From the left, former Minneapolis police Officers J. Alexander Kueng, Thomas Lane and Tou Thao all face federal charges depriving Floyd of his civil rights.The Associated Press
The federal trial for three former Minneapolis police officers who were with Derek Chauvin when he pinned George Floyd to the street is expected to be complex as prosecutors try to prove each officer willingly violated the Black man’s constitutional rights.
Jury selection begins Thursday in the U.S. federal case against J. Kueng, Thomas Lane and Tou Thao, who also face a state trial later this year on counts of aiding and abetting both murder and manslaughter in Mr. Floyd’s death.
In the federal case, all three are broadly charged with depriving Mr. Floyd of his civil rights while acting under “colour of law,” or government authority. Legal experts say it will be more complicated than the state trial because prosecutors have the difficult task of proving they willfully violated Mr. Floyd’s constitutional rights – unreasonably seizing him and depriving him of liberty without due process.
“In the state case, they’re charged with what they did. That they aided and abetted Chauvin in some way. In the federal case, they’re charged with what they didn’t do – and that’s an important distinction. It’s a different kind of accountability,” said Mark Osler, a former federal prosecutor and professor at the University of St. Thomas School of Law.
While the state would try to prove the officers helped Mr. Chauvin commit murder or manslaughter, federal prosecutors must show that they failed to intervene. As Phil Turner, another former federal prosecutor, put it, prosecutors must show the officers should have done something to stop Mr. Chauvin, rather than show they did something directly to Mr. Floyd.
Mr. Floyd, 46, died on May 25, 2020, after Mr. Chauvin pinned him to the ground with his knee on Mr. Floyd’s neck for 9½ minutes while Mr. Floyd was facedown, handcuffed and gasping for air. Mr. Kueng knelt on Mr. Floyd’s back and Mr. Lane held down his legs. Mr. Thao kept bystanders from intervening.
Mr. Chauvin was convicted in April on state charges of murder and manslaughter and is serving a 22½-year sentence. In December, he pleaded guilty to a federal count of violating Mr. Floyd’s rights.
Federal prosecutions of officers involved in on-duty killings are rare. Prosecutors face a high legal standard to show that an officer willfully deprived someone of their constitutional rights, including the right to be free from unreasonable seizures or the use of unreasonable force; an accident, bad judgment or negligence isn’t enough to support federal charges.
Essentially, prosecutors must prove that the officers knew what they were doing was wrong, but did it anyway.
Mr. Kueng, Mr. Lane and Mr. Thao are all charged with willfully depriving Mr. Floyd of the right to be free from an officer’s deliberate indifference to his medical needs. The indictment says the three men saw Mr. Floyd clearly needed medical care and failed to aid him.
Mr. Thao and Mr. Kueng are also charged with a second count alleging they willfully violated Mr. Floyd’s right to be free from unreasonable seizure by not stopping Mr. Chauvin as he knelt on Mr. Floyd’s neck. It’s not clear why Mr. Lane is not mentioned in that count, but evidence shows he asked twice whether Mr. Floyd should be rolled on his side.
Both counts allege the officers’ actions resulted in Mr. Floyd’s death.
Federal civil-rights violations that result in death are punishable by up to life in prison or even death, but those stiff sentences are extremely rare and federal sentencing guidelines rely on complicated formulas that indicate the officers would get much less if convicted.
John Baker, a former defense lawyer and professor at St. Cloud State University, said each officer has good defense arguments available. Prof. Baker said Mr. Chauvin was a senior officer and Mr. Lane and Mr. Kueng, who were new to the job, can argue they were doing what they were told to do. Prof. Baker said Mr. Thao can say he was just trying to keep other people from getting involved.
“The question is: Did they do enough and should they have stopped Derek Chauvin from doing what he was doing?” Prof. Baker said.
It’s not known whether any of the three officers will testify. Prof. Baker said he would advise them not to, because their testimony could be used against them in a state trial. But Prof. Osler thinks at least some of them might take the stand, saying police officers make some of the best witnesses because they are trained on how to testify.
It’s not clear whether Mr. Chauvin will testify, either. Mr. Turner said prosecutors don’t need his testimony because they have video that shows what happened. Prof. Osler said Mr. Chauvin’s federal plea agreement was crafted carefully to limit his usefulness to the defense.
That agreement says Mr. Chauvin knew that officers are trained to intervene if another officer is using inappropriate force, and that Mr. Chauvin didn’t threaten or force any of the three officers to disregard that duty.
It also says that Mr. Chauvin did not observe Mr. Thao or Mr. Kueng do or say anything to try to get Mr. Chauvin to stop. It says Mr. Chauvin heard Mr. Lane ask twice whether Mr. Floyd should be rolled on his side, but that Mr. Chauvin “did not hear or observe Officer Lane press the point, and did not hear or observe Officer Lane say or do anything else to try to get Officer Kueng and the defendant off of Mr. Floyd.”
Prof. Osler said those details are “quite intentional.”
“There must be some fear that he would fall on his sword and say it was all on me, not these other guys,” Prof. Osler said.
As rare as federal prosecutions of officers are, it’s rarer still that such a case would precede a state trial.
The future of the state case is uncertain. Prof. Osler said if the officers are convicted in federal court, the state trial could proceed, the officers could plead guilty, or the state could dismiss the charges – avoiding another trial. If the officers are acquitted, a state trial is likely to proceed.
“This trial is going to present an evolutionary step beyond what we saw at the Chauvin trial because we’re not looking at the killer, but the people who enable the killer. And that gets a step closer to the culture of the department,” Prof. Osler said.
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