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The murder of George Floyd
Tom Crann and Megan Burks

Attorneys, family call on prosecutors to amend Chauvin charges

Some call the third-degree murder charge 'legally defective,' worry it won't hold up in court

A sign reads "Justice long delayed is justice denied."
A large banner is propped up at the front of the Justice for George Floyd rally and protest at the Minnesota State Capitol in St. Paul Sunday May 31, 2020.
Courtney Perry for MPR News

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Updated: 5:06 p.m.

The Legal Rights Center in Minneapolis and the ACLU of Minnesota are urging Attorney General Keith Ellison to amend the third-degree murder charge against former Minneapolis police officer Derek Chauvin. In a statement Sunday, they said the charge brought by Hennepin County Attorney Mike Freeman could “allow Chauvin to evade the punishment warranted for his actions.”

Sarah Davis, an attorney and associate director of the Legal Rights Center, said that video makes it clear that prosecutors should charge Chauvin with second-degree murder or pursue an indictment for first-degree murder.

“Third-degree murder in Minnesota law is pretty clear. It requires that the defendant acted without regard to his effect on any particular person. That would be like a situation where somebody fired into a crowd,” she said. “Third-degree murder is not an appropriate charge where the defendant’s actions were clearly directed at a specific person, as in this case where officer Chauvin’s actions were clearly directed at George Floyd.”

George Floyd’s family has also called for a higher murder charge.

On Wednesday, Minnesota Attorney General Keith Ellison added a second-degree murder charge to the counts against Chauvin in Floyd’s killing. Ellison also charged the three other officers fired in the incident with aiding and abetting murder.

Floyd family attorney Ben Crump called news of the upgraded and added charges “a bittersweet moment” and said the family was “deeply gratified.” He had initially pressed for a first-degree murder charge.

A preliminary medical examiner’s report and a separate autopsy requested by the family found that being restrained by Minneapolis police led to Floyd’s death, though they offer different causes of death. Chauvin was recorded kneeling on Floyd’s neck for several minutes as he begged to breath.

Davis said multiple state supreme court decisions support this assessment of the law, as have other legal scholars in recent days. She said Chauvin’s attorney could move to dismiss the case on these grounds.

Prosecutors would, however, be able to amend the charge up until trial.

A spokesperson for Freeman declined to comment on the charges Tuesday, noting it is an active case now being handled by Ellison’s office. But while announcing the charges at a press conference Friday, Freeman suggested the murder charge could change.

“We have looked very closely at all statutes. This is what we’ve charged now. The investigation is ongoing,” Freeman told reporters. “This is the same charge that we made when we charged former Minneapolis police officer Mohamed Noor.”

Noor was convicted last year of third-degree murder and second-degree manslaughter for killing Justine Ruszczyk while responding to a 911 call. Prosecutors had added a second-degree murder charge pretrial, though the jury did not convict Noor of the charge.

Davis said the Noor trial is irrelevant here.

“You had a situation with Mohamed Noor where he was alleged to have fired into the darkness. It could be said that he wasn’t directing his actions toward a particular person,” she said. “In this case, there can be no question for anybody who has seen that video that officer Chauvin and the other police officers were fully directing their actions toward George Floyd and nobody else.”

A spokesperson for Ellison’s office earlier this week said it’s too early to comment on the charges against Chauvin; Gov. Tim Walz asked his office to lead the investigation and prosecution Sunday.

It was initially billed as a partnership with Freeman’s office, but a spokesman for Freeman said the governor had “removed” the case from his office and it is “being handled by another prosecutor’s office.”

The other officers involved in restraining Floyd have not been charged, despite ongoing protests calling for their arrests.