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State, Defense Fight Over Whether Derek Chauvin Acted with ‘Particular Cruelty’ in Battle to Determine Proper Sentence

Image: Derek Chauvin sits in court during his trial on April 19, 2021.

Derek Chauvin

Minnesota prosecutors are pressing a judge to issue an “aggravated sentence” against Derek Chauvin.  But his defense has countered that the state is stretching the law by seeking a tougher sentence for the now-convicted former police officer.

The Prosecution’s Argument

In papers filed Friday, prosecutors employed by and working with the Minnesota Attorney General’s Office named five factors which they believe support a higher than usual sentence. Those facts are (1) that victim George Floyd “was a particularly vulnerable victim,” (2) that Floyd “was treated with particular cruelty,” (3) that Chauvin “abused his position of authority,” (4) that Chauvin acted as part of “a group of three or more persons who all actively participated” (which is relevant under Minnesota law); and (5) that Chauvin “committed the crime in the presence of multiple children.”

“Any one of these five aggravating factors would be sufficient on its own to warrant an upward sentencing departure,” prosecutors argued. “Here, all five apply. The State therefore respectfully requests that the Court find the facts necessary to support the existence of these five aggravating factors, and that the Court impose an aggravated sentence on that basis.”

As to the first factor, prosecutors argued as followed:

Defendant’s criminal conduct occurred while Mr. Floyd was in a vulnerable position on the ground: The evidence at trial showed that the officers handcuffed Mr. Floyd’s arms behind his back and held him down in the prone position, with his chest against the pavement. Defendant was trained that this position posed a significant risk of positional asphyxia.

As to the second factor alleging “particular cruelty”:

Despite Mr. Floyd’s repeated pleas that he could not breathe, and despite the repeated pleas of bystanders on the scene, Defendant pressed his knee into Mr. Floyd’s neck and upper back for nine minutes and 29 seconds. As noted, Defendant maintained that position—again, for a matter of minutes, not seconds—even after Mr. Floyd went silent, and even after officers knew that Mr. Floyd no longer had a pulse. Mr. Floyd also sustained significant facial abrasions and bruising as a result of being pressed forcibly into the pavement. Defendant’s actions inflicted gratuitous pain, and caused psychological distress to Mr. Floyd and to the bystanders. Moreover, despite Mr. Floyd’s obvious signs of medical distress, and despite Defendant’s training, Defendant made no attempt to perform CPR or give Mr. Floyd medical attention, and discouraged others on the scene from providing Mr. Floyd with medical attention. Taken together, these facts show that Defendant treated Mr. Floyd with particular cruelty.

The court papers do not request a specific term of years for Chauvin’s sentence.

The Defense’s Argument

The defense countered that four of the factors the state is pressing are contained in the statute; the third — that Chauvin abused his authority — is not. The defense also said Chauvin waived his right to have the factors established by a jury, “as is his prerogative, leaving it to the Court to determine whether the State has met its burden.”

“Mr. Chauvin entered into the officers’ encounter with Mr. Floyd with legal authority to assist in effecting the lawful arrest of an actively-resisting criminal suspect,” the defense continued. “Mr. Chauvin was authorized, under Minnesota law, to use reasonable force to do so. Early in the encounter with Mr. Floyd, officers had called for emergency medical services (“EMS”). The call to EMS was upgraded after Mr. Chauvin’s arrival on scene. The entire period of time in which the offense of conviction was perpetrated was a matter of minutes — perhaps as little as three, but certainly less than six minutes.”

The defense then said Floyd was not “particularly vulnerable”:

Facts establishing that a victim was particularly vulnerable, and that the offender knew or should have known about the vulnerability, must be proved beyond a reasonable doubt. Here, the State appears to assert that the fact that Mr. Floyd was handcuffed rendered him particularly vulnerable. The facts clearly show that simply being handcuffed did not render Mr. Floyd “particularly vulnerable.”

Mr. Floyd was well over six feet tall, muscular, and weighed in excess of two hundred pounds. He was handcuffed at the beginning of the encounter and, as Officers Lane and Kueng attempted to put Floyd in their squad car, he began to actively resist arrest. While handcuffed behind his back, Mr. Floyd managed to prevent two trained, adult, male police officers from placing him in the back of their squad car. Once Mr. Chauvin joined in the struggle, Mr. Floyd still managed to prevent himself from being subdued until officers were finally able to restrain him on the ground, where he continued to struggle. He was on the ground for a total of around nine minutes before EMS arrived. Floyd was able to continue struggling during a portion of his restraint.

The factual scenario is considerably different from other instances in Minnesota law where a victim was found to be particularly vulnerable when bound.

Chauvin’s attorney, Eric Nelson, went on to argue that Chauvin was not “particularly cruel” toward Floyd.  He cited other cases which did find “particular cruelty” but which were factually distinct from Chauvin’s case on the following grounds:

In those cases, the witnesses of the defendants’ conduct either suffered from an age-related incapacity, making them particularly vulnerable, or were closely related to the victim as either relatives or friends.

[ . . . ]

Here, none of the witnesses were friends or relatives of George Floyd, nor did any of the witnesses claim to know George Floyd. Importantly, none of the witnesses’ observation of the incident was involuntary, unlike those in relevant caselaw: They were all free — and in fact, encouraged by Officer Thao — to leave at any time they wished.

The defense further refuted the state’s other arguments by arguing, in part, that the state can’t prove beyond a reasonable doubt that three others “actively participated” in the crime because the three other officers — J. Alexander Kueng, Thomas Lane, and Tou Thao — have not been convicted.  Their trial is scheduled for late August.

The latest argument for an upward sentencing departure — that is, a sentence higher than that contemplated by the standard grid used by Minnesota judges — are, in essence, an extension of court papers filed beginning last year. The state filed notice on August 28, 2020, that it would seek a tougher sentence.  Additional briefs were filed on October 12, 2020.

Why Does It Matter?

The standard grid sentence for Chauvin’s top count, unintentional second-degree murder for a defendant with no criminal history, is 150 months (12.5 years).  However, the actual second-degree murder statute authorizes a sentence of up to 40 years.

Chauvin was also convicted of third-degree murder.  For this count, the sentencing grid calls for the same possible sentence as second-degree murder (12.5 years), but the statutory maximum is 25 years.

Finally, Chauvin was convicted of second-degree manslaughter.  Sentencing guidelines call for a Level 8 sentence of four years, but the statute authorizes up to ten years.

Read the prosecution arguments below:

MN v Chauvin – State’s Memo for Aggravated Sentence by Law&Crime on Scribd

Read the defense rebuttal below:

MN v Chauvin – Def Memo Opp Upward Sentencing by Law&Crime on Scribd

[Editor’s note:  Legal citations have been omitted from some quotes.]

[Image via screengrab from the Law&Crime Network.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.