Is Tou Thao More Culpable Than the Other Cops Who Helped Derek Chauvin Kill George Floyd?
The former Minneapolis officer's 57-month sentence is based largely on the premise that he was "in the best position" to save Floyd.
Derek Chauvin's deadly 2020 assault on George Floyd, carried out in broad daylight and in the presence of multiple witnesses who recorded it on their cellphones and later testified at Chauvin's murder trial, was an appalling spectacle that generated bipartisan outrage across the country. That outrage was compounded by the fact that two other Minneapolis police officers, Thomas Lane and J. Alexander Kueng, helped Chauvin pin a handcuffed Floyd face down to the pavement for nine and half minutes, while a third officer, Tou Thao, not only failed to intervene but also actively stopped bystanders, including an off-duty firefighter who was trained as an EMT, from coming to Floyd's aid.
The state sentence that Thao received this week caps three years of legal proceedings that aimed to assign responsibility for Floyd's death. Unsurprisingly, Chauvin, who was the senior officer on the scene and the main assailant, received the most severe prison sentences: more than 22 years in state court for unintentional second-degree murder and 21 years in federal court for willfully violating Floyd's constitutional rights under color of law. But contrary to what you might expect based on his indirect and largely passive role in killing Floyd, Thao's punishment substantially exceeds the penalties that Kueng and Lane received. Although that distinction is open to debate, there are plausible reasons to think it is justified.
"Suffice it to say that I think your culpability is less than Mr. Chauvin but well above Mr. Kueng and Mr. Lane," Hennepin County Judge Peter Cahill told Thao at his sentencing hearing on Monday. "As an experienced senior officer," Cahill emphasized, Thao "was in the best position to save George Floyd."
The 57-month sentence that Cahill imposed on Thao for aiding and abetting second-degree manslaughter, a crime with a "severity level" of 8, is the top end of the range recommended by state guidelines. It is six months longer than the sentence that prosecutors wanted and 16 months longer than the sentence that Thao's lawyer suggested. By comparison, Lane and Kueng, who pleaded guilty to the same state crime, received sentences of 36 months and 42 months, respectively.
All three officers also received federal sentences—30 months for Lane, 36 months for Kueng, and 42 months for Thao—after being convicted at trial of violating the same statute that Chauvin pleaded guilty to violating. The Supreme Court has said such dual prosecutions, based on the same underlying conduct, do not amount to double jeopardy even when the two crimes involve the same elements. The federal charges nevertheless seem duplicative, driven by a desire to send a message rather than considerations of justice. But in this case, they will have little practical impact, since the state and federal sentences will run concurrently and the former are longer.
Thao, for example, will be eligible for parole after serving 38 months, two-thirds of his state sentence. By then, taking into account "good time" credit, he will have completed his federal sentence. According to the Minnesota Attorney General's Office, the Minneapolis Star-Tribune reports, "Thao's state sentence will add an extra 70 days to his incarceration." The Associated Press says "Thao will be returned to federal prison to finish that sentence before he is transferred to a Minnesota state prison to serve out the remaining few months with credit for time served."
Both the state and federal sentences, however, reflect a judgment that Thao's conduct was worse that Lane's or Kueng's, which may seem counterintuitive. Lane received the lightest sentence in both state and federal court, possibly because he twice suggested that Floyd should be rolled from his stomach onto his side, a position in which it would have been easier for him to breathe. (Chauvin rejected that suggestion both times.) But unlike the other two officers, Thao did not directly participate in the assault on Floyd.
During Thao's sentencing hearing, Cahill mentioned one reason why he nevertheless viewed Thao as more culpable: Unlike Lane and Kueng, partners who were both rookies, Thao, who was Chauvin's partner, had been employed by the Minneapolis Police Department (MPD) for eight years. Because of Thao's experience and status, Cahill thought, he was better positioned to stop Chauvin's assault and to insist that Floyd receive CPR after he became unconscious, which happened about five and a half minutes into the prone restraint.
Cahill also noted that Thao, who launched into a 23-minute speech peppered by biblical references during the sentencing hearing, continued to insist that he had done nothing wrong, saying, "I did not commit these crimes." It is not clear whether Thao's insistence on his innocence played a role in the sentence he received, although Cahill thought it was worth mentioning. "After three years of reflection," he said, "I was hoping for a little more remorse, regret, acknowledgment of some responsibility and less preaching."
The 117-page opinion that Cahill issued in May, when he found Thao guilty, includes additional details that illuminate the judge's assessment of Thao's culpability. Thao waived his right to a jury trial and agreed that Cahill's verdict would be based on the evidence presented during Chauvin's state trial, during Thao's federal trial, and in "24 supplemental exhibits submitted by the State."
That evidence, Cahill concluded, "overwhelming[ly] proves that Tou Thao aided and abetted manslaughter in the second degree on May 25, 2020." That charge required showing that Thao "knowingly" aided a "grossly negligent act" that resulted in Floyd's death.
"Thao knew his three fellow officers were on top of Floyd, restraining Floyd in the prone position with knees forcefully and unrelentingly pinning down his neck, his middle back, and his lower back with arms also restraining Floyd's legs and his handcuffed arms (held behind his back while he was in the prone position)," Cahill wrote. "Thao knew that this prone restraint was extremely dangerous because it can cause asphyxia—the inability to breathe—the exact condition Floyd repeatedly told the officers he was suffering. Yet Thao made the conscious decision to aid that dangerous restraint: he actively encouraged the other three officers and assisted their crime by holding back concerned bystanders, declining to render medical aid to Floyd, not instructing any of the other three officers to render medical aid to Floyd, and not permitting any of the bystanders to render medical aid to Floyd, including the off-duty Minneapolis firefighter on the scene trained in CPR."
The active encouragement that Cahill perceived included Thao's early, abandoned suggestion that the officers restrain Floyd with a hobble, which connects the subject's bound feet to his waist or handcuffs. After the other officers "did not answer immediately," Cahill noted, "Thao suggested 'why don't we just hold him until EMS' arrives, adding 'if we hobble a sergeant's going to have to come over.'"
When Thao appealed his federal conviction, he presented his hobble suggestion as evidence that he did not "willfully" violate Floyd's rights. "Thao grabbed the hobble from the squad car and asked if the other officers wanted to use it, but Chauvin declined," the U.S. Court of Appeals for the 8th Circuit said when it rejected Thao's appeal last week. "Thao notes that he suggested using the hobble, which would have put Floyd in the side-recovery position. But Thao made this suggestion within the first minute of Floyd's restraint, so it doesn't account for his failure to intervene for the remaining eight minutes Chauvin had his knee on Floyd's neck."
In the opinion explaining his verdict, Cahill gave a somewhat different account and went further than the 8th Circuit, viewing the rejected hobble as incriminating. "If properly employed, that hobble would have saved Floyd's life," he wrote. "But Thao encouraged the other officers not to use the hobble and instead to 'hold on' and continue the physical restraint by which his three fellow officers were bearing down on Floyd, forcing him into the unyielding concrete of the street, drastically inhibiting his ability to breathe effectively. Thao's stated reason? 'If we hobble him, the sergeant is going to have to come out' to complete paperwork for a 'use of force review' mandated by MPD policy whenever the hobble device was deployed. The short of it: Thao did not want to follow the proper protocol and the work it would entail. George Floyd died as a result."
In his federal trial, Thao gave inconsistent testimony regarding the hobble. He said he worried that the need to remove it would impede medical aid when an ambulance finally arrived (by which time Floyd was already dead). He also claimed, even less plausibly, that EMTs would have had to wait until the sergeant completed the paperwork documenting the use of the hobble. Cahill dismissed both of those self-serving explanations, which he thought beggared belief.
The hobble aside, there was ample evidence that Thao, who was standing just a few feet from the other officers, was aware of what was happening. He conceded that he repeatedly looked in that direction, as body camera video confirmed. He claimed that the knee-on-the-neck restraint used by Chauvin was not "uncommon," because officers had been "trained on it." But he also acknowledged that it was not the same as any of the techniques taught by the MPD.
Thao could hear Floyd as he loudly complained, no fewer than 27 times, that he could not breathe. Thao explicitly dismissed those cries, agreeing with his colleagues that Floyd must have been getting plenty of air because he was still talking.
Thao heard and responded to comments from the horrified bystanders, who repeatedly noted that Floyd was not resisting, warned that his life was in danger, and berated Thao for not intervening. The off-duty firefighter repeatedly urged the officers to check Floyd's pulse and twice moved to help him, only to be ordered back by Thao.
Thao could hear Kueng when he finally checked for a pulse about six minutes after the prone restraint began and said he could not detect one. Kueng checked again, with the same result: "I can't find one." Thao heard that too, but he and the other officers still did not attempt CPR, which might have saved Floyd's life.
Thao described himself as acting like a "human traffic cone" during the incident, implying that he was distracted by the task of keeping the bystanders under control. But the witnesses, while angry, were never aggressive, and they complied with Thao's commands. He did not call for backup, did not enlist the help of a park police officer who was already at the scene, and admitted that nothing the bystanders were doing prevented him from objecting to the continued restraint or performing CPR.
Thao's comments to the witnesses suggest he was blithely indifferent to Floyd's fate. In addition to erroneously insisting that "he's talking, so he's fine," Thao made a joke of Floyd's predicament, saying, "This is why you don't do drugs, kids."
Thao later cited Floyd's drug use as a reason for keeping him pinned, saying he seemed to be experiencing "excited delirium," making his behavior unpredictable. As Cahill noted, excited delirium is a controversial diagnosis that is not recognized by the American Medical Association or the American Psychiatric Association. In any event, Floyd was not displaying the signs that are supposedly characteristic of that condition, and MPD training advises that suspects thought to be experiencing it should be placed in the "side recovery position" as soon as feasible, precisely because of the asphyxia danger to which Floyd succumbed.
Lane evidently took that training to heart. "Should we roll him onto his side?" he asked about four minutes after Chauvin pinned Floyd, citing concern about "excited delirium or whatever." Yet Thao, who avowedly agreed with that diagnosis, said he thought it justified maintaining the prone restraint, even though he conceded that police are not supposed to continue using force against a non-resisting suspect based on the fear that he might start fighting in the future.
Thao flouted his training and MPD policy, which condemns disproportionate force, requires officers to intervene when their colleagues use it, and demands that they render medical aid, especially when a suspect becomes nonresponsive and slips into unconsciousness, which he conceded should be viewed as "a red flag." During his federal trial, he also testified that he knew "keeping someone in the prone position can make it harder for them to breathe," although in this case he stubbornly disregarded that risk.
Cahill's opinion makes a persuasive case that Thao "knowingly" helped Chauvin kill Floyd. Fair-minded people might nevertheless question whether Thao's conduct, outrageous as it was, justified giving him a sentence 15 months longer than the one imposed on Kueng, who was even closer to Floyd and continued helping Chauvin hold him down, without objecting, until after he stopped talking, became unconscious, and had no detectable pulse. But in light of Thao's eight years on the job, he surely should have recognized the abuse he was witnessing, and he should have been more confident than the rookies in doing something about it.
