As is now well known, four Minneapolis policemen were involved in the May 25th death of George Floyd.
On May 29th and June 3rd criminal charges were filed against Derek Chauvin, the one who placed his knee against Floyd’s neck; the later superseding pleading set forth charges of second and third degree murder and second degree manslaughter, all as discussed in a prior post.
Also on June 3rd Minnesota Attorney General Keith Ellison filed criminal charges against the other three policemen who were involved—Thomas K. Lane, J.A. Kueng and Tou Thao: aiding and abetting second degree murder and second degree manslaughter.[1]
In announcing these new charges and the additional charge against Chauvin, Ellison said the cases were still under investigation and encouraged anyone with additional evidence to come forward and cooperate. “We are following the path of all evidence, wherever it leads. We are investigating as quickly as we can, because speed is important. We are also investigating as thoroughly as we can, because thoroughness is also important — and thoroughness takes time.”
“[Such] thoroughness is important because every link in the prosecutorial chain needs to be strong. It needs to be strong because trying this case will be hard. Winning a conviction will be hard. I say that not because I doubt our resources or abilities or resolve, but because history shows that trying and winning a case like this one is hard.“[2]
At their initial hearing in June bail for each of the three officers was set at $1 million (without conditions) and $750,000 (with conditions), and on June 10 Lane posted bail of $750,000 and was released from jail.[3]
Here we will examine and analyze the specific allegations of these charges against the other three policemen.
Criminal Charges Against the Other Officers
All three face the same two Counts:
Count I. Aiding and Abetting Second Degree Murder (Unintentional While Committing a Felony)(Minn. Stat. 609.19.2(1) with reference to 609.05.1. “That on or about May 25, 2020, in Hennepin County, Minnesota, [Lane/Kueng/Thao] intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other to commit the crime, namely causing 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 other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting, namely assault in the third degree.”
Count II. Aiding and Abetting Second Degree Manslaughter (Culpable Negligence Creating Unreasonable Risk) (Minn. Stata. 609.205(1) with reference to 609.05.01. “That on or about May 25, 2020, in Hennepin County, [Lane/Kueng/Thao] intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other to commit the crime, namely caused the death of another, George Floyd, by his culpable negligence, creating an unreasonable risk and consciously took the chances of causing death or great bodily harm to another, George Floyd.”
The three complaints also contained the following essentially identical Statement of Probable Cause (except where indicated, Lane, Kueng and Thao had unique passages). These three Statements of Probable Cause also are the same, in many respects, as the Statement of Probable Cause in the Chauvin complaints):
- “On May 25, 2020, someone called 911 and reported that a man bought merchandise from a Cup Foods at 3759 Chicago Avenue in Minneapolis, Hennepin County, Minnesota with counterfeit $20 bill. At 8:08 p.m. Minneapolis Police Department (MPD) Officers Thomas Lane . . . and J.A. Kueng . . . arrived with their bodyworn cameras (BWCs) activated and running. The officers learned from store personnel that the man who passed the counterfeit $20 was parked in a car around the corner from the store on 38th Street.”
- “BWC video obtained by the Minnesota Bureau of Criminal Apprehension shows that the Officers approached the car, Lane on the driver’s side and Kueng on the passenger side. Three people were in the car; George Floyd was in the driver’s seat, a known adult male was in the passenger seat and a known adult female in the backseat. As [Lane] began speaking with Mr. Floyd, [Lane] pulled his gun out and pointed it at Mr. Floyd’s open window and directed Mr. Floyd to show his hands. When Mr. Floyd put his hands on the steering wheel, [Lane] put his gun back in its holster.”
- “While [Kueng] was speaking with the front seat passenger, [Lane] ordered Mr. Floyd out of the car, put his hands on Mr. Floyd and pulled him out of the car. [Lane] handcuffed Mr. Floyd.”
- “Once handcuffed, Mr. Floyd walked with [Lane] to the sidewalk and sat on the ground at [Lane’s] direction. When Mr. Floyd sat down he said, “thank you man” and was calm. In a conversation that lasted just under two minutes, [Lane] asked Mr. Floyd for his name and identification. [Lane] asked Mr. Floyd if he was “on anything” and noted there was foam at the edges of his mouth. [Lane] explained that he was arresting Mr. Floyd for passing counterfeit currency.”
- “At 8:14 p.m., . . . [Kueng] and [Lane] stood Mr. Floyd up and attempted to walk Mr. Floyd to their squad car. As the officers tried to put Mr. Floyd in their squad car, Mr. Floyd stiffened up and fell to the ground. Mr. Floyd told the officers he was not resisting but he did not want to get in the back seat and was claustrophobic.”
- “MPD Officers Derek Chauvin and Tou Thao then arrived in a separate squad car.”
- “[Lane] together with the other officers made several attempts to get Mr. Floyd in the backseat of their squad car by pushing him from the driver’s side. As the officers were trying to force Mr. Floyd in the backseat, Mr. Floyd repeatedly said that he could not breathe. Mr. Floyd did not voluntarily sit in the backseat and the officers physically struggled to try to get him in the backseat.”
- “Officer Chauvin went to the passenger side and tried to get Mr. Floyd into the car from that side and [Lane] and [Kueng] assisted.”
- “Officer Chauvin pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 p.m. and Mr. Floyd went to the ground face down and still handcuffed. [Kueng] held Mr. Floyd’s back and [Lane] held his legs. Officer Chauvin placed his left knee in the area of Mr. Floyd’s head and neck. Mr. Floyd said, ‘I can’t breathe’ multiple times and repeatedly said ‘Mama’ and ‘please,’ as well. At one point, Mr. Floyd said ‘I’m about to die.’ Officer Chauvin and the other two officers stayed in their positions.”
- [Only in Thao Complaint: “[Thao] initially obtained a hobble restraint from the squad car to restrain Mr. Floyd in that manner, but the officers chose not to use it and maintained their positions. During this time [Thao] looked directly at how Chauvin was restraining Mr. Floyd with Chauvin’s knee on Mr. Floyd’s neck area, and observed that the three officers had Mr. Floyd subdued in this manner. [Thao] then became concerned about a number of citizens who had gathered and were watching the officers subdue Mr. Floyd, and potential traffic concerns, and so {Thao] stood between those citizens and the three officers restraining Mr. Floyd. When one citizen stepped off the curb, imploring Chauvin to get off of Mr. Floyd, [Thao] put his hands on the citizen to keep him back.”
- “One of the officers said, ‘You are talking fine’ to Mr. Floyd as he continued to move back and forth. [Lane] asked, ‘should we roll him on his side?’ and Officer Chauvin said, ‘No, staying put where we got him.’ [Lane] said, ‘I am worried about excited delirium or whatever.’ Officer Chauvin said, ‘That’s why we have him on his stomach.’ Officer Chauvin and Kueng held Mr. Floyd’s right hand up.”[Only in Lane Complaint: “Despite his comments, [Lane] took no actions to assist Mr. Floyd, to change his position, or to reduce the force the officers were using against Mr. Floyd.”] [Only in Kueng Complaint: “[Kueng] was in between Chauvin and Lane and in a position to hear their comments.”] Officer Chauvin and [Keung] held Mr. Floyd’s right hand up. None of the three officers moved from their positions.”
- “While Mr. Floyd showed slight movements, his movements and sounds decreased until at 8:24:24, Mr. Floyd stopped moving. At 8:25:31 the video appears to show Mr. Floyd ceasing to breathe or speak. [Lane] said, ‘want to roll him on his side.’ [Keung] checked Mr. Floyd’s right wrist for a pulse and said, ‘I couldn’t find one.’ None of the officers moved from their positions.”
- “At 8:27:24, Officer Chauvin removed his knee from Mr. Floyd’s neck. An ambulance and emergency medical personnel arrived, the officers placed Mr. Floyd on a gurney, and the ambulance left the scene. Mr. Floyd was pronounced dead at Hennepin County Medical Center.”
- “The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. While the ME did not observe physical findings supportive of mechanical asphyxia, the ME opines that Mr. Floyd died from cardiopulmonary arrest while being restrained by law enforcement officers. The autopsy revealed that Mr. Floyd had arteriosclerotic and hypertensive heart disease, and toxicology testing revealed the presence of fentanyl and evidence of recent methamphetamine use. The ME opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions, and the presence of the drugs contributed to his death. The ME listed the cause of death as ‘ [c]ardiopulmonary arrest complicating law enforcement subdural, restraint, and neck compression,’ and concluded the manner of death was homicide.”[4]
- Officer Chauvin, [Lane and Kueng] subdued Mr. Floyd prone to the ground in this manner for nearly 9 minutes. During this time, Mr. Floyd repeatedly stated he could not breathe and his physical condition continued to deteriorate such that force was no longer necessary to control him. Officer Chauvin had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a subject in a prone position is inherently dangerous. Officer Chauvin’s restraint of Mr. Floyd in this manner for a prolonged period was a substantial causal factor in Mr. Floyd’s losing consciousness, constituting substantial bodily harm, and Mr. Floyd’s death as well.”
Analysis of the Complaints Against the Other Three Officers
The predicate for all counts against the other three officers is a finding of Chauvin’s being guilty of second degree murder and/or second degree manslaughter that were analyzed in a prior post.
Under that scenario, the most direct statutory provision for the other policemen is the following: “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” (Minn. Stat. section 609.05, subd. 1.)(emphasis added).)
Here, there can be no claim that any of these three officers advised, hired, counseled or conspired with or otherwise procured Chauvin to use his knee to restrain Mr. Floyd on the ground for such a long period of time. Thus, the issue for these three officers is whether each of them aided Chauvin in some way to do so.
Since Lane and Kueng physically helped Chauvin in pinning Mr. Floyd to the pavement, they were clearly ‘intentionally aiding” Chauvin in pinning Mr. Floyd.
In addition, the two of them along with Thao failed to intervene to stop Chauvin from his pinning of Mr. Floyd. This raises the issue of whether the word “aids” includes failure to intervene to stop the commission of the crime of second degree murder or second degree manslaughter. Legal research should examine that issue under cases in Minnesota and other states.
This statutory provision about aiding and abetting is buttressed by the Minneapolis Police Department’s Manual, which under the heading “Duty To Intervene” states: “ Sworn employees have an obligation to protect the public and other employees.” (Manual sec. 5-303.01(A).) And “It shall be the duty of every sworn employee 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.” (Manual sec. 5-303.01(B).)
The Statement of Probable Cause clearly states that these three officers were in close proximity to Chauvin’s pressing his knee against Floyd’s neck, observed that action and Floyd’s reactions, heard Floyd’s saying he could not breathe and had the opportunity to intervene and stop the pressing of Floyd’s neck, but failed to do so.. Indeed, after Floyd stopped moving, they had three more minutes to intervene and stop the pressing of the neck before Chauvin did so himself, but none of the three intervened to stop that action. And after Floyd stopped breathing, they all had nearly two minutes (113 seconds) to intervene, but again did not do so. Lane came closest to doing so when he twice suggested that Floyd be turned over, but then he and the others did nothing further after Chauvin rejected the suggestion. And Officer Kueng could not find a pulse, but then he and the others did not intervene to stop Chauvin’s action in the following near two minutes (113 seconds) of that conduct.
Conclusion
These criminal charges against the other three policemen, according to Christy E. Lopez, a professor at Georgetown Law School and a former attorney in the U.S. Justice Department’s Civil Rights Division, are “appropriate, but difficult.” It would be good for the public . . . [and] in the best interest of police.” However, “Social science tells us that intervening to prevent wrongdoing in the middle of a tense incident is far more difficult than we recognize. Notwithstanding the legal duty, there are inhibitors to intervention that most officers will be unable to overcome in the moment unless they have been prepared in advance.”[5]
Lopez adds, “Progressive police agencies and reform advocates have long recognized the importance of officer intervention. Indeed, police have a legal “duty to intervene,” and the Minneapolis Police Department changed its force policy in 2016 to require officers to intervene if they witness another officer using excessive force. The Minnesota attorney general’s Working Group Report on Police-Involved Deadly Force Encounters, released this year, similarly recommended that all law enforcement officers in Minnesota be required to intervene to prevent unreasonable force.”
Such a change, she says, requires training of the police. But “creating a police culture of peer intervention requires more than training. It requires agency reinforcement at every level, and accountability for officers who fail to intervene when they clearly should have — as, again, the video of Floyd’s death depicts.”
The difficulties of one policeman’s intervening to stop another’s abuse are illustrated by a Buffalo New York female officer’s 2016 intervention to stop a white officer’s choking a handcuffed black protester. The white officer then accused her of jimping on him as he struggled for control and prevailed in an arbitration that led to her being fired. Since then she has been pursuing a lawsuit for reinstatement and passage of a new state law for protection of those who intervene.[6]
At the initial hearing for these three officers, the attorneys for Lane and Keung argued how could new cops like their clients tell or order Chauvin, a policeman with at least 19 years of experience, to stop pressing his knee against Floyd’s neck. Moreover, their lawyers did not mention what may well be true, that there is a culture of policemen backing up each other, and if you intervene and develop a reputation within the police force of being someone who cannot be trusted, then you will not be able to get timely backup when you need it.[7]
This conflict has emerged in other ways.
Immediately after the killing and before the firing of the four police officers involved in this case, Minneapolis Police Federation President Lt. Bob Kroll stated, ““Now is not the time to rush to judgment and immediately condemn our officers. We ask that the community remain calm and the investigation be completed in full.” And on June 1, Kroll said he was working with the union’s attorneys to help the four fired officers get their jobs back because they were “terminated without due process” while devoting most of his comments to criticizing the city’s handling of resulting riots and making policemen “scapegoats” for the violence.[8]
In addition, the bringing of these criminal charges and the associated protests against the Minneapolis police have caused seven of those officers to resign while another half dozen are in the process of leaving. “Morale has sunk to new lows in recent weeks, say department insiders, as officers reported feeling misunderstood and squeezed by all sides: by the state probe; by protesters, who hurled bricks and epithets their way; by city leaders, who surrendered a police station that later burned on national television, and by the media. Numerous officers and protesters were injured the rioting.”9]
Others at the Police Department have responded differently.[10]
The Minneapolis Police Chief, Medaria Arrandondo, immediately “condemned and fired the four officers involved. He visited the location where Floyd was killed. He spoke directly to Floyd’s family members on national television. He pledged to cooperate with the state’s probe into his department’s practices and make ‘substantive policy changes.’”
On June 11, 14 Minneapolis police officers wrote an open letter to Minneapolis citizens and everyone else. Claiming to speak on behalf of “the vast majority” of their colleagues, the letter’s signatories– Cmdr. Charlie Adams, who now runs its community engagement efforts; Lt. Mark Klukow, who now works in the First Precinct in downtown Minneapolis; Lt. Rick Zimmerman, who runs the homicide unit; Sgt. Darcy Klund, who commands the First Precinct community response team; John Delmonico, the former head of the police union; and others– said the following:
- “We wholeheartedly condemn Derek Chauvin. We Are With You in the denouncement of Derek Chauvin’s actions on Memorial Day, 2020. Like us, Derek Chauvin took an oath to hold the sanctity of life most precious. Derek Chauvin failed as a human and stripped George Floyd of his dignity and life. This is not who we are.”
- “We Are With You and want to communicate a sentiment that is broad within our ranks. We ask that our voices be heard. We are leaders, formal and informal, and from all ranks within the Minneapolis Police Department. We’re not the union or the administration. We are officers who represent the voices of hundreds of other Minneapolis Police Officers. Hundreds. We acknowledge that Chief Arradondo needs each of us to dutifully follow him while he shows us the way. We stand ready to listen and embrace the calls for change, reform and rebuilding.”
- “We Are With You moving forward. We want to work with you and for you to regain your trust.”
The next event in this important legal proceeding will be hearing in all four criminal cases in Hennepin County District Court on June 29.
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[1] Press Release, Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floy, three former officers with aiding and abetting 2nd degree murder. (June 3, 2020); Complaint, State v.Tou Thao, Prosecutor File No. 33.EC55.0227, Court File No. 27-CR-20-12949 (Dist. Ct., 4th Judicial Dist. June 3, 2020); Complaint, State v. Thomas Kiernan Lane, Prosecutor File No. 33.EC56.0227, Court File No. 27-CR-20-12951 (Dist. Ct., 4th Judicial Dist. June 3, 2020); Complaint, State v. J. Alexander Kueng, Prosecutor File No. 33.EC57.0227, Court File No. 27-CR-20-???? (Dist. Ct., 4th Judicial Dist. June 3, 2020); Shammas, Beilware & Dennis, Murder charges filed against all four officers in George Floyd’s death as protests against biased policing continue, Wash. Post (June 3, 2020); Kornfield, Guarino, Beachum, Thebault, Mettier, Knowles, Chiu, Shepard & Armus, 3 more officers charged in Floyd’s death as protesters gather for 9th night, Wash. Post (June 4, 2020); Montemayor & Xiong, Four fired Minneapolis officers charged, booked in killing of George Floyd, StarTribune (June 4, 2020).
[2] Press Release, Attorney General Ellison charges Derek Chauvin with 2nd-degree murder of George Floyd, three former officers with aiding and abetting 2nd degree murder. (June 3, 2020).
[3] Initial Hearings in Criminal Cases for Killing of George Floyd, dwkcommentaries.com (June 10, 2020); Karnowski, Judge: $750K bail for 3 ex-officers accused in Floyd death, StarTribune (June 4, 2020); Xiong, Bail set at $1 million for three ex-Minneapolis police officers charged in Floyd case, StarTribune (June 4, 2020); Walsh, Fired Minneapolis police officer Thomas Lane, one of 4 charged in George Floyd’s death, posts bail and leaves jail, StarTribune (June 11, 2020).
[4] Complaint, State v. Chauvin, # 27-CR-20-12646 (Henn. Cty. Dist. Ct. (June 3, 2020).
[5] Lopez, George Floyd’s death could have been prevented if we had a police culture of intervention, Wash. Post (May 29, 2020).
[6] Sondel & Knowles, George Floyd died after officers didn’t step in. These police say they did—and paid a price, Wash. Post (June 12, 2020).
[7] Condon & Richmond, Duty to intervene: Floyd cops spoke up but didn’t step in, StarTribune (June 7, 2020).
[8] Navratil & Jany, As Mayor Frey calls for officer’s arrest, violence intensifies in Minneapolis, StarTribune (May 28, 2020); Jany & Navratil, Kroll, Minneapolis union head, blasts city’s riot response in letter to officers, StarTribune (June 1, 2020).
[9] Jany & Sawyer, Seven Minneapolis police officers resign after George Floyd protests, citing lack of support from city leaders, StarTribune (June 13, 2020).
[10] Jany & Evans, After George Floyd’s death, Minneapolis police chief is caught in force’s racial legacy, StarTribune (June 8, 2020); Olson, Minneapolis police officers issue open letter condemning colleague in George Floyd’s death, pledging to work toward trust, StarTribune (June 12, 2020).