Today saw the start of the federal trial for three Minneapolis-based police officers charged with not stopping Derek Chauvin’s murder of George Floyd. A lot of testimony from the prosecution focused on the lawful duty not to use excessive force by a colleague officer. Two of the officers were new at Floyd’s arrest, in May 2020. The defense claims that they deferred to Chauvin as Floyd was placed face-down on the pavement by Chauvin.
For the jury, it is crucial to determine whether Thomas Lane, J. Alexander Kueng and Tou Thao “willfully” deprive Floyd of constitutional rights through their failures to act and/or render aid. However, the trial poses the wider question of how police officers may be encouraged to protect people’s rights. Particularly when the victim is higher up than the officer and presumes to have more knowledge about the proper procedures. The training program, which was initiated in response to Floyd’s murder, provides officers the skills and practical knowledge they require to respond to such incidents.
Chauvin, who was found guilty of manslaughter and murder last April, currently serves a 22 year sentence in state prison. He also has pleaded guilty to violating 18 USC 242 by depriving Floyd of his constitutional rights under color of law. Although Kueng, Lane and Thao were all charged with the same offense, the question isn’t so much about what they did but what they didn’t do.
Kueng and Lane helped Chauvin to restrain Floyd after he complained repeatedly that he couldn’t breathe. Chauvin was able to restrain Floyd by placing his neck on Kueng’s back, while Lane held Floyd’s legs. Thao, the person who had to deal with bystanders, assured them alternately that Floyd was alright and asked them to back off if they attempted to intervene.
Thao and Kueng are each charged with failure to stop Chauvin continuing his prolonged prone restraint. Lane is not facing that charge. This could be because Lane suggested twice that Floyd should roll from his stomach to his side. It’s consistent with police training on the danger of “positional Asphyxia.” However, all three officers have been charged with “deliberately indifferent to”. [Floyd’s]Serious medical issues are a must.”
Katie Blackwell of the Minneapolis Police Department has resumed her testimony. She stated that, according to their training, defendants knew that Chauvin was using excessive force against Floyd and that they had an obligation to protect Floyd. According to the defense, the officers’ training was not adequate for them to deal with what occurred that day.
Robert Paule (Thao’s lawyer) asked Blackwell about department policy that allowed officers to use their legs in neck restraints, while Thao said that officers had received no training to learn how to use the leg to restrain themselves. Blackwell also agreed.
Kueng’s lawyer Thomas Plunkett (Paule) also stated that while the defendants received training in force-proportioning, they were not trained to respond when someone violates the rules. Blackwell admitted that the training officers told them not to debate with each other.
Chauvin was Kueng’s 19-year veteran training officer. Kueng, Lane and Chauvin, both of whom had previously tried unsuccessfully, to coax Floyd out of the back seat in a squad car’s rear-view mirror, were all new to their jobs. Kueng was on his third shift. Thao has been serving as a police officer in the area for around 11 years.
Minnesota is included in the 8th Circuit. It has established that there is a duty of intervention if an officer uses excessive force. The 1981 case Putman v. GerloffThe U.S. Court of Appeals, 8th Circuit, ruled that James Crowe could be held liable because he failed to prevent Sheriff Elmer Gerloff from striking a prisoner repeatedly with the gunshot. He had tried to flee but became incapacitated and was unable to stop the sheriff from striking him repeatedly with his shotgun. Crowe had attempted to escape, but was incapacitated at the point when the sheriff struck. The evidence was sufficient to make Crowe jointly liable.
Their lawyers concede that Kueng was aware that Thao and Thao had to perform this obligation, but they argue that Thao and Kueng were not properly trained. Because Chauvin was older, the defendants could assume that he knew his duties. In these cases, their inability to counter him does not constitute a willful violation of Floyd’s rights.
The jury will decide whether or not this argument is accepted. However, defendants identified an issue that police training often fails to address. Although officers should be able to perform in such a scenario, what exactly are they expected to do?
Active Bystandership for Law Enforcement, a program which was launched in 2021 with more than 200 police agencies involved, aims at filling that gap. ABLE was created by Georgetown University’s Center for Innovations in Public Safety. It was born out of an EPIC program in New Orleans, which Ervin Straub (emeritus Professor of Psychology at the University of Massachusetts in Amherst) launched in 2014. Based on research that has shown why people intervene and fail to intervene when faced with emergency situations, it is grounded in insights. Intervention is difficult due to fear of reprisal and deference to authority.
Jonathan Aronie is a partner in Sheppard Mullin and chairman of the program’s advisory board. He said that ABLE includes a weeklong certification program for pilots and surgeons who supervise eight hours of training. In these situations, the challenge is the same as Floyd’s: Overcoming the natural urge to follow rather than taking responsibility for the actions of your superiors and colleagues.
ABLE is a program that requires the explicit and conspicuous endorsement of local police officials, politicians, and other community organizations. This helps to promote a culture which reinforces the obligation to intervene. Police departments can access the program free of charge thanks to Sheppard Mullin’s support and other corporate donors. The program uses case studies as well as role-playing scenarios, to help identify and overcome any obstacles that may have prevented Lane, Thao and Kueng from second-guessing Chauvin.
During a recent ABLE webinar Ted Quant from New Orleans, who claimed he has spent 50 years protesting police brutality, recalled an incident prior to EPIC’s creation. Two officers had previously been through an intervention program and were reported as having forcibly stopped a teenage officer. He said that the difference was that the local police leadership didn’t support changes necessary to change the “certifiably brutal culture” of New Orleans Police Department.
Quant stated that EPIC had changed this culture and enabled the lowest-ranking officers to “intervene with top-ranking officers to stop them making mistakes or causing harm.” Quant gave an example of how that works in practice by describing an instance in which a “young rookie officer” intervened with her supervisor to end an argument that had been going on between the women selling alcohol shots in a French Quarter area that does not allow it.
Quant explained that Quant heard the senior officer telling them they could not sell the drink. Quant said that while the senior officer handled it professionally, Quant could tell his rookie attitude and see that he was losing his temper. The result was a mess.
His response was simple but powerful. Quants explained that Quants touched the rookie’s sleeve and got his attention. Quants then stepped in, as if saying, ‘I have this.’ The senior officer now looks at her and says, “Who are you, telling me what I should do?” The senior officer looked at her EPIC pin. After she pointed at her EPIC pin, he saw it and took his leave. The situation was de-escalated and she got the ladies’ consent. There was no incident.
Floyd died after being arrested in connection with what was a minor offence. While it’s impossible to know what would have been if the rookie hadn’t stepped up, there was clearly potential for conflict between two women angry at being hassled by an officer and a man losing his patience.
Quant stated that EPIC tells stories about events but never happens. But something did occur: an incident was prevented. The rookie was really proud of what she did…She said, ‘I EPICed him.’ EPIC tells untold stories.
ABLE aims for the replication of these untold tales across the nation. Christy Lopez, ABLE founder, said that George Floyd’s murder was a shocking event. “It wasn’t just Derek Chauvin holding his knee for so many minutes, but many other things.” The officers around did nothing. If we don’t focus on those who can intervene, then it is impossible to stop harm from happening.