4 ex-cops indicted on federal charges in Floyd's death. Here's what that means

Screenshot from body camera.
Bodycam video from former Minneapolis police officer Tou Thao shows bystanders pleading with officers to get off George Floyd. A federal grand jury has indicted the four former officers involved in Floyd's killing last year on civil rights charges.
Courtesy of Hennepin County District Court

A federal grand jury has indicted the four former Minneapolis police officers involved in George Floyd's killing last year on criminal civil rights charges.

The indictment charges Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao with violating Floyd's civil rights.

Floyd died last May after Chauvin knelt on his neck for more than nine minutes.

The federal indictment says Kueng and Thao willfully failed to intervene to stop Chauvin from using unreasonable force. Lane was heard on body camera footage suggesting they turn over Floyd on his side. But the indictment applies to all four officers — including Lane — stating that Floyd had the right “not to be deprived of liberty without due process of law."

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These federal charges are separate from state charges brought against Chauvin that culminated with a Hennepin County jury convicting him of murder and manslaughter last month.

Chauvin is in custody pending his sentencing in that case. The other three officers are scheduled to go on trial in state court on charges of aiding and abetting murder and manslaughter in August.

Four former Minneapolis police officers charged in George Floyd case.
From left: Derek Chauvin, J. Alexander Kueng,Thomas Lane and Tou Thao.
Hennepin County Sheriff's Office via AP

What are federal civil rights violation charges? 

The federal criminal code contains a provision — Section 242 — that makes it illegal for government officials, including police officers, to deprive another person of the rights granted them under the U.S. Constitution.  

What does the statute say?

The statute covers anyone who “under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 

The criminal code covers circumstances in which the official’s actions cause bodily injury and when they result in death.

What are the possible penalties for violating Section 242? 

The criminal code says that defendants found guilty of causing bodily injury can be imprisoned for one to 10 years. Defendants whose actions result in death can be sentenced to prison for any number of years, up to a life sentence — or even sentenced to death. 

For cases in which the defendant has already been sentenced to imprisonment in a state court, a judge will typically rule that the federal sentence should be served concurrently — at the same time. But judges do have some discretion in sentencing and are not bound by any outcome in state court.

What do federal prosecutors need to prove? 

An analysis by the Congressional Research Service outlined three things that prosecutors need to prove in order to convict an official under this statute: 

  • The defendant acted “under color of” law 

  • The defendant acted “willfully” 

  • The defendant deprived the victim of rights under the Constitution 

Prosecutors aren’t required to prove that a victim’s race was a factor in the defendant’s actions. 

The term “color of law” refers to when a person acts with “actual or apparent federal, state or local government authority” — for instance, if an elected official or government employee is acting in their official capacity.

Supreme Court cases have defined “willfully” as requiring the “government to show that a defendant acted with a ‘specific intent to deprive a person’ of constitutional rights or with ‘open defiance or in reckless disregard of a constitutional requirement,’” according to the congressional analysis. 

The constitutional violations that are covered in the statute are typically outlined in the 14th Amendment or the Bill of Rights.  

What’s the history of the federal government’s ability to prosecute officials for civil rights violations?

While Chauvin was convicted — on counts of second-degree murder, third-degree murder and second-degree manslaughter — in state court for Floyd’s killing, that doesn't mean any charges would be successful in federal court, said Rachel Paulose, a law professor at the University of St. Thomas and a former U.S. attorney for Minnesota. 

“These cases historically have been very hard for the government to win, whether at the state level on assault and murder charges or on the federal level on federal civil rights charges,” Paulose said. “But it does send a message that the federal government is looking at this from the perspective of violation of federal rights as well.”

The provision was part of the Civil Rights Act of 1866. The law was passed after the conclusion of the Civil War to offer equal protection under the law to all citizens, including Black people who had been enslaved. 

“Initially, this grew out of concern over primarily Southern juries refusing to convict Anglo officials of crimes of brutality against primarily African American men,” Paulose said. 

Section 242 has been used to prosecute law enforcement officers who use excessive force, officials who infringe on people’s right to vote and violations of people’s rights to due process in court. 

The law was famously used to prosecute people involved in the killings of three civil rights workers in Mississippi in 1964. Paulose said it became a more commonly used tool after the Los Angeles police officers who beat Rodney King in 1991 were successfully prosecuted under the law. 

“This really has become a standard practice now in many parts of the country, where you'll see state authorities working on a state case against an officer and at the same time, federal authorities look into possible civil rights violations,” Paulose said. 

“What we see here is the federal government routinely overseeing these kinds of prosecutions where there's a concern about local justice not actually being fair to people of color.”

In Minnesota, the federal law has been used a number of times to prosecute law enforcement officers, including the recently successful prosecution of former St. Paul police officer Brett Palkowitsch, who kicked an unarmed Black man on the ground as a police dog bit the man’s leg. 

How are these cases different from charges filed in district court?

While charges in state court are brought by prosecutors, charges in these federal cases are brought by a grand jury. 

The federal grand jury process is completely private, and jurors are banned from talking about it afterward. 

The grand jury’s job is to decide whether there was probable cause that a crime was committed by the defendant, which Paulose said is one of the lowest standards in criminal law. 

When a grand jury decides that a case meets that threshold, and brings charges against a defendant, the case then goes to a trial jury — and it’s the trial jury who will decide on the final verdict. 

The trial jury must decide whether defendants violated a law “beyond a reasonable doubt,” which is the highest standard in American criminal law. 

Unlike in state courts, in which trial juries are composed of people from the county where the alleged crime was committed, juries in federal cases are usually pulled from populations within close proximity to the federal courthouses where the trial will take place. 

How common are federal charges for using excessive force? 

According to data from Syracuse University, federal prosecutors brought these charges an average of 41 times per year over the past two decades. 

The number of prosecutions has fluctuated, depending on which presidential administration was in power, but the average of prosecutions has generally increased in the last dozen years.