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Second Degree Vs. Third Degree Vs. Manslaughter: The Charges Against Derek Chauvin Explained

Victoria Pappas
Victoria Pappas Law Student, Cardozo School of Law
I am a current law student interested in intellectual property and tech law.
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charges against derek chauvin

Derek Chauvin, the officer who kneeled on George Floyd’s neck for 8 minutes and 46 seconds was initially charged with third degree murder and second degree manslaughter. Recently, prosecutors added a second degree murder charge in an amended complaint.


This means that Chauvin is facing 3 charges: 

  1. Second Degree Murder – Unintentional – While Committing a Felony 
  2. Third Degree Murder – Perpetrating Eminently Dangerous Act and Evincing Depraved Mind
  3. Second Degree Manslaughter – Culpable Negligence Creating Unreasonable Risk 

Many people on social media are debating whether these charges should be increased to first degree murder. 


Others don’t understand the difference between the charges at all. 


Here’s an explanation:


Murder in the First Degree


The relevant law is section 609.185(a)(1) of the Minnesota Criminal Code, which states: 


“(a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:

(1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another” (emphasis added). 


The key elements that distinguish first-degree murder from other types is that it must be committed with premeditation and intent to cause death. 


The Minnesota Criminal Code section 609.18 defines premeditation as meaning, “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.”


It is important to note that premeditation does not require someone to have an intricate plan of the crime they are going to commit – a  quick decision to cause death before the act is committed can be enough. 


Also note that the phrase “prior to its commission” does not set out a strict time period. Premeditation does not have to be days, weeks, or months before the crime. A murder can be premeditated hours, minutes, or seconds before the crime occurs. 


Though the concept of premeditation seems simple enough, it is very difficult to prove beyond a reasonable doubt in court. 


There have been reports that Floyd and Chauvin knew each other and “bumped heads.” 


But many legal experts feel that first degree murder charges will weaken the case and not lead to a conviction of Chauvin. 


Second Degree Murder – Unintentional – While Committing a Felony 


Section 609.19 Subdivision 2 (1) of the state’s criminal code is the relevant statute for this charge. It states a person is guilty of murder in the second degree if they: 


“[cause] the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.”


The key difference is that no intent to cause death needs to be proven under this provision. 


All the prosecution needs to show is that Chauvin caused Floyd’s death while committing a felony. 


Minnesota Attorney General Keith Ellison, who is leading the prosecution in this case, will argue that Chauvin committed felony assault, resulting in Floyd’s death. 


If the prosecution cannot prove that Chauvin committed or attempting to commit felony assault, or that Chauvin caused the death of Floyd during the felony, then the court cannot convict him of this second degree murder charge. 


Legal experts believe this will likely be easier to prove over first degree murder because there is stronger evidence supporting felony assault resulting in Floyd’s death occurred rather than a premediated intent to kill. 


If convicted, the officer can face up to 40 years in prison. 


Third Degree Murder – Perpetrating Eminently Dangerous Act and Evincing Depraved Mind


Murder in the third degree is defined in section 609.195 of the Minnesota Criminal Code as 


(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.”


Again, there need not be intent to kill in order to be guilty of third degree murder. 


Here, the prosecution must prove that the officer’s actions were extremely dangerous to Floyd and were committed with an extreme disregard or indifference for human life and caused his death. 


Kneeling on Floyd’s neck for almost 9 minutes while Floyd said, “I can’t breathe” can be used as evidence.


An independent autopsy reported that Floyd died of “’asphyxiation from sustained pressure’” and such “pressure cut off blood flow to his brain.”


Second Degree Manslaughter – Culpable Negligence Creating Unreasonable Risk 


Minnesota’s criminal code section 609.205 (1) requires the death of another to be caused, 


by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”


Again, this does not require the prosecution to show that Chauvin intended to kill Floyd. 


The prosecution would likely argue that kneeling on Floyd’s neck for almost 9 minutes created an unreasonable risk and that Chauvin consciously took the chance of causing death to Floyd. 


If convicted, Chauvin would face up to 10 years in prison or fined no more than $20,000, or both. 


Why Choosing Which Crime to Charge with is Important 


It is extremely important for prosecutors to be careful and deliberate with which crime they charge a defendant with because of the “double jeopardy” clause in the 5th Amendment of the United States Constitution.   


This clause states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” 


This means that you cannot be prosecuted for the same crime twice. 


If Derek Chauvin is prosecuted for the first-degree murder of George Floyd and found innocent, the officer can never be prosecuted for the same murder, no matter the degree, ever again. 

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