In trial of officers in George Floyd's death, was it their duty to intervene?

Derek Chauvin's murder conviction in the death of George Floyd elicited a moment of celebration, but many saw it as just a first step toward much-needed accountability and reform in policing.  

Nearly a year later, the next hurdle in the legal battle over Floyd's death is underway: The federal trial of Thomas Lane, J. Alexander Kueng and Tou Thao, the three former Minneapolis officers who didn't stop Chauvin from pinning down Floyd and who are charged with violating Floyd's civil rights.

The state murder conviction of Chauvin, who pleaded guilty to the federal charges in December, was rare but legal experts say the federal prosecution of the officers who failed to stop him is even less common. 

"They're breaking new ground. This is a threshold case," said Mark Osler, a former federal prosecutor and professor at the University of St. Thomas School of Law. 

Legal experts who spoke to Paste BN said the trial highlights the need for better intervention training and changes to the culture of silence that prevents police officers from addressing misconduct.

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Prosecutors have argued that Lane, Kueng and Thao willfully deprived Floyd of his constitutional rights by failing to provide medical aid. They are also charged for not intervening as Chauvin pinned Floyd to the ground, except for Lane who asked twice if Floyd should be rolled onto his side.

Prosecutors rested their case Monday after nearly three weeks of testimony to prove that the officers were trained on their duty to intervene and responsibility to provide medical care. Floyd's condition was so severe that even bystanders without training knew he needed help, prosecutors said.

Kueng and Lane were seen in videos helping restrain Floyd as Chauvin knelt on his neck for more than nine minutes during the attempted arrest May 25, 2020. Thao kept bystanders away as Floyd, who was handcuffed and lying flat on his stomach, repeatedly said, "I can't breathe."

Police culture and a 'duty to intervene'

Nearly 50 years ago, federal courts first established that law enforcement officers have a duty to intervene when they see a colleague infringing upon a person's constitutional rights, said Christy E. Lopez, a Georgetown Law professor and former deputy chief in the Civil Rights Division at the Department of Justice.

In the wake of Floyd's murder, a number of states and departments created similar duty-to-intervene requirements, and Lopez said a conviction could amplify that trend. But the legal provisions don't address the need for adequate training on intervention strategies or the rigidly hierarchical workplace culture.

Those issues can result in officers failing to meet duty-to-intervene requirements, which many departments didn't start acknowledging until Floyd's murder, Lopez said. 

"For years, the response we got is, 'oh, we already have a duty to intervene and officers know about that,'" Lopez said. "The problem was not the lack of the duty."  

Defense attorneys representing the officers charged in Floyd's death have made similar arguments. Tom Plunkett, Kueng’s attorney, said his client and Lane were both rookies who deferred to Chauvin, a training officer who would have “considerable sway” over Keung's future in the department. 

“You’ll see and hear officer Chauvin call all of the shots,” Plunkett told jurors in his opening statement last month.

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Intervening when a superior officer does something wrong is especially difficult due to the hierarchal structure of police departments, said Ervin Staub, a professor emeritus of psychology at the University of Massachusetts Amherst. Uniformed groups like police often draw a "line between us and them," he said, which could prevent them from helping someone that isn't part of their group.

"Traditionally, they are trained support to support their fellow officer no matter what they do," said Staub. 

Officers may also be less likely to speak up for fear of retaliation. A Paste BN investigation found police whistleblowers have been demoted, fired, threatened and even criminally charged after speaking out and then find themselves isolated when trying to seek justice in a legal system designed to silence them. 

"There are too many police officers still on the job who believe that 'rats' need to be exterminated," said Norman Carter, a retired Philadelphia police officer and whistleblower who faced severe retaliation. "It can be dangerous. When you speak out against a police officer or you're not going along with the status quo, not only is your job in jeopardy, but sometimes your life is in jeopardy."

Carter said powerful police unions, which often represent officers accused of misconduct and push to get their jobs back, also play a role in contributing to this culture of silence.

However, Lopez said the problems with police culture aren't a defense the former Minneapolis officers can rely on in court.

"That legal duty is there, regardless of whether the person is your superior. But we recognize that practically speaking, that can be a barrier," she said.

A 'different world of policing'

Plunkett, Kueng's attorney, also criticized the Minneapolis Police Department's lack of training on intervention against the unreasonable use of force. He said it amounted to “little more than a word on a PowerPoint.” 

The former head of training, Inspector Katie Blackwell, told prosecutors the Minneapolis department has no training scenario called “duty to intervene," but the idea was addressed in training.

Minneapolis put a duty-to-intervene policy on the books four years before Floyd's death. Former Police Chief Medaria Arradondo told investigators that the three officers at the scene with Chauvin were expected to abide by it.

"We would expect any officer, regardless of tenure, or time on, to verbally and physically ... intervene and make sure you're doing the proper duty of care for someone," Arradondo said, according to investigative documents obtained by the Star Tribune.

Lopez agreed more effective training on intervention, including role-playing, is needed to change police culture.

She has helped train more than 200 agencies across the country, drawing from Staub's research and successful initiatives like Ethical Policing Is Courageous, a peer intervention program developed by the New Orleans Police Department that emphasizes "active bystandership." Officers in New Orleans have said they've used the training in the field and citizen complaints dropped from 850 in 2016 to 734 in both 2017 and 2018, the Washington Post reported.

In September, Minneapolis launched Lopez's training program, called ABLE — short for Active Bystandership for Law Enforcement. The program provides scenario-based training to help departments create a culture that values peer intervention rather than rely on policies alone.

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Osler hopes a conviction could accelerate substantive training on intervention, spur officers to act when they see misconduct, and discourage others from engaging in misconduct in the first place.

But he cautioned against placing too much emphasis on one trial.

"It takes more than one case to change deeply entrenched police culture," he said.

Prosecutors only bring cases they believe they can win, Lopez noted, and the DOJ may not pursue civil rights cases because it is "extraordinarily difficult" to prove willfulness — a high legal standard meaning an officer knew what they were doing was wrong and did so anyway.

One of the most well known examples of a federal conviction of this kind came after a state court acquitted a senior officer who failed to stop the police beating of Rodney King in 1991. Stacey Koon was later convicted in federal court of violating King's civil rights. 

More recently, the Justice Department decided not to charge the officers involved in the high-profile deaths of Michael Brown, Eric Garner and Tamir Rice.

Lopez said it's almost unprecedented for a subordinate officer to be federally prosecuted for failing to intervene against a superior. She said a conviction could establish a legal precedent and send a message that officers of every rank have a responsibility to prevent civil rights violations.

"Imagine a world where officers really believed that," she said. "That would be a very different world of policing."

Contributing: The Associated Press