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Former officer Tou Thao’s conviction upheld in appeals court: A deep dive into the failure to intervene in George Floyd’s death

Convictions on the criminal charge of failure to intervene should reverberate in every police agency across the nation

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United States v. Tou Thao, 2023 WL 4991317 (8th Cir. 2023)

Editor’s note: This article uses the term “excited delirium” because the term is used in the court’s ruling. Following guidance from the medical community and other thought leaders in the law enforcement industry, Lexipol removed this term from our policy guidance in 2022.

By now, nearly every law enforcement officer in the nation is familiar with the events of May 25, 2020, involving George Floyd and Derek Chauvin. Many are also familiar with the other three former Minneapolis Police Department officers involved in the death of George Floyd. This case involves one of those officers, Tou Thao, who was convicted of two counts of deprivation of rights under color of law resulting in bodily injury and death.

Thao was accused of willfully depriving Floyd of his right to be free from unreasonable seizure by failing to intervene in Chauvin’s use of unreasonable force, and willfully depriving Floyd of his right to be free from a police officer’s deliberate indifference to his serious medical needs. Thao was convicted and appealed to the court of appeals. We’ll examine how the court addressed the question of Thao’s failure to intervene.

The elements of this charge required the prosecution to show that “Thao knew from his training that (1) Chauvin’s use of force on Floyd was unreasonable and (2) he had a duty to intervene in another officer’s use of unreasonable force.” Thao asserted that he suggested using a hobble, which likely would have put Floyd in the “side-recovery position.” Even though Thao suggested the hobble within the first minute of Floyd’s restraint, he still failed to intervene for the remaining eight minutes Chauvin held his knee on Floyd’s neck.

Thao also testified that he believed Floyd was experiencing excited delirium and needed restraint and sedation. In contrast, the prosecution presented evidence the police department policy barred neck restraints once a detainee stopped resisting, whether or not the detainee is experiencing excited delirium. Thao argued his body-worn camera may have recorded things he himself did not see and could not address in the moment.

The appellate court concluded that viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence Thao acted willfully on this charge.

The encounter between George Floyd and the Minneapolis Police Department officers is tragic in every respect. The convictions on the criminal charge of failure to intervene should reverberate in every police agency across the nation. The time is far past for agencies to provide the best training in how to intervene for a positive outcome. The gold standard for such training is the Active Bystandership for Law Enforcement program of Georgetown University. It is an effective and engaging training based on preventing misconduct, avoiding police mistakes, and promoting officer health and wellness. The training is free. To learn more, view Lexipol’s on-demand webinar, “Developing a Culture of Accountability: Outward Mindset & Active Bystandership.”

Thao was sentenced to 42 months in federal prison and 57 months in state prison to run concurrently. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution bars prosecuting a person twice for substantially the same crime. The clause states, “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.”

There are a couple of exceptions. The Double Jeopardy clause applies only to criminal punishments, not to civil penalties such as forfeiture. The dual sovereign doctrine is another exception. A person may be tried by both state and federal officials when the underlying act violates both state and federal laws. That doctrine applies whether or not a person is acquitted in state court and convicted in federal court, or vice versa.

Thao was charged in federal court for violating Floyd’s civil rights and charged in state court for aiding and abetting second-degree unintentional murder and aiding and abetting second-degree manslaughter. Although the underlying facts are the same, the crimes differ; hence, double jeopardy does not apply here. For more about the Double Jeopardy Clause, see our related discussion on Soto v. Siefker.

Read more Ken Wallentine case reviews here.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.
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