deere, a special assistant to President Trump, said on Twitter that Lafayette Square was not emptied

so that Trump could walk across the park and pay his respects at St. John's Episcopal Church, tweeting, to all those who falsely claim that Lafayette Square was cleared for the president to cross, please read this. Dear then shared tweets from Neil Ogdenstein, a reporter for WTOP, who said, The U.S. Park Police said they didn't use tear gas. I got several calls and emails into the U.S. Secret Service to see if they used it. D.C. Police Chief Peter Nusheum just said that the only time his agency used tear gas in pepper balls last night was later in the evening when protesters had gotten very aggressive near to Dajiri Square.

President Trump is receiving criticism from related to. leaders. On Tuesday, Trump visited the shrine of John Paul II with the First Lady Melania Trump. Peaceful protesters stood across the street holding signs that read, Black Lives Matter, and our church is not a photo op, according to America Magazine. The Archbishop of Washington, Wilton Gregory, issued a statement saying, quote, St. Pope John Paul II was an ardent defender of the rights and dignity of human beings, His legacy bears vivid witness to that truth. He certainly would not condone the use of tear gas and other deterrence to silence,

scatter, or intimidate them for a photo opportunity in front of a place of worship and peace. Gregory appeared to be referring to the means of force used by President Trump to visit St. John Episcopal Church, although a White House spokesman has disputed that reporting. The Episcopal Bishop of Washington, D.C., Marion Boudet, has also spoken out against Trump's visit to the historic Episcopal Church. Trump posed for a photo in front of the church sign holding a Bible. St. John's was partially burned by rioters. Boudet told the Washington Post, quote, I am outrage. She continued saying, quote, I am the bishop of the Episcopal Diocese of Washington and was not given even a courtesy call that they would be clearing the area.

with tear gas so they could use one of our churches as a prop. The Senate Judiciary Committee will be looking into law enforcement practices as well as the death of George Floyd. Senator Lindsay Graham of South Carolina announced Tuesday that the hearing will take place on June 16th. Graham said, per ABC News, that it's a long overdue wake-up call to the country that there are too many of these cases where African-American men die in police custody under fairly brutal circumstances. It's clear to me that policing among men in the African-American community is a topic that needs to be discussed and acted upon, and I expect this committee to do its part. Now stay tuned to my conversation with Heritage's Amy Swear about the charges that have been brought against Officer Derek Chauvin. It's because of support from listeners like you that we can continue to produce podcasts like Heritage Explains and SCOTUS 101. And you can help us keep it up by going to www.

heritage.org slash podcast today to make your tax deductible gift. I am joined by Amy Swearer, Heritage Foundation Legal Fellow. Amy, thanks so much for being here. Thank you so much for having me. Amy, last Monday, George Floyd died while Derek Chauvin, a Minneapolis police officer, pressed his knee against Floyd's neck and kept pressing for about eight minutes. And this was even after Floyd told him he couldn't breathe, and then he became lifeless, lying on the pavement. I know you watch the video and as someone who works in the legal space,

what was your first reaction after seeing that video? So this video, especially the full uncut, about 10-minute version, is incredibly difficult to watch. And I say that as someone who has watched quite a number of police brutality videos, mass shooting videos, you know, things that are generally pretty hard to watch just by their very nature. But there's just something about this aspect where it's not, you know, one momentary bad decision. It's not someone snapping and making a bad call. This is several prolonged minutes of multiple officers making a continual bad call that results in someone's death while being told by bystanders, hey, this guy is unconscious. Why are you doing this? This could kill him. And so when you combine all of

those things. It's really just, it takes a lot to watch it. And it takes a lot out of you to watch it. No, it certainly does. All right, Amy, so let's talk about the use of force. When is it justified for a police officer to use force when arresting someone? Minnesota law here very clearly lays out situations in which a peace officer, like a law enforcement officer, can use certain levels of force, including deadly force. So even though law enforcement officers, by the nature of their profession, can use types of force for things that civilians can't, like to conduct arrest, to keep the peace in ways that the rest of us can't, is a general rule their use of force when conducting those activities still needs to be reasonable. Once it gets beyond the type of force that's reasonable

for a given situation, or the situation changes and, you know, what was reasonable is no longer reasonable, you need to stop using that amount of force or else it's no longer authorized under the law. And so what we have here, again, is a situation where an officer is applying force to a person that's inhibiting their breathing and is doing so for several minutes after it becomes very clear that this person is actually now unconscious, is no longer fighting back, It is no longer doing anything that would justify the continued application of a force here that first of all, it appears isn't actually a type of force or a hold or restraint that is taught to them through the police department, but that also seems completely excessive and outside the bounds of what's actually reasonable in that moment.

And so, you know, again, to sum that up, it really comes down to this idea of what is reasonable under the circumstances and making sure that as the circumstances change, that your use of force is changing with them. And can you explain the difference between force that ultimately results in someone's death and what is legally classified as deadly force? Sure. And this does become important. So under the relevant statute, deadly force in Minnesota, In this instance, only occurs if the officer intended or should have reasonably known that the pressure from his knee would be substantially likely to cause George Floyd serious injury or death. And so I know that's sort of a mouthful there, but when you unpack that, what that means is that it's not enough to say, oh, this was deadly force because George Floyd died. There had to have been either an intent or some sort of idea of a reasonable officer would have understood that these actions were going to hurt George Floyd. But I think, again, when you sort of look at the facts here, there's enough to imply not that this was initially deadly force. So even if this was sort of an unauthorized type of restraint, I think initially that doesn't necessarily make it deadly force.

But once you get to a point where George Floyd, again, handcuffed on his face, face first in the asphalt, is literally unconscious and nonresponsive. And you continue to apply the force that presumably made him unconscious and unresponsive. This is an entirely different situation here where arguably this now becomes lethal force that has to be justified under. the statute. You know, again, he's doing something dangerous or fighting back or committing a felony. And clearly when you're unconscious, that's not the case that you can justify it in that way. So you mentioned that this police department where Chavez worked, that that wasn't necessarily that that move of him having his knee on the neck, that that wasn't an authorized use of force. How technical do police departments get in saying this is,

is a type of force that is allowed versus this isn't? Like, is it really laid out pretty clearly for officers? So in this case, it is. It's laid out what type of force is non-lethal versus lethal and the conditions under which each of those is appropriate. But again, what's important here is that this specific type of, you know, using your knee and your body weight to restrain someone on their neck. It doesn't appear to be something that's actually taught to these officers as even a non-lethal use of force that that's appropriate. So this is at the very least not something that he has been trained to do according to the Minneapolis Police Department. And you've also had, importantly, a lot of other use of force experts come out and criticize this technique,

that this is not something that is generally taught to officers, as, something to do. And in fact, even more interesting here is that in this same police department several years ago, NPR has since reported that there have been problems in this police department of people dying from similar techniques being used in that the city has settled lawsuits in similar scenarios. So not only is this something where it's, you know, not being trained, but they've been sued for it and have been ordered to start training officers, affirmatively not to do this. Just a whole lot of factual scenarios here that would seem to suggest this was something that those officers either knew or should have known not to do.

Wow. Wow, that's pretty shocking to hearing me. So Derek Chauvin, he has been arrested and he's been charged with third degree murder and second degree manslaughter. I want to begin by talking about that third degree murder charge. Do you think that this was the correct charge to be brought against him? This is actually a very controversial subject here. I know on the one hand, a lot of people have called for first-degree murder charges, which is a matter of fact, I think is not the right call. So first-degree murder would need premeditated intent. Essentially, you would have to prove that Officer Chauvin planned that day.

He showed up with this premeditated plan to kill this specific person, George Floyd. And it's just the facts are not there for that. But then there's also this idea of, oh, okay, so we've charged him now with third degree murder. And this is where it gets a little complicated because as a matter of law, it doesn't appear that this is actually a charge that can stick. So not to get too far into the technical weeds here, but just to break it down a little bit more. Third degree murder in Minnesota is for things like drunk driving that results in the death of another motorist, where it's the sort of wanton, reckless disregard for human life generally and not a specific disregard for a specific life. And in fact, when you go through the

court cases here, courts in Minnesota have thrown out charges for third-degree murder in circumstances where a person's actions were directed at a specific victim. And so it's a bit disconcerting here that we have a charge that doesn't seem readily applicable to what what we see on the video, which is Officer Chauvin, not directing actions toward the public generally, but directing all of his actions toward a specific person. It is a disregard for a specific life. And that, again, would seem to suggest third-degree murder as a matter of law doesn't apply here. And so it's a bit inexplicable, I think, that this is the charge that has been brought up as opposed to something like unintentional, second-degree murder. which again is a more serious charge that would seem more applicable under the circumstances.

So then, I mean, I guess the question kind of then becomes why? I mean, why was Chauvin not charged with second-degree murder? It's unclear. It really is unclear. I don't have a good answer to that. I don't know sort of what the thinking is here. second-degree murder, also known as felony murder, seems to be more appropriate. So essentially, it's this idea of if you're committing a felony against someone and that person dies, regardless of whether you intended to kill them, that's unintentional second-degree murder. It's felony murder. And in Minnesota, based on what I can tell from the law, it seems to be a very appropriate offense here. Because essentially what you'd be arguing is that by going,

above and beyond what was considered a reasonable force, Chauvin is actually just committing assault, just like the rest of us would be if we were to act in this way, because he didn't have the legal authority to do what he was doing. So it's just a crime. And that as a result of that, George Floyd lost his life. And that would seem to be unintentional second-degree murder. So again, there's just a lot of questions that have been brought up and that remain unanswered with the charging decisions here. And I don't think it's helped by sort of a lot of public misunderstanding about, oh, well, it needs to be first degree murder, even though that's not appropriate, or, you know,

reading what third degree murder is. And it seems like it might be applicable, but when you scratch underneath the surface, it isn't. So there's just so many questions that need to be sort of looked at and unpacked that we're just not getting answers for right now. And does it ever happen that, charges change? I mean, if people kind of realize, you know, he's been charged with third-degree murder and, you know, that that's not really an appropriate charge here. If there's enough

outcry and push and lawyers get involved, could we potentially see that charge change to second-degree murder? Is that possible? Oh, absolutely. Absolutely. So it still seems early enough in this that that these charges can be amended to more appropriate charges, especially when it's the case that one of these just seems completely inapplicable to the situation. And again, I don't know what the reasoning was there, you know, whether it was oversight or what have you. But so it is still the case that, you know, we can see more appropriate charges. I think as the Attorney General from Minnesota has sort of taken the lead and sort of taken over this investigation and prosecution, he, has suggested that he is still open to looking at other charges. And the other thing to keep in mind

here, too, is that regardless of what happens under state law, Chauvin could still face federal charges on top of this. And some of those federal charges for civil rights violations would carry significant criminal penalties as well. And so there's still just a lot that can play out. And I know it's easy to sort of jump the gun and, you know, demand that every injustice be, you know, figured out and fixed in the charging documents right now. But again, there's, there's a lot of room left for a lot of things to still play out. And what about the second degree manslaughter charge? Was that the correct call to be made here, do you think? So it's a correct call in the sense of, I think when you look at the statute, that it would be a fairly easy conviction in the sense of it's appropriate.

The facts seem to fit it. But I also think that there are other more serious charges, such as unintentional second-degree murder, that fit the bill as well, if that makes sense. So it's not that it's an inappropriate charge. It's that it's not likely the most serious charge for which he could be, you know, tried and reasonably convicted under these circumstances. Because it is a much lesser charge. So it's still a felony, but it is by far not the most severe thing with which he could reasonably be charged here. Okay. Okay.

Now, thanks for breaking that down, Amy. So I want to switch gears for a second and talk about. the three other officers that were present during Floyd's arrest and death. And they stood by and really did nothing as they watched him, you know, say, I can't breathe and then become lifeless. These officers have been fired from their jobs, but should other action be taken against them? You're right. They have all been fired. I think there is at least a viable route for criminal charges for these officers through Minnesota's aiding and abetting statute. Because, again, so to be charged with aiding and abetting, it's not just that you have to be present there.

It's that you have to be sort of knowingly involved in this. Because there are three other officers, I think this becomes very fact-specific, you know, what was each officer doing when. But I think it's at least, at the very least, something a jury could take a serious look at and determine that these officers, you know, were knowingly and meaningfully aiding this crime. And I think, too, one of the things you have to look at here is that the Minnesota Police Department, within their guidelines, they've actually imposed a duty several years ago on their officers to take affirmative actions when they see another officer using unreasonable force.

They have an affirmative duty to intervene. Now, that's not a legal duty. It's something they could certainly be fired for. But what it tells us is that they knew as officers, they were supposed to be on the lookout for other officers using unreasonable force. And that they knew that they had this sort of internal duty to do something. And I think that sort of gives us a broader context for determining their liability for what they knew or should have known. Well, and Amy, I mean, in light of all of the outrage that we're seeing across America over George Floyd's death, I guess I'm just kind of a little bit shocked that we haven't seen, you know, swifter action or stronger action taken against all four of these officers. Why do you think that is?

You know, I don't have a good answer for this. I do know that allegations of police abuse, police misuse of force, often take an extremely long time to investigate on average, several months in some cases. And so all things consider, this has actually been remarkably fast. I think part of that is we have all of the relevant things captured on video. You know, there's not like a context that we need to know of that is going to make it more or less appropriate to lean on a man's neck when he's unconscious for several minutes. But in terms of the rest of these charging decisions, I don't have a good answer to that. And I think in many respects, it's causing a lot of confusion for a lot of people as to why these charges aren't being filed. And it is unfortunate because I think it's sort of adding to just a lot of underlying problems that already exist and that we're already seeing sort of boil to the.

surface with protests turning, frankly, into riots and destructive events in cities across the country. And so I think it's just sort of fueling a lot of that. Yeah. No, definitely. So, Amy, before I let you go, I want to ask, what is the most important element or principle to ensure that our justice system, or really any justice system, is truly just and fair and remains that way? And what role do you think that citizens play in holding our justice system accountable? Honestly, I think one of the biggest lessons you can take away from this case, in particular, is the role that transparency plays in keeping police departments accountable. So again, one of the reasons that the charging decisions and sort of the outrage has been so immediate here is that,

that we have a video of exactly what happened. This is not sort of a he said, she said, or he said, he said. It's, we have this on video. We sort of know exactly what happened. And it's very hard to sort of cover that up or sweep that under the rug. And I think that sort of transparency of being able to look at exactly what happened and to analyze it without sort of the shading of individuals interpret or reimaginations of what may have happened, I think is ultimately a good thing for

holding people accountable. And it's not just because it holds people accountable for what they do wrong, but it also allows society to look at when officers do things right and are unjustly accused of acting inappropriately. Because again, we're not just relying on secondhand interpretations when we can actually see what happens, it allows us to really gauge whether or not it was appropriate in a more fair way. Amy, thank you so much your time. I really appreciate your insight on this and breaking down some pretty complex topics for us. It's really good to talk with you. Thank you for having me. And that'll do it for today's episode. Thanks for listening to the Daily Signal podcast. We appreciate your patience as we record remotely during these weeks.

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