Several weeks ago, I wrote about the difficulties that the State of Minnesota would have in prosecuting J. Alexander Kueng, Thomas K. Lane, and Tou Thoa for “aiding and abetting” the unintentional murder or manslaughter of George Floyd. You can find that piece here. I also wrote about the problems with the prosecution of Derek Chauvin as well, including the fact that the Mayor of Minneapolis lied about the Minneapolis PD Use of Force policy. You can read that piece here. You can find a link to the entire George Floyd Series here.
Now, we have the first real development in the criminal case, which includes evidence that has previously not been publicly available. As I predicted, it does not look good for the prosecution.
Officer Thomas K. Lane has filed a Motion to Dismiss, asking a judge to rule that there is no probable cause to charge him with a crime. Officer Lane was the officer who initiated the arrest of George Floyd, and was holding his feet during the restraint that we all saw on the famous cell-phone video. (To view that video and others, including a transcript of what is said on the cell-phone video, see this piece here.)
However, the current issue is Thomas K. Lane’s Motion. Therefore, let’s talk about his motion, what we find out about the facts within it, and what it means regarding the prosecution.
The Motion to Dismiss
The text of the motion, including exhibits (but not BWC video at this time), can be reached at this link to the Minnesota Judicial Branch Website.
The document the Defendant filed is a Motion to Dismiss. A motion to Dismiss is basically when a litigant claims that there is absolutely no possible way for the opposite side of the litigation to prove their case. Therefore, the judge should be able to do away with it without trial ever being reached.
Here is how the motion describes the Minnesota standard to be declared not guilty without needing a trial:
The Minnesota Supreme Court held in State v. Florence that the purpose of a motion to dismiss is to protect defendants who are unjustly or improperly charged from being compelled to stand trial. 306 Minn. 442, 446, 239 N.W.2d 892, 896 (1976). A neutral and detached judge must make the determination of whether probable cause exists in a complaint. State v. Burch, 284 Minn. 300, 305, 170 N.W.2d 543, 548 (1969). In determining whether to dismiss a complaint under Rule 11.04 for lack of probable cause the trial court is not simply reassessing whether or not probable cause existed to warrant the arrest, rather, under Florence, the trial court must determine based upon the facts disclosed by the record whether it is fair and reasonable to require the defendant to stand trial. Florence at 904. Where the state cannot present evidence supporting some elements of the crimes charged, probable cause does not exist. State v. Flicek, 657 N.W.2d 592, 597 (Minn. App. 2003). To establish probable cause, it is not necessary that a defendant’s guilt be established beyond a reasonable doubt. State v. Knoch, 781 N.W.2d 170, 177 (Minn. App. 1010).
Where a defendant produces evidence that, if viewed in isolation and believed, would exonerate defendant, the prosecutor need convince the court, based on the entire record including the prosecutor’s own representations as an officer of the court, that there is substantial admissible evidence for trial and a conviction. State v. Rud 359 N.W.2d 573, 579 (Minn. 1981). The production of exonerating evidence by a defendant at the probable cause hearing does not justify the dismissal of the charges if the record establishes that the prosecutor possesses substantial evidence that will be admissible at trial and that would justify denial of a motion for a directed verdict of acquittal. State v. Koenig, 666 N.W.2d 366, 372 (Minn. 2003). The test to determine whether a case will survive a motion for directed verdict of acquittal is: “whether the evidence is sufficient to present a fact question for the jury’s determination, after viewing the evidence and all resulting inferences in favor of the state.” State v. Slaughter, 691 N.W.2d 70, 74-75 (Minn. 2005).
It is a high bar for someone to meet. But let’s break down that statement about “elements.”
Meeting the Elements of a Crime
All crimes have elements, and when the prosecution goes to court, they must prove every single element beyond a reasonable doubt. The elements are the checklist of things that must be proven.
For example, in Virginia, the crime of burglary is defined by Va. Code 18.2-89:
If any person break and enter the dwelling house of another in the nighttime with intent to commit a felony or any larceny therein, he shall be guilty of burglary, punishable as a Class 3 felony; provided, however, that if such person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.
Therefore, to convict someone of burglary, the state must prove the defendant:
- the dwelling house of another
- in the nighttime
- with intent to commit a felony or any larceny therein
If this is proven, then it is a class 3 Felony. If it is proven that such a person was armed with a deadly weapon at the time, it is a Class 2 felony.
The funny thing about elements is that if you are missing ONLY ONE, then the person is innocent of that particular crime. For example, if the state cannot prove that someone broke and entered and stole IN THE NIGHTTIME, then that’s not burglary.
Is 8:00pm on a July evening the “nighttime”? Do you have a reasonable doubt about that? If you do have a reasonable doubt about whether the-Sun-is-down-but-it-is-still-light-outside is “nitghttime,” then you should vote not-guilty on “burglary” if you are on a jury. If you don’t believe me, see Wright v. Com., 641 S.E.2d 119, 49 Va. App. 312 (Va. App. 2007) [Important Reminder: Stealing things from a home in the daytime is also a crime, but just a different one.]
The Elements of the Charge Against Thomas K Lane
The Motion to Dismiss in this case is claiming that there are certain elements of the crimes that Thomas K. Lane is charged with that it will be IMPOSSIBLE for the prosecution to prove. Lane is charged with two crimes according to Minnesota Statute Sec. 609.05. The crime that Lane is accused of aiding and abetting is either second degree murder or manslaughter. To be guilty of this crime, the prosecution must show that Thomas K. Lane:
- aids, advises, hires, counsels, or conspires with or otherwise procures the other
- to commit murder or manslaughter
According to the argument of the motion, they claim it will be impossible for the state to prove either the first or the second element. The crux of the legal argument is in this passage:
To impose liability under the aiding and abetting statute, the state must show that the defendant played a knowing role in the commission of the crime. M.S.A. § 609.05(1). State v. Crow, 730 N.W.2d 272 (Minn. 2007). Mere presence at the crime scene does not alone prove that a person aided or abetted, because inaction, knowledge, or passive acquiescence do not rise to the level of criminal culpability. Id.
There are two mens rea requirements that must be proven in order to find a defendant guilty as an accomplice. State v. Huber, 877 N.W.2d 519, 524 (Minn. 2016). To be criminally liable for the crimes of another, the State must prove that the defendant “knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime.” Id. citing State v. Milton, 821 N.W.2d 789, 808 (Minn. 2012).
First, argues the memorandum, it is impossible for the state to show that Lane knew that Derek Chauvin was committing a crime or going to commit a crime. Second, because he could not know either that a crime was being committed or would be committed, it is impossible for the state to prove that he aided, advised, hired, counseled, conspired with, or procured with Derek Chauvin to commit a crime.
Based on the evidence, it’s a strong argument. However, it’s a difficult bar. If the prosecutor merely claims what WILL be shown, it is enough to defeat the motion.
However, despite these legal issues, the important stuff is the evidence we see in the motion.
The Evidence in the Motion
The motion contains excerpts from important evidence that we have not yet seen: The Body-Worn-Camera footage of the original arresting officers. Though links to view this BWC footage is not yet available on the court’s website, transcripts of the footage does exist as exhibits, available here.
One of the things we learn from the Motion’s Exhibit 1 is a persistent question of the public about why George Floyd continued to be restrained, even after he stopped moving. The answer is given in an interview with Lane:
Once he kind of stopped fighting us, I think I had said again, “I think we should roll him onto his side.” And believe Sean said, “we have him, there‘s an ambulance coming and we got him.” We’re just going to hold here. And that made sense to me just because I’ve had experiences with people who were ODing or they’ll be out one minute and they’ll come back and really be aggressive with you. So was like, “all right, we got an ambulance coming code three. We’re just going to hold here until the ambulance gets here.”
Here is the Motion’s summary of the evidence about what happened before the restraint when they were trying to place him in the squad car:
Lane and Kueng are dealing with Floyd and two other passengers at the scene now. The two other passengers exited the vehicle without being asked to. Lane and Kueng ask questions of the passengers, as well as Floyd, regarding Floyd being under the influence of something based on his behavior. Id. at 5-7 of 25. Floyd is acting erratic and has foam around his mouth. Id. at 7 of 25. Lane and Kueng begin to walk Floyd to the squad vehicle to control the scene. Floyd continues to move around and falls down. Id. at 7 of 25. When approaching the squad car Floyd tells the officers he is claustrophobic, Lane tells Floyd he will crack the window and turn on the air conditioning for him. Id. at 7-10 of 25.
The officers attempt to get Floyd into the squad car and tell him multiple times to take a seat. Floyd does not take a seat and starts saying he is going to die. Id. at 10 of 25. He also tells officers he just had COVID. Id. The struggle continues and Floyd says “I’ll get on the ground, anything.” Id. at 11 of 25. He is asked several more times to get in the car. Floyd tells officers “I can’t breathe” and “I want to lay on the ground” a couple of times. Id. at 12 of 25. Lane eventually responds with “get him on the ground”. Id. Prior to getting Floyd to the ground he says he can’t breathe multiple times. Id. at 12-13 of 25. Lane says “Let’s take him out and MRT”. Id. at 13 of 25.
Floyd is brought to the ground at 20:19:14 and continues to move around and says he can’t breathe. Lane calls for EMS code 2. Id. at 14 of 25. Ambulance is on the way (see Exhibit 3 at 20:20:28). Lane asks other officers “should we get his legs up, or is this good?” (Exhibit 2 at 14 of 25). Chauvin says “leave him”. Id. 15 of 25. As Floyd continues to yell out, Lane tells the other officers “he’s got to be on something.” Id. The video footage at this time shows Lane is near Floyd’s feat, Kueng is in the middle of Floyd’s body, and Chauvin is near his back and head. Lane asks “should we roll him on his side” at 20:23:49. Id. at 16 of 25. Chauvin responds “no, he’s staying put where we got him.” Id. Lane then says “Okay. I just worry about the excited delirium or whatever.” (20:23:57) Id. Chauvin responds “well that’s why we got the ambulance coming.” Id. Lane observes that he is breathing (20:25:14). Id. at 17 of 25. The video footage shows Floyd still moving his legs, where Lane is positioned (Exhibit 3, 20:25:36). Then Lane asks again, “should we roll him on his side?” (20:25:40) Id. at 17 of 25. Radio is heard on BWC saying EMS is at Portland and 36 (approximately 4 blocks from Cup Foods) (20:26:39). (Exhibit 2 at P. 18 of 25). At 20:27:02 Lane says “there we go” when the ambulance is arriving (Exhibit 3); (Exhibit 2 at P. 19 of 25). EMS walks up to check Floyd at 20:27:41 (Exhibit 3). Lane asks EMS “you want one of us to ride with?” Lane goes in the ambulance to help with CPR (Exhibit 2 at 19 of 25).
Therefore, we also learn from this new evidence why George Floyd was being restrained on the ground: BECAUSE GEORGE FLOYD REPEATEDLY ASKED TO GO TO THE GROUND INSTEAD OF GOING INTO THE SQUAD CAR AFTER SAYING HE WAS CLAUSTROPHOBIC AND COULDN’T BREATHE.
The following portion shows why this evidence does not allow for a prosecution against Thomas Lane:
The officers, Lane and Kueng, attempted to secure Floyd in the squad car to further investigate what had happened. This decision was made based on Floyd’s conduct, his condition, and the officers being outnumbered. Floyd had just committed a felony, he was not being cooperative, and appeared to be under the influence of drugs. There was a lengthy struggle to get 6 foot four, 223 pound Floyd into the car. Floyd initially claimed he was claustrophobic and Lane offered to stay with him, roll the windows down, and turn the air conditioning on. Floyd still would not comply. He continued to yell and kick back, and began bleeding during the struggle in the squad vehicle. While in the squad vehicle, Floyd was yelling that he was going to die and he could not breathe. Then there was a decision, based on Floyd’s request, to bring him to the ground, when they could not get him fully in the vehicle.
When moving Floyd to the ground, Lane suggested using the MRT (Maximum Restraint Technique) which is used when a handcuffed person is actively resisting, as he was trained to do (Exhibit 7). Once on the ground, Lane was at the feet of Floyd while he continued to kick and yell out for several minutes. In the middle of Floyd’s body was Kueng, holding Floyd’s hands and body down. At the head area of Floyd was FTO Chauvin. As is apparent in the BWC of Lane, Lane did not have a direct clear view of where Chauvin was exactly placed, but he thought near the neck and back area of Floyd. Officer Lane did not know there was a felony being committed or attempted when Chauvin was kneeling on Floyd. If in fact a felony was committed or attempted. The training material supports that neck restraint was something taught to officers (Exhibit 7). Lane is a trained police officer who, although new to the job, knew that officers are allowed to use reasonable force when needed. Id.
Based on Floyd’s actions up to this point, the officers had no idea what he would do next – hurt himself, hurt the officers, flee, or anything else, but he was not cooperating. Lane asked, twice, if Floyd should be moved to his side. Chauvin a 20 year veteran and FTO told Lane, no, keep him where he is at until the ambulance arrives. Chauvin assured Lane that Floyd was fine where he was. There was no visible intentional infliction of harm. There was no active punching or kicking or even intense pressure that was visible to Lane. As seen in the body camera footage, Chauvin was calmly positioned near Floyd’s neck and back area. Further evidence that the force used by Chauvin by kneeling was not substantial, is that there were no physical findings of asphyxia (see Complaint). Also, May 25, 2020 was Lane’s fourth day on the job. Kueng, who responded with Lane to the scene, was three days on the job, and positioned in between Lane and Chauvin. It was certainly reasonable for Lane to believe Chauvin and follow his direction.
Lane did not intentionally aid, advise, hire, counsel, or conspire with Chauvin or otherwise procure Chauvin to commit second degree murder. Lane did not encourage any alleged criminal actions of Chauvin. He did not know and had no reason to believe that a third degree assault was being committed, and he certainly did not intend his actions (restraining his legs/feet) to further a crime.
Analysis of the Argument and Evidence
This is a strong argument. How can you prove someone INTENTIONALLY helped someone commit A CRIME, and KNEW that a crime was being committed, when the individual being charged — an officer four days on the job — is watching a 20 year veteran officer who helped train him do exactly what he was trained to do in situations like this?
How do you prove that Lane was furthering a crime of Derek Chauvin when Lane on at least two separate occasions suggested changing the position of George Floyd, and this request was denied by Chauvin, the 20 year veteran?
How do you prove that Lane was furthering a crime of Derek Chauvin when Lane called an ambulance to assist Floyd before Derek Chauvin ever began the neck restraint that allegedly killed Floyd?
How do you prove that someone who does not have a view of the situation and who is suggesting a different course of action is guilty of “aiding and abetting” a crime?
We also learn that Lane verbally expressed relief that the ambulance arrived, “there we go!” This is hard to match with intent to further a crime.
We also learn that Lane rode in the ambulance with George Floyd to help with CPR on the way to the hospital. This is hard to match with intent to further a crime.
We also learn that the reason George Floyd was being restrained with his neck is that he had banged his head against the police vehicle so hard that he drew blood. Therefore, the officers made the decision to use the “Maximum Restraint Technique” to prevent him from hurting himself or others until the ambulance arrived. This is hard to match with intent to further a crime.
We also get further confirmation that the restraint was done because of the officers’ beliefs about Excited Delirium, and that the plan was to hold him until the ambulance arrived.
It is clear that these facts will be fatal to the case against Thomas Lane, as it is difficult NOT to have serious doubts about his “aiding and abetting” a murder when video evidence shows he calls an ambulance and gives CPR to the allegedly murdered person. How do you aid and abet a particular action if you are repeatedly suggesting a different course of action?
The Effect on the Rest of the Prosecution
Remember what this means for all the other officers, too. George Floyd was claiming that he couldn’t breathe both before and during his restraint. Remember: Eric Garner went limp and lifeless after 45 seconds of being aggressively restrained by police. George Floyd was claiming he couldn’t breathe for almost 10 minutes, and was breathing and moving for over 6 minutes by the police before he went limp and lifeless. The coroner found no evidence that the knee on George Floyd’s neck contributed to his death. Instead, he found that George Floyd was intoxicated with Fentanyl and had recent Meth use.
In other words, there are SERIOUS doubts about whether the restraint had ANYTHING to do with George Floyd’s death.
You Have Been Lied To About The George Floyd Incident
George Floyd died on May 25, 2020. On May 27, 2020 (after plenty of time to check the facts), the mayor of Minneapolis made the following statement, explaining why he fired the officers and called for the prosecution of Derek Chauvin. Almost everything he says here is patently and demonstrably false.
He says he didn’t see any threat. He laments that there was nothing to make this kind of force necessary. He claims the particular technique that was used was not authorized by the MPD and officers are not trained on it. He also says it should not be used “period.”
Instead of a long rebuttal, I’ll let a single picture speaks 1,000 exculpatory words. The following photo is a PowerPoint slide from MPD training when restraining handcuffed individuals like George Floyd. It comes from the Defense Exhibit 7:
This is the perfect evidence for Thomas Lane to potentially win his motion and be declared not guilty before a trial is even needed.
But as a preview for how the trial of Derek Chauvin will go, let’s ask a few questions about this SINGLE piece of evidence:
- Do you see that knee on the neck is this ideal training example?
- Do you see how officers are trained that sudden cardiac arrest typically occurs immediately following a violent struggle?
- Do you see how the officers would want to restrain George Floyd to prevent a struggle?
- Do you see that knee of the restraining officer on the subject’s neck?
That is why the officers will be completely innocent: They literally did what their training told them to do in order to save George Floyd’s life.