Former federal prosecutors clarify how bringing civil rights expenses towards Derek Chauvin would work

Derek Chauvin is reportedly facing federal civil rights charges. Minnesota Department of Corrections via AP / Court TV via AP

• Derek Chauvin and three others who were involved in George Floyd’s death are reportedly charged with civil rights charges.

• Former federal prosecutors say the DOJ can indict chauvin if his sentence for murder is not material.

• The DOJ could also seek a second conviction to ensure Chauvin is not free on appeal, they said.

• You can find more stories on the Insider homepage.

Federal Prosecutors have reportedly opened civil rights proceedings against Derek Chauvin and the three other former Minneapolis police officers who were at the scene of George Floyd’s murder.

Two former federal prosecutors said Insider Chauvin could bring charges for depriving individuals of their fourth amendment rights, which in theory could result in a death sentence – although they say it would be unlikely.

It is not easy to prove that law enforcement officers violated a suspect’s civil rights, and historically, the Department of Justice does not bring all the officers charged with wrongdoing. But in Chauvin’s case, according to Barbara L. McQuade, former U.S. attorney for the Eastern District of Michigan, evidence has already been gathered and presented that would likely be used in a federal civil rights lawsuit.

“The length of time the knee was on the neck, for example,” said McQuade. “I think we would see experts again discussing whether this was a sensible or an excessive use of force.”

A jury in Hennepin County, Minnesota found Chauvin guilty of second degree murder, third degree murder and second degree manslaughter at his April criminal trial. Chauvin was immediately taken into custody and is expected to be sentenced in June.

Justice Department officials reportedly planned to arrest Chauvin in the courthouse and charge him with civil rights violations if found not guilty of Floyd’s murder or if there was a trial. Despite Chauvin’s convictions, prosecutors continue to plan to ask a grand jury to indict him, J. Alexander Kueng, Thomas Lane and Tou Thao on civil rights charges, according to the Minneapolis Star Tribune.

The story goes on

In Chauvin’s case, prosecutors are reportedly asking a grand jury to evaluate his actions in the violent arrest of a 14-year-old boy in 2017, in addition to the Floyd case.

Prosecutors said in court documents related to the murder trial that Chauvin hit a black teenager in the head with a flashlight and left him prone for 17 minutes, reported the Star Tribune, ignoring the boy’s pleas that he could not breathe.

A photo of Derek Chauvin kneeling on George Floyd was presented as evidence in his murder trial. Pool video, court TV

To convict, a jury must find that officers willingly violated a suspect’s rights

The burden of proof is high in civil rights cases involving law enforcement officers as the jury finds that the officer knew he was violating the suspect’s rights and not just making a mistake, McQuade and Daniel Richman, a former prosecutor in the U.S. Attorney’s Office for the southern borough of New York, insiders said.

“It’s that willpower that can be difficult to prove,” said McQuade, a professor at the University of Michigan Law School. “It has to show that the disenfranchisement was deliberate, and so one would have to have evidence to show that the person knew they were violating the person’s constitutional rights.”

The constitutional law at issue in this case is the fourth amending law, which protects citizens from improper seizures as well as from the excessive use of force, she said.

When a federal indictment is brought, the court jury is instructed to look at the case from the perspective of a reasonable local official, McQuade said, bearing in mind that police situations can evolve and depend on split-second decisions. The jury cannot convict an officer of willfully breaking the law if he finds that he simply panics in a challenging situation, She said.

“That gives officers room to make mistakes,” said McQuade.

Richmond, a professor at Columbia Law School, told Insider the jury is also being instructed that whatever they must do to find an officer who acts willingly is to determine that he knows his actions are unreasonable.

“It’s a very demanding burden of proof, but it’s one that allows a jury to convict an officer who really knows he’s crossing the line,” he said.

George Floyd Square will be on display in Minneapolis on February 8, 2021. Ten months after cops wiped Floyd’s moans off the street, the square remains a makeshift memorial. AP Photo / Jim Mone

Federal prosecutors can bring charges to ensure Chauvin isn’t free if his state conviction is overturned

According to Transactional Records Access Clearinghouse, a research organization at Syracuse University, 49 civil rights cases were filed against US officials in 2019. McQuade and Richman told Insider that the number of cases in which the DOJ has been involved in the US is low.

McQuade said the onus of proving an officer’s willingness to violate a suspect’s rights can be a high bar. The federal government does not often pursue these cases in part because its policy is not to file criminal charges unless there is admissible evidence that would make it likely to get and uphold a conviction, she said.

It is also uncommon for the Justice Department to bring charges against the federal government in a case involving a state conviction. But it happens when a case is so significant that prosecutors and federal prosecutors want two convictions to serve as a “setback” for each other, McQuade said in what is known as the Petite Policy.

“It generally says that federal prosecutors shouldn’t repeat prosecutors’ efforts unless there is a significant federal interest that has not yet been confirmed,” she said.

Federal prosecutors may be waiting for Chauvin’s conviction to move forward in the murder trial, and when the time he is committed seems sufficient, they will withdraw from federal proceedings, McQuade said.

Prosecutors may also seek a secondary conviction so that Chauvin cannot run free if he later successfully appeals.

“By having a second conviction, there is some kind of belt-and-suspender approach to a case that is of significant concern to both the state and the federal government,” McQuade said.

She predicted the US could enter an era of increased prosecution of police misconduct cases.

“There was definitely a turn in the other direction during the Trump administration,” said McQuade. “There seems to be a renewed obligation to hold the police accountable if they abuse their power. This seems to be what Attorney General Merrick Garland announced, and he appears to be doing it.”

Don’t expect a quick trial when federal fees go down

The Speedy Trial Act states that a defendant has a right to a trial within 70 days of being charged, but usually the defense requires more time to organize a case, McQuade said.

“Before an indictment was filed, prosecutors had plenty of time to get their ducks in a row,” she said. “So they put an expert in and they probably testified in front of the grand jury, or at least interviewed them. They’re usually ready to go.”

In the Chauvin case, the defense might be a little prepared after the state murder trial. But the lawyers may want to find new experts, McQuade said.

“The charges are a little different. They want to review all the evidence and investigate the negotiation of a plea,” she said. “So it can in all likelihood take six months to a year before federal proceedings are actually brought to court.”

The selection of the jury would also be a lengthy process in a civil rights case against one of the officers.

In Chauvin’s murder trial, it took two weeks to select a jury, which a judge determined could be impartial on the case as attorneys questioned more than 100 people about their views on Black Lives Matter, protests and police. McQuade said the process could be even more difficult in a later federal case.

“I think you could argue that it could be even more difficult, right?” McQuade said. “Because after the verdict there may be some meaning among the citizens: ‘Well, we already know he’s guilty because the jury has already found him guilty.'”

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