The Case Before Us, Footnote 2: Why We Know the Arrest was Illegal.

In my last installment, I wrote as if Derek Chauvin and his fellow MPD officers (now co-defendants) had treated Mr. Floyd’s arrest as a felony or “forgery” arrest. Or that they might even be authorized to pursue probable cause for an arrest of an offense committed outside their presence. But that assumption is fatally flawed.

Why? Because every fact so far adduced at the trial of State of Minnesota v. Derek Chauvin tells us that this could not be a felony arrest — under any circumstances. Nor could the officers alone develop probable cause to carry out the arrest, if George Floyd committed a non-felony. [We know from practical experience how preposterous it would be to believe these officers thought they were enforcing federal law, which might technically qualify as a felony — regardless of the amount at issue.]

The evidence and testimony from the young store clerk teach us that Mr. Floyd purportedly uttered a counterfeit twenty dollar bill.

We know that Minnesota law defines this as, at most, a gross misdemeanor.

We also know that Minnesota Statutes Section 629.34 deals with what criminal practitioners call an out-of-presence misdemeanor offense.

To be precise, Minnesota law prohibits (except in narrow circumstances not applicable here) the arrest of a person who commits a misdemeanor (non-felony) outside of the presence of the arresting officer.

The typical non-felony arrest for an offense committed outside of the officer’s presence hence requires a citizen’s arrest or an actual arrest warrant. Neither was present at the time of George Floyd’s arrest on May 25, 2020.

This fact alone — and the strict requirements of Minnesota Statutes Section 629.34 — explains why an officer can be heard on the videotape fabricating the basis for Mr. Floyd’s arrest as “forgery.” We know it was not.

In the light of these additional considerations, and the clear evidence that Mr. Floyd could not have committed a “colorable” felony, then we know that the arrest of George Floyd was illegal as a matter of Minnesota positive statutory provisions.

Misdemeanors and gross misdemeanors are plainly, in the judgment of the Legislature, far less worthy of exigent police action — namely the power to execute warrantless arrests for offenses committed outside of the presence of police. Their less serious nature likewise does not merit being met with overwhelming police violence. That policy is reflected in the law.

We can, therefore, reasonably conclude that had the four former Minneapolis police officers either understood the law, or simply followed the dictates of Minnesota Statutes Section 629.34, George Floyd might still be alive today.

-Albert Turner Goins