The Case Before Us

I have no idea what Judge Peter Cahill will do now that he is faced with a recent Court of Appeals decision telling him a February decision now subject to Minnesota Supreme Court review is “precedent” and must be applied in deciding the applicability of Minnesota’s twisted Third Degree Murder statute.

I do know this:

The real issue and distinction between Mohamed Noor and Derek Chauvin is time. It took time for Derek Chauvin to act. It took almost none for Mohamed Noor.

The other difference is like a snake prepared to bite: it is that former Officer Mohamed Noor was charged under Minnesota Statute 609.11 with using a dangerous weapon. He shot a gun — whether right or wrong.

Chauvin has no such charges.

And in other Minnesota cases involving Third Degree Murder, defendants have almost invariably fired weapons or used motor vehicles. As I understand it, only one rare and nonprecedential case involved a hanging.

Therefore, in my opinion, a puzzling and yet valid legal issue remains as to whether under the developing Minnesota law governing Third Degree Murder, a court could determine that Derek Chauvin (who was then a police officer) could be viewed as acting in a manner “eminently dangerous to others,” even in the absence of the accoutrements of deadly force — especially given his status as a police officer.

Remember, police officers are authorized to use non-deadly force in effecting an arrest.

And while it is all too obvious that police can still be guilty of applying or using excessive force or even of murder — the real legal issue is whether use of force, force which is not legally “deadly force,” is in this context “eminently dangerous to others” as the law defines the term. The emphasis would be on the words “eminently dangerous.”

This key factual distinction in the Chauvin case makes the Third Degree Murder charge seemingly all the more dubious, if not legally doubtful; certainly not identical to the fact pattern in. the tragedy played out in State v. Noor.

Hence, a judge reasonably might order a procedure known as “certification” to the Minnesota Court of Appeals as to the very “important and doubtful” question as to whether a police officer using non-deadly force can as a matter of law engage in “an act that is eminently dangerous to others” — the standard for Murder in the Third Degree.

The Minnesota Rules of Criminal Procedure even provide for this procedure of pretrial certification in Minn. R. Crim. P., Rule 28.03(3).

And, a decision on this fact pattern would be an issue wholly distinguishable and separate from the intermediate court’s recently decided Noor precedent —which seems to upend years and decades of understanding about the limited circumstances for Third Degree Murder.

Indeed, the stakes are high enough in this prosecution for the parties to know if the absence of deadly weapon (Minnesota Statute 609.11) in the case of Derek Chauvin is a legal distinction enough to make a difference.

Unfortunately, the atmospherics make this now a near impossibility: a courthouse covered like a fortress; a media focus from the world; and the logistical nightmare of a waiting jury.

Since a certification would stay the proceedings until the decision by the Minnesota Court of Appeals’ resolution of the issue, we are likely to see a trial go forward on an issue where no one in the courtroom will know the answer to an “important and doubtful question of law.”




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