Judge’s ruling paves the way for Floyd case to proceed

The order dropped a third-degree murder charge against a former Minneapolis police officer but many big legal questions remain

Two men walk through a crowd of people yelling.
Former Minneapolis police officer J. Alexander Kueng (center) and his attorney Thomas Plunkett walk through a crowd of people protesting as they leave the Family Justice Center following a motions hearing for the four former police officers charged in the death of George Floyd.
Christine T. Nguyen | MPR News file

A judge’s order to drop the least serious charge against Derek Chauvin, the officer who knelt on the neck of George Floyd, is being lauded by civil liberties groups and activists against police brutality who argued from the start that the third-degree murder count did not apply to his case.

The decision also drew attention from legal experts, who say the bigger takeaway from the 107-page order from Hennepin District Judge Peter Cahill is that the trial against Chauvin and the three other officers involved with Floyd's arrest will proceed.

“When you look at the full context of what happened ... no defendant is out of this case,” said former U.S. Attorney Rachel Paulose, now a professor at the University of St. Thomas School of Law. “Every defendant is facing murder charges, in some form, every defendant is still facing manslaughter charges, and so I think that should really be the focus.” 

Paulose said third-degree murder charges require that a defendant committed acts that were “eminently dangerous to other persons.” The example people cite for the charges is shooting into a crowd without a specific target. Paulose said the judge’s decision was based on the fact that the requirements for third-degree murder charges differed so much from the requirements for the other charges Chauvin is facing.  

“Either you intended to harm one person specifically, or you intended to just recklessly harm a group of people,” Paulose said. “Both cannot be the theory of the case.” 

Authorities were bracing for unrest after the judge’s ruling was issued. Minneapolis Mayor Jacob Frey asked Gov. Tim Walz for the assistance of the Minnesota National Guard. But Floyd’s family and their supporters did not protest the dismissal of the charge. They’ve argued since the charge was filed by Hennepin County Attorney Mike Freeman that it isn’t appropriate for this case.

ACLU of Minnesota Executive Director John Gordon said the judge’s decision cleared “away some of the underbrush in this case,” keeping it on track for a jury trial. 

“The judge made it very clear that he's not ruling on anybody's guilt or innocence, that's for the jury to decide,” Gordon said. “But what he was doing was affirming in very strong language that the state has a case against all four of these individuals that needs to be presented to a jury.” 

Floyd was killed on May 25 in south Minneapolis after former officer Chauvin kneeled on his neck for about nine minutes. Chauvin is charged with murder and manslaughter. Former officers Thomas Lane, Tou Thao and J. Alexander Kueng are charged with aiding and abetting murder and manslaughter.  

Cahill still needs to rule on a change of venue motion that could move the trial out of Minneapolis. Defense attorneys have argued that their clients can’t get a fair trial in the city following protests and civil unrest spurred by Floyd’s death. More recently, Tom Plunkett, who is representing Kueng, has said the harassment of defense attorneys and their clients by protesters after hearings makes keeping the trial in Minneapolis unsafe. 

“Yes, this is a serious case. Yes, there's been a lot of public attention. Yes, there's been a lot of protest,” ACLU’s Gordon said. “This is not the first time this has happened, and there are well established methods that I know Judge Cahill is very familiar with to manage that process.”

Change of venues motions are rarely successful. The judge will have to weigh both the interests of the defendants in receiving a fair trial and the interests of the community where Floyd lived when he decides whether to move the trial, Paulose said. 

“We've seen this happen before where judges move trials out of the city in which the crime occurred, sometimes that can have a dramatic effect on the demographic composition of a jury,” Paulose said. “That can lead to perceptions that the case was moved to take away the ability of certain groups to actually deliver justice.”

Paulose said it’s clear from the order issued by the judge that he’s taking the case seriously and going methodically through the evidence. 

“I'm sure the judge is aware that this case may well define his judicial career,” Paulose said. “Because everybody, including people who do not have a law degree, will be second-guessing every decision that he makes on this case.” 

The judge also needs to decide whether the four former officers will be tried together or in separate trials. And defense attorneys do have the right to ask for a delay to the start of the trial if they can prove to the judge that they haven’t had enough time to prepare their cases. 

The trial is set to start in March. 

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