George Floyd death: Chauvin could face tougher sentence as Minnesota judge finds aggravating factors

A judge's ruling made public Wednesday lists "aggravating factors" that could pave the way for a longer sentence for former Minneapolis police officer Derek Chauvin, who was convicted last month of second and third-degree murder and manslaughter in George Floyd's death.

Though found guilty on all three counts, Minnesota law says that Chauvin will only be sentenced for the most serious count – second-degree murder – which carries a maximum prison sentence of 40 years. But because he has no prior criminal record, Minnesota sentencing guidelines say Chauvin could face a presumptive sentence of 12.5 years on that count. 

But prosecutors asked for what is known as an upward departure – citing five aggravating factors.

In his ruling dated Tuesday, Hennepin County Judge Peter Cahill decided that four of the five factors applied. Chauvin "abused a position of trust or authority," "treated George Floyd with particular cruelty," "committed the crime as a group with the active participation of at least three other persons and "Children were present during the commission of the offenses," Cahill ruled.

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In finding that Chauvin treated Floyd with particular cruelty, Cahill wrote: "The slow death of George Floyd occurring over approximately six minutes of his positional asphyxia was particularly cruel in that Mr. Floyd was begging for his life and obviously terrified by the knowledge that he was likely to die but during which the Defendant objectively remained indifferent to Mr. Floyd’s pleas."

The judge wrote that on May 25, 2020, Chauvin abused his position of trust and authority as a uniformed peace officer employed by the Minneapolis Police Department that should guarantee anyone arrested be treated with respect and only reasonable force and that medical needs will be addressed in a timely fashion.

The jury determined in returning the guilty verdicts on all three counts that Chauvin was unreasonable and acted outside his authority when he held Floyd in a prone position on the pavement of Chicago Ave. for the "inordinate amount of time" of more than nine minutes and 40 seconds – a position he "knew from his training and experience carried with it a danger of positional asphyxia," Cahill wrote.

The judge noted that one of the other officers involved in the restraint twice checked Floyd’s pulse after Floyd had been restrained for more than six and a half minutes and informed Chauvin he was unable to detect a pulse. Other officers involved in the restraint twice inquired whether they should turn Floyd onto his side into a "recovery position" and informed Chauvin that they believed Floyd had passed out.

"Thus, not only was the danger of asphyxia theoretical, it was communicated to the Defendant as actually occurring with George Floyd but the Defendant continued his restraint of Floyd until EMS personnel arrived and prepared to load Mr. Floyd onto a stretcher," the ruling said.

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Three 17-year-olds and a nine-year-old were present on the sidewalk adjoining Chicago Ave. and were standing only a few feet from where Chauvin and other officers were restraining Floyd prone in the street and observed Floyd "being asphyxiated as he begged for his life," the ruling said. During the trial, the nine-year-old had testified that watching the restraint made her "sad and kind of mad."

"Although these four children did not observe all the events, they did observe a substantial portion of the Defendant’s use of force and witnessed the last moments of Mr. Floyd’s life," Cahill wrote.

Officers Thomas Lane and J. Alexander Kueng were actively involved in the restraint that resulted in Floyd’s death. By keeping bystanders away from Floyd, Officer Tou Thao allowed other officers to continue an unreasonable use of force and prevent bystanders from rendering medical aid, the ruling said. The three other officers face federal civil rights charges in Floyd’s death and are slated to stand criminal trial on the state charges of aiding and abetting murder and manslaughter together in August.

Cahill said the fifth factor – that Floyd was particularly vulnerable – has not been proven beyond a reasonable doubt because although he was handcuffed, Floyd had still been able to resist arrest and prevent three officers from seating him in a squad car before being placed in a prone position.

Drug intoxication did not render Floyd particularly vulnerable compared to other victims of murder, Cahill wrote. Restraining Floyd in a prone position with the weight of three officers for a prolonged period of time "did not create vulnerability that was exploited to cause death; it was the actual mechanism causing death," the judge said.

No matter what sentence Chauvin gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of the penalty in prison and the rest on supervised release, commonly known as parole.With Tuesday's ruling, Cahill has given himself permission to sentence Chauvin above the guideline range, though he doesn't have to -- as attorneys for both sides will argue whether an upward departure is appropriate and how long the sentence should be.

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A pre-sentence investigation report will also be conducted. These are usually nonpublic and include highly personal information such as family history and mental health issues, as well as details of the offense and the harm it caused others and the community.

Chauvin has also been indicted on federal charges alleging he violated Floyd's civil rights, as well as the civil rights of a 14-year-old he restrained in a 2017 arrest. If convicted on those charges, which were unsealed Friday, a federal sentence would be served at the same time as Chauvin's state sentence.

The Associated Press contributed to this report.