By Rochelle Olson
Star Tribune
MINNEAPOLIS — Prosecutors sought Thursday to add third-degree murder charges against the four former Minneapolis police officers in the death of George Floyd because of an appellate court ruling this week in the case of another ex-officer convicted in the 2017 death of an Australian woman.
In the case of Derek Chauvin, prosecutors want to reinstate the third-degree murder charge that was dismissed in October by Hennepin County District Judge Peter Cahill. In the cases of the three other officers, J. Alexander Kueng, Thomas Lane and Tou Thao, prosecutors want to add the charge to their complaints.
Prosecutor Matthew Frank, acting on behalf of Attorney General Keith Ellison’s office, cited a precedential state Court of Appeals ruling against Mohamed Noor, a former Minneapolis police officer, that was published Tuesday.
Noor is serving a 12 1/2-year sentence for a third-degree murder conviction in 2019 for shooting Justine Ruszczyk Damond from the passenger seat in his patrol vehicle as he and his partner responded to Damond’s 911 call of a possible sexual assault.
On appeal, Noor’s lawyer argued in part that he couldn’t be convicted of third-degree murder because his actions were aimed at a specific person, rather than “eminently dangerous” to others. Until now, the third-degree murder charge in Minnesota had generally been used against drug dealers in overdose deaths.
A three-judge panel was split 2-1 on the ruling. Judges Louise Dovre Bjorkman and Michelle Larkin found that a third-degree murder conviction can be upheld when the conduct is directed at a single person.
In a detailed dissent, Judge Matthew Johnson said he would have reversed Noor’s murder conviction and sent his case for sentencing on the lesser second-degree manslaughter charge.
As was the case for Noor, a conviction of third-degree murder could lead to longer sentences for the former officers involved in Floyd’s arrest, especially the three accused accomplices. In Noor’s case, had he been convicted of second-degree manslaughter, he likely would have faced a sentence of about four years, about a third of what he is serving now.
Frank said Cahill now has clear guidance on the elements of third-degree murder and he asked the judge to reinstate the charge against Chauvin and allow the state to add the charge against the other three.
Chauvin is currently charged with second-degree unintentional murder and second-degree manslaughter. The other three are charged with aiding and abetting second-degree unintentional murder and manslaughter.
When Cahill dismissed the third-degree charge against Chauvin last fall, he cited state law saying that “a third-degree murder charge can be sustained only in situations in which the defendant’s actions . . . were not specifically directed at the particular person whose death occurred.”
Frank acknowledged there are differences between Noor’s case, in which he fired a gun out a window, and those against the four officers who restrained Floyd.
“Noor’s actions arguably put others at risk in addition to the victim, whereas Chauvin’s conduct only directly endangered Floyd,” Frank wrote. “But this distinction made no difference to the Court of Appeals. That court has now clarified that it is immaterial whether the death-causing conduct in Noor may have been directed at, or may have endangered, others.”
The Court of Appeals ruling may not be the final word on what constitutes third-degree murder.
Noor’s attorney Thomas Plunkett said he will ask the state Supreme Court to consider the case. But the Supreme Court could refuse, which would allow the appellate decision to stand. If the higher court takes up the Noor case, a decision would be unlikely to come this year.
Chauvin’s trial is set to begin March 8, although Frank is seeking to postpone the starting date. The other former officers are scheduled to go to trial together in August.
Chauvin’s lawyer Eric Nelson and Lane’s lawyer Earl Gray declined to comment. Plunkett, who represents Kueng, also declined to comment. Bob Paule, who represents Thao, didn’t immediately return a call.
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