ST. PAUL, Minn. — When Tou Thao took the stand in his own defense in the ongoing federal civil rights trial over George Floyd’s death, the former Minneapolis police officer told a jury he wasn’t sure whether Derek Chauvin was violating policy by pressing a knee into Floyd’s neck.
Thao said that, although he had never used such a maneuver, what Chauvin was doing looked like something he had repeatedly seen demonstrated at the police academy, contrary to testimony from Minneapolis officers who said that kind of restraint wasn’t taught or sanctioned. And Thao had the photos to prove it, courtesy a disc of images he said had been given to him and other cadets by the Minneapolis Police Department to “have some memories of our academy days.”
Those “memories,” introduced as evidence, included several images of Minneapolis trainees practicing arrest techniques by pressing their knees into a prone subject’s neck, not unlike how Chauvin restrained Floyd. In at least one of the pictures shown to the jury, an instructor was seen standing to the side, not intervening, as Thao claimed instructors would when they observed cadets doing something wrong.
“Where’s the knee?” Robert Paule, Thao’s attorney, asked.
“On the neck,” Thao replied.
As the federal trial over Floyd’s killing winds down, Thao and the other two former officers accused of violating Floyd’s civil rights — J. Alexander Kueng and Thomas K. Lane — have not sought just to place responsibility on Chauvin; they have set out also to cast blame on the MPD, arguing that the department’s training and culture shaped their actions at the scene on May 25, 2020.
In addition to testing the question of what responsibility other police officers have to rein in the behavior of colleagues, the unusually aggressive defense strategy has cast a spotlight on the controversial tactics of a department already facing state and federal scrutiny, public criticism and withering morale among its officers.
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The former officers and their attorneys have criticized the training given to Minneapolis police recruits, painting it as conflicting and troubling — and, in the case of a duty to intervene, woefully inadequate. Lawyers for Kueng and Lane have argued that Chauvin, who had 19 years’ service and was Kueng’s field training officer, was in command of the scene, and the attorneys have asked why an officer with a history of complaints against him was in such a position.
Lawyers for all three officers have called attention to the ongoing state and federal investigations into the MPD’s training and culture. They have pointed to a “cops versus the world” mentality within the department that they say strongly discourages other officers from challenging their colleagues, if the officers even recognize that what is happening is wrong.
Kueng told a jury last week that he did not recognize the neck restraint that Chauvin was using, because he had not explicitly been trained in such a technique and could not perceive how much pressure Chauvin was applying. His attorney, Thomas Plunkett, pointed to language in the MPD policy manual that said officers who had been trained to use a neck restraint had “authorization” to use it.
“Not knowing” what exactly was allowed or who was allowed to use it, Kueng claimed, led him to believe that Chauvin was adhering to policy as he pressed his knees into Floyd’s neck and upper back for 9½ minutes, even as the man went limp and lost a pulse. When Chauvin rejected Lane’s suggestion to “roll” the man into a different position, Kueng said he simply followed Chauvin’s lead.
“He was my senior officer, and I trusted his advice,” Kueng said, repeatedly telling the jury that he had been trained to defer to veteran officers such as Chauvin, who he said had the power and influence to get him fired even when no longer his direct supervisor. Prosecutors have strongly pushed back against this claim, pointing out that Kueng and the others were full-fledged officers of the same rank as Chauvin and were sworn to uphold the same policies and duties.
The former officers’ defenses have contrasted sharply with the narrative laid out during Chauvin’s closely watched state trial last year; Chauvin was convicted on charges of second-degree murder and manslaughter. During that trial, a string of former Minneapolis officers and serving police leaders — including the department’s then-chief — testified against Chauvin, casting him as a rogue officer who broke with the department’s policing and practices, an argument echoed by prosecutors.
Federal prosecutors have tried to use a similar playbook in the civil rights case over Floyd’s death, describing Kueng, Lane and Thao as officers who betrayed their badge and oath when they “didn’t lift a finger” to stop Chauvin as he “crushed the life” out of a man.
Instead of merely blaming Chauvin or each other, the former officers on trial are arguing that there were broader problems with the department that had employed Chauvin for so long.
“Outside of that courtroom, it’s difficult, if not impossible, to reconcile those two arguments,” said Joseph McMahon, who was the special prosecutor in the case against Jason Van Dyke, who was a Chicago police officer when he shot and killed Laquan McDonald, a Black 17-year-old, in 2014.
One narrative, McMahon said, painted Chauvin as “a lone wolf, a cowboy,” while the case being made now by the former officers on trial instead says there are problems in the police department. That argument suggests “the problem’s not with Chauvin or them but systemic within the Minneapolis Police Department,” McMahon said. And that argument, he said, dictates “that’s where the responsibility should lie. Not with individuals who carried out the policies and the training.”
Kueng, Lane and Thao are broadly accused of violating Floyd’s constitutional rights during the fatal arrest. Kueng and Thao were charged with violating Floyd’s right to be free from unreasonable seizure by not intervening as Chauvin knelt on Floyd’s neck. All three officers were charged with failing to render medical aid to Floyd. All have pleaded not guilty.
Over roughly three weeks of testimony, prosecutors presented MPD records and called numerous witnesses to testify that all three former officers had been trained to stop other officers from using excessive force and to reposition handcuffed suspects from the prone position onto their sides to prevent positional asphyxia. They have showed the jury documents and PowerPoint presentations that instructed officers that it is their “duty” to offer immediate medical care to someone in their custody who exhibits signs of medical distress, especially if the person stops breathing or loses a pulse.
Three Minneapolis police officers — including a former head of the department’s training division — testified that Kueng, Lane and Thao broke MPD policy and standards when they failed to intervene with Chauvin and render aid to Floyd.
Lt. Richard Zimmerman, whose 41-year career makes him the longest-serving officer on the Minneapolis force, testified that even before he was aware that there was a duty-to-intervene policy on the books, officers had been trained to stop other officers from using too much force, intervening to save the life of someone in medical distress. It’s “human nature that we should help people,” Zimmerman said.
Body-camera footage presented to the jury showed Kueng and Lane omitting key facts about events at the scene — including that Floyd had lost a pulse and was unconscious — while giving statements to Zimmerman and another senior officer. Kueng and Lane testified that they assumed they were providing quick preliminary statements and had not been intentionally misleading.
Pressed by a prosecutor on why he had not mentioned Chauvin’s use of force, Kueng said he had been trained not to explain the actions of another officer, especially one standing right next to him.
Another officer, Nicole Mackenzie, who oversees the department’s medical training, told the jury she thought Lane tried to get Chauvin to shift Floyd onto his side but did not do enough. “He was making the right suggestions. I believe he recognized this was a medical emergency that needed intervention, and I believe he was trying to get people on board,” Mackenzie told the jury. But “suggesting aid and actually rendering aid are two very different things. … A suggestion will not pump blood through your system.”
The defense has sought to counter that damaging testimony by putting the MPD on trial. Defense attorneys have displayed to the jury inflammatory videos shown to officers during training — including a YouTube video with footage of police officers being shot and bloodied in the line of duty set against the audio of a fiery speech given by Al Pacino in the film “Any Given Sunday.” In the audio, Pacino, who portrays a professional football coach in the film, speaks of “willing to fight and die” to win, as the footage shows officers being attacked.
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Plunkett, Kueng’s attorney, said that was the last video shown to Kueng and Lane during their use-of-force training, and Plunkett repeatedly pointed to it as he has raised questions about the MPD’s “us versus them” training and culture, in which he said cadets are commanded to give “instant and unquestioned obedience” to veteran officers.
Shown the video, Timothy Longo, the chief of the University of Virginia Police Department and a prosecution witness who testified that MPD training on use of force and the duty to intervene was consistent with generally accepted policing practices, called the footage “deeply disturbing” but said he could not “judge the entire training curriculum based on this single four-minute … video.”
Defense attorneys also have raised questions about the MPD’s medical training, pointing out that the department once used health professionals from a local hospital to conduct training on issues including CPR and how to recognize breathing problems but had moved those classes in-house to be led by fellow MPD officers.
The attorneys have implied that it was a cost-saving measure that perhaps yielded training that was less rigorous — although prosecutors have pointed to the officers’ being warned repeatedly throughout different facets of training to look for medical “red flags,” about making sure someone in their care can breathe, given the high rate of injury and death involving positional asphyxia and use of force.
In addition to Thao’s photos from the academy, Paule played for the jury footage of MPD training that showed prospective officers pressing their knees into a person’s neck during defensive-tactics classes as he sought to raise questions about the credibility of police witnesses who claimed that such neck restraints were not taught to police recruits.
Prosecutors sought to undermine those images and video — downplaying them as literal snapshots that did not fully depict how long a knee was pressed into a neck or whether the cadets had rolled someone into a “side recovery” position to permit better breathing, as Minneapolis policy requires.
The defense also raised questions about the department’s policy on a duty to intervene — with Plunkett, Kueng’s attorney, describing training on the subject as nothing more than “words on a PowerPoint.” Although prosecutors said the officers had been warned that they could be held responsible for their actions as well as for inaction, Kueng, Lane and Thao all testified that they had never undergone any scenario training on how to intervene with a colleague doing something wrong.
“An instructor read the policy and then an example was given,” Kueng said, recalling what he said was his limited training on the department’s intervention policy. The example, he said, was an officer “kicking, punching or stomping on a handcuffed subject typically in the face.” And that was it, he said.
Lingering over this trial, as it did over Chauvin’s state trial, is the video footage of Chauvin pinning Floyd down while the Black man gasps for air. That recording quickly spread, fueling outrage and sparking a worldwide reckoning on racial and social justice.
Unlike the Chauvin trial, where the judge allowed the video to be played again and again, U.S. District Judge Paul A. Magnuson, who is overseeing this trial, has limited the playing of the footage. He has told prosecutors the jurors have seen it before and do not need to see it again — a major victory for the defense.
“The defense is going to do anything they can to take attention away from the videotape, because the videotape kind of speaks for itself,” said Mark Collins, an Ohio lawyer and former prosecutor who has represented police officers for more than a quarter-century.
The federal indictment charges the officers with “willfully” depriving Floyd of his constitutional rights, saying they “willfully failed to aid Floyd” when he was lying on the ground needing medical attention. That notably is a high standard, Collins said, and addresses their mind-sets at the time, suggesting not just that they did not act but also specifically chose not to act.
“That’s why the defense is saying they weren’t trained properly,” Collins said. “If they weren’t trained properly, then you can’t hold them to the willful standard.”
When then-Minneapolis Police Chief Medaria Arradondo testified at Chauvin’s trial last year, he said Chauvin’s use of force in the video was “not part of our training, and is certainly not part of our ethics or values.”
He and other officers repeatedly cast Chauvin as an outlier who was not following the department’s policies, which is a common argument after police misconduct or controversial uses of force occur, said Philip M. Stinson, a criminologist at Bowling Green State University who has tracked police prosecutions.
“The way that a police chief uses it is they rationalize ... ‘Look, this is a bad apple. This is somebody who’s not representative of the police department, and everything is fine now,’ ” Stinson said. “The problem is, Chauvin is not an anomaly. He was allowed to work for many, many years in that environment, so there’s something about the culture of that agency, or what I call the police subculture of that agency, that allowed him to thrive.”
The defense testimony over the past week underscores the difference between what the Minneapolis police leaders and veterans said last year and what the ex-officers are now arguing in court.
“The agency said, ‘This is a bad cop,’ ” Stinson said. “And now we’ve got the defense lawyers saying, ‘Well, yeah, he’s a bad cop, but he’s a product of your bad police department.’ ”