Systemic racism in the US: Why is it happening and what can be done? I don't know about the US, but in the Netherlands you can charge someone with 2nd or 3rd degree in the same writ, where 2nd degree is the primary claim and 3rd degree the secondary. You argue your case trying to prove both, so if the primary claim isn't accepted, you still have your secondary one.
But seriously, most people don't struggle against police officers as that will just escalate violence. And if you're black, probably doubly so. So we have a man who isn't struggling anymore but complaining about his breathing.
Change the imagery for a moment where the police officer isn't choking him with a knee but both his hands. For 4 minutes. And the other guy just stands there while he's doing it.
To be honest, in the Netherlands you can probably go for 1st degree as those 4 minutes gave him time to reconsider, sufficient time for it to be considered premeditated according to our court cases.
We had a case someone who was fighting stepped away, drew a knife and then killed his opponent. The fact he broke away to reach for a deadlier weapon made it premeditated according to the courts as it allowed a moment for reflection.