Because this kind of misconduct is less extreme, prosecutors will have a tougher time convincing a jury that these three former officers are criminals.
“If you stood there and watched, you’re a dirty cop.” That is an expletive-deleted version of a common chant at last summer’s protests after Floyd’s death. In felony charges handed down last year, Minnesota prosecutors accused former officers J. Alexander Kueng, Thomas Lane and Tou Thao of doing more than just observing.
Kueng and Lane were the rookie officers who arrived at the neighborhood grocery where Floyd had been accused of using a counterfeit $20 bill. They found Floyd sitting in his car, where Lane aimed his gun at Floyd and ordered Floyd to show his hands. Lane pulled Floyd out of the car and handcuffed him, and he and Kueng tried to force Floyd into the back seat of their squad car. Floyd said that he was not resisting but that he was claustrophobic.
When Thao and Chauvin arrived on the scene, Chauvin grabbed Floyd and placed him face down on the pavement. Chauvin placed his knee on Floyd’s neck, Kueng pressed down on his back and Lane restrained his legs. The officers maintained these positions for more than nine minutes, as Floyd complained that he could not breathe, and eventually lost consciousness. Thao kept the bystanders away from his fellow officers, including by putting his hands on one person, according to prosecutors.
That’s a big “if.” All three have stronger defenses, with more jury appeal, than Chauvin, whose impassive facial expression as he knelt on Floyd’s neck is seared into the public’s consciousness.
Kueng and Lane are likely to say that their status as rookies required them to defer to Chauvin, the senior officer on the scene. It was just Kueng’s third shift as a police officer, and Chauvin was his training officer. It was Lane’s fourth day on the job. Their defense will emphasize their efforts to help Floyd. After Floyd went silent and his body limp, Kueng told Chauvin he could not detect a pulse. Lane asked whether they should roll Floyd on his side, but Chauvin declined. Thao apparently had no physical contact with Floyd as he was being held down by the other officers.
None of those are formal defenses to aiding and abetting, but the sympathy that jurors frequently feel for police officers in difficult situations is more likely to be invoked here than for Chauvin. In addition, both Kueng and Thao are people of color, which may help rebut the concerns about racism that, after Floyd’s death, launched the biggest social justice protests in the United States since the civil rights movement.
It’s possible, in the wake of Chauvin’s conviction, that one or more of the officers will reach a plea bargain. The decision for prosecutors about what sentence to recommend in exchange for a guilty plea is strategically and politically fraught. If prosecutors settle for a sentence that strikes the Floyd family, or Black Lives Matter activists, as too low, the goodwill for their hard-earned victory in the Chauvin trial could evaporate. But prosecutors risk the same consequence if they take this case to trial and lose. No final decisions will probably be made until Chauvin is sentenced in June.
In my view, this is a case where any conviction and punishment — even a short prison sentence — would be better than none. It would be a step in dismantling the blue wall of silence under which first responders close ranks when they see another officer doing wrong — refusing to intervene even when it would be lifesaving.
The defendants are not as directly responsible for Floyd’s death as Chauvin, but what they allegedly did — and failed to do — reflects a workplace culture of enabling criminal acts committed by police officers.
In one of the many striking moments at Chauvin’s trial, Genevieve Hansen, an emergency medical technician, testified that while off duty she heard Floyd crying out in agony and begged Thao to let her help. Thao refused, saying, “If you really are a Minneapolis firefighter, you would know better than to get involved.”
That is the dangerous but all too common mind-set that must be rooted out to prevent future Derek Chauvins, and protect future George Floyds.