The DOJ’s Flawed Civil-Rights Indictment against Ex-Cops in George Floyd Case

It is crucial to grasp that this is not a murder case; that is the state prosecution.

T his is the last of three columns outlining some major issues in the Justice Department’s civil-rights prosecution of three former Minneapolis police officers who, along with already-convicted former officer Derek Chauvin, are implicated in the killing of George Floyd on Memorial Day 2020. The trial began in earnest last week in a St. Paul federal court.

As one would expect, opening statements and the start of the prosecution’s presentation highlighted the crux of the case: the gruesome video depicting the four cops detaining Floyd on a city street in a prone position, as he struggled to breathe and gradually expired. Nevertheless, it is crucial to grasp that this is not a murder case; that is the state prosecution.

In federal court, the ex-cops are charged with knowingly and willfully depriving Floyd of established federal rights. That is a very different matter, making the operation of the officers’ minds at least as consequential as their actions. Ergo, central to the case will be testimony about their Minneapolis Police Department (MPD) training; evidence of how their judgment was affected by Floyd’s imposing physical build, his violent resistance to the arrest, his clearly being under the influence of drugs, and the bystanders who grew increasingly agitated as the officers detained him; and the proof regarding discussions held among themselves during the altercation.

The first column in this series addressed how the issue of race impacts the case. The second handicapped the intriguing question of whether Chauvin — who was convicted in a state trial last April and then pled guilty to federal charges in mid December — will be called as a trial witness. In this third column, we are discussing the theory of the prosecution’s case, homing in on the pivotal issue in federal civil-rights prosecutions: establishing willfulness, the heightened mens rea or criminal-intent element (also referred to as the scienter requirement) that prosecutors must prove beyond a reasonable doubt to convict the accused.

Premature and Unnecessary Federal Civil-Rights Case

To set the stage, the three defendants standing trial are Tao Thao, J. Alexander Kueng, and Thomas Lane. As I’ve explained, their state trial was severed from Chauvin’s and has thus not yet taken place — it is now scheduled to start in June. The prejudicial publicity that the Justice Department knowingly caused by announcing its investigation of the MPD and its civil-rights indictment of the four officers played a significant role in the postponement of state proceedings.

I believe the Justice Department should not have charged civil-rights violations, at least not at this stage. DOJ should have waited until the state murder charges were tried so as not to interfere with the state’s duty to provide a fair trial. Then, based on how that had played out, the feds could have assessed whether a civil-rights prosecution was necessary and appropriate.

That said, had I been disposed to bring a civil-rights case, I would not have charged it the way DOJ’s Civil Rights Division has.

The Indictment and Its Flaws

The indictment is pled in three counts. In the first, Chauvin alone is charged with willfully depriving Floyd of his Fourth Amendment right to be free of unreasonable seizure. He is said to have done this by using excessive force, specifically: Chauvin “held his left knee across George Floyd’s neck, and his right knee on Floyd’s back and arms, as George Floyd lay on the ground, handcuffed and unresisting, and kept his knees on Floyd’s neck and body even after Floyd became unresponsive,” ultimately resulting in Floyd’s death.

Count Two charges Thao and Kueng — but, importantly, not Lane — in connection with the civil-rights offense alleged against Chauvin in Count One. The prosecution’s theory, however, is saliently different: Thao and Kueng are said to have been aware of what Chauvin was doing, and to have “willfully failed to intervene to stop Defendant Chauvin’s use of unreasonable force.” This is somewhat similar to an aiding-and-abetting theory: Chauvin is the principal offender, and the other cops are lesser actors who helped the principal in some way, although the idea here is that they failed to act, not that they provided affirmative assistance.

Finally, Count Three charges all four cops with a slightly different civil-rights offense: depriving Floyd of “liberty,” which in this iteration is said to be his “right to be free from a police officer’s indifference to his serious medical needs.” According to the Justice Department, this right derives not from the Fourth Amendment prohibition against unreasonable seizures but is a matter of substantive due process. The theory here is that, as Floyd struggled for breath, fell unconscious, and lost his pulse, the police jointly and willfully failed to administer medical care — by which, it turns out, DOJ means adequate medical care.

Media accounts tend to oversimplify the charges to the point of misstatement. With the main culprit, Chauvin, out of the case on a guilty plea, it is commonly reported that all three remaining defendants are charged with failing to provide needed medical care, and that two defendants (Thao and Kueng) are charged with failing to intervene in Chauvin’s use of excessive force. That might be accurate if this were a civil lawsuit for money damages in which a plaintiff had to show by a mere preponderance of the evidence that the police acted negligently. This, however, is a criminal case. The charge is more complex and the burden on the government is greater. Prosecutors must prove beyond a reasonable doubt that the police knew that Floyd had specific constitutional rights and acted with an evil purpose to deprive him of those rights.

To my mind, the indictment is ill-conceived. It signals to the jury that the real culprit was Chauvin, that he alone used excessive force, and that others (but not all of them) are guilty, at most, for failing to stop him. Furthermore, Count Three’s fuzzy substantive due-process theory of willfully failing to render medical aid is plagued by both legal and evidentiary problems. Instead of charging it as a separate count, prosecutors should simply have proved the failure to provide more and timely emergency medical treatment as part of the excessive-force/unreasonable-seizure under the Fourth Amendment (i.e., Counts One and Two). But of course, DOJ had already calculated that Lane could not be convicted for that. Hence, they needed to come up with something else they could plausibly charge against Lane, lest the wrath of the angry Left rain down on the Biden administration for absolving a white cop in George Floyd’s murder.

If you’re going to charge this case federally at all, the four cops should be charged as a unit. As I related during Chauvin’s state trial, the most critical evidence in the case, besides the video, is the testimony of expert pulmonologist Martin Tobin. He explained that, although the image of Chauvin’s knee over Floyd’s neck is the worst optic for the police, what essentially caused Floyd’s death was (1) the police pressure exerted lower down, on his back, pushing down on his lungs; and (2) his inability to move his body into a position that enabled breathing, which was caused by all the police pressure, including on his legs.

It was not Chauvin alone putting all this pressure on Floyd. Kueng and Lane both pushed and held down Floyd’s body, and Thao kept at bay the agitated bystanders who wanted to come to Floyd’s aid. That is, the four acted together, in coordination. Chauvin may have been calling the shots as the senior officer who had been an MPD training officer, but all four were complicit in the use of force. It thus makes no sense to charge only Chauvin with using excessive force, as the Justice Department has done.

The Lane Problem

And why haven’t federal prosecutors charged all four men jointly? Plainly, they were vexed by Thomas Lane, as to whom there is daunting exculpatory evidence.

Lane, a rookie who was just a few days on the job, repeatedly suggested that Floyd should be repositioned out of the prone position, which would have made breathing easier. At the time, the police were waiting for an ambulance, which the cops themselves had called for Floyd. That is, even though they could have once again tried to get Floyd into their squad car and taken him to the police station to process his arrest, they instead decided to get him emergency medical treatment, including hospitalization. Unfortunately, it took the ambulance several minutes to arrive — minutes during which the cops exhibited horrible judgment by holding Floyd down, rather than giving emergency aid, such as CPR. When the ambulance did finally arrive, though, and once Floyd was moved off the street and away from the crowd, video evidence shows that Lane administered CPR to Floyd.

Prosecutors obviously reasoned that, on this evidence, they’d have no chance of convicting Lane for using, abetting, or blithely allowing the use of excessive force. He may not have done everything he could and should have done, but he tried to help Floyd. Besides that, there is a big difference between exhibiting poor judgment and committing an actionably willful criminal wrong.

The problem for prosecutors is that Lane’s case is not materially different from that of Kueng and Thao. The reasoning that led to the decision not to charge him in the excessive-force/unreasonable-seizure counts should have led to not charging any of the three.

So far in the trial’s early days, the testimony has established that MPD instructs new officers not to question their trainers and offers no specific training on how officers are supposed to intervene if they believe senior officers are in the wrong — particularly in a tense situation, with a suspect who has violently resisted arrest, and when police are surrounded by angry bystanders.

Chauvin was not just the senior officer, he was an MPD training officer. Like Lane, Kueng was brand-new to the job, on only the third shift of his MPD career, when he encountered Floyd. Kueng could obviously hear Lane’s suggestions and Chauvin’s responses — he did not need to verbalize to be a part of the discussion. It was no less reasonable for him to defer to Chauvin than for Lane to do so. And if Kueng should have gotten the same benefit of the doubt as Lane, why not Thao, who was just performing crowd-control duty and did not hold Floyd to the ground at all?

The Legal Problem

Now, let’s talk about the law.

Both civil-rights charges against the three remaining defendants are derived from Section 242 of the federal penal code. It is among the most difficult for prosecutors to prove because the statute is vague: criminalizing the willful deprivation of federal rights under color of law.

As written, the statute would require police and other public officials to have encyclopedic knowledge of federal constitutional, statutory, and jurisprudential law. Progressive constitutional jurists imagine the Constitution to be “organic,” forever yielding new rights, under the talisman of “due process,” as society “evolves” and we expand our conception — or, at least, former Supreme Court Justice Anthony Kennedy’s conception — of liberty . . .  which, at its “heart,” is said to include “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

That, to say the least, sits uneasily with the criminal law. It is a deeply rooted constitutional principle that, at a minimum, due process mandates that penal laws be sufficiently clear and definite that a person of ordinary intelligence is on notice of what conduct is prohibited. The average person could not conceivably know ahead of time, say, every progressive piety that the Biden Justice Department might abracadabra into a federal “right” that “systemically racist” police departments must now ensure for criminal suspects.

This vagueness problem led the Supreme Court, in Screws v. United States (1945), to save the statute (in its previous codification) from constitutional infirmity. The Court did so by construing the law’s mens rea element of willfulness to require very exacting proof: Prosecutors must establish, beyond a reasonable doubt, that defendants acted not only intentionally but with a purpose to deprive the victim of a “constitutional requirement which has been made specific and definite.” Consequently, the Court threw out a conviction in a case charging police with brutally beating to death a detainee they had lawfully arrested. The justices explained that the lower court had erred by instructing the jury that the police had

acted illegally if they applied more force than was necessary to make the arrest effectual or to protect themselves from the prisoner’s alleged assault. But in view of our construction of the word “willfully” the jury should have been further instructed that it was not sufficient that petitioners had a generally bad purpose. To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right[.] [Emphasis added.]

The mind-reading this calls for is very tough to do. That is why criminal-justice reformers, who want to make it easier to prosecute abusive cops, have proposed amending the statute to, among other things, ease the burden of proving criminal intent. Instead of needing to establish that a defendant acted willfully, prosecutors would merely have to show that he acted knowingly or recklessly. If that were the standard, it would be unnecessary to prove that the police acted with an evil purpose to deprive a person of specified, well-known federal rights; it would be enough to show that they were aware of a perilous risk of harm yet disregarded it. The latter more accurately describes the police in the Floyd arrest scenario . . . but at present, it is not the law.

Conclusion

Floyd was subjected to excessive force, but the government does not accuse the three officers on trial of applying such force — only of not preventing Chauvin from applying it. And on that score, prosecutors did not charge Lane at all. It is not rational, under the circumstances, to treat the uncharged Lane’s failure to prevent Chauvin’s abuse differently from the similar failure of Thao and Kueng, who are charged.

Moreover, even if we assume for argument’s sake that there is a specific and definite due-process right of arrestees to be given prompt medical attention, the evidence indicates that the police believed Floyd was high on drugs, called for an ambulance to get him to the hospital, feared he might come to and resume fighting, and administered CPR — although later than it should have been administered. That Chauvin’s use of excessive force materially contributed to this chain of events is, according to the indictment, not the fault of the other three officers, who are not alleged to have used excessive force. And the fact that they could and should have rendered better medical aid to Floyd does not mean that they did not render medical aid at all, much less that, with evil motive, they schemed to deprive Floyd of what they supposedly knew to be some particular quantum of medical aid — specifically, a quantum called for, not by MPD policies, but somewhere in the penumbras said to emanate from the United States Constitution.

If ex-cops Tao Thao, J. Alexander Kueng, and Thomas Lane collaborated with Derek Chauvin in applying the excessive force that led to George Floyd’s tragic death, they should be tried for murder and manslaughter. That is exactly what the state of Minnesota is planning to do in June, just as it has already done to Chauvin. To the contrary, the Justice Department’s civil-rights prosecution is as flawed as it is unnecessary.