The videos have been seen around the world: Derek Chauvin, a white Minneapolis police officer, plants his knee firmly on the neck of George Floyd, a Black crime suspect, even though Floyd is already handcuffed and on the ground, even as he desperately complains that he can’t breathe, and then as he becomes unresponsive.
Despite the power of the video and witness accounts that seem to clearly implicate Chauvin in Floyd’s death, the trial that opened yesterday features a complex weave of legal issues that make the outcome highly uncertain, says UC Berkeley law professor Jonathan Simon. “Acquittal,” he says, “has to be considered more likely than not.”
Floyd was suspected of passing a counterfeit $20 bill when police took him into custody on May 25 last year. Footage from police body cameras shows that Chauvin kept his knee on Floyd’s neck for more than nine minutes , and that span will be of central importance as Chauvin is tried in Hennepin County, Minnesota, charged with second-degree murder, third-degree murder and second-degree manslaughter.
But the video does not tell the whole story, explained Simon, a specialist in criminal law and associate dean of Berkeley Law’s Jurisprudence and Social Policy Program. Chauvin’s training and his motivation, along with Floyd’s behavior and his underlying physical conditions, all will be factors in the trial, he says.
Chauvin was fired from the police force shortly after Floyd’s killing, and the city of Minneapolis earlier this month announced a $27 million settlement with Floyd’s family.
This interview has been lightly edited for length and clarity.
Berkeley News: What do you see as the core legal issues of the trial?
Jonathan Simon: The essence of homicide in American criminal law is causing the death of another human being in an unlawful manner. It’s kind of a minimum condition.
In the most traditional sense, murder is usually an intentional crime, where you intended to kill the person, and you had no lawful justification, like self-defense or defense of others.
Interestingly, the prosecution here is not trying to prove the killing was intentional, even though a lot of people who saw the video felt outraged because they thought it was. Instead, they’re pursuing charges for a blameworthy, but unintended, killing.
They are arguing Chauvin caused Floyd’s death unintentionally, but unlawfully. The most serious charge, second-degree murder, requires showing the death was caused during another felony — here, assault in the third degree. The prosecution is also arguing for third-degree murder, which means causing the death in the course of conduct that poses an extreme risk to human life and in an unlawful manner, such as to exhibit indifference to human life.
Finally, the least serious charge is second-degree manslaughter, which is causing the death in the course of doing something unreasonably dangerous to the lives of other people. It usually has to be with a degree of negligence or carelessness, of ignoring potential danger, whether you saw the danger or not.
Do you see any particular strengths or any particular points of vulnerability in the prosecution’s case and its argument for Chauvin’s culpability?
The strength is the video — the fact Chauvin pinned George Floyd in that position for that length of time, during which many bystanders were telling him it was dangerous and calling to him to stop.
Those are things where, if you’re prosecuting somebody for charges that involve unintended results but deliberate risk-taking, it would be potentially very strong for you to have clear signals to the defendant from objective sources yelling at him that what he was doing might cause the death of a person. That’s a strength, undoubtedly.
I think the weakness is what everybody also understands: For a very long time, the public has been taught to accept the police officers’ position in the streets of American cities as so dangerous and vulnerable, requiring such expert experience and skill, that we really can’t and shouldn’t second-guess them.
That benefits most police defendants in criminal cases, and it will undoubtedly benefit Chauvin here. Whether it benefits him enough, I guess we’ll find out.
Let’s consider the other side: What are the strengths and vulnerabilities of the defense case?
The causation argument is potentially risky, if they appear to try to blame George Floyd’s death on his own behavior by using drugs or drugs in his system, or if they focus on his ill health. And he may have had COVID, posthumous testing shows that. But that certainly could strike the jury as being indifferent and shirking of responsibility.
What they’re going to focus on, based on my understanding, goes to the heart of almost all of these cases: One, whether the police officers were justified in using the force that they were using, given the law’s pretty strong invocation that that question should be answered from the perspective of an officer in the field and not from a completely abstract, ‘What would I have done?’ perspective.
That’s going to be their strongest argument — that Chauvin was right, and if you saw it from his point of view, you would understand that George Floyd was still not cooperating and was posing a threat. Or if Chauvin went beyond that, it wasn’t far enough to warrant criminal culpability.
Second, the jury really has to find not only that the officer’s action was not justified, but that it was so far outside the grounds of justified that it constitutes not just a mistake or an accident or a misapplication of police technique, but a criminally culpable action.
Even in the areas of unintended homicide, we’re talking about people who are acting with extreme, grave negligence. They may not be aware that they’re causing other people to be at risk of dying, but any reasonable person would be aware.
Or they are aware of the risk, which might amount to extreme recklessness, and that opens up the possibility of the “indifference to human life” theory of a third-degree murder charge.
And it’s important to remember that the defense is also laying the grounds for an appeal, if they do lose.
There is a pattern in American policing in which white officers injure or kill Black people or other people of color, and then escape prosecution or conviction. Is it possible to assess at this early point whether there’s a risk of that happening here?
There is a real risk that in a jury — even a jury in Minneapolis-St. Paul, which is going to be more diverse than in any other part of Minnesota — there are a lot of strong biases. Not in the sense of a negative, deliberate bias, but implicit biases that jurors, possibly jurors of all races, will bring into the courtroom that are going to favor Officer Chauvin.
There’s an extensive body of empirical documentation of essentially an anti-Black crime bias, where people of all races are more likely to see people that they identify as Black people as engaged in criminal behavior. So, in this case, they might be likely to see George Floyd as continuing to resist, or threatening in some way, just because he’s Black. That’s a reality.
There’s also a deeper belief that we now share as a culture about the centrality of crime in our inner cities. There’s going to be a lot of focus on where this took place and how much crime there is in this neighborhood and why police would associate George Floyd with higher levels of threat. A lot of that is going to work in favor of Officer Chauvin.
The other thing to realize, of course, is that in most cases it should be hard to convict defendants. It requires proof beyond a reasonable doubt of a demanding set of facts, both about the circumstances and about the person’s mental state relating to those circumstances.
In all too many cases, that’s made easier by these same biases against Black defendants or against defendants who are part of high-crime neighborhoods. Here, it’s going to work in favor of Officer Chauvin. So, there is a real chance that he will be acquitted.
If we look back to the 1992 acquittal of the Los Angeles police officers who beat Rodney King and the subsequent explosion of anger there and in many other cities, an acquittal in the killing of George Floyd might shock a lot of people.
That’s on the agenda — to try to avoid what I’m sure a lot of people are fearing, which is another uprising, riot, whatever you want to call it, that followed the acquittal of Los Angeles police officers that assaulted Rodney King in 1991. I’m not convinced it will necessarily be an acquittal in the current case, but that’s a real possibility.
I’m concerned about the obvious emotional trauma to the community that could unfold around that. But it’s a risk of putting too much emphasis on criminal prosecution as the right way to respond to this obvious assault on the human dignity of Black citizens, especially, and all Americans.
Demands to defund the police or to change police tactics away from what happened in Minneapolis — those could be meaningful responses.
You mentioned earlier that the prosecution has to think not just about managing the trial, but also about managing public reaction in the event that there’s an acquittal. How does the prosecution plan for that?
It’s interesting that this prosecution has been conducted by the attorney general of Minnesota, Keith Ellison, not by a typical local prosecutor. He’s obviously a more political person.
One of the things I think we’re going to see here — I would hope and expect it — is a fair amount of public communication about the nature of these charges and helping the public understand how demanding criminal law is, especially for these kinds of unintended killing theories, so that people will kind of appreciate what “beyond a reasonable doubt” means.
I’ve always thought cases like the O.J. Simpson murder trial [the former NFL player, broadcaster and actor was tried and found not guilty of the 1994 murder of his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman] are good examples of where public ignorance about what a jury is actually asked to do — not just asking whether they think the person did it, but whether they think there’s a reasonable chance that they didn’t — really doesn’t sink in very much.
This case has already inspired a vast amount of coverage in the news media. And then, during the difficult process of choosing an impartial jury, the city of Minneapolis announced a $27 million settlement with the Floyd family. If Chauvin were convicted, do you think he would have grounds for appeal?
He’s going to have good arguments to raise on appeal. I don’t know that they’ll carry the day. But the announcement of a civil settlement is one of the best things going for the defense’s appeal, if Chauvin is convicted, because it’s such a unnecessarily provocative stimulus right at the moment that the jury is being chosen.
We’re told over and over again that this is the highest settlement ever paid by the city of Minneapolis for a police violation of civil rights. Well, it sure sounds like he’s guilty. I mean, why would they settle for $27 million? I’m not saying that’s a reasonable inference, but it’s a powerful emotional implication of guilt.
The video of Chauvin kneeling on Floyd’s neck for nine minutes has been seen widely, and Floyd clearly was calling for help. We can imagine that a lot of Americans wonder: ‘Why is this legal case complex? What is so difficult? The outcome should be cut and dried.’ As a lawyer, as a law professor, how do you respond when people bring up a complaint like that?
I’m sympathetic to it. If you take the police context out of it — if it was just one person doing what Chauvin did to George Floyd, it’s very likely that they would have charged Chauvin with intentional killing.
The problem is we’ve got this whole legal focus now in these cases that give the police a kind of epistemological advantage. The fact-finder, the jury, has to put themselves in the position of a reasonable police officer in that situation. And that immediately brings to bear, for instance, how are the police trained to deal with resistant arrestees in this position?
This kind of knee-on-neck hold is obviously permitted in some situations, and that’s going to be focused on. So there is arguably a point at which Chauvin went beyond what the training advised. Maybe after five minutes, with George Floyd’s resistance quieting, Chauvin should have understood that he was no longer sanctioned by the rules and the training to continue using that hold.
And from then on, it’s showing that he’s indifferent to human life. But how many minutes have to go by to prove that? It’s not nine anymore. It’s like four to five, maybe three.
So I think that’s where it’s going to get down into the kind of nitty-gritty, which makes it easier to raise reasonable doubt. Again, you don’t have to believe that the person is innocent. The question is whether you think there’s no reasonable basis on which he could be innocent or on which he could not be responsible.
It may be important, in a case like this, to hold the person accountable, to bring it to a jury. But even if the person is not convicted, we need to be committed to changing policing in a way that doesn’t allow lives to be put at risk the way George Floyd’s life was put at risk.
Whether we think Chauvin’s treatment of Floyd deserves to be considered murder or manslaughter, whatever the jury does, I think a public commitment in Minneapolis and Minnesota and nationally to really change policing has to be part of the public discussion.