As noted in a prior post, on July 7, the attorney for defendant Thomas Lane filed a motion to dismiss the criminal complaint against him. On August 10 the prosecution filed its papers opposing that motion. On August 17, Lane’s attorney submitted his reply to the State’s Response.
The court hearing on this motion and other matters in the four criminal cases about the arrest and killing of George Floyd will be held on September 11.
Here is a summary of the prosecution’s legal and factual arguments opposing the dismissal motion that are set forth in the documents listed in the second footnote. Lane’s arguments for the motion are set forth in the papers listed in the first footnote, and a subsequent post will review Lane’s reply thereto.
The Evidence for the Dismissal Motion
Evidence regarding Lane and Defendant J. Alexander Kueng: Transcript of Bureau of Criminal Apprehension (BCA) Interview of Lane (Lane Ex. 1); Transcript of Lane body worn camera (BWC) (Lane Ex. 2); Lane’s BWC footage (Lane Ex. 3); Transcript of Kueng BWC footage (Lane Ex. 4; Keung’s BWC footage (Lane Ex. 5).
Evidence regarding Defendant Tou Tao: Tao’s BWC video (State Ex. 1); Recording of BCA interview of Tao (State Ex. 2).
Other evidence: Pictures of money in Floyd vehicle (Lane Ex. 6); Minneapolis Police Department training materials (Lane Ex. 7); MPD Policy and Procedure Manual (pertinent portion in effect at time of Floyd’s death) (State Ex. 3); Hennepin County Medical Examiner’s Office’s Autopsy Report (State Ex. 4); Hennepin County Medical Examiner’s Press Release Report (State Ex. 5). and Armed Forces Medical Examiner’s Autopsy Report (State Ex. 6).
Legal Standard for Dismissal Motions
Citing State v. Florence, 239 NW2d 892 (Mn Sup. Ct. 1976) and other Minnesota cases, the Prosecution states, “Probable cause exists if ‘the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime.’” “So long as the evidence ‘brings the charge against the prisoner within reasonable probability,’ the motion to dismiss for lack of probable cause must be denied.”
Moreover, for dismissal motions, “’[i]t is not necessary for the state to prove the defendant’s guilt beyond a reasonable doubt.’ . . . This rule reflects the strong public interest in having adjudications of guilt and innocence take place before a jury, drawn from the community, after the extensive adversarial testing of a criminal trial.” In evaluating such a dismissal motion, “the court must examine the ‘entire record, including reliable hearsay, . . . the complaint, police reports, the statements of witnesses and the representations of the prosecutor, who is an officer of the court.’” Moreover, “the court must ‘view the evidence and all of the resulting inferences in favor of the State’ and then determine ‘whether the evidence is sufficient to present a fact question for the jury’s determination.’”
The Charge of Lane’s Aiding and Abetting Second-Degree Unintentional Murder
The Legal Standards for Aiding and Abetting Second-Degree Murder
There are three elements of this crime in this case. First, Chauvin must have caused “the death of a human being [George Floyd] without intent to effect the death of any person, while committing or attempting to commit a felony offense [with certain irrelevant exceptions] on that person. Second, the other felony offense here is “third-degree assault,” which is Chauvin’s alleged “intentional infliction of or attempt to inflict substantial bodily harm” upon another person [George Floyd] and “the infliction of ‘substantial bodily harm” upon that other person. Third, Lane allegedly intended “his presence or actions to further the commission of that crime,” which includes “acquiring that knowledge while the accomplice is in the process of committing the offense” and that knowledge may be established by “circumstantial evidence.”
Probable Cause for Lane’s Alleged Aiding and Abetting Second-Degree Murder?
The State must establish that Chauvin committed second-degree unintentional murder of Floyd by intentionally committing or attempting to commit a felonious assault on Floyd and that Lane intentionally aided that assault. These requirements are satisfied here because Lane acquired the requisite knowledge while Chauvin was in in the process of committing the assault and Lane intended his actions to further the commission of that crime.
Without challenge from Lane, the evidence establishes that Floyd died, that Chauvin’s conduct was “a substantial causal factor’ in his death, that Chauvin intentionally inflicted bodily harm on Floyd and that Chauvin’s actions inflicted “substantial bodily harm” on Floyd.
In addition, there is evidence that Lane knew Chauvin was intentionally inflicting substantial bodily harm on Floyd by hearing him say “I can’t breathe” at least 20 times and he feared he would die at least 10 times. This conclusion was emphasized when Floyd lost consciousness. Indeed, Lane’s twice suggesting that Floyd be turned on his side demonstrates his knowledge of this bodily harm. Then Lane later told the medics that Floyd was “not responsive.”
Lane’s police training reinforces his knowledge that Chauvin was applying unlawful force with his neck restraint.
Lane obviously intended to assist Chauvin by using his hands and knees to help pin down Floyd’s legs during the restraint. Lane’s actions also show that he was hearing bystanders’ comments about Floyd’s condition.
The “’severity of the crime at issue’—a nonviolent property crime”– would justify a jury’s concluding that the physical restraint of Floyd from its inception was not reasonably justified. Moreover, the length of the restraint would also justify a jury’s concluding that even if the restraint initially was justified, it later became unjustified. In addition, the nature of Floyd’s alleged resistance did not support the officers application of a neck restraint.
Lane’s having been on his “fourth day on the job “is not a legal excuse for what he did do and not do that day. Minneapolis Police Department policy states. “It shall be the duty of every sworn employee [that includes Lane] present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.” And Lane was not an untrained rookie. He “was hired 15 months before the incident and then spent five months receiving skills training at a technical college, four months in the Minneapolis Police Academy, and four and a half months doing field training with other officers.”
Under Minn. Stat. sec. 609.05, subd. 3, Lane could escape aiding and abetting liability if he “abandon[ed] the crime or made a “reasonable effort” to prevent it before it happened, but there is no evidence to support such a defense.
At least “one autopsy report found evidence of asphyxiation while another concluded that “law enforcement subdual, restraint, and neck compression” was a cause of Floyd’s death.
At best, Lane’s arguments raise fact questions for resolution by the jury.
The Charge of Lane’s Aiding and Abetting Second-Degree Manslaughter
The legal standard for aiding and abetting liability already have been discussed and why there at least is a jury question as to whether Lane meets that standard.
Manslaughter in the Second Degree is defined in Minn. Stat. sec. 609.205(1): “A person who causes the death of another . . . by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” “Great bodily harm,” in turn, is defined as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss of impairment of the function of any bodily member or organ.” Thus, this crime “requires proof of (i) ‘objective gross negligence on the part of the actor’; and (ii) “subjective ‘recklessness in the form of an actual conscious disregard of the risk created by the conduct.’”
Here, in accordance with Minnesota cases, evidence supports a finding that “Lane knew that Chauvin’s conduct was a ‘gross deviation from the standard of care that a reasonable’ officer would observe in that situation” and that “Lane knew that Chauvin was consciously disregarding the risk of death created by his conduct.”
Further details of the prosecution’s opposition to Lane’s dismissal motion can be found in the 36 pages of the State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause cited in note 2.
 Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentareis.com July 9, 2020); Notice of Motion and Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court July 7, 2020); Memorandum Supporting Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court July 7, 2020).
 State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020); Affidavit of Matthew Frank, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 10, 2020).
 Defendant’s Reply to the State’s Response to His Motion To Dismiss, State v. Lane, Court file No. 27-CR-20-12951 (Hennepin County District Court Aug. 17, 2020); Browning & Xiong, Lawyer for former officer charged as accomplice in killing of George Floyd says he ‘did nothing wrong,’ StarTribune (Aug. 18, 2020).
 Summaries of the transcripts of the Lane and Kueng BWC footage and the BCA interview of Lane are contained in Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentareis.com July 9, 2020).
 State’s Response at 16-17.
 Id. at 18-20.
 Id. at 21-30.
 Id. at 31-35.