Notes on homicide laws MN vs MO in context of Derek Chauvin Trial

The Derek Chauvin Trial (related to use of force in the attempted arrest of George Floyd and his subsequent death in custody) has become bogged down in complex issues of criminal law, included the definitions of the different kinds of homicide in Minnesota (a National Review Article describes these issues and the timeline of changes to charges, motions, appeals).

Most lay people are unfamiliar with these areas of law or how they differ state-to-state. I was, myself, surprised at how Minnesota defines 3rd degree murder and that it is not a lesser-included offense to 2nd degree murder but rather has a different, specific purpose. In support of debate, this post contains the definitions of related offenses in Missouri with links to equivalent offenses in Minnesota. The reader is encouraged to flip through the links and compare, particularly looking at the placement of terms I emphasize such as knowingly, recklessly, negligently, etc., as these are exactly the terms upon which legal cases turn. For general background and definitions, I particularly recommend Samaha's "Criminal Law, 11th ed." which is targeted at lay (non-attorney) readers.

The notes themselves are copied from my own Evernote entry which I created for personal reference:

RSMO 565.021.  Second degree murder, penalty. — 1.  A person commits the offense of murder in the second degree if he or she:

  (1)  Knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person; or

  (2)  Commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted perpetration of such felony. [This is "Felony Murder".]

  2.  The offense of murder in the second degree is a class A felony, and the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter.

...

[ In MN, the equivalent is 609.19 ( https://www.revisor.mn.gov/statutes/cite/609.19 )

RSMO 565.023.  Voluntary manslaughter, penalty — under influence of sudden passion, defendant's burden to inject. — 1.  A person commits the offense of voluntary manslaughter if he or she:

  (1)  Causes the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of subsection 1 of section 565.021, except that he or she caused the death under the influence of sudden passion arising from adequate cause; or

  (2)  Knowingly assists another in the commission of self-murder.

  2.  The defendant shall have the burden of injecting the issue of influence of sudden passion arising from adequate cause under subdivision (1) of subsection 1 of this section.

  3.  The offense of voluntary manslaughter is a class B felony.

[MN equivalent is 609.20 ( https://www.revisor.mn.gov/statutes/cite/609.20 )]

RSMO 565.024.  Involuntary manslaughter, first degree, penalty. — 1.  A person commits the offense of involuntary manslaughter in the first degree if he or she recklessly causes the death of another person.

  2.  The offense of involuntary manslaughter in the first degree is a class C felony, unless the victim is intentionally targeted as a law enforcement officer, as defined in section 556.061, or the victim is targeted because he or she is a relative within the second degree of consanguinity or affinity to a law enforcement officer, in which case it is a class B felony.

RSMO 565.027.  Involuntary manslaughter, second degree, penalty. — 1.  A person commits the offense of involuntary manslaughter in the second degree if he or she acts with criminal negligence to cause the death of any person.

  2.  The offense of involuntary manslaughter in the second degree is a class E felony, unless the victim is intentionally targeted as a law enforcement officer, as defined in section 556.061, or the victim is targeted because he or she is a relative within the second degree of consanguinity or affinity to a law enforcement officer, in which case it is a class D felony.

[MN has only one Involuntary Manslaughter offense, 609.205 ( https://www.revisor.mn.gov/statutes/cite/609.205 )]

(MN) 609.195 MURDER IN THE THIRD DEGREE.

(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years. [This is referred to as "Depraved Indifference Homicide"; we do not appear to have this in Missouri law.]

(b) Whoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule I or II, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years or to payment of a fine of not more than $40,000, or both.

Missouri, Lesser-Included Offense:

565.029.  Lesser degree offenses in homicide cases — instruction on lesser offenses, when. — 1.  With the exceptions provided in subsection 3 of this section and subsection 3 of section 565.021, section 556.046 shall be used for the purpose of consideration of lesser offenses by the trier in all homicide cases.

  2.  The following lists shall comprise, in the order listed, the lesser degree offenses:

  (1)  The lesser degree offenses of murder in the first degree are:

  (a)  Murder in the second degree under subdivisions (1) and (2) of subsection 1 of section 565.021;

  (b)  Voluntary manslaughter under subdivision (1) of subsection 1 of section 565.023;

  (c)  Involuntary manslaughter in the first degree; and

  (d)  Involuntary manslaughter in the second degree;

  (2)  The lesser degree offenses of murder in the second degree are:

  (a)  Voluntary manslaughter under subdivision (1) of subsection 1 of section 565.023;

  (b)  Involuntary manslaughter in the first degree; and

  (c)  Involuntary manslaughter in the second degree.

  3.  No instruction on a lesser included offense shall be submitted unless requested by one of the parties or the court.

Minnesota Lesser-Included Offense:

609.04 CONVICTION OF LESSER OFFENSE.

Subdivision 1.Lesser offense prosecution.

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:

(1) a lesser degree of the same crime; or

(2) an attempt to commit the crime charged; or

(3) an attempt to commit a lesser degree of the same crime; or

(4) a crime necessarily proved if the crime charged were proved; or

(5) a petty misdemeanor necessarily proved if the misdemeanor charge were proved.

Subd. 2.Conviction; bar to prosecution. A conviction or acquittal of a crime is a bar to further prosecution of any included offense, or other degree of the same crime.

Capitol Riot Officer-Involved Shooting

This page will organize a set of sources and commentary on the Officer-Involved Shooting during the 2021 US Capitol Riots on 6 January in which Alisha Babbitt was killed. The intent here is to have these sources and links in one place for ease of discussion and debate, including analysis of police use of force involved by myself or by others. Gathering sources will come first and commentary will be added later. It will need to be reorganized as I go.

Version 0.4: 15 January 2021 (Added a number of links including more videos and more background on Babbitt.)

Disclaimer: This page and any commentary on it is my own and not an official statement of any organization. There are clearly both political and non-political issues here (or, at least, some issues which should not be political). A subset of these issues, those dealing with use-of-force and the shoot/no-shot decision separated (as much as possible) from the political context, will be discussed using these sources at the 11 January meeting of the Lawrence County Sheriff's Auxiliary. This page, however, does not represent that discussion. The use of force analysis will almost certainly have to change over time in any case as more information is known, so no such analysis could be definitive at this time. Clearly, the videos linked here are going to contain graphic content and this discussion will be of a violent subject: if you do not wish to be exposed to such content, do not continue.

What Are the Questions?

Let's start out with a decent framing of the questions. LegalInsurrection does a decent job in "Video of Shooting Death of Ashli Babbitt Raises Questions About Use of Deadly Force". Deciding on major questions (and dispensing with less useful questions) should guide inquiry and gathering of sources. The primary issues I am interested in here are:

* Was the individual officer's use of force correctly made and justified?

* Who actually made the choice? Was it the individual officer or did he act in response to an order given? Or was the choice part of a mission parameter/rule of engagement? (e.g. "Do not fire unless the barrier is breached, but do not permit protesters to enter this lobby.")

* Why was the officer who made the shoot/no-shoot decision put in the position of having to make that choice? In other words, were other failures made in the larger response which might have prevented the necessity of fatal confrontation. Potential "lessons learned" are crucial for security planning in future events in this crazy political climate.

* What larger liability might apply to others involved in illegal activity (i.e. the Felony Murder question)

* What were the actual and perceived physical threats presented by Babbitt and the larger incident?

Questions which I do not feel are terribly useful:

* Was what Babbitt did wrong/illegal? The answer to this question is rather obvious and there can be little doubt that climbing a broken barricade was not a lawful or peacable act. The further intentions of the deceased cannot be gauged and, as she is deceased, there is no question of further punishment.

* Did Babbitt "deserve to die"? This is often too ill-defined a question to answer and too wrapped up in political/ideological perceptions. It is clear that her act was willful, illegal, and dangerous. There is no reason to suppose that she was unaware that her actions were risky and might lead to injury or death. Nor does answering such a question change the fact that she did, in fact, die whether she "deserved it" or not.

Videos of the Shooting

Information on the Capitol Riots is frequently taken down. There is no guarantee that the following sources will continue to exist indefinitely. Please inform me of broken links in comments (or better sources) and I will attempt to fix them. The video of the incident itself are crucial for looking at use-of-force questions.

Heavy.com commentary with Twitter link to the original Sulivan video: https://heavy.com/news/ashli-babbitt-video-capitol-shooting/ This video is the first one widely shared but shows little context and it is not easy to get a sense of the space around the incident. The LegalInsurrection link above also has the same video.

Two videos with commentary by the Washington Post showing a different viewpoint than the Sullivan video and more context before the shooting: (MSN link) This link also contains a map of the Capitol showing the area of interest.

 

Bell?ngCat's "The Journey of Ashli Babbit" has several video links in one place, including a link to a YouTube video which combines and sinks four videos into one. 

TheResistance has a 44-minute video showing the entire progression from entry into the Capitol to the Officer-Involved Shooting.

The question of the shoot/no-shoot decision is more complicated than justification. There is also a larger safety question involved. Training and policy typically dictates discharging a weapon only with a clear target and clean background. As can be seen from these videos, the "background" to the shot was quite complicated and rapidly changing, something which may be hard for people to appreciate if they have not stood behind a gun (in training or a live incident) and had to try to make such a decision. To the left of the barrier (facing into the lobby, opposite to the shooter's perspective) were more protesters and people filming (whether or not 'protesters'). To Babbitt's right were Capitol Police staging on the descending stairwell. Behind the doors in the lobby were more Capitol Police and officials sheltering. Behind the frontline of protesters were other protesters who may not have presented an immediate threat and, seemingly, other police. Any weapon discharge might potentially hit friendly, neutral, or unknown targets. It is possible that the shooter had (or perceived) a background which was only momentarily clean, while Babbitt was elevated above others and before she made it into the lobby proper. Only at that moment (arguably) could a round aimed at Babbitt at an upward angle avoid striking others. This may have determined the timing of the shot; any additional video or information to this question may be very important.

Legal Commentary

The question of whether what Ashli Babbitt did was illegal is clear (it was not) and moot (she is dead and therefore there is no point in charging her with a crime). The incident has larger implications for the use-of-force inquiry into the shooting and the potential charges for others who were present. This section will gather some relevant commentary as I find it.

A discussion of Felony Murder  in the context of the Capitol Riot and the death of Ashli Babbitt. Includes definition of Felony Murder, references DC statutes, and looks through the circumstances of her death in that light.

Ashli Babbitt

Some background on Ashli Babbitt from Heavy.com and NYPost. Also some (limited) information about past charges for property damage and a restraining order. Bell?ngCat has a detailed article, "The Journey of Ashli Babbitt" describing the chnages in political views over time from Obama supporter to Trump supporter to QAnon.

John Sullivan

Sullivan is a controversial individual because he recorded the first widely-distributed video of Ashli Babbitt's death while standing in the Capitol nearby. Sullivan is not a Trump Supporter (nor does he appear to be a member of Antifa) but from Insurgence USA, an organization for "racial justice and police reform" who is decidedly anti-Trump. So, ineveitably, the question arises: what was he doing in the Capitol and what were his motives? This link from PJ-Media includes a number of other links discussing this question and the more general question of who might or might not have been associated with Antifa. It also includes a video of Trump Supporters stopping someone who is (claimed to be) Antifa from breaking into a Capitol window. It is clear, therefore that the situation may have been complex and more research is needed on who was there, why they were there, and just what they thought they were doing.