Tag: Tou Thao

More Details on 9/11/20 Hearing in George Floyd Criminal Cases

Yesterday’s post and comment provided a preview for today’s hearing.[1] Here are some more details for the hearing, again following the Agenda for the hearing.

State’s Motions

  1. Motion for Joint Trial.[2]

On September 10, the State submitted a 28-page reply in support of its motion for a joint trial, but time constraints do not allow for its examination and summary in this post.

One of the issues for this motion is whether or not the defendants have antagonistic defenses. Here are more details on that issue.

Chauvin’s attorney has said that his client did not know the full picture of what was happening when he and Thao arrived later on the scene to find Lane and Kueng struggling to get Floyd into the back seat of their squad car. The attorney also suggested that these other two had mishandled the scene by not doing enough to try to calm Floyd, by failing to administer naloxone and by  delaying the request for an ambulance and thereby causing the death.

Chauvin and Thao also may argue that as late arrivals on the scene they were deferring to Lane and Kueng irrespective of their lack of seniority and rank.

Thao will emphasize his “human traffic cone” role while the other three were physically restraining Floyd.

Lawyers for Lane and Kueng, both rookies, have emphasized that they were following the orders of their superior, Chauvin, and that Lane twice tried to intervene to get Floyd turned over, but Chauvin refused. Kueng also may testify about faulty training by Chauvin on how to handle a detention while Kueng and Thao may point to the history of 18 complaints about Chauvin’s conduct as an officer.

Lane’s attorney said, “It is plausible that all officers have a different version of what happened and officers place blame on one another.”

All four, however, apparently are arguing that Floyd’s death was accelerated by drugs in his system

Defendants’ Motions

  1. Discovery Motions.[3]

Late on September 9, the State submitted a response to such motions from all four defendants. Here are its main points:

  • The State already had disclosed the Hennepin County Medical Examiner’s complete file and that although the State had no obligation to disclose the autopsy reports by the Armed Forces Medical Examiner and by experts retained by the Floyd family (Drs. Baden and Wilson), the State had asked these persons for these documents and if they are so provided, the State would provide them to the defendants.
  • With respect to Floyd’s 5/5/19 incident with the MPD, the State had requested any body worn camera footage from the MPD and, if it exists, it would be provided; the Hennepin County Attorney’s Office has no record of a referral for prosecution; and any other prosecuting agencies are not within the State’s control.
  • The State stated there is no factual basis for the request for documents on Floyd’s acting as an informant and gang affiliations and the requests were denied.
  • If possible, the State will produce the MPD training PowerPoints in the original format.
  • The State denied the request for the State’s document indices as privileged attorney work product.
  • The State already has produced the MPD Internal Affairs Public Summaries for all four defendants, but opposes any other disclosure.

Conclusion

On a separate note, there are planned protests near the courthouse on the day of the hearing. As a result, windows on government buildings have been boarded up and law enforcement officials are setting up a perimeter to keep protesters at a distance.

In fact, the hearing will be held in the nearby Family Justice Center, where the Hennepin County Family Court is located, in downtown Minneapolis.

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[1] Preview of 9/11/20 Hearing for George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Comment: Rule 44 Evidence Motions: More Details, dwkcommentaries.com (Sept. 10, 2020). See also Xiong, Several key issues at stake Friday morning in Hennepin County court hearing in George Floyd case, StarTribune (Sept. 10, 2020).; Collins, Judge to hear arguments Friday in Floyd killing case, MPRNews (Sept. 11, 2020).

[2]  State’s Reply in Support of Motion for Joinder, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 10, 2020); Bailey, Former Officers charged in George Floyd killing turn blame on each other, Wash. Post (Sept. 10, 2020),

[3] State’s Response to Defendants’ Motions To Compel Disclosure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin county District Ct. Sept. 9, 2020)

Agenda for Court’s 9/11/20 Hearing in George Floyd Criminal Cases      

On September 1, Hennepin County District Court Judge Peter Cahill issued an order establishing the following agenda for the September 11th hearing in the four criminal cases over the killing of George Floyd. [1]

State’s Motions

  1. Motion for Joint Trial
  2. Motion to Submit Aggravating Factors to Jury (Blakely)
  3. Motion for Expert Witness Disclosure

Defendants’ Motions

  1. Motions for Change of Venue
  2. Jury Sequestration Motion
  3. Anonymous Jury Motion
  4. Motion to Disqualify HCAO [Hennepin County Attorney’s Office]
  5. Rule 404 Evidence Motions
  6. Discovery Motions

ADMINISTRATIVE MATTERS

  1. Jury Selection (Method; Peremptory challenges)
  2. In-Court Presence/COVID-19 Restrictions
  3. Overflow rooms/Audio-Visual Coverage
  4. Overnight/Special Transcript Requests
  5. Trial Length/Daily Schedule

The Order also stated that this Agenda was “subject to modification at the hearing itself.” In addition:  “Further briefing may be ordered or requested by the parties. Barring an order for further submission, the Court will consider those matters to be under advisement as of September 11, 2020 with a 90-day order deadline [or until December 10]. The court will attempt, however, to issue some if not all decisions on or before October 15, 2020. Motions to dismiss for lack of probable cause will be decided on briefs and accompanying exhibits.”

Reactions

Although this blogger had anticipated the court’s issuing an agenda for the upcoming hearing, the above agenda was surprising in several respects.

First, the relegation of the four dismissal motions to the briefs and accompanying exhibits (without oral argument) was the greatest surprise to this retired attorney without any criminal law experience.  I had thought the first item on the agenda would be the dismissal motions with Chauvin’s first focused on the murder and manslaughter charges. Then the court would consider the three other dismissal motions focused on the aiding-and abetting issues. Does this relegation of these motions to the papers indicate that Judge Cahill already has made up his mind on these motions and merely needs time to do definitive research and write the decisions?

Second, the “Administrative Matters” all apparently assume the trial or trials will be held by the same court. Does this suggest Judge Cahill already has decided to deny the motions to change venue? Does it also suggest that the Judge has decided to grant the prosecution’s motion for joint trial although that is the first item on the agenda?

Third, although this blogger has frequently checked the court’s public list of materials in these four cases, some of the items in the Court’s agenda for the upcoming hearing are not familiar.

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[1]  Scheduling Order and Joint Motion Hearing Agenda, State v. Chauvin, Thao, Lane & Kueng (Hennepin  County District Court, State v. Chauvin, Thao, Lane & Kueng, Dist. Ct. File 27-CR-20-12646 [& 12949, 12951 & 12953] September 1, 2020).

 

Prosecution Opposes Defendant Thao’s Dismissal Motion for George Floyd Killing  

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]

A prior post discussed Thao’s arguments for dismissal.[3] Now we look at the prosecution’s counter arguments.

Probable Cause That Thao Aided and Abetted Chauvin’s Committing Second-Degree Unintentional Murder[4]

 “Minnesota law provides that a person is guilty of second-degree unintentional murder if he ‘causes the death of a human being, 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.’ Minn. Stat. § 609.19, subd. 2(1). “ (Prosecution Brief at 19.)

Here the other felony offense is third degree assault, which is “(i) an assault, defined as ‘the intentional infliction of or attempt to inflict bodily harm’ upon the victim; and (ii) the infliction of ‘substantial bodily harm’ upon the victim, defined as ‘bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.’” (Id. at 19-20.)

There is probable cause that Chauvin committed this crime: George Floyd died, per the Hennepin County Medical Examiner, as a result of “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” “Chauvin’s actions—pressing his knee into Floyd’s neck for approximately nine minutes”—inflicted “substantial bodily harm” on Floyd, was done intentionally and was a ‘substantial causal factor’ in the death. (Id. at 21-22.)

For “aiding and abetting” criminal liability for this crime, the defendant must be one who ‘intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.’ (Minn. Stat. sec. 609.05 , subd. 1.” This requires the defendant to know that the other persons “were going to [commit] or were committing a crime” although such knowledge can arise “at the time of the acts or presence amounting to aid . . .[while the other persons are] in the process of committing the offense.” (Id. at 20-22.)

Here there is probable cause that Thao knew Chauvin was intentionally committing an assault on Floyd by hearing Floyd’s repeated “I can’t breathe” messages, Chauvin’s dismissive acknowledgements that he had heard those pleas, and the desperate similar comments from bystanders and later by Thao’s learning that Floyd had lost consciousness and by Thao’s understanding that Chauvin’s restraints were contrary to MPD policy. (Id. at 23-26.)

There also is probable cause that Thao aided Chauvin’s restraint of Floyd. Thao suggested that the other officers should continue to pin Floyd to the pavement when they rejected the idea of using a Hobble device to restrain Floyd. Thao prevented bystanders from intervening to assist Floyd, and the Minnesota Supreme Court in State v. Parker, 164 N.W.2d 633, 644 (Minn. Sup. Ct. 1969) recognized that the “lookout—” someone who stands watch nearby and helps to prevent others from interfering with the crime—is “classic example” of an aider and abettor. Thao also opposed the idea of using a Hobble device because it would be less convenient for all of the officers. (Prosecution Brief at 26-29.)

Probable Cause That Thao Aided and Abetted Chauvin’s Second-Degree Manslaughter[5]

A person guilty of second-degree manslaughter under Minnesota law is 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.” (Minn. State. 609.205(1).) (Id. at 33.) The previously cited grounds for Chauvin’s second-degree murder charge also establish his second-degree manslaughter charge. (Prosecution Brief at 32-36.)

Those same previously cited factual allegations also support that Thao meets the standards for aiding and abetting.

Conclusion

This blogger is perplexed that both the prosecution’s oppositions to the dismissal motions of  Thao and Thomas Lane fail to mention that the MPD Policy and Procedure Manual in effect on May 25th has an express duty to intervene provision that states: “A. Sworn employees have an obligation to protect the public and other employees. B. 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.”[6]

Now we wait to see whether Thao will submit a reply to the prosecution’s opposition to his dismissal motion 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).

[3] Defendant Thao’s Dismissal Motion, dwkcommentaries.com (Aug. 25, 2020).

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

[5] Id. at 5-6.

[6]  Ex. 1 (Minneapolis Police Department’s Policy and Procedure Manual, sec. 5-303.01) in Attachments to Frank Affidavit (8/24/20), State v. Thao, Court file No. 27-CR-20-1249 (Hennepin County District Court Aug. 24, 2020).

 

 

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).

 

Prosecution Opposes Lane’s Motion To Dismiss Criminal Complaint

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.[1] On August 10 the prosecution filed its papers opposing that motion.[2] On August 17, Lane’s attorney  submitted his reply to the State’s Response.[3]

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).[4]

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[5]

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[6]

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?[7]

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[8]

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.”

Conclusion

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.

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[1] 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).

[2]  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).

[3] 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).

[4]  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).

[5] State’s Response at 16-17.

[6]  Id. at 18-20.

[7]  Id. at 21-30.

[8]  Id. at 31-35.

Thao’s Body Worn Camera Video Has More Damning Evidence       

Defendant Tou Thao’s BWC (body-worn camera) video of the George Floyd arrest and killing is now part of the public file in his criminal case. [1]

 Previous Evidence of the Floyd Arrest and Killing [2]

We know from previous reports in this case, including descriptions of the BWC of defendants Thomas Lane and J. Alexander Kueng, that Lane and Kueng first arrived at the Cup Foods corner and approached the car outside with George Floyd in the driver’s seat, removed him from the car and first took him to the adjacent sidewalk and had him sit comfortably with his back against the wall. Floyd was upset by the apparent arrest, but there was no mistreatment of him. Then Lane and Kueng walked Floyd across the street and over Floyd’s objections, forced him into the back seat of their squad car with Floyd immediately managing to leave that seat and fall on the nearby pavement.

At about that time, fellow officers Derek Chauvin and Tou Thau arrive at the scene in their squad car. Almost immediately Chauvin and one of the officers handcuff Floyd behind his back and force him to lie on the pavement with Chauvin’s left knee on or near his neck while Lane and Kueng also sit on Floyd’s back. They remain in those positions for seven minutes and 48 seconds while Floyd cries, “Mama” and “I can’t breathe” and “Don’t kill me” and finally “I am dying.”

Thao, on the other hand, is not participating in the physical restraint of Floyd, but is standing several feet away near the sidewalk as an increasing number of bystanders approach the squad car, observe Floyd being restrained on the pavement and making his pleas for life while the bystanders voice their demands for the officers to stop the restraint of this man. Later an ambulance arrives and Floyd is put on a gurney and placed in the ambulance with Lane going along to help. Later at the hospital Floyd is pronounced dead.

Thao’s BWC[3]

Thao was holding back nearly a dozen bystanders, many taping the scene with their cell phones, while Chauvin, Lane and Kueng were physically restraining Floyd, who was lying prone on his face on the pavement near a police squad car.

A Black man wearing a Northside Boxing Club sweatshirt yells at Chauvin to “get off his (expletive) neck, Bro” and asks Thao “you gonna keep him like that?” while motioning at Floyd. The bystander continues, “You gonna let him kill that man right in front of you, Bro? Bro, he’s not even moving right now, Bro.”

Another Black man in a black hoodie and shorts tells the officers he has been trained at the police academy and asks Thao if Chauvin is using a “jiu-jitsu move.” Thao responds, “He’s talking, so he’s fine.” A few minutes later this man steps into the street and says, “He’s f***ing dead, bro.” Thao shoves him back toward the sidewalk and says, “Don’t touch me again” prompting other bystanders to shout that the Black man had never touched Thao.

Thao orders the crowd onto the sidewalk. At one point, he tells the onlookers, apparently a 17-year-old girl taping the scene on her phone with a 9-year-old girl beside her, “This is why you don’t do drugs, kids.” Thao also said the officers had spent 10 minutes trying to get Floyd into the back seat of the squad car; the actual time was about 4.5 seconds.

A White woman out of uniform identifies herself as a Minneapolis firefighter and asks if the officers have checked Floyd’s pulse. Thao yells at her, “Back off!”

The man in the Boxing Club sweatshirt then says, “Check his pulse. You bogus, Bro. You call what he’s doing OK?”

A young woman yells, “What the (expletive) are you doing? He’s dying.”

When a man approaches Thao with a phone, Thao shoves him back toward the sidewalk, yelling, “Get out of the street!”

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[1] Xiong, Third body camera video in George Floyd killing shows officer pushing bystanders, StarTribune (Aug. 13, 2020); Griffiths, Wolfson, Owens & Bailey, New footage released of George Floyd’s fatal encounter with police, Wash. Post (Aug. 13, 2020); Baenen (Assoc. Press), Ex-cop’s video captures crowd’s horror during Floyd arrest, StarTribune (Aug. 14, 2020); Booker, Body Camera Video Of George Floyd And Police Offers New Details of Deadly Encounter, mpr.org (Aug. 14, 2020); Exhibits Attached to Affidavit of Matthew Frank, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Aug. 12, 2020) (Ex. 3 (Thao BWC video on flash drive).

[2]  Journalist’s Report on Viewing Two Bodycam Footages of George Floyd Killing, dwkcommentareies.com (July 15, 2020); British Newspaper Releases bodycam Footage of George Floyd’s Arrest and Killing, dwkcommentaries.com (Aug. 5, 2020). See generally List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[3] See n.1.

Defendant Thao Interviewed About George Floyd by Bureau of Criminal Apprehension

According to the StarTribune, on or about June 2 (“eight days after George Floyd’s killing on May 25th”), then Minneapolis police officer Tou Thao, before he had been criminally charged, was interviewed for about 100 minutes regarding the George Floyd arrest and killing, by the Minnesota Bureau of Criminal Apprehension (BCA) and the Federal Bureau of Investigation (FBI). The video of that interview is now part of the public file of his criminal case. [1]

Again according to the StarTribune,Thao in this interview first was “questioned about his professional history before spending about 12 uninterrupted minutes summarizing his encounter with George Floyd on that fateful day. Then Thao was questioned by a BCA special agent.

Here we will review details of that BCA interview.

Thao’s Own Summary

In his own summary, Thao said he and officer Derek Chauvin responded to a call for backup near Cup Foods. The call sounded urgent and their squad car was the ony one available. About half-way there, the dispatch was ended, but the two of them decided to go anyway because of their experience that Cup Foods was often a gang hang-out hostile to the police and because the officers already there (Thomas Lane and J. Alexander Kueng) were “rookies.”

When they arrived, the rear driver-side door of the other squad car was open. Kueng told them that the suspect had refused to sit in the rear seat of the squad car and had gotten himself out of the car. The suspect was not calm and appeared to be “high” on something.

A crowd was gathering, and Thao called to change the call for an ambulance from “Code 4” (Situation under control) to “Code 3” (“EMERGENCY SITUATION – To be answered immediately, but in a manner enabling the responding units to reach the scene as quickly and safely as possible. MS 169.03 and 169.17 require the use of red lights and siren for emergency”). Thao hoped the medics could provide a better assessment and restraint of the suspect.

Thao and the three other policemen decided not to “hobble” the suspect, i.e. use a Hobble Restraint device with nylon webbing, heavy-duty metal swivel hook and self-locking jawed alligator clip.

Thao focused on traffic and a “loud and hostile” crowd by putting himself between the crowd and the other three officers and suspect in order to prevent the crowd from attacking the other three officers. “As the crowd is starting to grow and become loud and hostile toward us, I decided to forgo [monitoring] traffic and put myself in between the crowd and the officers … and just spend the majority of my attention looking at the crowd — make sure they don’t charge us or bull rush us as the officers on the ground are defenseless,” Thao said, adding that he was a “human traffic cone.”

Eventually the ambulance arrived and Lane left with the suspect in the ambulance.

As the StarTribune noted, during his own summary, Thao did not mention anything about what the other three officers were doing or what the suspect was saying.

BCA’s Questioning of Thao

 When Thao and Chauvin were driving to Cup Foods, they were told someone who had appeared to be intoxicated had passed a “fake bill.” No recall of any mention of weapons or violence.

When they arrived, the suspect already was handcuffed. Thao did not think of any alternative way of restraining the suspect. He was just backup. He did not suggest just talk with the suspect, whom he never touched.

Thao had had  Crisis Intervention Training (CIT), and he had used it before, But he did not suggest doing that because he did not know what already had happened.

Nor did Thao check on the suspect at any point. “No, because my job is scene security. I would trust [the other officers] . . . God gave me only one body and two hands and two legs. I can’t be in two places at once.”

He hoped the paramedics would know what to do. They could restrain the suspect better. Just hold him down without handcuffs.

Thao did not hear Lane say anything about “excited delirium.” From his training, Thao believed “excited delirium” was a mental health or drug-related condition when someone acts erratically with no apparent self-awareness and potentially is explosive or violent.[2]

Thao did hear the suspect say he couldn’t breathe, but he was talking, which meant he was breathing.

Thao saw Chauvin struggling with the suspect. At some point he saw Chauvin’s left knee on the suspect’s neck. There is a specific technique for use of a knee that was taught in training. Thao has never used that technique and had never seen Chauvin use it before.

Most of the time Thao was focused on traffic and the crowd, which at some point said the suspect was not moving. Thao assumed the other officers would take appropriate action.

After Floyd and Lane left the scene in the ambulance, Kueng recommended that they lock up the vehicle Floyd had been driving and leave it parked on the street. Thao thought Kueng did not recognize the potential gravity of the situation so Thao responded, “We’re not going to leave the scene” and took steps to secure the car and the scene as evidence.

Later when he was told that the suspect [Mr. Floyd] had died, Thao said, “I didn’t want anyone to die. It was kind of a somber moment, especially for me. My heart kind of sank.”

At the very end of the interview, Thao was asked, “Do you think you could have done something differently to intervene?” His response: “I’m under the belief that you can always do something differently on every single call… I guess I would be more observant toward Floyd.”

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[1] Xiong, Officer charged in George Floyd’s killing tells investigators his job wasn’t to check on Floyd, video shows, StarTribune (Aug. 15, 2020); Raiche, Former MPD officer Tou Thao reveals to investigators what he could’ve done differently in Floyd case, KSTP.com (Aug. 14, 2020); Shen, Minneapolis cop Tou Thao told investigators he feared George Floyd ‘would have superhuman strength if he was on drugs’ and admits ‘his heart sank’ when he died on the sidewalk, dailymail.com (Aug. 15, 2020); Assoc. Press. Officer minimized role in Floyd’s death during questioning, StarTribune (Aug. 15, 2020); BCA interview with Tou Thao after George Floyd killing is released, StarTribune (Aug. 15, 2020) (video); Exhibits Attached to Affidavit of Matthew Frank, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Aug. 12, 2020) (Ex. 4 (Thao BCA Interview on flash drive)).

[2] Three distinguished medical scientists have said that “excited delirium” is “pseudoscience.” (See Concept of “Excited Delirium” Is Junk Science, dwkcommentaries.com (July 21, 2020).)

 

Prosecution Requests One Trial for the Four Former Policemen Charged with  Floyd Killing

On August 12, the prosecution in the four George Floyd murder and manslaughter cases asked  the trial court to consolidate all the cases for one trial, currently scheduled to start on March 8.[1]

Technically this was a motion for joinder of the four cases under Minnesota Rule of Criminal Procedure 17.03, subd. 2, which “when two or more defendants are charged with the same offense,” the court has discretion for them to be tried jointly after considering the following four factors: (i) “the nature of the offense charged;” (ii) “the impact on the victim;” (iii) “the potential prejudice to the defendant;” and (iv) “the interests of justice.”

The brief in support of the motion said, “First, the nature of the offenses supports joinder because of the similarity of the charges and evidence against all four Defendants. Second, the victim-impact factor favors joinder because this factor has been interpreted broadly to include the impact on eyewitnesses and family members who would likely be traumatized by multiple trials. Third, Defendants are unlikely to be prejudiced by joinder because their defenses are not antagonistic. Finally, the interests of justice favor joinder because, among other things, separate trials would cause delay and impose burdens on the State, the Court, and witnesses, and trial-related publicity may compound the difficulty in selecting a jury in subsequent trials. This Court should therefore grant the motion and order the joinder of all four Defendants’ trials.”

For this retired attorney without criminal law experience, this sounds like a very strong argument. The toughest point appears to be whether or not any of the four defendants would be prejudiced by a consolidated trial.

According to the Minnesota Supreme Court, says the prosecution, “the potential prejudice to the defendants—weighs against joinder only if Defendants show that they will present ‘antagonistic defenses’ at trial,” i.e., “when they seek to put the blame on each other and the jury is forced to choose between the defense theories advocated by the defendants.” Moreover, says the prosecution, The Minnesota Supreme Court has identified two narrow categories of cases in which antagonistic defenses are likely to be present;” (1) “where the state introduce[s] evidence that show[s] only one of the defendants killed the  victim, thus forcing each defendant to ’point the finger’ at the other;” and (2) “when the jury is ‘forced to believe the testimony of one defendant or the testimony of the other’ in order to reach a verdict.” Moreover, under Minnesota Supreme court precedents, “arguments about disparate levels of responsibility among the defendants are not enough to render defenses antagonistic.”

Moreover, the prosecution says, “the four defendants are likely to raise common defenses.,” such as the use of force was reasonable or necessary, or that the Defendants’ actions did not cause Floyd’s death.”

The evidence for the motion was provided in exhibits to the Affidavit of Assistant Attorney General Matthew Frank: the body worn camera video of defendants J. Alexander Kueng, Thomas Lane and Tou Thao (Exs. 1-3);[2] copies of the Bureau of Criminal Apprehension interviews of Lane and Thao (Exs. 4 & 5); Minneapolis Police Department’s Policy and Procedure Manual (pertinent portions) (Ex. 6); Hennepin County Medical Examiner Autopsy Report (Ex. 7); Hennepin County Medical Examiner Press release Report (Ex. 8); and Armed Forces Medical Examiner report (Ex. 9).

The defendants’ responses to this motion are due September 8 for the September 11 hearing.

==============================

[1] Xiong, Prosecutors seek permission for one trial for all four former officers charged in George Floyd’s killing, StarTribune (Aug. 12, 2020); State v. Chauvin, State’s Notice of Motion and Motion for Joinder, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Affidavit of Matthew Frank, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Exhibits Attached to Affidavit of Matthew Frank, Court File No. 27-CR-20-12646 (Aug. 12, 2020)(Exhibits 4 and 5 were copies of the Bureau of Criminal Apprehension interviews of former officers Lane and Thao on flash drive, which were not available online); State v. Chauvin, State’s Memorandum in Support of Motion for Joinder, Court File No. 27-CR-20-12646 (Aug. 12, 2020); State v. Chauvin, Scheduling Order, Court File No. 27-CR-20-12646 (Aug. 13, 2020).

[2]  The bodycam video of defendant Thao has not previously been reported. According to the Associated Press, it shows for the first time “the growing horror of nearly a dozen onlookers who repeatedly pleaded with the officers to get off Floyd. One of the bystanders, a black man wearing a Northside Boxing Club sweatshirt yells at Chauvin to ‘”get off his (expletive) neck, Bro” and asks Thao “You gonna keep him like that? “You gonna let him kill that man in front of you, Bro? Bro, he’s not even (expletive) moving right now, Bro.” When a woman who identifies herself as a Minneapolis firefighter arrives, Thao yells at her, ‘Back off!” She, however, persists and asks if the officers have checked the man’s pulse.(Assoc. Press, Ex-Cop’s Video Captures Crowd’s Horror During Floyd Arrest, N.Y. Times (Aug. 13, 2020); Bailey, Owens, Griffiths & Wolfrom, Live updates: New footage released of George Floyd’s fatal encounter with police, Wash. Post (Aug. 13, 2020).)

 

 

 

Court Hearing in Criminal Cases Against the Four Ex-Policemen in George Floyd Killing      

On July 21 Hennepin County District Court Judge Peter Cahill held a hearing to hear arguments on several pending motions in the criminal cases against the four ex-police officers involved in the May 25th killing of George Floyd.[1]

First, was the motion by the four ex-policemen to hold Attorney-General Ellison in contempt of court for making a public statement about his hiring, pro bono, four additional attorneys for the prosecution. Before the hearing, an Assistant Attorney General said this motion was a ploy to smear the prosecution, and during the hearing the Judge said the statement was innocuous and did not violate the gag order.

In any event, during the hearing, the judge vacated the gag order. The Judge said that order could have been more narrowly drawn as it “didn’t work” and  “may have exacerbated the issue” by causing parties to “tip toe” around in their public statements while leading the news media to rely on anonymous sourcing.

Second, the Judge heard arguments on the motion by a media coalition to release the video footage of two body camera footage of the police’s restraint of Mr. Floyd, but did not rule on that motion.

During the hearing, the attorney for defendant Thomas Lane, said that Floyd had “swallowed drugs” as Lane approached the car and that the bodycam video actually showed Floyd “stuffing counterfeit bills down his [car] seat before he showed his hands.”

==========================

[1] Montemayor, Hennepin County judge drops gag order in case against four ex-cops charged in Killing of George Floyd, StarTribune (July 21, 2020); Ibrahim, Hennepin County judge lifts gag order in George Floyd criminal case, Twin Cities Pioneer Press (July 21, 2020); Lambert, Judge lifts gag order in criminal case against four former Minneapolis police officers, MINNPOST (July 22, 2020).

 

 

George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count III       

As noted in a prior post, on July 15, the family of George Floyd filed a federal civil action with two claims (Counts II and III) for money damages against the City of Minneapolis and one claim (Count I) against the four ex-police officers who were involved in Floyd’s death—Derek Chauvin, Tou Thao, Thomas Lane and J. Alexander Kueng. This post will discuss Count III.[1] while Counts I and  II were discussed in prior posts.

Legal Basis

Count III is asserted against the City of Minneapolis under 42 U.S.C. section 1983, which states as follows:

  • “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

Count III also is based upon so-called “Canton Liability,” which refers to the U.S. Supreme Court case, Canton v. Harris, 489 U.S. 378 (1989), which held that a municipality may be held liable under section 1983 for constitutional violations resulting from its failure to train its employees where such failure to train in a relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the police come into contact.

Factual Allegations

The Parties

“6. Plaintiff Kaarin Nelson Schaffer (“Schaffer”) resides in Hennepin county, Minnesota, and is an attorney duly licensed to practice before the State and Federal; Courts of Minnesota. On July 6, 2020, Schaffer was appointed as trustee for George Floyd’s next of kin.”

“7. Mr. Floyd is survived by next of kin including his children and siblings.”

“8. Minneapolis is and was at all times material hereto a political subdivision of the State of Minnesota, organized and existing under and by virtue of the laws of Minnesota.”

“9. The Minneapolis Police Department (“MPD”) is and was at all times material hereto a Minneapolis agency, providing the vehicle through which the City fulfills its policing functions.”

“Count III – 42 U.S.C. §1983 – Canton Liability”

“247. Plaintiff hereby incorporates and re-alleges all preceding paragraphs as though fully pleaded herein.”

“248.Minneapolis failed to properly train or modify its training to Defendant Officers and its other officers, including but not limited to, matters related to the reasonable and appropriate use of force during such arrests, and intervention in the excessive use offorce by fellow officers.”

“249. Effectuating an arrest, using force to effectuate an arrest, and intervening in the use of force is a usual and recurring situation with which Minneapolis law enforcement officers and other agents encounter on a regular basis.”

“250. As such, Minneapolis was aware of a need for more and different training.Minneapolis specifically knew that its officers needed training regarding the use of prone restraint and was required to provide its officers with such training.”

“251. Minneapolis also specifically knew that its officers needed specific training on the use of neck restraints.”

“252. With deliberate indifference to the rights of citizens, Minneapolis failed to provide adequate training to its officers on the use of prone and neck restraint.”

“253.Minneapolis was aware that deprivation of the constitutional rights of citizens was likely to result from its lack of training and the failure to modify its training.”

“254. As such, Minneapolis was deliberately indifferent and exhibited reckless disregard with respect to the potential violation of constitutional rights.”

“255. The failure to train and/or to appropriately modify training constituted official Minneapolis policies, practices, or customs.”

“256. Minneapolis’s failure to train and/or to modify training was behind the acts and omissions the Defendant Officers made toward Mr. Floyd.”

“257. As a direct and proximate result of Minneapolis’s acts and omissions, Mr. Floyd suffered injuries, experienced pain and suffering, and ultimately died.”

“258. As a direct and proximate result of the acts and omissions described herein, Mr. Floyd suffered compensatory and special damages as defined under federal common law and in an amount to be determined by jury.”

“259. Plaintiff is entitled to recovery of costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988.”

“260. The conduct described in all of the preceding paragraphs amount to wrongful acts and omissions for purposes of Minnesota Statute Section 573.02, subdivision 1.”

“261. As a direct and proximate result of these wrongful acts and omissions, Mr. Floyd’s next of kin have suffered pecuniary loss, including medical and funeral expenses,loss of aid, counsel, guidance, advice, assistance, protection, and support in an amount to be determined by jury.“

Conclusion

All of the legal references and assertions by the parties, of course, are subject to legal research to determine their current validity in light of any subsequent federal statutes and decisions by the U.S. Supreme Court and lower federal courts, especially by the U.S. District Court for the District of Minnesota and its direct appellate court (the U.S. Court of Appeals for the Eighth Circuit).As previously noted, Count I of this Complaint against the four ex-officers and Count II against the City have been covered in prior posts.[2]

Now we await the defendants’ responses to this Complaint and other further developments in this civil case and in the criminal cases against the four ex-officers.

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[1] Read the lawsuit filed by family of George Floyd against Minneapolis, four ex-police officers, StarTribune (July 15, 2020).

[2] George Floyd Family’s Complaint Against the Four Ex-Police Officers Over His Death, dwkcommentaries.com (July  17, 2020); George Floyd Family’s Complaint Against the City of Minneapolis Over His Death: Count II, dwkcommentaries.com (July 18, 2020).