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).
