Posted on October 6, 2021

A Minnesota Ruling Comes Too Late for Derek Chauvin

Andrew C. McCarthy, National Review, October 6, 2021

Recently, there was a ruling by Minnesota’s highest court that would have been big news if it had happened prior to Derek Chauvin’s trial for the killing of George Floyd — as it should have. At this point, its importance is greatly diminished, even though it will almost certainly result in the reversal and dismissal of one of the charges against the former Minneapolis cop — specifically, the third-degree “depraved indifference” murder count.

The news was easy to miss because it did not come directly in Chauvin’s case, which is now on appeal, and — more significantly — because it is unlikely to affect Chauvin’s 22-and-a-half-year sentence. Judge Peter Cahill imposed that term mainly because Chauvin was also convicted of second-degree unintentional murder (i.e., murder committed in the course of committing another crime — aggravated assault). That charge is unaffected by the state supreme court’s new ruling.

{snip} “Depraved indifference” is a concept that conveys wanton disregard for human life. The textbook example is a gunman who shoots into a crowd, not targeting any person, not intending to kill any specific victim, but cruelly indifferent to the threat to human life he is willfully creating for everyone in the vicinity.

That was not the Chauvin/Floyd situation. Chauvin specifically targeted Floyd in his use of force and had a rational reason for doing so.


For that reason, Judge Cahill dismissed the depraved-indifference count at the pretrial stage. Nevertheless, the Chauvin/Floyd confrontation was not the only tragic police-involved killing pertinent to this issue. In another case, a police officer named Mohammed Noor recklessly killed a woman named Justine Damond. She had called the police late at night to report a possible crime. When Noor and his partner responded, she approached their squad car in the dark and knocked in what Noor took to be a threatening way on the window; he panicked and fired his gun from inside the car at the silhouette he saw, killing her.


The state realized the proof was weak for purposes of establishing second-degree unintentional murder {snip}. Prosecutors worried that if presented with a stark choice between manslaughter and second-degree murder, a jury would probably convict on the former and acquit on the latter.

As a hedge against this probability, prosecutors warped the law. They added a depraved-indifference murder charge, even though it didn’t fit legally, because they figured they could rhetorically whip the jury into concluding that, for Noor, even under a perception of peril, to shoot before identifying whom or what he was shooting at was not merely reckless but depraved. The trial judge let them get away with it. With the distinction between criminal negligence and depraved indifference thus blurred, the jury predictably acquitted Noor on the second-degree murder charge but convicted him of the third-degree depraved-indifference count, as well as manslaughter.