Derek Chauvin has already been convicted for the murder of George Floyd. To the extent any conviction “sends a message” to anyone, the message has been sent. But the trial of the three officers working under Chauvin’s training eye is set to commence today, and the hope is that it sends another message. Where the Chauvin message was that cops can’t recklessly kill people, this message is that cops have a duty to intervene when a “superior” officer engages in improper conduct.
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.
In retrospect, the duty here seems obvious. Retrospect does that to fact patterns, where we know the outcome so we can easily conclude what should have been done to avoid the outcome. For Kueng, Lane and Thao, their duty is clear and their culpability for failing to fulfill this duty puts them at the defense table in a criminal court, staring at imprisonment as their future rather than a gold shield, a chestful of ribbons and stories of glory to tell their grandchildren. All because they didn’t stop Chauvin.
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 is a spectrum of ways in which cops can influence bad conduct perpetrated by other cops. Some fit into far easier narratives than others. When one cop sees another punch a cuffed person for no reason, there isn’t much to debate about its wrongfulness. Whether the punching cop needs to be restrained because he’ll punch again may not be clear, but should another cop intervene, it sets a series of consequences in motion.
Some, like prevention of further harm are good. Others, like two cops beating each other, losing focus on the person apprehended who could then flee or grab a gun, not so much. And the subsequent consequences, such as discipline, even prosecution, could be significant for the cop’s survival. Just ask Frank Serpico how that can happen.
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.
Whether these two scenarios reflect a shift in attitude toward police intervention or just two very different scenarios gets glossed over here. It also ignores a public relations shift, as the post-Floyd Sunrise, Florida choking incident was caught on video, and it was ugly.
But how does an officer know, beforehand, where the line is drawn to intervene upon pain of prosecution?
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.
This has long been a grievance about cops, tacitly condoning bad behavior, violence, theft, rape and abuse by fellow cops and doing nothing. It’s the basis of dismissing the “one bad apple” rationalization when a cop openly engages in flagrant misconduct and they either say or do nothing, or worse, cover it up by falsifying reports and denying the abuse occurred. There is no shortage of horrifically outrageous conduct by police, where others stood by and did nothing aside from laugh and make jokes, and these are the incidents we think of whenever the “one bad apple” argument is made. That bad apple couldn’t have been a bad apple without the acquiescence of the other cops standing there, letting it happen.
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.
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.
Much as this sounds functional in teaching an elementary schooler how to stop another from bullying before he tells the teacher, it fails to provide any guidance as to where the line is drawn for one cop to intervene when he believes another cop has crossed a line. If the consequences were limited to a disciplinary complaint, it would be difficult enough, but not the end of the world for a cop.
But if the consequence of not intervening is a prosecution and potential imprisonment, neither a cute word nor acronym is going to help in a fluid situation guide an officer to do the right thing when it’s not absolutely clear. The Floyd murder offers as clear a scenario as possible in retrospect. But most won’t, particularly when viewed prospectively. There needs to be consequences for cops who acquiesce to fellow cops committing harm, but the message this prosecution sends may not be the answer to shifting cop culture we need.
“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.”
So, former officers Kueng, Lane and Thao are being prosecuted for NOT doing something there never (or inadequately) trained to do? Sure, that seems fair. In Progressive Town. 🙁
That snippet says nothing about what training those officers did or did not get. That leap was big enough to cross the grand canyon.
This column, and yours, omits an extremely crucial detail. Keung and Lane were days out of the academy. They’d literally never seen such a restraint used properly.
So, a guilty verdict implies every raw rookie cop should intervene in situations with which they have no familiarity because they look bad. Except lots of police work looks bad. It’s hard to find a use of force video where bystanders aren’t describing any force as excessive and criminal.
Speaking of bystanders, Thao had his attention focused on them. They were casting the usual comments and epithets that every cop hears at practically every crime scene. So he has a duty to intervene on that which he doesn’t witness based on hecklers in a crowd?
All a recipe for disaster.
Exactly! The column should have said something like “(Lane and Kueng had only been on the streets for a few days).”
These junior COPS were given police firearms and given the legal authority to use that firearm against the public. Therefore, it’s implied that they have the necessary judgement to discern an actual threat from a perceived threat and know when use of deadly force is appropriate. Seems to me, they should have the necessary judgement to discern proper and improper force, no matter who is applying that force.
Trying to hold subordinates responsible in this way will not work well, just as we have seen in the military. Even though there is the occasional My Lai or Abu Ghraib type inquiry where hapless subordinates are hung out to dry, refusing to obey an order on the grounds that it is unlawful remains fraught with peril. It is commonly recognized that although refusing unlawful orders technically is the rule, in the ordinary case (when politics do not demand that examples be made) there is nothing but trouble for the person who tries to follow that rule. I expect we will see the same thing with this, as officers in departments across the country will see this case as an outlier, attributable to the winds of political expediency.
It’s always an interesting thought experiment to imagine the likely outcome had the other officers actually intervened. It seems clear they knew a line was being crossed when they suggested they roll Floyd onto his side, seeing that he was in distress.
But if it came to physically removing Chauvin, and therefore Floyd hadn’t died on video…..one can imagine retaliation, union condemnation, discipline, perhaps even seeing their careers ruined. The existence of the video may still have gone viral, perhaps mitigating this and forcing a debate about the actions of all involved but it’s still possible to imagine that the outcome for these officers wouldn’t have been good either. They probably didn’t think Floyd was going to literally die, and so were in what they likely considered a no-win situation. Chauvin deserves little sympathy, but these rookie officers were in a quandry.
Here’s a crazy idea… Since body cams are increasingly ( it seems) being used by police departments why not have a function of the camera be that a button could activate a live feed from a witnessing officer back to superiors? Of course actual intervention might still be necessary. As I said a crazy idea.
We are all aware Kueng and Lane were also on top of George Floyd, and both men along with Chauvin had a history of recently using these “techniques” that eventually killed the 46-year old man, right? Photos of the 25 May 2020 scene clearly show all three defendants on top of Floyd and crushing the life out of him, not just Chauvin, and the convicted murderer’s knee to Floyd’s neck might not explain how lung abrasions were found in Floyd’s autopsies.
Perhaps Kueng and Lane will claim Chauvin taught them prohibited restraint actions in attempt to pin everything on the convicted murderer, but that seems risky as Lane at least seemed aware of the danger as Floyd was dying and verbalized his misgivings. Considering Chauvin also plead guilty to the 2017 assault on the unnamed 14-year old boy he cracked in the head with a flashlight before kneeling on the boy’s back for 17 minutes, a major factor in these prosecutions seems to make it clear that pain compliance techniques will no longer be tolerated in the State of Minnesota. Moreover, Minnesota prosecutors since 29 May 2020 seem to be prosecuting ANY actions by police officers that cause homicide without statutory justification (see Kim Potter and Brian Cummings in April and October 2021).
Kueng and Lane would have had to at least stood up and gotten off Floyd to stop Chauvin, which oddly might also have prevented Floyd’s death as the back compression was cited in the autopsies as contributing to his death; so perhaps this prosecution isn’t really about failure to intervene than sending the signal that crushing a person under multiple cops almost certainly will result in murder and manslaughter charges in Minnesota.
Only Thao can plausibly argue his prosecution is primarily about the failure to intervene, but his recorded dismissal of the offer of a Minneapolis paramedic to intervene seems to indicate he too is tempting fate. Then again, that paramedic has been barred from testifying in the federal trial, so perhaps he has a chance…until he faces the state prosecution.