Criminal Charges Reflect, Reinforce Power Imbalance Between Law Enforcement and Communities
The chest camera footage of former Minneapolis police officers Alexander Kueng and Thomas Lane - two of the men involved in killing George Floyd - has been made available online. The opening minutes of video illuminate a casual brutality and violence by the police. Lane approaches the car from behind, banging on the window with his Maglite. He clearly startles Mr. Floyd, shouting at him to show his hands. Within 15 seconds, Lane draws his gun on a man suspected of passing a counterfeit $20 bill. Anyone would have panicked. Despite Lane repeatedly yelling at him to "show his fucking hands," Mr. Floyd stays polite, looking down, calling Lane "sir" or "Mr. Officer." Mr. Floyd is distraught. He tells Lane that he has been shot before. He begs him not to shoot. He tells him that his mother has just died. He tells them he's just had COVID. As the minutes unfold the officers continue to escalate the man's panicked state until Derek Chauvin pins him to the ground.
While Minnesota prosecutors have filed criminal charges against the officers, the charges available to prosecutors have raised questions.
For some abolitionists, the filing of any criminal charges-including against the officers involved in Floyd's killing-perpetuates a fundamentally tainted system. International human rights law recognizes that victims of human rights violations have a right to a remedy and that accountability is an important tool to prevent future harms. Neither consideration necessitates nor is limited to criminal prosecution and punishment (check out our earlier blog here).
But others have questioned why Chauvin doesn't face first-degree murder charges.
What charges do the former officers face?
Following the transfer of prosecution to Minnesota Attorney General Keith Ellison, former Minneapolis police officer Derek Chauvin was charged with second-degree and third-degree murder, as well as second-degree manslaughter, for the death of George Floyd. The three officers with Chauvin at the time of Floyd's killing, Lane, Kueng, and Tou Thao, each have been charged with aiding and abetting second- degree murder and manslaughter.
Derek Chauvin faces three separate charges, each with different elements:
- Second-degree unintentional murder requires that Chauvin caused Floyd's death and Chauvin was committing or attempting to commit a felony offense (in this case, assault) at the time. The maximum sentence is 40 years in prison, with a recommended sentence of 10-15 years.
- Third-degree murder requires Chauvin to commit an act that was "eminently dangerous to others... without regard for human life," and the act caused Floyd's death. The maximum sentence for third-degree murder is 25 years in prison and the recommended sentence is 10-15.
- Manslaughter requires showing Floyd died because Chauvin deliberately committed an act that has an unreasonable risk of death. The maximum sentence for manslaughter is 10 years in prison and/or payment of a fine up to $20,000. The recommended sentence for manslaughter is 4 years in prison.
Aiding and abetting charges require that the other officers intentionally aided, advised, counseled, or conspired with Chauvin to commit the acts that caused Floyd's death. This charge does not require Chauvin be convicted for either murder or manslaughter. A conviction for aiding and abetting carries the same penalties as for the crimes of murder or manslaughter faced by Chauvin.
Why not first-degree murder?
Although prosecutors have announced their intent to seek stiff sentences, The officers involved in the killing of George Floyd have not been charged with first-degree murder. Under Minnesota law, first-degree murder charges can be brought only when there is evidence of an intentional killing after premeditation, or that the killing took place in the course of specifically enumerated situations. Amongst those situations, Minnesota statute 609.185 defines first degree murder as intentionally causing the death of a peace officer, prosecuting attorney, judge, or a guard employed at a Minnesota state or local correctional facility while the person is engaged in the performance of official duties.
Minnesota is not out of step with other states. A 2016 survey by the Anti-Defamation League shows that all 50 states provide harsher penalties when a law enforcement officer is the victim. For example, in Michigan, obstructing a police officer, even if no injury results, is a felony punishable by up to two years in prison, while an officer's assault upon a civilian would result in a maximum penalty of 93 days. If a civilian injures a police officer with a firearm in Pennsylvania, they face a sentence of up to 40 years-similar to the sentence Chauvin faces for second-degree murder in Minnesota.
The United States is not alone. Canada's Criminal Code provides an automatic upgrade to first-degree murder where the victim is a police officer. In Chile, an "attack against authority" may be separately charged with a penalty that includes imprisonment and a substantial fine. The United Kingdom and Albania provide mandatory statutory sentencing of at least 30 years for individuals who murder police officers. In Armenia and Norway, violence against an officer is a separate offense with its own prison sentence. Some countries have taken a different approach. Germany rejects the idea that police officers require more protection than civilians, recognizing that the police have unique training, legal authority, and special equipment. Similarly, Spain and Liechtenstein do not enhance penalties for murder when the victim is a police officer. South Africa rejected a proposal to provide harsher sentencing for violence against police officers after multiple police killings occurred.
The rationale for aggravated charges or enhanced penalties for crimes against police typically involves deterrence. Proponents of deterrence argue that, when the state asks an individual to put themselves in harm's way, the state should take measures to prevent them from being injured or killed. But it also involves the idea of retribution, suggesting that police officers are either more valuable or more vulnerable that civilians.
Different standards: who needs protection from whom?
Meanwhile, there are no corresponding enhanced penalties or elevated charges for crimes committed by police. This asymmetrical approach, which treats crimes against police more severely than crimes by police, reinforces the power imbalance between the police and the policed. While many jurisdictions have statutes that criminalize abuse of official authority, if a police officer assaults or kills someone, they face the same charges as anyone else. Law enforcement officials may also benefit from specific defenses and from qualified immunity, which protects them from claims of civil rights violations. (The Supreme Court decided earlier this summer to let an expansive interpretation of this judicial doctrine stand. For a deeper dive into how qualified immunity has undermined accountability for crimes by police read our June 15 blog).
Police officers undoubtedly take on additional-often significant-personal risk in the course of their duties. But they also assume an elevated duty of public trust as people who are armed, trained to use sub-lethal and deadly force, and vested with authority to pursue, arrest, and detain people. Many international human rights standards exist precisely to limit abuses of this power by armed state actors.
International policing standards recognize that when police violate this public trust, both the directly harmed individual and society suffer. But a recent study by the University of Chicago Law School's Global Human Rights Clinic found that police forces in the United States' 20 largest cities fail to meet basic international standards regarding use of force.
One important place to begin is eliminating laws which perpetuate the imbalances and racial disparities that allow extrajudicial killings to occur. Differential treatment where police officers are the victims weakens accountability. Policies that enhance punishment for crimes committed against law enforcement officers, while failing to hold law enforcement officers responsible for crimes committed by them ensures the continued power imbalance between citizens and police officers. This power imbalance is exacerbated by the resources, training, and power police officers wield. Calls for police reform recognize that an important step is balancing these power dynamics by utilizing resources and funding for prevention and alternative forms of policing. And, States have recognized these issues in some areas, such as providing specific penalties and charges for sexual conduct by police officers or correction officers. States must also reflect the enhanced duty of care police officers owe to citizens by virtue of these dynamics.
And while criminal charges may be important steps towards justice, they fail to address the deep layers of harm which extrajudicial killings inflict on the targeted communities. Limiting criminal accountability to the four individuals involved sidesteps the systemic betrayal which occurs when power given to armed state actors tasked with keeping the "community" safe is used for repression and violence.
 See, also, MN Stat.609.2231: subd. 1: physical assault of a police officer is 4th degree assault (a gross misdemeanor, raising the penalty from 90 days for other assaults to 365 days); an assault inflicting demonstrable (observable) bodily harm or throwing bodily fluids is a 3-year felony (would be a misdemeanor upon a civilian).