The Washington PostDemocracy Dies in Darkness

Opinion The officers who didn’t stop Derek Chauvin are on trial. Their prosecution may matter even more than his did.

From left, Minneapolis police officers Tou Thao, Derek Chauvin, J. Alexander Kueng and Thomas K. Lane are seen attempting to take George Floyd into custody in Minneapolis on May 25, 2020. (Court TV via AP, Pool) (AP)
Placeholder while article actions load

The federal criminal trial of the three police officers who stood by as fellow officer Derek Chauvin slowly killed George Floyd begins Monday in St. Paul, Minn. This trial may be even more important than Chauvin’s was.

Former Minneapolis officers J. Alexander Kueng, Thomas K. Lane and Tou Thao are charged with failing to render medical aid after Chauvin pinned Floyd’s neck to the ground for more than nine minutes on May 25, 2020. Additionally, Kueng and Thao are charged with failure to intervene to stop Chauvin. Legally, the trial is unprecedented. Chauvin, who was convicted in April on state murder and manslaughter charges and later pleaded guilty to a federal charge of violating Floyd’s constitutional rights, was the senior officer on the scene that day (Lane and Kueng had only been on the streets for a few days). While a “duty to intervene” to prevent another officer from using unreasonable force has existed for 50 years, it has led to few federal prosecutions. In fact, I can find no federal prosecutions of lower-ranking officers for failing to intervene to prevent a higher-ranking officer — or even a peer officer — from using unreasonable force.

Thus, this trial could set federal precedent for holding officers criminally culpable not just for committing civil rights violations themselves, but also for failing to prevent another officer — even a peer or superior officer — from committing them. And that precedent could add momentum to a badly needed sea change in policing — toward a shared expectation that every officer will take all feasible steps to prevent another officer from violating constitutional rights, regardless of rank.

There are signs this shift may be underway already. Compare the experience of former Buffalo officer Cariol Horne, fired after intervening in 2006 to prevent another officer from using an unnecessary chokehold, to that of a Sunrise, Fla., officer who in November was grabbed by the throat by a sergeant after she intervened to stop him from using apparently excessive force. Horne spent years fighting her firing before finally being vindicated last year. In contrast, Sunrise Police Chief Anthony Rosa answered police union criticism of his support for the intervening officer with a long statement further praising the officer.

It is difficult to overstate the impact such a change culture would have. As I wrote just a few days after Floyd’s death, our central concern should be preventing deaths like his; no after-the-fact measure of accountability can make up for the brutal, unnecessary snuffing out of a human life. Intervention by officers in real time is often the best way — sometimes the only way — to prevent harm.

Further, building a culture of intervention is an essential component of broader efforts to transform policing and public safety. When officers stand by while another officer causes needless harm, they commit a separate, in some ways more corrosive, damage: the delegitimizing of police and rule of law that takes hold when abuse committed by bad-apple officers is tacitly condoned by passive bystander officers.

Another reason the trial of Kueng, Lane and Thao is so important is that the particular facts of Floyd’s murder underscore the importance of training officers in how to effectively intervene. Turning the legal duty to intervene into routine practice requires building a policing culture that supports active bystandership. Accountability — criminal, civil and administrative — is part of this, but so is demonstrating that officers will be supported when they step in. Training signals that support and increases the likelihood that interventions will be effective — a precursor to intervention becoming the norm. While not having been trained cannot be an excuse to avoid accountability for a failure to intervene, strong training can create a culture in which effective interventions are more likely.

In Minneapolis, for instance, Lane twice asked whether Floyd should be rolled onto his side. He was first rebuffed and then ignored. Active bystandership programs, such as the one focusing on policing that I helped found at Georgetown Law, teach people to anticipate this reaction and be prepared to overcome it. We use the acronym PACT — for probe, alert, challenge, take action — to help officers remember not only the potential need to ratchet up intervention, but also how to do so. Officers role-play escalating stages of intervention. Imagine if just one of the officers had directly challenged Chauvin (“Take your knee off his neck!”) and, if that didn’t work, taken action to physically remove him.

Training cannot guarantee better outcomes, but when good training is bolstered by accountability — like that possible through the trial in St. Paul — it can become a potent component of culture change. Building this culture in policing is essential, not only to prevent tragedies like Floyd’s death but also to stop the everyday violations that steadily erode police legitimacy and that other officers are often the only ones in a position to prevent.

Loading...