Updated 2 p.m.
A Hennepin County judge Thursday dismissed one of the murder charges against former Minneapolis police officer Derek Chauvin in the killing of George Floyd. The most serious charge, second-degree murder, and the manslaughter charge remain.
Judge Peter Cahill also denied motions to dismiss aiding and abetting charges against Chauvin’s co-defendants, former officers Tou Thao, J. Alexander Kueng and Thomas Lane.
Cahill wrote that prosecutors had met the probable cause threshold for all the other charges beyond third-degree murder, noting that it will be up to a jury to decide whether the ex-officers are guilty.
Cahill has also ordered that his ruling to dismiss the third-degree murder charge be stayed for five days in order to give prosecutors a chance to consider an appeal.
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Some social justice advocates say they're not surprised by the judge’s ruling. Civil rights attorney Nekima Levy Armstrong said she didn't think the third-degree charge was appropriate in the first place.
"A number of us raised concern at the outset about the third-degree murder charge initially being brought, if I recall correctly, by Hennepin County Attorney Mike Freeman,” she said. “We were concerned that that particular charge would help set Derek Chauvin up for the possibility of an acquittal.”
Armstrong added that many people of color have little trust in the criminal justice system. And for them, Cahill’s move may set off some “alarm bells.”
“Especially given the fact that Derek Chauvin was recently released from jail on a $1 million bond,” she said. “So folks are concerned that this ruling is opening the door for the possibility of the charges ultimately, not being upheld in a court of law.”
Ben Crump, the attorney representing Floyd's family, said in a statement that he was "gratified" that the judge preserved the more serious charges against Chauvin.
"We will continue to fight for justice in the civil courts and will advocate both for justice in the criminal system and for meaningful police reforms," Crump said. "The family of George Floyd has confidence that Minnesota Attorney General Keith Ellison will make sure that the officers are held accountable to the full extent of the law based on the evidence that we witnessed on that video tape.”
Following a request from the city of Minneapolis, Gov. Tim Walz on Thursday activated 100 National Guard members to provide equipment and support local public safety officers in case of any protest activity in the Twin Cities. An unspecified number of State Patrol troopers have also been mobilized.
"I want to remind Minnesotans that today's ruling marks a positive step in the path towards justice for George Floyd," Walz said.
Minnesota Attorney General Keith Ellison, whose office is prosecuting the ex-officers, echoed Walz, calling the decision to dismiss only one count against the ex-officers “an important, positive step forward in the path toward justice for George Floyd, his family, our community, and Minnesota.”
Minnesota's third-degree murder statute can be a challenge for prosecutors, who must prove that the defendant, as the statute outlines, was "evincing a depraved mind" while carrying out a suspected crime.
The statute was used in 2019 to convict ex-Minneapolis officer Mohamed Noor in the killing of 911 caller Justine Ruszczyk. Between 2007 and 2018, though, it resulted in only 17 convictions in the state — 13 for third-degree murder and four for attempted third-degree murder.
Floyd was killed in south Minneapolis on May 25 after Chauvin knelt on his neck for about nine minutes while taking him into custody.
Prosecutors argued there was probable cause for the officers to go to trial on all of the charges, saying Chauvin intentionally assaulted Floyd, which is an element of the second-degree murder charge, and that the other officers assisted.
Defense attorneys had argued that there was not enough probable cause to charge the former officers. Chauvin's attorney said his client had no intent to assault or kill Floyd, while attorneys for the other officers argued that their clients did not intend or conspire to help Chauvin.
Defense attorneys said Floyd’s drug use was a factor in his death, with Chauvin’s attorney, Eric Nelson, saying Floyd most likely died of “fentanyl or a combination of fentanyl and methamphetamine in concert with his underlying health conditions.”
The county medical examiner classified Floyd’s death as a homicide, with his heart stopping while he was restrained by police and his neck compressed. A summary report listed fentanyl intoxication and recent methamphetamine use under “other significant conditions” but not under “cause of death.”
According to prosecutors’ notes, Hennepin County Medical Examiner Andrew Baker told prosecutors that absent other apparent causes of death, it “could be acceptable” to rule the death an overdose, based on the level of fentanyl in Floyd’s system. A separate autopsy commissioned for Floyd’s family concluded he died of asphyxiation due to neck and back compression.
MPR News reporters Jon Collins and Brian Bakst contributed to this story.