Like a lot of Twin Cities residents, I’m eyeing next spring – sometime after the scheduled March opening of the Derek Chauvin trial – nervously, remembering that the LA riots (at least the ones everyone remembers) began not with the pummeling of Rodney King, but with the acquittal of the four officers involved.
And here’s a fearless prediction (one I’ve already made): Chauvin will be acquitted of Second Degree Unintentional Murder – not because of any legal cop-fu, but because while I’m not a lawyer, I don’t think you need to be a lawyer to see why it’s going to be very hard to show that Chauvin was – check the emphasis, taken from the statute for 2nd Degree Unintentional Murder…:
(1) causes 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; or
Is a cop responding to a call “the commission of a felony?” I can see Alondra Cano believing that – but Ellison? Someone who’s ostensibly been to law school?
Unless there’s some bodacious lawyer-fu in store, or the Attorney General’s office plans on tampering with the entire witness pool, I’m just not seeing it.
But does the concept of qualified immunity mean there could be yet a third adverse verdict for George Floyd’s supporters and the Twin CIties’ far left’s many professional and amateur hooligans?
Was it “clearly established” on May 25 that kneeling on a prone, handcuffed arrestee’s neck for nearly nine minutes violated his Fourth Amendment rights? The issue is surprisingly unsettled in the 8th Circuit, which includes Minnesota.
The U.S. Court of Appeals for the 8th Circuit blocked civil rights claims in two recent cases with broadly similar facts: handcuffed detainees who died after being restrained face down by several officers. Unlike those detainees, Floyd was not actively resisting at the time of his death, except to repeatedly complain that he could not breathe.
While that distinction could make a difference in the constitutional analysis, we can’t be sure. Even if the 8th Circuit concluded that Chauvin’s actions were unconstitutional, it could still decide the law on that point was not clear enough at the time of Floyd’s arrest, meaning Chauvin would receive qualified immunity.
The 8th Circuit could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut. To defeat qualified immunity in this case, says UCLA law professor Joanna Schwartz, a leading critic of the doctrine, Floyd’s family “would have to find cases in which earlier defendants were found to have violated the law in precisely the same way.”
The whole piece is worth a read – and the whole concept of seriously reforming qualified immunity is something conservatives need to take an enlightened lead on.
Because it’s for damn sure the other side won’t.