UPDATED As millions of people take to the streets demanding racial justice, accountability for police violence, and the demilitarization of the police, the case against the ex-police officers involved in the killing of George Floyd in Minneapolis is progressing. The state attorney general, Keith Ellison, has taken over the case from the county attorney’s office. Derek Chauvin has now been charged with second-degree murder: intentionally causing the death of another without premeditation. He was originally charged with third-degree murder — which does not require the prosecutor to show an intent to kill, only that the perpetrator caused the death of another “by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life” — and second-degree manslaughter — which requires a showing of “culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” These originally charged offenses are lesser included offenses of the current second-degree murder charge because, if a person commits the heightened charge, they have inevitably committed all the elements of the included charge (and then some). As such, the defendant can be acquitted of the crime charged but convicted of a lesser degree of homicide as an included offense. Juries may be instructed of the possibility of convicting on a lesser included offense if the evidence adduced would permit a guilty verdict on an included crime.

Chauvin’s three colleagues (Thomas Lane, Tou Thao, and J. Alexander Kueng) have now also been charged with complicity — specifically, two counts of aiding and abetting second-degree murder and second-degree manslaughter. According to the criminal complaint, the three were involved in originally detaining and cuffing Floyd, holding him down while Chauvin put his knee on Floyd’s neck for almost nine minutes, dealing with bystanders who were attempting to intervene, and later checking for a pulse (and not finding one). Two of the ex-police officers now charged in Lloyd’s death were apparently “rookies” right off probation. Their lawyer has already begun to argue that they had no choice but to follow the lead of Chauvin, who was their superior. Although the video is horrific and heartbreaking to watch, achieving a conviction on these latter charges will not be easy.

Complicity is a theory of derivative liability that depends on proof that a crime was committed by another, the so-called principal. This form of criminal liability requires sufficient evidence that the accused contributed to the perpetration of a crime by another. Complicity in criminal conduct can take many different forms, including by instigation, aiding and abetting, and procuring means. Although these terms are usually said in one breath, the law does often make a distinction between “aiding” and “abetting,” with the former referring to giving concrete assistance whereas the latter involves facilitating, encouraging, or lending moral support for the commission of an act. Under Minnesota law, the complicity statute states:

A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.

Under theories of complicity, a person may be criminally responsible for the conduct of another when it is determined that s/he knowingly participated in the commission of an offence — before, during, or after the crime is committed — and that this participation directly and substantially affected the commission of that offence. Where the assistance is provided after the fact (for example, during a cover-up), many legal systems require proof that a prior agreement existed between the principal and the accused at the time of the planning, preparation, or execution of the crime. Otherwise, the individual will ordinarily be prosecuted for the separate offense of being an accessory-after-the-fact, which carries a lesser sentence. In most criminal systems, an accomplice may be tried even when the principal perpetrator of the crime has not been identified, the principal cannot be tried (because they are a juvenile for example), or where the principal’s guilt cannot be proven for whatever reason. In some states and legal systems, individuals convicted of aiding and abetting will receive a lesser punishment than the principal perpetrator.

Standards for accomplice liability vary across jurisdictions. But, in general, the physical element of aiding and abetting involves acts or omissions that assist, encourage, or lend moral support to the perpetration of a crime by the principal. In general, it must be shown that the act or omission of the accused accomplice had a substantial effect on the commission of the crime, but there is no “but for” causation requirement. Nor is it necessary to show that the aider/abettor and the principal reached an agreement in advance that the crime would occur. (If that is the case, the individuals may be charged with the crime of conspiracy, which is in essence an agreement to commit a crime).

The mental element of complicity requires, at a minimum, a showing that the accomplice knew that their conduct would assist in the commission of a crime. In some systems, the accomplice need not affirmatively wish that the underlying offense be committed; being indifferent to this outcome can still constitute aiding and abetting. In other legal systems, including Minnesota, it must be shown that the accomplice acted purposefully in that they affirmatively wanted the principal to commit the crime.

In general, complicity implies some positive action, which would ordinarily exclude complicity by a failure to act or an omission. However, aiding and abetting can occur in the form of tacit approval, psychological influence, and words of encouragement, particularly from someone in a position of authority whose silence will send a signal of official tolerance. Where there is a true omission, an accused can only be convicted of aiding and abetting when they had a legal duty to act and the means to fulfil that duty (e.g., the duty parents owe their children or the duty of military superiors to supervise their subordinates). Mere presence at the scene of the crime is generally not sufficient to support a conviction, including in Minnesota.

In closing, a caveat: I am not an expert on domestic criminal law, but rather international criminal law (ICL), that subset of international law involving the use of criminal sanctions to enforce law that is primarily international in its origins. Modern ICL sits at the intersection of public international law — which historically regulated the behavior of states when they acted on the world scene — and domestic criminal law — which metes out individualized criminal penalties for breaches of the peace. There is a whole line of “mere presence” and aiding and abetting by omission cases in the ICL canon — the bourgmestre who stood by while Tutsi women were raped to death in his local compound; the militia member who, contrary to the law of war, failed to protect hospitalized prisoners-of-war from execution; the prison warden who stood passively by while detainees were mistreated and used as human shields; and the interrogator who allowed the subject to be sexually assaulted in his presence (this being the seminal case). In the prison warden case, for example, the International Criminal Tribunal for the Former Yugoslavia determined that:

By being present during the mistreatment, and yet not objecting to it notwithstanding its systematic nature and the authority he had over its perpetrators, the accused was necessarily aware that such tacit approval would be construed as a sign of his support and encouragement. He thus contributed substantially to the mistreatment (para 87).

The ICL doctrine generally requires a showing that: (a) the accused was under a duty to act; (b) the accused had a capacity to act; (c) the omission made a substantial contribution to the criminal conduct by the principal; and (d) the accused acted with knowledge of the essential elements of the crime being committed by the principal and that the accused’s conduct would facilitate the commission of a crime. Another subset of the cases involving culpable omissions are superior responsibility cases in which a superior is held responsible for the depredations of his subordinates when the superior knew, or should have known, that crimes were underway, contemplated, or had been committed. The fact that a subordinate was acting pursuant to superior orders is not a defense to criminal liability under ICL — a principle that dates to the Nuremberg era — but it can operate in mitigation at the time of sentencing. In other words, in the ICL world, the defense of superior orders does not exonerate an individual subordinate from liability for crimes committed pursuant to those orders. As such, subordinates are obligated to disobey unlawful orders issued by their superiors.

Experts on Minnesota law are starting to weigh in on the challenges of proving these new charges to a criminal law standard. Civil suits for money damages (e.g., wrongful death) will no doubt follow, and these proceed under a lesser burden of proof but must also surmount the controversial defense of qualified immunity in some cases (see our critique of the development of this pernicious doctrine here).

UPDATE: The families of George Floyd, Breonna Taylor, Michael Brown, and Philando Castile, with the ACLU, are demanding that the U.N. Human Rights Council convene a special session dedicated to police violence against Black Americans and demonstrators. The families are also consulting with the Council’s “special proceduresmandate holders (e.g., independent special rapporteurs and working groups), for example the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.

Image: Police advance on demonstrators who are protesting the killing of George Floyd on May 30, 2020 in Minneapolis, Minnesota. Former Minneapolis police officer Derek Chauvin was arrested for Floyd’s death and is accused of kneeling on Floyd’s neck as he pleaded with him about not being able to breathe. Floyd was pronounced dead a short while later. Chauvin and three other officers, who were involved in the arrest, were fired from the police department after a video of the arrest was circulated. (Photo by Scott Olson/Getty Images)