U.S. Court of Appeals Affirms Federal Conviction of Tou Thao for Violating the Civil Rights of George Floyd

On August 4, 2023, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit unanimously affirmed the conviction of Tou Thao by the U.S. District Court for the District of Minnesota for violating the civil rights of George Floyd during the 2020 murder of George Floyd by Derek Chauvin.[1]

The appellate opinion by Circuit Judge Jonathan Kobes, which was joined by Circuit Judges James Loken and Ralph Erickson, agreed with District Court Judge Paul Magnuson, after trial, that prosecutors had supplied sufficient evidence to support convictions on two counts of depriving Floyd’s rights under color of law — charges that Thao failed to intervene in Derek Chauvin’s use of unreasonable force and that Thao was “deliberately indifferent to Floyd’s medical needs.”

The Eighth Circuit also held that although evidence of Thao’s deliberate indifference was “not overwhelming,” a reasonable jury could find that Thao acted willfully, based on his knowledge and training, by failing to give Floyd medical aid.

The appellate opinion also rejected Thao’s argument that he was innocent because Floyd arguably was  experiencing excited delirium since under MPD policy, neck restraints are inappropriate once the detainee stops resisting, even when a detainee is experiencing excited delirium.

Therefore, the Eighth Circuit concluded that “there was sufficient evidence for the jury to find that Thao acted willfully on both [section] 242 counts and that any prosecutorial misconduct did not deprive Thao of his right to a fair trial.” Thus, the district court was affirmed.

Afterwards Thao’s attorney, Robert Paule, said, “I have the utmost respect for the court but I vehemently disagree with this decision and Mr. Thao will continue to pursue every possible avenue for relief in this case.” The only possible ways for seeking such relief are asking the Eighth Circuit en banc to review the case or to petition the U.S. Supreme Court for such review. In this blogger’s opinion, both of these options would be unsuccessful.


[1] Montemayor, Appeals court affirms federal conviction of Tou Thao in George Floyd’s killing, StarTribune (Aug. 4, 2023); Opinion, U.S. Court of Appeals for Eighth Circuit, U.S. v. Thao, Case No. 22-2201 (Aug. 4, 2023).

The District Court had tried together three of the ex-MPD officers (Thao, Lane and Kueng), and on February 24, 2022, the jury returned a verdict that all three were guilty of all charges. (Federal Criminal Trial for Killing of George Floyd: Jury Deliberations and Verdict, dwkcommentaries.com (Feb. 25, 2022).)  Then on July 27, 2022, District Judge Paul Magnusson sentenced Thao to 3 ½ years imprisonment, Kueng to three years imprisonment and Lane to 2 ½ years imprisonment followed by two years of supervised release. (Completion of Federal Criminal Cases Over Killing of George Floyd, dwkcommentaries.com (July 27, 2022).)

What Happened to George Floyd in Minneapolis on May 25, 2020

By now, everyone in the U.S. and the rest of the world knows or could know that on the evening of May 25 in Minneapolis, Minnesota (at 38th Street and Chicago Avenue) George Floyd, a 46-year-old African American man, was killed by a Minneapolis policeman (Derek Chauvin) in the presence of three other Minneapolis policemen (Alexander Keung, J. Alexander Lane and Tou Thao).[1] Here is what is believed to be a fair summary of those horrendous 17 minutes of police encounters with Floyd and certain preceding events that evening:

  • That evening Floyd buys a package of cigarettes at a convenience store (Cup Foods) and pays for it with a $20 bill.
  • After Floyd left the store, a store employee inspects the $20 bill and believes it is forged. Two store employees then go outside and see Floyd in the driver’s seat of a dark blue Mercedes SUV across 38th Street .     
  • The two store employees go to the SUV and one of them from the driver’s side and the other from the passenger’s side of the SUV ask for the return of the package of cigarettes of a man in the passenger seat and Floyd in the driver’s seat. The request is denied.
  • The two employees return to the store and presumably one of them or another employee dials 911 to report a customer who had paid for cigarettes with an alleged forged $20 bill. They apparently also said that the African-American man appeared to be drunk and was now in a SUV across the street from the store.
  • At 8:08 p.m. two MPD officers (Lane and Keung) arrive at the scene and a store employee directs them to an African-American man (Floyd) in the driver’s seat of the Mercedes SUV across 38th Street.  This starts the approximate 17 minutes of police encounters with Floyd before he is removed on a gurney by medics in an ambulance.
  • Lane arrives at the driver’s side of this SUV and with his revolver drawn tells the African-American man (Floyd) to put his hands on the steering wheel. Floyd immediately does so without resistance and Lane puts the revolver back in his holster.
  • Lane then pulls Floyd out of the car, and he and Keung handcuff  Floyd’s hands behind his back and take him across the sidewalk and seat him on the sidewalk with his back to the brick wall, all without any resistance by Floyd.
  • At 8:14 p.m. Lane and Keurig had Floyd get up from the sidewalk and walk across 38th Street to their squad car and tried to get him into the back seat. Floyd said he was not resisting, but could not get into back seat because he is claustrophobic. But officers get him into the back seat.
  • At 8:19 p.m. Officers Chauvin and Thao arrive at the scene in a different squad car. Chauvin pulled Floyd out of the back seat of the first squad car with Floyd, still handcuffed, who falls to the pavement. Clausen then puts his left knee on the neck of the fallen Floyd while Kueng held Floyd’s back and Lane one of his legs.
  • At some time Lane asked Chauvin if they should roll Floyd on his side, but Chauvin says “no” and the officers do not change what they are doing.
  • At 8:24 p.m. Floyd stopped moving.
  • At 8:25 p.m. Floyd appeared to stop breathing and Lane asked again if they should move Floyd onto his side, but Chauvin again refused to do so.
  • At 8:27 p.m. Chauvin moved his leg off Floyd’s neck or 8 minutes and 46 seconds after he had placed his knee on the neck and 2 minutes and 53 seconds after Floyd had become non-responsive. The latter happened when an ambulance and emergency medics arrived and placed Floyd on a gurney to go the Hennepin County Medical Center..
  • At 9:25 p.m. Floyd was pronounced dead at the Medical Center after an hour of unsuccessful attempts to revive him.

Subsequent posts will examine the criminal charges brought against Chauvin and then against the other three policemen, their initial court appearances, initial comments by Hennepin County Attorney Mike Freenman, subsequent comments by Minnesota Attorney General Keith Ellison and the commencement of efforts to change and reform various aspects of Minnesota and federal criminal law and procedure.


[1] E.g., Hill, Tiefenthaler, Triebert, Jordan, Willis & Stein, 8 Minutes and 46 Seconds: How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020);  Hennesy & LeBlanc, 8:46: A number becomes a potent symbol of police brutality, Star Tribune (June 4, 2020); Xiong, A timeline of events leading to George Floyd’s death as outlined in charging documents, StarTribune (June 4, 2020).