Felony murder in Minnesota requires proof that the accused acted "without intent to effect the death of any person, while committing or attempting to commit a felony offense." With this charge, the prosecutors are making the argument that Derek Chauvin committed a felony — assaulting Floyd — and is guilty of murder even though he didn't intend to kill Floyd. The merger doctrine, a basic principle of felony murder law, could lead a court in Minnesota to dismiss this charge, eliminating the possibility for justice.
Here's how that works: An assault under any definition involves contact with a victim's body by some means, or a threat or attempt to make contact. So every homicide, by definition, involves an assault. If a felony murder could be based on an assault, every homicide would become murder. Prosecutors would not charge manslaughter or vehicular homicide when those charges would be more appropriate, because they could always go for a murder conviction instead by basing felony murder on assault. The merger doctrine exists to prevent this.
There are old cases in Minnesota that allow a felony murder to rest on "aggravated assault," but that crime is no longer on the books. Chauvin is charged with assault in the third degree, which is committed if one "assaults another and inflicts substantial bodily harm." It is impossible to cause the death of a person without making contact with their body and also inflicting substantial bodily harm upon them. If assault in the third degree supports a felony murder charge, then all homicides committed in Minnesota can be prosecuted as murder.
If a court applied the merger doctrine to Chauvin's case, it would result in the dismissal of the felony murder charge against him. If the court did not apply merger, this would result in injustice in other cases down the road.
This is a dangerous situation. Imagine what might happen if a court were to dismiss the murder charge or reverse a murder conviction on appeal because of the merger doctrine — a rationale that would look like a legal technicality to almost everyone.
There is, however, an escape from this situation. The prosecutors can charge a different kind of murder that would portray the killing of Floyd as what it was.
A person who "causes the death of a human being while committing ... a felony crime to further terrorism and the death occurs under circumstances manifesting an extreme indifference to human life" is guilty of first-degree murder under Minnesota law. This definition of murder refers to the commission of a felony, but is not felony murder. It requires proof of more facts than causing death and the commission of a felony, and cites intentions independent of an assault.
Far more important than that, however, is the fact that it describes what Chauvin actually did. No decent person can view his attitude — hands in his pockets as he chokes the life from Floyd — as anything but "extreme indifference to the value of human life." As for terrorism, Minnesota's criminal code defines it as "a premeditated act involving violence to persons or property that is intended to ... terrorize, intimidate, or coerce a considerable number of members of the public in addition to the direct victims of the act."
Notice that premeditation on the killing is not required. Only violence must be premeditated, as it was from the moment Chauvin responded to Floyd's resistance with excessive force.
The remaining element — an intention to terrorize, intimidate or coerce other people — is as clear as Chauvin's indifference to the value of human life. The video shows Chauvin looking directly into the camera as he kills Floyd. His expression is threatening and defiant. Neither he nor his fellow officers makes any effort to block the recording of the killing, though they could not have been unaware of it. The killing sent a message of intimidation and coercion that was clearly understood by people around the world, as they took to the streets in astonishing numbers everywhere to reply to Chauvin's threat.
The public's response is driven by the horror of Floyd's murder, but it is also driven by the fact that police commit misconduct with impunity. Federal civil rights laws cannot be enforced because they have immunity from that kind of liability. Citizen review boards are toothless. Police unions protect them from accountability to anyone but themselves. The only available deterrent is the criminal law. If prosecutors charge a felony murder based on nothing but an assault, however, then even that deterrent will be lost.
This is not to say that terroristic first-degree murder would be easy to prove. In most places, terrorism-related crimes are not charged against domestic terrorists, in part because these laws were passed in response to the 9/11 attacks.
There are no comparable cases prosecutors can look to as examples, and they would have to be bold to base the charge on the statute itself with minimal precedent. It is also true that Minnesota courts might reject the merger argument against the felony murder charge. Each charge carries risks and advantages.
This presents no dilemma, however, because prosecutors have the right to charge both kinds of murder in a single case, as alternatives. They should do so, and allow a jury to say what kind of murder Chauvin committed. Whether he is convicted of terroristic murder or not, the charges against Chauvin should call Floyd's killing by its name.
Kyron Huigens is a professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email firstname.lastname@example.org.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.