The criminal trial of Derek Chauvin, the first of four officers charged in the death of George Floyd is scheduled to begin on March 29th. In the coming weeks, the death of Floyd will be examined in microscopic detail to see if Chauvin crimes range from violating police protocols to knowingly committing an act of “racial chauvinism.”
Ten months ago on Monday, May 25, 2020, George Floyd, an unarmed African American, was arrested by a 19-year veteran Minneapolis policeman Derek Chauvin, his partner, and two police trainees. Mr. Floyd allegedly fraudulently passed a counterfeit $20 bill at a convenience store to purchase cigarettes. Police responded to a 911 call by a store employee that the customer was nearby sitting on his car. The suspect was described as a tall, bald black male.
The nation knows what happened next. Over almost nine minutes, Floyd horrifically died as Chauvin’s knee on his neck cut off air to his lungs, heart and brain. Captured on film and uploaded to the Internet, the video sparked months of nation-wide protests for police reform and accountability.
In tandem with these demonstrations was unceasing analysis from across the political spectrum. While some painted George Floyd as a martyr, others tarred him as a drug-user or criminal – honing the idea that he knowingly passed counterfeit bills.
As an Assistant U.S. Attorney, I prosecuted defendants charged with fraudulently passing counterfeit bills. To convict, the government needs to prove that the bills were counterfeit and that the defendant had fraudulent intent.
Fraud is a felony under Minnesota statute. Like federal criteria, local law enforcement must prove beyond a reasonable doubt a fraudulent intent. According to the U.S. Department of the Treasury, there are over $70 million counterfeit bills in circulation. Citizens are neither trained nor expected to be able to detect counterfeit currency.
To make an arrest, an officer needs to personally observe the crime, possess a judge authorized arrest warrant, or have probable cause to believe that the suspect committed the crime. To deprive a citizen of liberty, probable cause is not a hunch but an objective basis for believing that a suspect has perpetrated a provable crime. It’s unusual for someone who perpetrates a counterfeit fraud to remain nearby.
Before arresting Mr. Floyd, the officers did not run a criminal background search to determine whether Mr. Floyd had been charged or convicted of counterfeiting. When confronted, Mr. Floyd denied the offense. The officers did not ask the teenage store employee to identify him. Unlike the suspect’s description as bald, Mr. Floyd had a full head of hair.
At arrest, the officers neither determined that the $20 bill was counterfeit nor that Mr. Floyd had a fraudulent intent to use a counterfeit bill. It’s difficult to prove fraudulent intent beyond a reasonable doubt by passing one low denomination counterfeit bill.
Despite his protestation of innocence, the four officers forced the unarmed Mr. Floyd face down on the ground. Once subdued, Officer Chauvin had a knee on Mr. Floyd’s neck for eight minutes and 46 seconds. As Officer Chauvin demonstrated police techniques to the two trainees and Chauvin’s partner watched, Mr. Floyd unsuccessfully pleaded for his life.
In the criminal trial, a jury will determine whether Officer Chauvin is responsible for second or third-degree murder. Second-degree murder requires that the prosecution prove that the defendant caused death with extreme indifference to human life. For third-degree murder, the jury must conclude that Mr. Floyd’s death was caused by an act eminently dangerous and evincing a depraved mind – that is, without regard for human life.
In the jury’s deliberations, they will have to ascertain, among other matters, if there was a lack of investigation, a failure to properly identify Floyd, any fraudulent intent, valid probable cause for arresting him, and whether Floyd posed a threat to the four officers.
Hovering over all these evidentiary issues is if racism was a factor. That is, did Officer Chauvin engage in racial chauvinism?
Malcolm Lazin is a former Assistant U.S. Attorney. He is the recipient of the U.S. Attorney General’s Distinguished Service Award, the Department of Justice’s highest honor. He served as the Chair, Pennsylvania Crime Commission and was the Republican candidate for District Attorney of Philadelphia.