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By Elie Honig

Dear Reader,

Human behavior can be obnoxious, immoral, cruel, dumb, dangerous, thoughtless, or groteqesue — but not necessarily criminal. This cold reality can be difficult to comprehend or accept, as a lawyer or a human being, but it is a distinct feature of our legal system.

There’s no bright line of demarcation between “terrible” and “criminal” and, fortunately, that line is capable of being moved in either direction. Some conduct that was once seen as not only bad but also criminal — inter-racial marriage, for example — is now regarded almost universally as neither, with only the spare bigot in the dissenting minority. Other conduct that was formerly unpunishable by law — marital rape, for example — has now moved firmly into the “both bad and illegal” category. Similarly, laws that impose criminal liability or extra potential punishment on offenders who commit crimes because of racial, ethnic, or religious hatred are a relatively new development; hate crimes have moved, all too slowly, from “bad but not illegal” to criminal.

These changes happen, in some instances, because of the courts. In the 1967 decision Loving v. Virginia, for example, the U.S. Supreme Court, in one of its finest moments, unanimously and decisively put an end to “miscegenation” laws criminalizing inter-racial marriage. Other changes happen through legislation. The movement to end laws that once permitted a husband to rape his wife without legal consequence has been a slow march, built on incremental state-by-state legislative reform; vestiges of this issue, incredibly, still linger in some states. And hate crime laws are the result of a fairly recent legislative movement, spanning primarily the past few decades.

And sometimes that line of demarcation can move because of actions taken by prosecutors. Sometimes the law itself does not clearly differentiate between conduct that is grotesque and illegal, and it falls to prosecutors to make the call — or, at least, the initial call. Judges and eventually juries will have the final say, but prosecutors make the crucial first move when they decide what charges to file and how to structure those charges.

In that spirit, the new federal criminal charges against Derek Chauvin and three other former Minneapolis police officers — Tou Thao, J. Alexander Kueng, and Thomas Lane — could signal an important movement in the line of demarcation between police conduct that is reprehensible but not necessarily illegal and that which is criminal.

The new federal indictment opens on a fairly conventional note, charging Chauvin alone with violating the civil rights of George Floyd by using “unreasonable force.” This is standard fare for federal civil rights charges, which commonly are based on a police officer’s use of excessive force.

Count Two is where things get more cutting-edge. The indictment charges that two of the officers, Thao and Kueng, violated Floyd’s civil rights because they “willfully failed to intervene to stop Defendant Chauvin’s use of unreasonable force.” And Count Three charges that all four officers criminally deprived Floyd of his civil rights when they “saw George Floyd lying on the ground in clear need of medical care, and willfully failed to aid Floyd, thereby acting with deliberate indifference to a substantial risk of harm to Floyd.”

The Justice Department’s theory of criminal liability differs substantially from the approach taken by state-level prosecutors in Minnesota, who charged Thao, Kueng, and Lane with “aiding and abetting” Chauvin in his criminal conduct. Minnesota prosecutors allege essentially that the three other officers helped Chauvin commit the charged murder and manslaughter offenses — by holding Floyd down on the ground as Chauvin knelt on Floyd’s neck, by keeping the crowd at bay, and through other affirmative acts.  But the federal charges center more on the inaction of the officers; they failed to intervene to stop Chauvin, and they failed to render obviously-needed medical aid, when they allegedly had an affirmative legal duty to step in and take action.

This variation in charging theories is, in part, to be expected. Federal prosecutors, of course, operate under different statutes and rules of procedure than state prosecutors. However, federal law — like Minnesota state law — does criminalize aiding and abetting. So the Justice Department could have essentially mirrored the approach taken by Minnesota prosecutors and charged the other three officers with aiding and abetting Chauvin’s use of excessive force. Instead, DOJ chose to take a less-traveled, and indeed more aggressive, tack by basing its charges on the failure to take necessary action.

In so doing, the Justice Department has taken a bit of a risk — but an important and well-justified one.  The message here is clear: it is not only immoral, or bad policing, for an officer to stand by idly as a colleague chokes the life out of a defenseless human being — it can be criminal. Similarly, it is not merely horrible or inexplicable to fail to render even the most basic medical aid to a person, like Floyd, who so obviously needs it — that, too, can be criminal.

This specific method of charging appears to be unique. While federal criminal charges based on deprivation of civil rights are fairly common, it is rare — and perhaps entirely unprecedented — for a federal indictment to specifically allege criminal liability based on a failure to intervene or failure to render medical aid. My research uncovered no such cases, and the Justice Department’s Public Affairs Office did not respond to my request for examples of any prior civil rights charges specifically premised on failure to intervene or failure to render medical aid.

It remains to be seen whether the Justice Department will succeed with this legal approach. The defendants surely will request that the judge dismiss the charges, likely arguing that the charges do not state a cognizable crime. If prosecutors survive that challenge then, of course, they will have to prove their case to a jury, beyond a reasonable doubt. (Though I still suspect the case may result in guilty pleas, as I explain here; if anything, the new set of federal charges make global plea dispositions even more likely, because the defendants now have even more to lose by pushing their cases to multiple trials.)

It is not yet clear whether the Justice Department ultimately will prevail on its “failure to intervene” and “failure to render medical aid” theories, as applied to this case. But, merely by charging the officers in this manner, DOJ has made an important statement about policing, and the duties of anyone who wears a badge. The outcome remains uncertain — but DOJ has picked a just and worthy fight.

Stay Informed,

Elie

Elie Honig is the author of the forthcoming book, “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” now available for pre-order.