3-Judge Panel Has 90 Days to Rule on Third-Degree Murder Charge Against Cops in George Floyd Death

Minnesota state attorneys want to add a third-degree murder charge to three former Minneapolis police officers charged in George Floyd's death, the Associated Press reported.

Thomas Lane, J. Alexander Kueng and Tou Thao, who are scheduled to face trial next March, are currently charged with aiding and abetting second-degree murder and manslaughter. The three ex-cops and attorneys for the state appeared on Thursday via Zoom before the Minnesota Court of Appeals.

The panel, which is composed of judges Renee Worke, Matthew Johnson and Theodora Gaitas, has 90 days to rule.

Derek Chauvin, another former Minneapolis officer, was convicted last month of second-degree unintentional murder, third-degree murder and manslaughter in Floyd's death and is awaiting sentencing. All four former officers also face federal charges accusing them of violating Floyd's civil rights.

For more reporting by the Associated Press, see below.

Mural of George Floyd in Minneapolis
Minnesota state attorneys want to add a third-degree murder charge to three former Minneapolis police officers charged in George Floyd's death. Above, Shannon Haynes talks to her son Ronald Haynes, 9, about Floyd in front of a memorial following the verdict in the Derek Chauvin trial on April 20, 2021, in Minneapolis, Minnesota. Nathan Howard/Getty Images

"We think the Chauvin case should settle the matter here," said Neal Katyal, an attorney for the state, adding that the state could even charge all or some of the men as principle actors, not as accessories to the crime.

Attorney Deborah Ellis argued for the defense that the three can't be charged with aiding and abetting third-degree murder, because third-degree murder is an unintentional act and relies on a defendant's reckless state of mind, but aiding and abetting must be intentional.

Worke called the argument "novel."

Katyal said that argument "is just wrong" and has no merit, but if it is considered, it should go before the lower court for debate.

Floyd, 46, died on May 25, 2020, after Chauvin pinned him to the ground with a knee on his neck as the Black man repeatedly said he couldn't breathe. Kueng and Lane helped to restrain Floyd—Kueng knelt on Floyd's back and Lane held down Floyd's legs. Thao held back bystanders and kept them from intervening during the roughly 9 1/2-minute restraint.

The issue of the third-degree murder count has been complicated in this case.

In October, Judge Peter Cahill tossed a third-degree murder charge against Chauvin, saying it could only be sustained if Chauvin's conduct had been "eminently dangerous to others" and not specifically directed at Floyd.

But in February, a three-judge panel of the Appeals Court opened a window for that charge to be reinstated when it issued a ruling in an unrelated police shooting death. In that case, the court upheld the third-degree murder conviction for former Officer Mohamed Noor in the 2017 shooting death of Justine Ruszczyk Damond. The panel ruled that a third-degree murder conviction can be sustained even if the action that caused a death was directed at a single person.

That led prosecutors to seek the reinstatement of the third-degree murder charge against Chauvin, and add a count of aiding and abetting third-degree murder for the other officers. Cahill denied both requests, and prosecutors appealed. The Appeals Court then ruled that the Noor opinion set binding precedent, even though it remains before the state Supreme Court. Cahill reinstated the charge against Chauvin.

Prosecutors say the other former officers should now be charged with aiding and abetting third-degree murder.

"This Court routinely follows its precedents from their date of publication unless and until the Minnesota Supreme Court reverses them," prosecutors said in written arguments. To allow courts to flout these decisions "invites chaos because it would allow courts to eschew precedent based on their own preferred reading of the law....And it threatens to undermine public faith in the judicial process and the rule of law."

Defense attorneys wrote: "To aid and abet in third degree murder, an aider and abettor would have to have intentionally aided in an unintentional homicide, would have to have known that the principal intended to commit a crime and have known the principal's subjective mindset. This is inherently impossible."

Ex-officers charged in Floyd death
Minnesota state attorneys want to add a third-degree murder charge to three former Minneapolis police officers charged in George Floyd's death. Above, this combination of photos provided by the Hennepin County Sheriff's Office in Minnesota on June 3, 2020, shows (from left) former Minneapolis police Officers J. Alexander Kueng, Thomas Lane and Tou Thao. Hennepin County Sheriff's Office/AP File