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.
