Did These Three Officers ‘Willfully’ Deprive George Floyd of His Constitutional Rights?

Derek Chauvin, a former Minneapolis officer police officer was convicted last April of manslaughter and murder for killing George Floyd. He pinned him to the ground for nine minutes. This incident sparked nationwide protests. In December, Chauvin pleaded guilty for violating 18 USC 242 in which he deprived Floyd of constitutional rights. The federal courts are currently prosecuting three of the officers involved in Floyd’s arrest in May 2020. Their charges include failing to interfere or render medical help and violation of 18 USC 242.

Yesterday’s opening statements were split between the defense and prosecution. They presented two portraits of Floyd, one who ignored his pleas for help and another that listened to Floyd in an unsafe and dangerous environment. The jury also heard testimony today from Kimberly Meline (FBI forensic media examiner), who showed videos of Floyd’s arrest, its aftermath and Christopher Martin, the cashier in the shop where Floyd used the fake $20 bill to purchase cigarettes. This incident ultimately resulted in Floyd’s death.

Federal prosecutors face the challenge of proving beyond reasonable doubt that officers did not just neglect their legal duties, but also “willfully”. Thomas Lane and J. Alexander Kueng, both rookies, assisted Floyd in breathing while being restrained. Lane held Floyd by his legs while Keung put pressure on his back. Tou Thao Officer, was charged with managing the group of people who witnessed Floyd’s distressing treatment by Chauvin.

Samantha Trepel, federal prosecutor for the United States told the jury: “For over nine minutes each of the defendants made an conscious decision over and over again to not act.” They didn’t intervene to stop Chauvin from killing a man in slow motion on broad daylight streets.

The defense lawyers urged the jury, as Chauvin’s lawyer did in his state trial. They wanted to emphasize factors that weren’t captured on the horrific videos of Chauvin kneeling down on Floyd’s neck. After arresting Floyd for counterfeit bills, Kueng and Lane tried unsuccessfully to get him into the backseat of their patrol vehicle. Lane’s attorney Earl Gray stated that the man was “all muscle” They were obviously doing something wrong and could not manage to get him in the backseat. What does Chauvin do now? Chauvin takes control, grabs the man and puts him to the ground.

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Gray suggested that Floyd, who seemed to be intoxicated, was exhibiting “superhuman strength”—a claim that Chauvin’s defense also deployed. Former police officer Barry Brodd, testifying as a use-of-force expert during Chauvin’s trial, averred that “drug-influenced” suspects “don’t feel pain” and “may have superhuman strength”—an old canard with racist roots that police tend to drag out when they are accused of using excessive force.

Thomas Plunkett (Kueng’s lawyer) stressed that Kueng was on the third day of his career, and was being “confronted to a complex, quickly unfolding series of circumstances.” Plunkett argued that Kueng had received “inadequate training” and suggested that he was in no position to question Chauvin, his training officer.

Robert Paule was Thao’s attorney. He claimed that Thao, an officer who worked for the Minneapolis Police Department about 11 years had had to deal with the “human traffic cone” role of standing in between his fellow officers and six to ten witnesses. Trepel said that Chauvin was outraged by the reactions of the onlookers. This is far from an extenuating situation. Trepel explained that after Floyd lost his speech ability, people stood for him. “They saw his body become limp and listened to his words, before they understood that he was going to die unless something was done to change it.”

Although Thao might not have been as clear about what was going on as Lane and Kueng, his response to bystanders’ concerns made it appear that he didn’t really care. At first, he seemed to laugh at the situation and said, “This is why I don’t use drugs, children.” Thao repeated the false assurances made by Floyd’s officers and said, “He’s talking so he’s okay.”

Thao was criticized by a man who claimed he trained at the police academy and questioned his judgment repeatedly: “That’s bullshit bro. You’re fucking stopping his breathing right there, bro….You’re a bum for that, bro.” A woman who identified herself as a Minneapolis firefighter told Thao, “You should check on him… He’s not responsive.” Thao the “human traffic cone” ignored all warnings and ordered the pedestrians who had stepped onto the street to return on the sidewalk.

Lane recommended twice to Floyd that he be placed on his side. This is consistent with police’s knowledge about positional asphyxia. “The medical aid that would have saved George Floyd’s life was as simple as that—turning George Floyd on his side so his heart kept beating,” Trepel said.

Chauvin rejected Lane’s suggestion, but they do suggest that Lane knew Floyd was in danger. However, Lane also indicated that he was concerned more about Floyd’s well-being than Chauvin. Trepel, however, depicted Kueng, according to the video record as being distracted in gravel on the tire of his police car while Floyd begged for her life.

It is important to determine whether defendants acted “willfully” within the meaning of 18 USC 242. This is the 1945 case Screws v. United StatesThe Supreme Court ruled that to be willful, a defendant must either have “a specific intention” or act with open defiance of or reckless disregard for a constitutional requirement. The Federal appeals courts that applied this standard came to different conclusions.

For example, the U.S. Court of Appeals, 5th Circuit has stated Do it with great care means “the act was committed voluntarily and purposely with the specific intent to do something the law forbids”—i.e., “with a bad purpose either to disobey or to disregard the law.” According to the U.S. Court of Appeals 3rd Circuit instructions, jurors were allowed to find out that a defendant acted with specific intent, even if they have no knowledge of the Constitution. A 2020 report by the Congressional Research Service states that the Supreme Court’s interpretations of Section 242 have created a substantial obstacle to Section 242 claims.

Kueng and Lane are facing federal criminal charges. However, Thao, Thao, and Lane face state charges of aiding in abetting Chauvin’s crime, which might be less difficult to prove. Ted Sampsell Jones, a law professor at Mitchell Hamline School of Law, St. Paul noted that the charges are valid under Minnesota law, but “rely on some fringe doctrines of accomplice responsibility.” He said that those doctrines “have been long criticised by progressive reformers,” because they “create extensive strict liability for minor participants” in group crime.