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Judge Peter A. Cahill, Sentencing Memoradum for Derek Chauvin for George Floyd Murder (June 25, 2021)
The Minnesota Sentencing Guidelines were promulgated “to establish rational and consistent sentencing standards that promote public safety, reduce sentencing disparity, and ensure that the sanctions imposed . . . are proportional to the severity of the . . . offense and the offender’s criminal history.” Minn. Sent. Guidelines 1.A; see also State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015) (“The Minnesota Sentencing Guidelines promote uniformity, proportionality, and predictability in sentencing.”).
The presumptive guidelines ranges are “deemed appropriate for the felonies covered by them.” Minn. Sent. Guidelines 1.A.6. In most cases, the maximum sentence a district court may impose is the top of the presumptive sentencing range because the sentencing guidelines mandate that district courts pronounce a sentence within the range on the sentencing guidelines grid. Minn. Sent. Guidelines .D.1.
However, the Sentencing Guidelines recognize there are cases in which the guidelines sentence may not be appropriate and therefore allow district courts to depart from the presumptive sentence, although departing courts must articulate “substantial and compelling” circumstances justifying the departure. Id.; see also State v. Barthman, 938 N.W.2d 257, 267, 270 (Minn. 2020); Hicks, 864 N.W.2d at 156; State v. Misquadace, 644 N.W.2d 65, 69 (Minn. 2002).
“Substantial and compelling circumstances are those demonstrating that ‘the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question.’” Barthman, 938 N.W.2d at 270 (emphasis in original); Tucker v. State, 799 N.W.2d 583, 586 (Minn. 2011).
When such factors are present, the judge “may depart from the presumptive disposition or duration provided in the Guidelines and stay or impose a sentence that is deemed to be more appropriate than the presumptive sentence.” Minn. Sent. Guidelines 2.D.1. That includes exceeding the top end of the presumptive range when “there exist identifiable, substantial, and compelling circumstances.” Id.; State v. Rourke, 773 N.W.2d 913, 919 (Minn. 2009).
For a defendant like Mr. Chauvin with zero criminal history points, the guidelines and presumptive range for unintentional second-degree murder — the most serious charge of which Mr. Chauvin was found guilty by the jury and on which he is being convicted and sentenced by this Court — is 128 to 180 months, with the presumptive sentence being 150 months.
Consideration of a sentence outside the presumptive guidelines range involves a two-stage process:
(1) In the first stage, either a jury or the district court must make a factual finding that there are one or more aggravating factors present in the commission of the crime apart from the prima facie elements of the charged crime.
(2) In the second stage, the district court is required to explain why the presence of any such aggravating factors creates a substantial and compelling reason to impose a sentence outside the presumptive guidelines range.
As to the first stage, at the conclusion of the trial and after return of the jury’s verdicts, Mr. Chauvin agreed to submit the issue of the existence of aggravated sentencing factors to this Court for decision.
The State had urged the Court to find the existence of five aggravated sentencing factors in light of the evidence presented during the three-week trial between March 29 and April 15, 2021. In the Court’s Verdict and Findings of Fact Regarding Aggravated Sentencing Factors, this Court found that the evidence at trial proved beyond a reasonable doubt the following four aggravated sentencing factors:
(i) That Mr. Chauvin abused a position of trust and authority;
(ii) That Mr. Chauvin treated George Floyd with particular cruelty;
This Court found that the fifth factor urged by the State, that George Floyd was particularly vulnerable, had not been proved beyond a reasonable doubt.
(iii) That children were present during the commission of the offense; and
(iv) That Mr. Chauvin committed the crime as a group with the active participation of three other individuals, former Minneapolis Police Officers Thou Thao, Thomas Lane, and J. Alexander Kueng, who all actively participated with Mr. Chauvin in the crime in various ways.
The issue now before this Court on sentencing is the second stage: whether any of these four aggravated factors demonstrates that Mr. Chauvin’s conduct in connection with the offense for which he has been convicted renders his conduct significantly more serious than that typically involved in the commission of such an offense, Hicks, 864 N.W.2d at 157 (Minn. 2015), State v. Edwards, 774 N.W.2d 596, 601-02 (Minn. 2009), and therefore supplies a “substantial and compelling reason” for imposing an aggravated sentence of more than the 180 month top-of-the-guidelines range. Rourke, 773 N.W.2d at 922.
Although this Court found the presence of four aggravating factors, the decision whether to depart durationally upward and impose an aggravated sentence remains within the Court’s sound discretion. See Minn. Sent. Guideline 2.D.1 (“A departure is not controlled by the Guidelines, but rather, is an exercise of judicial discretion constrained by statute or case law.”); State v. Jackson, 749 N.W.2d 353, 360 (Minn. 2008) (when a court “finds facts that support a departure from the presumptive sentence, the court may exercise discretion to depart but is not required to depart”).
I. THE DISPOSITIONAL AND DURATIONAL DEPARTURES REQUESTED BY MR. CHAUVIN ARE NOT APPROPRIATE.
Mr. Chauvin seeks a probationary sentence (a dispositional departure from the presumptive prison sentence under the sentencing guidelines) or, alternatively, a downward durational departure from the presumptive guidelines range for a prison sentence. This Court concludes neither is appropriate in this case.
A mitigated dispositional departure (i.e. probation) is not appropriate because there has been no persuasive showing that Mr. Chauvin is particularly amenable to probation, see State v. Soto, 855 N.W.2d 303, 308-12 (Minn. 2014), and State v. Love, 350 N.W.2d 359, 361 (Minn. 1984), and because a probationary sentence would be disproportionate and understate the severity of Mr. Chauvin’s offense. See Soto, 855 N.W.2d at 310-13 (reversing trial court’s dispositional departure to probation in first-degree criminal sexual conduct case as an abuse of discretion, rejecting arguments similar to those made by Mr. Chauvin here relying on age, lack of criminal history, and defendant’s respectful attitude while in court as being far outweighed by other relevant considerations regarding the severity of the offense).
A “durational departure must be based on factors that reflect the seriousness of the offense, not the characteristics of the offender.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016). “A downward durational departure is justified only if the defendant’s conduct was significantly less serious than that typically involved in the commission of the offense.” Id. at 624. A downward durational departure below the “bottom of the box” 128-month sentence is not appropriate in this case given this Court’s finding of the presence of aggravated sentencing factors.
Mr. Chauvin’s continuing insistence that he believed “he was simply performing his lawful duty in assisting other officers in the arrest of George Floyd” and was acting “in good faith reliance [on] his own experience as a police officer and the training he had received,” see Def. Sent. Mem. (June 2, 2021) at 11, was rejected by every supervisory and training officer of the Minneapolis Police Department who testified at trial as well as by the jury. This includes MPD Chief Medaria Arradondo, MPD Sgts. David Pleoger and Jon Edwards, MPD Lt. Johnny Mercil, and MPD Commander Katie Blackwell.
II. MR. CHAUVIN’S ABUSE OF A POSITION OF TRUST OR AUTHORITY IS A SUBSTANTIAL AND COMPELLING REASON FOR AN UPWARD DURATIONAL DEPARTURE UNDER THE CIRCUMSTANCES OF THIS CASE.
The Court of Appeals has held that this aggravating factor supplies a “substantial and compelling reason” for an upward departure where the defendant and victim are in a “relationship[] fraught with power imbalances that may make it difficult for a victim to protect himself” and the defendant abuses his or her position of trust or authority in committing the crime. State v. Rourke, 681 N.W.2d 35, 41 (Minn. App. 2004), review granted and remanded on other grounds, 2005 WL 525522 (Minn. App. Mar. 8, 2005). That was the situation here.
Mr. Chauvin was employed as a licensed peace officer by the City of Minneapolis. As such, he “held a position of trust and authority with respect to the community and its members.” Verdict and Findings of Fact Regarding Aggravated Sentencing Factors (Dk. #560) ¶ 1(b). The “trust placed in Defendant included trust that anyone arrested would be treated with respect and only with reasonable force and that medical needs would be addressed in a timely fashion.”
This Court has already concluded that:
(1) Mr. Chauvin “abused his position of authority” by using unreasonable force to hold “a handcuffed George Floyd in a prone position on the street”—“a position that Defendant knew from his training and experience carried with it a danger of Mr. Chauvin argues that “abuse of a position of trust and authority” is not explicitly included among the aggravated sentencing factors enumerated in the Minnesota Sentencing Guidelines. Minn. Sent. Guidelines 2.D.3(b).
However, the list of aggravating factors in the guidelines is expressly noted as nonexclusive, id.; Barthman, 938 N.W.2d at 270; Hicks, 864 N.W.2d at 157 (observing that Supreme Court has occasionally recognized new aggravating factors not included in the list in the guidelines), and courts have upheld the abuse of position of authority as an aggravating factor in sentencing a defendant. See State v. Lee, 494 N.W.2d 475, 482 (Minn. 1992); State v. Carpenter, 459 N.W.2d 121 (Minn. 1990); State v. Cermak, 344 N.W.2d 833,839 (Minn. 1984). positional asphyxia”—for more than nine minutes and forty seconds, “an inordinate amount of time.” Id. ¶ 1(c).
(2) “Defendant’s placement of his knee on the back of George Floyd’s neck was an egregious abuse of the authority to subdue and restrain because the prolonged use of this maneuver was employed after George Floyd had already been handcuffed and continued for more than four and a half minutes after Mr. Floyd had ceased talking and had become unresponsive.” Id. ¶ 1(f).
(3) Mr. Chauvin “abused his position of trust and authority by not rendering aid, by declining two suggestions from one of his fellow officers to place George Floyd on his side, and by preventing bystanders, including an off-duty Minneapolis firefighter, from assisting.” Id. ¶ 1(d).
(4) That “failure to render aid became particularly abusive after Mr. Floyd had passed out, and was still being restrained in the prone position, with Mr. Chauvin continuing to kneel on the back of Mr. Floyd’s neck with one knee and on his back with another knee, for more than two and a half minutes after one of his fellow officers announced he was unable to detect a pulse.” Id.
Here, by virtue of his position as a police officer, Mr. Chauvin “was in a position to dominate and control” Mr. Floyd. State v. Bennett, 1997 WL 526313, at *3 (Minn. App. Aug. 26, 1997). That “position of control” not only allowed Mr. Chauvin to “manipulate the circumstances and commit the crime,” id., but also “ma[d]e it difficult” for Mr. Floyd “to protect himself” from Mr. Chauvin’s and his co-defendant officers’ conduct. Rourke, 681 N.W.2d at 41.
Nevertheless, Mr. Chauvin has argued that this aggravating factor does not apply here because it typically applies only in cases involving “criminal sexual conduct, domestic abuse, or both, where the victim had a pre-existing relationship with the offender.” Def. Mem. in Opp. to Upward Durational Sentencing Departure, at 7 (Apr. 30, 2021) (Def. Blakely Brief). But the Court of Appeals has made clear that this aggravating factor is not so limited. In Rourke, the defendant made the same basic argument: that “generally, the cases that have used the defendant’s position of power as an aggravating factor” involved a particular type of pre-existing relationship between a victim and an “adult authority figure[].” Rourke, 681 N.W.2d at 40.
The Court of Appeals rejected that argument, noting that it had “found no cases that limit the application of this factor” in that manner. Id. at 41. The Court of Appeals then clarified that the key question is whether the relationship between the victim and the defendant is one among the many “relationships fraught with power imbalances that may make it difficult for a victim to protect himself,” not the existence of a pre-existing relationship or a particular type of offense. Id.
Other cases confirm that this aggravating factor is not limited only to cases in which “the victim had a pre-existing relationship with the offender.” In Bennett, for example, the Court of Appeals held that this factor supported an upward departure where the defendant shot a cab driver with whom he had no pre-existing relationship. 1997 WL 526313, at *3.4 Similarly, in State v. House, 1991 WL 42587, at *2 (Minn. App. Apr. 2, 1991), the Court of Appeals affirmed the application of this factor to a hospital worker “entrusted with the responsibility of protecting.
Although Mr. Chauvin attempts to distinguish Bennett on the ground that “it was far more similar to the employment relationship found in other cases . . . than the circumstances in this case,” the key factors the Court of Appeals relied on in Bennett are present here: Mr. Chauvin “was in a position to dominate and control” Mr. Floyd, “had authority to tell” Mr. Floyd what to do, and used his “position of control” to “take advantage of a defined relationship” with Mr. Floyd and “manipulate the circumstances and commit the crime. 1997 WL 526313, at hospital personnel, patients and visitors” and who used that position of trust to assault a victim with whom he had no ostensible prior relationship.
The case law likewise confirms that this aggravating factor is not limited to cases involving “criminal sexual conduct” or “domestic abuse.” Bennett was a murder case in which there were no allegations that the defendant had committed criminal sexual conduct or domestic abuse. In State v. Campbell, 367 N.W.2d 454, 461 (Minn. 1985), the Supreme Court found sufficient evidence to support the trial court’s conclusion that the defendant “violated a position of trust” in a murder case where the defendant was not accused of committing criminal sexual conduct or domestic abuse.
Mr. Chauvin also claims that there is “no case law in Minnesota, precedential or otherwise, in which a peace officer’s position” has triggered the application of this aggravating factor. Id. While perhaps true, that observation is unsurprising precisely because successful prosecutions of police officers in Minnesota have been so rare; research has not disclosed any prior Minnesota cases in which a police officer was convicted of murder and the State sought an upward sentencing departure. It is also legally irrelevant. The Court of Appeals made clear in Rourke that it does not matter if “this particular aggravating factor has not routinely been applied” to cases involving a particular type of defendant or victim. 681 N.W.2d at 41.
So long as the relationship between an officer and a victim qualifies as a “relationship[] fraught with power imbalances that may make it difficult for a victim to protect himself or herself,” Rourke makes clear that this aggravating factor can apply. Mr. Chauvin does not suggest otherwise, and does not point to any case that forecloses the application of this factor here.
If anything, the case for there is a district court decision suggesting that a peace officer’s position of trust and authority is an appropriate basis for an upward departure. In State v. Arrington, the district court concluded that the defendant abused the victim’s trust because the defendant, who was not a police officer, an enhancement is heightened, not reduced, when a defendant commits crimes while imbued with the authority of the State, as Mr. Chauvin did here.
III. MR. CHAUVIN’S TREATING GEORGE FLOYD WITH PARTICULAR CRUELTY IS A SUBSTANTIAL AND COMPELLING REASON FOR AN UPWARD DURATIONAL DEPARTURE UNDER THE CIRCUMSTANCES OF THIS CASE.
Mr. Chauvin’s particularly cruel treatment of George Floyd is also a separate “[s]ubstantial and compelling” basis for an upward sentencing departure. Hicks, 864 N.W.2d at 157; see Minn. Stat. § 244.10 subd. 5a(a)(2) (noting that an aggravated sentence is appropriate if the “victim was treated with particular cruelty for which the offender should be held responsible”); Minn. Sent. Guidelines 2.D.3.b(2) (same); Tucker, 799 N.W.2d at 586
(“[P]articular cruelty involves the gratuitous infliction of pain and cruelty of a kind not usually associated with the commission of the offense in question.”). Here, the cruelty of Mr. Chauvin’s conduct was “of a kind not usually associated with the commission of the offense[s] in question.” State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).
Mr. Chauvin’s “gratuitous infliction of pain,” Tucker, 799 N.W.2d at 586, and “psychological” cruelty, State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982), justify an upward sentencing departure.
This Court has already concluded that: (1) “[i]t was particularly cruel to kill George Floyd slowly” by inhibiting “his ability to breathe when Mr. Floyd had already made it clear he was having trouble falsely told the victim that he was a police officer and used that claimed position to commit the crime. 2016 WL 102476, at *2 (Minn. App. Jan. 11, 2016).
On appeal, the Court of Appeals declined to decide “whether abuse of trust is a proper aggravating factor here” because the district court had “relied upon numerous other factors that support[ed] the upward sentencing departure.”
The Court of Appeals noted, however, that the primary arguments against applying the abuse-of-authority factor in that case were that “impersonating a police officer is a separate offense,” and that the defendant “was not in a position of trust because he was not a police officer.” Id. Nowhere did the Court of Appeals or the defendant suggest that the abuse of-trust aggravating factor is inapplicable to someone who is actually a police officer.
(2) The “prolonged use” of the prone position was “particularly egregious” because “George Floyd made it clear he was unable to breathe and expressed the view that he was dying as a result of the officers’restraint.” Id. ¶ 1(c).
