Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing

On July 7, the attorney for ex-officer Thomas Lane moved to dismiss the charges that he had illegally aided and abetted the May 25th alleged murder and manslaughter of George Floyd. The prosecution’s response is due on August 12 followed by a reply from Lane’s attorney with the hearing on the motion likely to be the one previously scheduled for September 11.[1]

The brief in support of the motion made the following arguments:

  1. “There is not substantial admissible evidence to survive a motion for a directed verdict that Thomas Lane aided and abetted second degree murder or manslaughter.”
  2. “There is no evidence in the voluminous discovery that Officer Lane played an intentional role in aiding the commission of a crime. There is no circumstantial evidence Lane knew that Chauvin was committing a crime. Hence, the legal requirements showing he acted with intent cannot be met.”
  3. “Lane did not intentionally aid, advise, hire, counsel, or conspire with Chauvin or otherwise procure Chauvin to commit second degree murder. Lane did not encourage any alleged criminal actions of Chauvin. He did not know and had no reason to believe that a third degree assault was being committed, nor did he intend for the restraints of his Floyd’s legs to help commit a crime.”
  4. “Lane did not know what Chauvin was thinking while restraining Floyd. Chauvin did not verbally tell Lane anything about his intentions other than waiting for the ambulance to arrive. Lane knew Floyd needed to be restrained and he knew Chauvin was authorized to use reasonable force to restrain.”

Lane’s attorney also submitted transcripts of the body-cam footage for Lane and ex-cop and co-defendant J. Alexander Kueng. Here are extracts from these transcripts:

  • When Lane approached the vehicle containing Floyd and two other individuals, Lane drew his pistol when Floyd did not immediately show his hands. Floyd said, “”I’m sorry, I’m so sorry. God dang man. Man, I got shot. I got shot the same way, Mr. Officer, before.”
  • When Lane ordered him to get out of the car, Floyd said, “Please don‘t shoot me, Mr. Officer. Please, don’t shoot me man. Please. Can you not shoot me, man?”
  • Lane and Kueng then grabbed Floyd’s arms, prompting him to say, ““I’m not going to do nothing… I’m sorry Mr. Officer, I’ll get on my knees, whatever.”
  • Lane then pulled Floyd out of the vehicle and asked the woman in the car (Schwanda Renee Hill), “Why’s he getting all squirelly and not showing us his hands, just being all weird like that?”
  • Hill: “I have no clue, because he’s been shot before.”
  • Lane: “Well I get that, but still when officers say ‘Get out of the car.’ Is he drunk? Is he on something?”
  • Hill: “”No, he got a thing going on, I’m telling you about the police … He have problems all the time when they come, especially when that man put that gun like that.”
  • After Kueng escorted Floyd from his car to a nearby sidewalk and sat him down, Floyd said, ‘Thank you, man. Thank you, Mr. Officer,” as Floyd remained cooperative. He gave Kueng his name and date of birth, adding once again that ‘I got shot last time, same thing, man.’”
  • “Kueng then explained to Floyd that he was being detained for suspicion of passing a fake bill. Floyd said he understood.”
  • Kueng: “And do you know why we pulled you out of the car? Because you was not listening to anything we told you,”
  • Floyd: “Right, but I didn’t know what was going on,”
  • Kueng: “You listen to us, and we will tell you what’s going on, all right?”
  • Floyd: “Yes sir.”
  • “Lane then asked Floyd if he was on something, while Kueng asked about the foam around his mouth. Floyd said he was scared, and that he had been playing basketball earlier.”
  • “The two officers then attempted to place Floyd in the back of [their]squad [car], while he again pleaded with them not to, saying he was claustrophobic.”
  • Lane or Kueng: “You can’t win.”
  • Floyd: “I’m not trying to win . . . I’ll get on the ground, anything.”
  • “After more struggle, Floyd began to collapse on the ground, saying, ‘I’m going to lay on the ground, oh, I’m coming down.’”
  • As Lane and Kueng attempted to put Floyd into the back seat of their squad car, Floyd said, “‘Oh man, God don’t leave me man, please man, please man,’ he pleaded, telling them he was claustrophobic as the officers repeatedly ordered him into the back of the squad.”
  • Lane or Kueng: “Man, you going to die of a heart attack. Just get in the car.”
  • Lane then offered to sit in the squad car with Floyd and turn on the air conditioner. Floyd said, “”I’m not that kind of guy, man, I’m not that kind of guy … and I just had COVID, I don’t want to go back to that.”
  • After Officer Chauvin arrived, he asked Kueng if the suspect was going to jail, and Kueng explained the man was under arrest for forgery.
  • Chauvin asked the other two officers if they had a “restraint,” and the officers (who?) called for “Code 2” for medics after Lane said the man had banged his head against the partition glass in the squad car, resulting in a cut.”
  • Chauvin told Floyd , “You’re under arrest, guy.”
  • Floyd responded, “”All right, all right. Oh my god. I can’t believe this. I can’t believe this … After Chauvin said, “so you’re going to jail,” Floyd said, Mom, I love you … Tell my kids I love them. I’m dead.”
  • Floyd then was placed on the pavement with Lane holding one of his legs while Kueng was holding his back. Floyd kept saying, “Mama, mama, I can’t breathe. I’m through, I’m through. I’m claustrophobic. My stomach hurts. My neck hurts. Everything hurts. I need some water or something, please. Please? I can’t breathe officer.”
  • As Lane asked Chauvin whether Floyd should be rolled on his side, Chauvin and Kueng said not to do so, and one of the officers called to upgrade the medics to Code 3.
  • Floyd’s final words: ““Come on, man. Oh, oh. l cannot breathe. Cannot breathe. Ah! They’ll kill me. They‘ll kill me. I can’t breathe. Can‘t breathe. Oh!” and “Ah! Ah! Please. Please. Please.”
  • After the medics arrived, Lane did chest compressions on Floyd.
  • One of the medics asked the officers, “Was he [Floyd] fighting with you guys for a long time?”
  • Lane: “ I mean a little bit, but not a long time, maybe a minute or two. We were just trying to get him in the squad and he came out the other end, so we were like we’ll just wait.”
  • Medic: “I wonder what he was on.”
  • Lane: “Not sure but he seemed very agitated and paranoid.”
  • Medic: “That’s a shame.”
  • Lane: “Yeah.”

According to the New York Times’ summary of these transcripts, Floyd told the police officers more than 20 times that he could not breathe and several times said the officers were killing him.

In addition, Lane’s court filing included a 60-page transcript of his interview by the Minnesota Bureau of Criminal Apprehension and that this transcript had Lane responding to the question of whether at any time he felt Floyd was having a medical emergency, with the following: “Yeah, I felt maybe something was going on.” The Times also says Lane’s attorney claims a police photo of the interior of Floyd’s car showed “two crumpled counterfeit $20 bills that were found between the center console and the passenger’s seat.”

Another article in the Washington Post asserts that the “transcripts make clear that Floyd was trying to cooperate with police but was deathly afraid of them, at times telling them that he had had covid-19 and was worried that he was going to die because he couldn’t breathe.”

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[1] Xiong, Former officer Thomas Lane’s attorney seeks dismissal of charges in George Floyd killing, StarTribune (July 8, 2020); Olson. Body camera transcripts: George Floyd repeatedly begged police not to kill him, StarTribune (July 8, 2020); Staff Reports, Read the transcript of Thomas Lane’s body camera footage during George Floyd call, StarTribune (July 8, 2020); Staff Reports, Read the transcript of J. Alexander Kueng’s body camera footage during George Floyd call, StarTribune (July 8, 2020); Memorandum Supporting Motion To Dismiss, State v. Lane, Case No. 27-CR-20-12651 (Henn. Cty. Dist. Ct. July 7, 2020); Oppel, New Transcripts Detail Last Moments for George Floyd, N.Y.Times (July 8, 2020); Bailey, George Floyd warned police he thought he would die because he couldn’t breathe, according to body camera transcripts, Wash. Post (July 8, 2020); Wernau & Barrett, Attorney for Former Officer Asks Court to Dismiss Abetting Charges in George Flynn Killing, W.S.J. (July 8, 2020); George Floyd told officers ‘I can’t breathe’ more than 20 times, transcripts show, Guardian (July 8, 2020).

 

 

 

 

 

 

 

Developments in Criminal Cases Over Death of George Floyd

The four defendants in the criminal cases over the death of George Floyd last week made an unusual request for pretrial and trial audiovisual coverage which the court denied, in part. The issues in the cases were analyzed by criminal law experts. And some personal background information of the four defendants have been publicly discussed. After examining these developments, we will  await the results of the pretrial hearing in the four cases on June 29th.[1]

 Motion for Pretrial and Trial Audiovisual Recording [2]

On June 25 the attorneys for the four criminal defendants made a motion for audiovisual recording of pretrial and trial proceedings in the cases. Thomas Plunkett, the attorney for J. Alexander Kueng, on behalf of all defendants, asserted that such relief was “necessary to provide the Defendants with a fair trial in light of the State’s and other governmental actors multiple inappropriate comments and to assure an open hearing in light of the ongoing pandemic.” Those officials, said Plunkett, included “Public Safety Commissioner John Harrington, Minneapolis Mayor Jacob Frey and Minneapolis Police Chief Medaria Arradondo.”

More specifically, Plunkett said, “this relief is necessary to blunt the effects of the increasing and repeated media attacks from the various officials who have breached their duty to the community. These State comments have crescendoed to an extraordinary volume this week with the Chief pronouncing that ‘[w]hat happened to Mr. Floyd was murder.’ The State’s conduct has made a fair and unbiased trial extremely unlikely and the Defendants seek video and audio coverage to let a cleansing light shine on these proceedings. Doing otherwise allows these public officials to geld the Constitution.”

Attorney General Keith Ellison responded by saying that although he supports a public trial, “Cameras could alter the way the lawyers present evidence. Cameras in the courtroom could subject the participants in the trial to heightened media scrutiny and thereby be distracting to conducting the trial.” The chances of  “creating more sensation than understanding” was “very high,” Ellison said.

The Hennepin County District Judge, Peter Cahill, immediately denied the motion for such pretrial coverage while reserving decision on the motion for such coverage of the trial. The Judge stated that Minnesota court rules require both the defense and prosecution to agree for such coverage for pretrial proceedings and that the prosecution did not so agree. In addition, said the Judge, such coverage “would risk tainting a potential Hennepin County jury pool.”

Analysis of Issues in These Criminal Cases[3]

A journalist reports, “Veteran defense attorneys say the prosecution’s case against Chauvin is strong, while a series of unique circumstances pose challenges to both prosecutors and defense attorneys.”

Several facets of these cases seem to favor the prosecution. These cases do not involve “split-second” decisions on use of force which often lead a jury to avoid second guessing such decisions. Moreover, “Floyd warned the officers of his own impending death after repeatedly telling them he couldn’t breathe,” and bystanders were making the same warning. Finally the three officers charged with “aiding and abetting” could cause a crack in the alleged “blue wall of silence” protecting officers.

Indeed, at their initial appearances, the attorneys for Lane and Kueng argued that their clients were rookies who relied on Chauvin, a 19-year veteran and their training officer, for guidance at the scene.

A prominent local criminal defense attorney, Joe Friedberg, thought that Lane’s twice suggesting turning Floyd over and later performing CPR on him was strong evidence he had no intent for Floyd to die.

Another local criminal defense attorney, Robert Richman, had a different reaction. He thought that Chauvin “could direct the blame at Lane, who was holding down Floyd’s leg as Floyd lay stomach-down in the street, and Kueng, who was holding onto Floyd’s back. It seems that keeping someone … in a prone position on your stomach and having pressure placed on your back causes respiratory difficulties.” Perhaps “it was the other two officers holding him down that caused the breathing difficulties,” rather than Chauvin kneeling on the side of Floyd’s neck.

Another complication was the existence of two different autopsy reports. “The Hennepin County Medical Examiner’s Office found that Floyd died when his heart stopped  while he was being restrained, noting that the presence of fentanyl intoxication and recent methamphetamine were “other significant conditions” while the autopsy commissioned by the attorneys for Floyd’s family said he died of asphyxia. These provide bases for defense arguments that Floy had started to die before Chauvin put his knee on the neck.

New Rule for Use of Bodycam Footage[4]

On June 27 Minneapolis Mayor Jacob Frey and Police Chief Medaria Arradondo announced a new rule for officers’ review of their body camera footage. Now the officer “as soon as practical” must write and submit his or her written report of the incident before looking at that footage and before talking with anyone other than the incident commander and the lead investigator. This new rule purportedly will provide a more accurate account of the officer’s recollection of the incident.

The Police Officers’ Backgrounds[5]

The police personnel files for the four officers and published articles reveal the following  details:

  • Derek Chauvin. He attended Park High School in Cottage Grove, Minnesota, but did not graduate. After getting his GED he attended Dakota County Technical College, Inver Hills Community College and Metropolitan State University, all in Minnesota. Previous jobs include working security, and food service including at a McDonald’s. Chauvin also had two periods of active service in the U.S. Army. From September 1996 to February 1997 he was stationed in Rochester, Minnesota with a job in military police. He served again from September 1999 to May 2000 in military police, at Hohenfels, Germany where his job duties as including criminal investigations, traffic enforcement and proactive patrol.

During his 19-year career with the Minneapolis Police Department, Chauvin was involved with several police shootings, includes both commendations and more than 15 conduct complaints. Almost all the complaints were closed without discipline, records show, suggesting the allegations weren’t sustained. The nature of the complaints wasn’t made public. The file includes a 2008 letter of reprimand Chauvin received for the two violations involving “discretion” and a squad car camera. “This case will remain a B violation and can be used as progressive discipline for three years,” the letter notes. Chauvin received a Medal of Commendation in 2008 for disarming a man outside the El Nuevo Rodeo club on E. Lake Street while working security off-duty in his uniform. He was also recommended for a Medal of Valor in 2006 related to the shooting death of Wayne Reyes, a stabbing suspect who fled in his truck with officers in pursuit. When Reyes stopped and climbed out of the truck, police said he swung his sawed-off shotgun toward the six officers, all of whom fired their weapons.

Chauvin his married , but immediately after his arrest for the Floyd death, she filed for divorce with her attorney saying, “She is devastated by Mr. Floyd’s death and her utmost sympathy lies with his family, with his loved ones and with everyone who is grieving this tragedy.”

  • Tou Thao. The 11-year veteran and native Hmong speaker from Coon Rapids, Minnesota first applied to the department as a community service officer following stints in food service and as a security guard. He was among those laid off three days before Christmas in 2009 as the police department faced a $13 million budget shortfall. In a termination letter, a supervisor assured him the action was not related to his job performance. Officials called him back to work almost exactly two years later.

Thao and another officer were the subjects of a 2017 police brutality lawsuit. Lamar Ferguson, a black man, alleged that in 2014 the two officers told him they were serving a warrant for his arrest, then beat him, breaking his teeth, while he was handcuffed. The city of Minneapolis paid $25,000 to settle the civil rights case.

  • Thomas Lane. A University of Minnesota graduate in sociology of law, criminology and deviance. He worked with at-risk youth as a juvenile detention guard and probation officer in the Twin Cities before applying as a police recruit at age 35. He also had volunteer work mentoring Somali youth and school kids.
  • Alexander Koenig. At age 26, he is the youngest of the four officers and is of mixed-race and identifies as African-American. In 2010 he and two siblings made several trips to Haiti to help at an orphanage, once after its 2010 earthquake.He was captain of the varsity soccer team at Patrick Henry High School in Minneapolis, where he graduated in 2012. He also played for the Cruz Azul Minnesota soccer club. He attended Monroe College, Minneapolis Community & Technical College and the University of Minnesota, graduating from the last in 2018 with a major in sociology of law, criminology and deviance and becoming conversational in the Russian language. His work history includes a job as security monitor at the University of Minnesota and working in loss prevention at Macy’s. He also worked at Target, and he coached youth baseball and soccer at the Brooklyn Center Community Center.

Kueng had seen a sibling arrested and treated poorly by sheriff’s deputies and had told friends he was joining the police to help protect people close to him from police aggression as the best way to fix a broken system.

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[1] This blog has published posts about the Floyd death and related issues of police reform. See List of Posts to dwkcommentaries—Topical: George Floyd Killing; List of Posts to dwkcommentaries—Topical: Police Reform.

[2]  Xiong & Montemayor, Judge denies audiovisual coverage of hearings for former officers charged in George Floyd killing, StarTribune (June 26, 2020).

[3] Xiong, In trial over George Floyd’s killing, both defense, prosecution face unique challenges, StarTribune (June 27, 2020).

[4]] Klecker, Minneapolis mayor, police chief announce tighter body-camera rules, StarTribune (June 29, 2020).

[5] Bjorhus & Sawyer, Personnel records shed light on four Minneapolis police officers charged in George Floyd’s death, StarTribune (June 4, 2020); Bjorhus, A deeper look at the four officers fired after George Floyd death, StarTribune (June 1, 2020); Barker, Eligon & Furber, Officers Charged in George Floyd’s Death Not Likely to Present United Front, N.Y.Times (June 4, 2020); Barker, The Black Officer Who Detained George Floyd Had Pledged to Fix the Police, N.Y. Times (June 27, 2020); Wernau, The Other Police Officers Charged in George Floyd Killing, W.S.J. (June 29, 2020).