Defendant Thao’s Dismissal Motion   

Defendant Tou Thao has been charged with the crimes of aiding and abetting the murder and manslaughter of George Floyd, and on July 29, his attorney moved for dismissal of these charges.[1] On August 24, the prosecution responded to this motion.[2]

This post will discuss Thao’s arguments for dismissal, and a subsequent post will look at the prosecution’s counter arguments.

No Probable Cause That Chauvin Committed a Crime[3]

 Under Minn. Stat. sec. 609.06, subd. 1, a police officer is immune when using reasonable force to effect a lawful arrest. Here, “Floyd became agitated and resisted [arrest] in both active and passive manners.” Therefore, Chauvin used “reasonable force” to effect a lawful arrest by administering a non-deadly MPD-approved neck restraint, either a “Conscious Neck Restraint” or an “Unconscious Neck Restraint.”

Therefore, Thao cannot be held criminally liable for aiding and abetting a non-crime.

No Probable Cause That Thao Had the Mens Rea for Aiding and Abetting[4]

The prosecution has failed to show probable cause that “Thao (1) knew Chauvin and others [Lane and Kueng] were going to commit a crime and (2) intended his presence to further the commission of that crime.” On the contrary, Thao saw the other three officers using force authorized by MPD policy.

No Probable Cause That Thao Aided The Others’ Committing a Crime[5]

The prosecution failed even to allege what Thao did that amounted to aiding and abetting his fellow officers in committing a crime. Moreover, “mere presence at the crime scene alone is not sufficient” . . .[for this purpose] because inaction, knowledge or passive acquiescence does not rise to the level of criminal culpability.” (State v. Pendleton, 759 N.W.2d 900 (Minn. Sup. Ct. 2009); State v. Huber, 877 N.W.2d 519, 525 (Minn. Sup. Ct. 2016);  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. Sup. Ct. 1995); State v. Ulvinen, 313 N.W.2d 425 (Minn. Sup. Ct. 1981).)

Here, “Thao spent the time during the arrest of Mr. Floyd focused on keeping the civilian bystanders out of the scene to allow the other three officers to effectuate the legal arrest and to turn Mr. Floyd over to responding medical personnel. Officer Thao did nothing to aid in the commission of a crime.”

Conclusion

On August 24, Thao’s attorney submitted a motion to compel disclosure of (1) the complete Hennepin County Medical Examiner’s Office file; (2) the reports and autopsies performed by Dr. Michael Baden; (3) the reports and autopsy performed by Dr. Allecia Wilson; and (4) the Office of the Armed Forces Medical examiner entire file.” Thao also moved to “continue the issue of causation of death from the September 11, 2020 Omnibus hearing date to a date to be scheduled.” [6]

The next post we will examine the prosecution’s responses to this motions for dismissal and disclosure. Then we wait to see if Thao will submit a reply to the prosecution’s arguments and the September 11 court hearing on this and other matters.

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[1] Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentaries.com (July 30, 2020), Notice of Motion and Motion To Dismiss, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court July 29, 2020); Memorandum in Support of Motion to Dismiss, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 5, 2020).

[2] Xiong, Former officer who held back crowd at George Floyd death should face trial, prosecutors argue, StarTribune (Aug. 24, 2020); Assoc. Press, Prosecutors Depict Ex-Officer as Complicit in Floyd’s Death, N.Y. Times (Aug. 25, 2020); State’s Response Opposing Defendant’s Motion To Dismiss for Lack of Probable Cause, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020); Affidavit of Matthew Frank, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020); [Prosecution] Motion To Compel Disclosure, State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020).

[3] Memorandum in Support of Motion to Dismiss (n. 1), at 9-12.

[4] Id. at 5-6.

[5] Id. at 6-9.

[6] [Thao’s] Motion To Compel Disclosure, State v. Thao, Court File No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020).